This article analyses the way in which the Legislature, Executive and Judiciary interfaced in the years following the disaster. The introduction contained in Part I may be revisited in order to understand the line of thought in this Part II.

September 13, 1996: Supreme Court reduces the charge, to death by negligence

In Keshub Mahindra vs. State of Madhya Pradesh (1996 ACC 292), the Supreme Court was examining whether a charge of Section 304 (Part II) of the Indian Penal Code, could be sustained in view of the material presented before it by the prosecution. In order for the stricter charge of 304 (Part II) to sustain, the material presented before a court by the prosecution must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. Translated to the situation of the gas leak, the material must indicate that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant itself was likely to cause deaths of human beings. The important question for the judge to decide in sustaining the criminal charge of Section 304(Part II) is whether the accused had actual knowledge that the act itself i.e. the running of the plant would cause death. A natural response would be to argue that if the accused knew that the defective plant was running with a highly volatile substance in it, then they should be guilty of culpable homicide because they knew that running the defective plant could result in a gas leak which could permeate in the atmosphere around the factory in an amount that may cause death or severe injuries.

The way Section 304 (Part II) had been dealt with by courts prior to 1996 did not cover such a situation because the stress was on the word itself. Hypothetically, therefore, if the accused had committed the act of leaking the gas in the air which caused death, he would be guilty of this charge because he committed an act, which by itself, was likely to cause death. The Supreme Court, therefore, lowered the charge to Section 304A (Causing death by negligence). I am aware many legal minds may not agree with this distinction, but this is what the Supreme Court determined based on the material furnished by the prosecution. 

The function of the judge is to be impartial and pronounce judgment based on the material submitted to it by respective sides and interpreting the law as it stands. In the words of the Mahatma - A wise judge will not give the wrong decision in the face of a hard case. He will allow himself to appear to have hardened his heart, because he knows that truest mercy lies in not making a bad law. If at all there was any incompetence in this “dilution” of charges, it is the prosecution that could not do its homework well enough for the material to support a stricter Section 304 (Part II) charge knowing the limited powers of the Supreme Court in reviewing criminal charges.

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