Something About The Law

The text of an article I wrote for the Indian Express of June 25. You can access it in its original here.

The group of ministers’ recommendation to submit a curative petition in the Union Carbide case is an attempt to force a political question down the throat of the Supreme Court, expecting it to yield a legal solution. If the recommendation is accepted, the government will ask the SC to “reconsider” its decision in the 1996 case, which diluted the liability of the accused from culpable homicide to criminal negligence. The move may galvanise favourable public opinion, but petitioning the court to lighten Bhopal’s political baggage is unlikely to succeed.

What will the curative petition entail? Will the SC simply revisit its decision, look at the manifest injustice meted out to victims, weigh both, and decide to enhance culpability? Not quite.

The concept of a curative petition was introduced by the court as recently as 2002, in Rupa Ashok Hurra vs Ashok Hurra & Anr. When a decision of the SC resulted in the miscarriage of justice, the person who was thus aggrieved could challenge the judgment before the court again. Behind this idea was a noble, explicit admission of the SC’s own fallibility. Erroneous decisions based on incomplete facts, or in the face of apparent bias, could be rectified by the court through its inherent power to do “complete justice”.

In order to prevent litigants from using curative petitions as a tool to seek a “second review” of decisions, the SC maintains a very high standard for admission. Only in exceptional cases will such a petition be entertained — when there is a violation of the principles of natural justice, or lack of adequate notice to affected parties, or apprehension of bias. The court, by its own order of 2005, adheres to these criteria strictly and treats curative petitions as a “rarity”. In the absence of these deficiencies, the court is not expected to reconsider its verdict.

In fact, only one curative petition filed before the SC has ever succeeded — when a person convicted for murder was not even made party to the case. Even the inviolable right to life failed before a curative petition, as Afzal Guru found out.

The government will push for a reconsideration of the decision in Keshub Mahindra vs State of Madhya Pradesh on the same set of facts. This is problematic, since there is no match between the political question the government wants to answer, and the legal solution that the court has to offer. The verdict delivered by Justices A.M. Ahmadi and S. Majumdar in 1996 revolved primarily around the fact that there was no knowledge or intention on the part of the accused to cause death of human beings. While the accused could not be held liable for culpable homicide, their wilful refusal to act upon known defects meant they were criminally negligent.

Controversial as the decision was, it was based solely on an interpretation of the law.

Does the government have a ground-breaking revelation, a smoking gun, to show the court? Whatever facts had to be considered were already taken on board by the SC, including the report of the Varadarajan Committee. There is nothing new to suggest that the disaster was planned or premeditated. In essence, the curative petition is analogous to double jeopardy, where the offender gets prosecuted for the same offence twice.

Even if one were to discount the facts, is there an error so apparent as to make the SC reconsider its application of the law? To impose criminal liability, the law says, intention is paramount. Penal provisions are meant to be interpreted strictly, and all the SC did was to go by the book.

Moreover, one cannot dismiss the proposed curative petition as a political gimmick and let it be, for it could have far-reaching and disastrous consequences. The way Justice Ahmadi has been heckled by the media, and ironically, by the Union law minister himself, sets a regrettable trend towards unhealthy criticism of the court. Now, as the government prepares to pass the buck, it could expose the SC to scathing attack if the petition were to be rejected — even if such rejection is perfectly in line with the law. The Supreme Court of India must not be expected to work miracles.

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Tags: Bhopal Gas Tragedy, curative petition, Union Carbide