From the latest Frontline

For those who wish to understand the significance of the results of the latest assembly elections, Frontline's latest issue will prove to be a useful resource. I was preoccupied with issues, which had no bearing on elections, and they were these three:

1. Review of three books on terrorism and al Qaeda, published prior to the killing of bin Laden.

2. Inconsistencies in Jairam Ramesh's final clearance to Posco.

3.Why the Supreme Court's May 11 judgment dismissing the Bhopal curative petition was deeply flawed?

Readers may reflect on the following after reading my article:

The May 11 judgment suffers from an inherent contradiction. It suggests that the curative petitions seeking the setting aside of the 1996 Keshub Mahindra judgment did not invoke any of the relevant grounds justifying the Court's curative jurisdiction and that the petitioners did not offer sufficient explanation for filing the petitions 14 years after the judgment. If the Court did indeed find inordinate, but inexplicable delay in the filing of the curative petitions, and lack of relevant grounds for invoking its curative jurisdiction, the Court has no explanation why it agreed to hear the petitions, by constituting a Constitution Bench. Obviously, these are easily verifiable facts, and would not have required the Court's valuable time to find them.

Bhopal: Misguided Responses? - III

[Continued from Part II]

2. The 1996 Decision (contd.)

b) Varying Standards

If the Court's appreciation of facts is a matter of concern, its perception of its own role does not offer much relief. Clearly, proceedings under CrPC 227 and 482 do not entail an exhaustive appraisal of evidence. The question is, how deeply must the Court go into the substantive aspects of the case? CrPC 227 requires the court to consider "the record of the case and the documents submitted herewith" and hear either party, and then determine if "sufficient ground" exists for proceeding against the accused. Relying on Niranjan Singh Karam Singh v. Jitendra Bhimraj Bijja ((1990) 3 SCR 633), the Court (at Para 14) held that its role entails examining the material on record to see if the facts emerging therefrom, if taken at face value, disclose the existence of all the ingredients of the alleged offence (emphasis added). Even for this limited purpose the court may evaluate this material, as " . . . it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth . . .." Ultimately the Court did not sift the the evidence on record. However, in Para 20 it once again sought to characterise its mandate, which varied in terms from from what we saw earlier: "[T]he material on record must at least prima facie show that the accused is guilty of culpable homicide".

Thus we may discern within the judgment itself no less than three different resolutions to the question, deriving respectively from (a) CrPC 227 itself: "material (i.e. records and documents) and arguments disclosing sufficient ground"; (b) Niranjan Singh: "Facts prima facie disclosing all ingredients" ; and (c) Para 20 of Keshub Mahindra: "Material prima facie showing guilt". Niranjan Singh differs from the others in that it emphasises facts rather than material. Since at this stage the evidence has not been examined, "facts" must mean alleged facts, i.e. the facts stated in the prosecution's case, not established or substantiated facts. "Material" indicates indicate that which substantiates or establishes the facts. The question is, how does Niranjan Singh envisage the role played by material in S. 227.

The phrase "evaluate the material to find out if the facts emerging therefrom" (p. 642) is significant here. It seems to indicate that the judge must examine if the facts alleged in the prosecution's case do emerge from the material furnished. But would this not entail examining the substantive aspects of the material? Perhaps this can be avoided by contending the judge is required to ascertain only if the material relates prima facie to the facts. It must be mentioned that the judgment's inference itself derives from Union of India v. Prafulla Kumar Samal ((1979) 2 SCR 229). The four-part test proposed therein (at p. 234), which Niranjan Singh reproduces, is even more restrictive in its language. Its first aspect states, "[T]he Judge . . . has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (emphasis added)" This reconciles easily with our conjecture: Prafulla Kumar effectively restricts the judge's perusal of the material to ascertaining if the material relates prima facie to the alleged facts. (Aside: the reasoning in Prafulla Kumar contains some further inferences with which I find myself unable to agree. However, as they play no role in the present matter, we may safely overlook them here.)

Let us now examine Keshub Mahindra in the light of the above. In Para 20, the Court states: "[T]he material on record must at least prima facie show that the accused is guilty of culpable homicide . . .." This begs the question what this concept of prima facie guilt means. For law students trained to construe guilt in terms of proven beyond reasonable doubt, it seems especially difficult to comprehend. Let use then use a classic philosophers' tactic here, and reverse the meanings of the terms involved. There exists a significant logical gap between "guilty" and "innocent". Scots law, for example, gives the option of a "not proven" verdict when the accused's guilt cannot be proved and yet suspicion upon her is too strong to merit an acquittal. Going by this logic, the inverse of "guilty" can only be "not proven" or "guilt not established", within which "innocent", "acquitted" and "not guilty" form specialised subsets. Hence the "material prima facie showing guilt" principle articulated in Para 20 of Keshub Mahindra inverts into "material not prima facie showing (or establishing) guilt".

This device assumes greater significance when we examine the issue of burden of proof. The wording of CrPC 227 expressly requires the judge to hear either side. Which means that the onus rests on neither side fully, but partially on both the prosecution and the defence. The question is, what is the extent to which the defence needs to establish its case? If we go by Keshub Mahindra, the manifest answer lies in the inversion we derived in the previous paragraph: the defence must establish that the material does not prima facie show or establish guilt. But this is difficult to reconcile with what we discussed earlier. Going by our discussion of CrPC 227, the defence has to prove the charges are groundless in the light of the material. Similarly, as per the rule emerging from Niranjan Singh and Prafulla Kumar, the burden on the defence is to establish that the alleged facts of the prosecution's case do not emerge from the material.

Clearly, proving the charges are groundless in the light of the material, or that the alleged facts do not emerge from the material, is much more difficult than establishing the material does not disclose prima facie guilt. It would appear, therefore, in construing CrPC 227 in the manner that it did, the Court in Keshub Mahindra served to relax somewhat the burden of proof on the defence. Given the extremely serious nature of the case (the judgment itself at Para 4 calls it "A grim tragedy of unprecedented nature"), I find myself unable to agree that this expedient was appropriate.

One may well argue that the consequences of all this is negligible - since the judgment based itself not on burden of proof but on what we saw was an incorrect appraisal of facts on record, the Court's lowering the defence's onus probandi amounts to obiter dicta. But obiter dicta means only that it will not be binding on lower courts in the future, something that does not concern us here. What we are trying to understand is how the Court responded to the "unprecedented nature" of the situation. It erred not once but twice - the first time in incorrectly construing the facts, and the second time in lowering the burden of proof when neither statutes nor precedents warranted it. And whatever be the reason behind it, the fact is that both errors tended to favour the accused, the perpetrators of the "grim tragedy". This is what makes Keshub Mahindra verdict both tragic and inexplicable.

The story does not end here, though. As yet we have looked at only one aspect of the issue, that is, the role of the judiciary. It transpires that the prosecution's handling of the case was not beyond reproach either. Both during the proceedings before the Court and subsequent to the verdict, it (the prosecution) had several options before it which it chose not to exercise. We shall examine these in the next part.

Frontline's cover on Bhopal verdict

Frontline has covered the verdict convicting & sentencing the 8 accused in the 1984 Bhopal disaster case comprehensively. Apart from my articles and interview with Himanshu Rajan Sharma, readers may be interested in the rare article by Upendra Baxi, who calls it Fourth Catastrophe. The entire cover story can be downloaded and read here.

Readers may also be interested in reading my article (pages 34-36)on the Central Information Commission's decision to appeal against a Delhi High Court's judgment questioning its powers, and my review of Prof.M.P.Jain's Indian Constitutional Law (6th revised edition)and Mithi Mukherjee's India in the Shadows of Empire.

Bhopal: Misguided Responses? - I

1. Introduction

Most controversies involving the law have shown some broad conformance to certain broad parameters. Take for instance the Binayak Sen issue. Here the stance of civil society was clear, even in strictly legal terms - the law of the land manifestly did not justify Sen's prolonged incarceration. Whereas the state's stance was as legally flimsy as it was morally reprehensible.

The recent Bhopal judgment, however, reveals a startling reversal of this pattern. On the one hand, a dispassionate scrutiny indicates that the trial court did all that it could given its limited options. And on the other hand, the response of civil society is confusing to say the least. Thus far, the grievances articulated include punishments not being stringent enough, Warren Anderson getting away free and easy, in general the Bhopal trial court delivering an unduly lenient verdict. To all this, I have three questions: Are we clear about what we want? Is this the right way of going about it? And lastly, are we sure that the victims will benefit from it?

Take the second question. The key to this lies in distinguishing between answers and solutions. People tend to conflate the two; more significantly, in doing so they locate both in the present. This oversimplifies the matter. Indeed, the solutions, or the means to provide to victims whatever succour is possible, lie in the present. But in order to frame appropriate solutions, we must first seek the answers to questions still unresolved. And to my mind, these solutions lie in the past. Questions about why Anderson has not been extradited need to be balanced with questions how he left the country in the first place. The truth be told, some attention is now being paid to this question. Former Chief Minister of MP Arjun Singh is reportedly under fire for arranging Anderson's departure to Delhi in the official state aircraft. But the bigger question seems to have evaded much attention. How is that that Anderson, who had been arrested at Bhopal and released on bail, was able to fly out of India with impunity? The possibility exists that his departure from Bhopal was due to concerns for his own safety. It is on record that Moti Singh, who was then Collector of Bhopal, told Anderson he was not welcome in Bhopal and that permitting him to visit the affected areas was simply out of the question. But regardless of whether this is actually true or not, the question remains why the immigration officials at Delhi airport were not alerted Anderson might try and jump bail, to put it crudely. Indeed it is this fact more than his departure from Bhopal that smacks of collusion in high places.

A bigger instance concerns the role of the judiciary. After the trial court's judgment came out, both victims and the media were quick to blame the prosecution, investigative agencies, and even the court for failing to adequately punish the accused. But as former Supreme Court Chief Justice A M Ahmadi pointed out, this criticism is misplaced. The court had awarded the accused the maximum sentence for the crimes they had been charged with; it simply did not have the option of imposing punishment of greater magnitude. As is well known, the state had sought to prosecute the accused under S. 304 of the Indian Penal Code, which carries a maximum sentence of ten years for culpable homicide committed without intention but with sufficient knowledge. In Keshub Mahindra v. State of Madhya Pradesh (((1996) 6 SCC 129), the Supreme Court used its powers under Ss. 227 and 482 of the Code of Criminal Procedure 1973, to quash prosecution under S. 304 and other penal provisions. It permitted prosecution under only S. 304A (Causing Death by Negligence), which carries a maximum punishment of only two years' imprisonment with or without fine.

Justice Ahmadi was himself a member of the bench (though the judgment was delivered by Majmudar, J). In the rediff.com article mentioned earlier, he justified the decision. On the other hand, former Solicitor General Altaf Ahmed, who had represented CBI in that case, disagrees with this. He expressed his disappointment with the 1996 judgment, claiming there was "ample material" presented before the Court was ample to justify a charge of homicide. Clearly then, a deeper analysis of the judgment becomes essential at this point.

[Continued in Part II]