By IANS,
New Delhi : Supreme Court Monday reserved its order on a curative petition by the Central Bureau of Investigation (CBI) seeking enhancement of charges against industrialist Kushab Mahindra and six others in the Bhopal gas tragedy case.
A constitution bench of Chief Justice S.H. Kapadia, Justice Altamas Kabir, Justice R.V. Raveendran, Justice B. Sudershan Reddy and Justice Aftab Alam was told that through a legislation, the government took away the rights of the victims and then those rights were abused by it when it entered into a settlement of $470 million that was just a pittance compared to its original claim of $3.3 billion.
Senior counsel Ram Jethmalani told the court that the curative petition was a colourable exercise as central government itself had arrived at the settlement of $470 million with the Union Carbide, letting off the hook the US firm of its civil and criminal liabilities.
“How did you arrive at the at this settlement? How did you arrive at this figure of $470 million giving up the claim of $3.3 billion,” Jethmalani asked, mocking the government contention that the curative petition should be allowed as a 1996 judgment charging Mahindra and six others under 304 A was oppressive to the judicial conscience of the court.
Section 304 A deals with causing death due to negligence and provides for a maximum punishment of two years.
The apex court was told this in the course of the hearing of the curative petition by the CBI challenging the 1996 judgment of the court by which its had struck down the Bhopal court’s order to frame charges against Mahindra and six others under Section 390 II for the offence of culpable homicide not amounting to murder that attracted the maximum imprisonment of 10 years.
The apex court had directed the trial under Section 304 A.
Opposing the curative petition, Jethmalani said that 1996 judgment had attained the finality and there was an element of constitutionality in that finality and “even apex court can not revisit that judgment unless there was a reasonable bias, breach of the rule of natural justice and total lack of jurisdiction (in the impugned judgment)”.
Jethmalani was apperaing for noted legal academician Upendra Baxi.
The senior counsel told the court, it should keep alive the rights of the victims to claim compensation from the Central and the Madhya Pradesh government.
He said that “victims were not interested as to who goes to jail and for how long but what they will get as compensation”.
He said that if the curative petition was allowed then entire trial would take place de novo and the main hurdle it would encounter is the death of main witness K.K. Parikh.
He told the court that most of the accused were very old.
Rebutting the contention by Jethmalani, the Attorney General G. Vahanvati told the court that for the judicial conscience to be shocked what was needed not just the law but the values to back it.
Referring to an earlier judgment of the constitution bench, Vahanvati said that the court could revisit its own judgment in “rarest of rare cases” and “not doing so will be oppressive to judicial conscience”.
He told the court that it was under the constitutional mandate to do justice and it can always discharge its constitutional duty by taking recourse to inherent powers under the constitution.
He said that the test of judicial conscience is that if there was a miscarriage of justice, something you can’t live with, it has to be corrected.