Union Carbide Bhopal Gas Leak Case

Author:Mr Sumeet Kachwaha
Profession:Kachwaha & Partners

Comment on the decision of the Chief Judicial Magistrate, Bhopal dated 7th June, 2010 and the subsequent events:

If the Supreme Court of India can be berated till date for sanctifying a settlement perceived to be inadequate (a settlement brought about by 5 Judges of the Court in 1989), then it is somewhat unrealistic to expect a Judicial Magistrate to go against the tide. To that extent the Judgment of 7th June 2010 holding all the accused persons (right from the plant operator to the Chairman of the company) as uniformly guilty to the maximum extent permissible in law, for causing death by negligence, is but on expected lines.

From a legal point of view, however the Judgment lacks logic or precedent. It takes an unfathomed leap into the realm of criminal liability. It essentially ignores well settled law that there is no concept of vicarious liability in criminal law (except where so expressly provided) and that the prosecution must prove recklessness or negligence on the part of each of the accused related to the accident for an offence under Section 304 A of the Indian Penal Code to be made out. To my mind there should have been a distinction between the Chairman and Managing Director on the one hand and the Vice President in charge of the concerned division on the other. Further individual culpability must have been established. Instead the Magistrate has based the conviction entirely on "deemed knowledge" of the accused of the alleged shortcomings in the plant / its operations. This seems unduly harsh considering the size and operations of Carbide India - (it had 14 factories in the country with a wide variety of products and divisions).

If a Chairman or a Managing Director of a large company can be deemed to be criminally liable for all that may go wrong in the company (without the need to establish recklessness, negligence or a causal link), it would become impossible to find a person of standing or caliber willing to hold such position. Criminal liability cannot be equated with civil liability.

It may not be out of place to dwell a little on the extra legal dimensions of this case. One of the tragedies of the Bhopal Gas leak disaster is the politicization of the case and the failure of the Government to bring the hard issues and facts home to the people of the country. A single pointed hype against the company (an American multinational) did not help and the Government simply succumbed to the media and NGO campaign....

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