The Central Bureau of Investigation on Wednesday justified in the Supreme Court the filing of a curative petition in the Bhopal gas tragedy case, seeking enhancement of the punishment awarded to the accused on the ground that they had the knowledge that the plant was defective.
Making this assertion before a Constitution Bench of Chief Justice of India S.H. Kapadia and Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Altaf Alam, Attorney-General G.E. Vahanvati maintained that the Union Carbide India Limited (UCIL) was entirely responsible for the world's worst industrial disaster, which happened on the night of December 23, 1984, as it was running the pesticide plant with “structural and operational” defects and flouting all other safety norms.
“The UCIL was sitting on a powder keg and as such the disaster was waiting to happen,” Mr. Vahanvati said.
“Once this knowledge was attributed to the respondent/accused persons, the fact that no action was taken to set right and cure the defects in the plant would by itself attract the provisions contemplated under Section 299 r/w 304 Part II of the IPC (culpable homicide not amounting to murder).”
The plant had never maintained the desired pressure and temperature of the hazardous nitrogen tanks, while the rubber gaskets were defective.
In fact, the plant had been “limping” since 1981 due to the “illegal omissions and commissions” on the part of the management, which resulted in a “dismal state of affairs.” The accident was the cumulative result of a series of criminal violations by the factory, not due to negligence as ruled by the Supreme Court in 1996, Mr. Vahanvati said.
He said the Supreme Court had in 1996 erred in quashing these charges at the threshold against the well settled law laid down by the court itself that Section 482 of the Cr.PC could not be exercised in a situation where the prosecution had prima facie material to show the complicity of the accused in the offences alleged to have been committed. To maintain an inherently dangerous substance like methyl isocyanate in an inherently dangerous manner and mechanism and deliberately not taking the required care for prevention of an accident from an inherently dangerous and fatal substance fulfilled all the ingredients of a prima facie case of culpable homicide not amounting to murder punishable under Section 304 Part II of the IPC, he said.
To a question from Justice Alam on the delay in filing the curative petition, Mr. Vahanvati said: “The finding of the trial court on June 7, 2010, and the resulting public concern and outcry having regard to the enormity of the tragedy led to reconsideration of all issues pertaining to the Bhopal gas tragedy and its aftermath, and the issues resulted in the filing of the curative petition.”
He argued: “Justice is never denied on the grounds of delay.” He, however,virtually acknowledged that the “public outcry” over the two-year sentence was one of the reasons for seeking a review.
Senior counsel Harish Salve, Ram Jethmalani and others opposed the curative petition contending that it was not maintainable when the CBI itself had moved the sessions court against the trial court's verdict and when the appeals filed by the convicts were pending.
Mr. Salve, appearing for the then UCIL chairman, Keshub Mahindra, who has been sentenced to two-year imprisonment, suggested that the Bench could clarify that the sessions court in Bhopal would deal with the matter. If the Bench clarified this without being influenced by the merits of the 1996 Supreme Court judgment, the sessions court could address whether IPC Section 304 A (negligence) or 304 (II) was applicable.
One of the counsel objected to Mr. Salve entering into some sort of arrangement with the Attorney-General and said all counsel should be heard before the court passed any order. When Mr. Vahanvati clarified that there was no such arrangement, the CJI said the court would hear all counsel and pass an order.
Arguments will continue on April 19.