Bhopal Legal Blog
By Shalini Sharma, a PhD Candidate at SOAS, who is currently on fieldwork in India studying the media experience and strategies of the Bhopal Movement. These blogs are academic property of Shalini and permission should be sought if you wish to reference it or quote it. You can contact her at shalini@soas.ac.uk or shalini.soas@gmail.com.
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May 11, 2011
Bhopal: The Supreme Court verdict on Criminal Curative Petition took everyone in Bhopal by surprise both in its timing as well as in its import. Most people were expecting the order to come in July after the Supreme Court's vacations. That is when the civil curative petition hearing is also scheduled for.
What exactly happened? Supreme Court by its order today,
- dismissed the curative petition
- upheld the 1996 order
- issued a clarification stating that the 1996 order in no way bar a lower court Magistrate to frame a higher charge.
This is essentially what Mr. Salve, lawyer of the accused, argued for.
While, having seen the proceedings it was but natural for representatives of survivors to hope that curative petition will be heard since Chief Justice himself called the case an unusual one and the other judges on the bench expressed angst at CBI's delay in filing a curative. To now find the same Constitutional bench giving a unanimous order in favour of dismissal of the curative is both shocking and disappointing. The court dismissed the curative citing statutatory limitations and chiding CBI for delay in filing a curative. Bhopal activists are seen asking, “why should Bhopalis suffer because of errors committed by CBI?” Supreme Court in today's verdict upheld the 1996 order while simultaneously issuing a clarification that 1996 order is in no way a bar to a lower court. However, by dismissing a curative Apex Court closed its doors on the survivors who sought a final remedy through a curative.
Thus surprise soon changed to disappointment followed by disgust and finally anger. Because, people are realising that not only were they not given a chance to present their case but also the entire exercise of curative appears to be a face saving effort for the government. Even if the curative had not been filed the matter would have followed the same course. That is to say, it would have been heard by the Sessions Court where the State and CBI had filed revision petitions prior to curative petition in the Supreme Court. So, curative did not cure anything even though everyone agreed including the bench that this was a rarest of rare case, where gross miscarriage of justice took place.
What happened in the Court during the April hearings? Essentially Lawyer of the accused, Mr. Salve asked the court to dismiss the curative saying that a curative filed by CBI/State 15 years after the 1996 order is non maintainable and entertaining a curative will be a violating the rights of the accused. Mr. Ghulam Vahanvati, Attorney General speaking for the CBI/State asked the court to upheld the curative and reinstate the original charges to 304 (II) i.e culpable homicide. In the 5 day long hearing Mr. Salve alone spoke for two full days, Mr. Vahanvati spoke for 1.5 days, Jethmalani spoke for half a day and other lawyers of other accused who basically followed Mr. Salve's line of argument in favour of dismissal of curative. Victims got chance to speak only twice, and not extending more than 30 minutes in total. On the first occasion Senior Advocate Uday Lalit essentially asked the court to not tie victims hands by specifying any charges and sought a clarification on 1996 order along with setting the order aside. On the second occasion victims lawyers had to almost argue their case in not more than 10 minutes where they urged the court to ensure certainty of delivery of justice if the matter is heard in the lower court through a curative by ensuring day to day hearings. Now it goes to a lower court but it is not through a curative and there is no certainty how long this entire process will take place before a final order is passed.
Meanwhile, victims have suffered prejudice twice. First when the curative filed by them was dismissed without a hearing in 1997 after the 1996 order and secondly now when a curative by CBI is held non maintainable on the grounds it comes 15 years too late. Victims feel in both these instances it is they who have suffered- first for mistake committed by court and secondly by mistake committed by CBI. Also, since a curative can only be admitted once per order now all options of another curative by victims seem to be exhausted.
On the other hand, accused walk away with a two year imprisonment without in effect having stayed in prison even for a day. And now they can fight in the lower court for dismissing all charges.
The Central Government that was forced to file a curative after the massive public outrage against 7th June 2010 verdict can now shift all blame on the Supreme Court for denying justice to the survivors. Supreme Court is in turn blaming CBI for not having filed a curative earlier. The fact remains Victims of MIC are now victims of government lapses, procedural errors committed by CBI and a Judiciary that goes back on its own judgment where it stated, in the Case of Zahira Sheih, that where even the prosecution fails to give justice to the victims it is the Apex Court's
duty to ensure justice to them.
What happens now?
People are angry, community meetings are being organised since noon for consultation and announcements are being made in the city about organising protest in the evening. Soon after the verdict, the five organisations connect to ICJB organised a press conference to share their response and to clarify their stance. They called the day as a black day in the history of Bhopal gas victims, a repeat of 1989 settlement where a judgment was imposed on the victims without giving them a fair hearing and yet another example to show that victims whenever represented by State fail to get justice. They stressed that the fight for justice does not end here, rather it only begins afresh. Bhopal is not alone in this fight against a pro-corporate state. They are confident that people from across the country will join them in their struggle.
A torch rally will be organised in the evening today in Bhopal by the survivor organisations to express their outrage and resolve to fight for justice till the end. “Yet another Black Day for us. We haven't learned from our mistakes. We believed we will be heard and given justice by the Supreme Court which had announced the out of court settlement in 1989 and again quashed charges against the accused in 1996. But others must learn and note that people's power is the only way we can get justice now in a country which is ruled by the roost”, said Rachna as she turned to making placards for the evening torch rally.
April 27, 2011
Today was a busy day inside the court. The discussion in last few days revolved around the scope of a curative, its ground and whether by admitting a curative the Apex court will commit a breach of law in anyway. While the prosecution had argued essentially in favour of admitting a curative making a case of palpable and irremediable injustice, the defendants have called for ‘No Charges’ and dismissal of curative as it is non maintainable . However yesterday the court argued with the defendant stating Bhopal case as unusual in which an unusual order was passed in unusual circumstances. This is where Siddharth Luthra, counsel for Kishore Kamdar, J. Mukund and S.P. Choudhary , picked up his argument from. He argued that the reason and circumstances in which the decision to file a curative has been taken seem to be politically motivated. He argued that,
