Opinion Intent and act
Were the charges against Carbides employees justifiably diluted?
The two-year imprisonment and instant bail to Keshub Mahindra has been showcased as a symbol of what ails the Indian criminal justice system. The trial court judge pronounced the maximum possible sentence on the charges that were pressed but yet there is indignation all over. A dispassionate post-mortem of the verdict may help us determine the boundaries of criminal law.
Article 20 of the Constitution of India provides that no person can be convicted of an offence that was not an offence when the act was committed. Further,the punishment for the offence cannot exceed the punishment that was prescribed in the law in force at the time of commission of the offence. Therefore,any action had to be based on existing statutes; any post facto legislative response that resulted in legal proceedings may not have passed constitutional scrutiny.
In the Bhopal gas leak,the factory was being operated by a company,which has a distinct legal personality in law. Some statutes,like the [Indian Companies Act,1956,hold the officers of a company liable for the defaults of the company. Under the Indian Penal Code,however,offences need to be independently established against the officers and employees of a company. Further,judicial precedent indicates that (unless the requirement of mens rea has been waived in an offence) a company as such is not liable,as a company is not expected to possess a criminal mind. Further,it may not be possible to convict a company of an offence where imprisonment is the only sentence prescribed.
Given this background,the prosecution opted for criminal charges against the directors and employees of the companies in question. The charges were pressed under Section 304(II) (culpable homicide not amounting to murder),Section 326 (voluntarily causing grievous hurt by dangerous weapons or means),Section 324 (voluntarily causing hurt by dangerous weapons or means),and Section 429 (mischief by killing or maiming cattle,etc). These were the charges quashed by the Supreme Court in Keshub Mahindra v State of MP in 1996. Instead the Supreme Court directed the trial court to frame charges under Section 304-A (causing death by negligence),and also suggested Section 336 (act endangering life or personal safety of others),337 (causing hurt by act endangering life or personal safety of others) and 338 (causing grievous hurt by act endangering life or personal safety of others). The maximum sentence that was possible under the new charges was imprisonment for two years and fine.
A significant amount of material was placed before the court to show the negligence of the directors and employees. But,for charges under Sections 304 (II),324,326 and 429 to succeed,mere negligence was not sufficient. In all such provisions,the act must have been done with the intent of the consequence (that is,death,hurt,grievous hurt,loss of property,etc) or the knowledge of the consequence. The directors and employees concerned were running the plant for the company,and criminal intent could not have been imputed merely on that basis. Also,an act of storing a substance in a tank that may have had defective design also did not suffice for imputing knowledge of the likely consequence of such act on the fateful night.
Yet,for the offences to be established under the above provisions,the intent or the knowledge had to be positively established by the prosecution. The same had to be linked with the act of operating the plant on the night of the leak by an unbreakable chain of events,beyond reasonable doubt. It is difficult to contemplate that the directors and employees would have imagined that their negligence would result in a catastrophe of such proportions,and if they knew of the consequence they would have shown the negligence attributed to them. It would have been a miracle if the prosecution had been able to establish that.
The offences under Sections 304A,336,337 and 338 of the IPC criminalise instances where the criminal intent or knowledge is missing. Rashness and negligence are sufficient to establish the offence. This is a departure from the classical position that requires criminal intent or knowledge possibly to satisfy a retributive urge of the society and create deterrence. Justifiably,in the absence of intent,the punishments are lower. In the recent verdict,the charges for lower offence were expectedly successful. Such charges,however,could also have been preferred against the companies.
The delay in the justice delivery is a cause for concern. The sentence may also disappoint many,but any criticism of the sentence ought to be in view of the basic tenet of criminal law,actus non facit reum,nisi mens sit rea (the intent and act must both concur to constitute the crime). Of course,the government and the judicial system cannot escape the blame for inadequate compensation to victims,which could have been achieved under the existing law.
The writer is a Delhi-based insurance lawyer
express@expressindia.com
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