A NEW PLAY "LAW" SET FOR BHOPAL GAS LEAK VICTIMS AS AUDIENCE

Contrary to the claim made by former Union Carbide counsel Fali Nariman, the government’s move to hold a retrial in the Bhopal gas case, on the higher charge of manslaughter punishable with a 10-year term, will not violate the right to double jeopardy protection.

For, Section 300 of the Criminal Procedure Code (CrPC) — ironically, the very provision cited by Nariman in his media interviews — bars anybody from being tried again on the same facts “while such conviction or acquittal remains in force”. The ultimate objective of the curative petition due to be filed by the government before the Supreme Court is to set aside the June 7 trial court verdict, sentencing the Bhopal accused to two years on the mild charge of death caused by a rash or negligent act.
The conviction by the trial court will automatically cease to be in force once the Supreme Court allows the curative petition challenging the 1996 decision of the bench headed by the then Chief Justice of India A MAhmadi. For, the trial court verdict was determined by the 14-year-old apex court verdict, which had rather controversially reduced the liability of Bhopal gas accused from the charge of culpable homicide not amounting to murder (manslaughter) under Section 304 Part II of the Indian Penal Code (IPC) to that of death caused by a rash or negligent act under Section 304A IPC.

Since the 1996 verdict left little scope for the trial court to convict the Bhopal accused for manslaughter, the group of ministers headed by P Chidambaram rightlyconcluded that a regular appeal against the June 7 judgment before the Madhya Pradesh high court would not suffice. The Cabinet agreed with the GOM’s recommendation that the penalty for the world’s largest industrial disaster cannot go beyond the two years imposed by the June 7 verdict without first removing the shackles placed by the 1996 Supreme Court judgment.

If the curative petition works, it will override the 1996 Supreme Court verdict and that in turn will result in, as a natural corollary, the setting aside of the June 7 convictions under the lesser offence of rash or negligent death. So, when a fresh trial is held in such an eventuality on the more serious charge of manslaughter, it will in no way violate the double jeopardy rule recognized around the world.

Nariman’s attack on the government’s attempt to reprosecute Keshub Mahindra and other Bhopal accused has raised eyebrows not only because of its misleading logic about double jeopardy but also because of its sheer impropriety. For, Nariman himself had contributed to the 1996 judgment, in his capacity as counsel for Union Carbide India Limited’s managing director V P Gokhale.

The 1996 verdict quotes Nariman and other counsel arguing that there was no question of the accused having done any act “with the knowledge that they were likely by such act to cause death”. This was the basis on which the Ahmadi bench had then rejected the CBI’s allegation that the Bhopal gas accused knew about the faulty design of the plant and the deficiencies in its operation.