14876 - COMMENTARY june 19, 2010 vol xlv no 25 EPW Economic...

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Unformatted text preview: COMMENTARY june 19, 2010 vol xlv no 25 EPW Economic & Political Weekly 10 Bhopal Gas Leak Case: Lost before the Trial Sriram Panchu Sriram Panchu ( [email protected] ) is a senior advocate at the Madras High Court. The chronicle of Bhopal in the courts is of a case doomed to failure. In step after step from that fateful night of 2 December 1984 onwards, the government, legal luminaries and, even on occasion, the Supreme Court of India failed the victims of Bhopal, and one could even say failed the test of justice. Bhopal is also the collective failure of all of us – the central and state governments, the Bar, the Bench, commentators, media, and the public. If half the furore on display now had been there earlier, it is likely that corrective steps would have been taken to rectify matters. The implications of the Bhopal process for liability in case of a nuclear accident are obvious. T he verdict in the State of Madhya Pradesh vs Warren Anderson and Others (the Bhopal Gas Leak Criminal Case) was delivered by the Chief J udicial Magistrate Mohan P Tiwari on 7 June 2010. The magistrate convicted eight persons including the then chairman of Union Carbide India Ltd ( UCIL ) and other senior officers for offences under Section 304A of the Indian Penal Code ( IPC ) and imposed the maximum penalty of two years. The criminal case arose out of the leakage of m ethyl isocyanate gas on the night of 2 December 1984 from UCIL ’s factory. The poisonous gas caused the death of several thousands of people and maimed and in- flicted many more with serious disorders. Predictably there is outrage over the dis- proportion between the gravity of the o ffence and the punishment. To understand how the world’s worst industrial disaster has taken 26 years to yield a minuscule penalty one needs to r evisit key landmark events. This begins with the Union of India ( UOI ) taking over the class action suit by exercising the doc- trine of parens patriae . The corollary was that those directly affected could not seek legal redress on their own. The government was perhaps motivated by the spectre of US tort lawyers descending on B hopal and thought it necessary to a ssume all power to conduct litigation on behalf of its citizens. As events would show, this power was not matched with responsibility or results. Dealing with Tort American tort lawyers are notorious for their contingency fees by which they r etain a sizeable portion of the settlements in favour of their clients. They are, by the same token, the most aggressive breed of the legal profession and commonly secure verdicts for huge sums of money. They are experts in conducting cases on tortious damage, which involve discovery of mountain loads of documents, preparing testimony and conducting bruising cross examinations....
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14876 - COMMENTARY june 19, 2010 vol xlv no 25 EPW Economic...

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