Court nod to CBI seek Anderson's extradition

A Delhi court on Wednesday allowed the Central Bureau of Investigation to seek extradition of Union Carbide Corporation chairman Warren Anderson, an accused in the 1984 Bhopal Gas Tragedy case, from the United States.

"Considering the entire facts in its holistic perspective and sentiments of the disaster-hit people, I deem it appropriate and in the interest of justice that he be extradited," chief metropolitan magistrate Vinod Yadav said.

"There is no bar in law in seeking extradition of Anderson from the US authorities. Request of the CBI is allowed," he said. Anderson has never faced trial in connection with the world's worst industrial disaster over 26 years ago and was declared a proclaimed offender by the court of Bhopal chief judicial magistrate in 1992 after he jumped bail, which he had secured on December 7, 1984 following his arrest.

Yadav, in his order, noted, "The chronology of steps taken by the CBI from 1992 until July 2010 in the case reveals that the CBI was not sleeping over the matter and was conscious about its duties to bring Anderson to book."

Though, the court allowed the CBI's plea, it wanted to know from the investigating agency as to why it had not taken recourse under the extradition act after an extradition treaty between the US and India came into existence on September 14, 1999.

"We cannot open the case as per the whims and fancies of the CBI," the CMM said during the course of the proceedings. While pressing for Anderson's extradition, the CBI said that there was enough material implicating the then UCC Chairman in the case.  

"The chief judicial magistrate, Bhopal had passed a detailed order in June 2010 which is conclusive material implicating Anderson in the matter," the agency said.

It also argued that there was no delay on its part in approaching the US authorities for Anderson's extradition.

The CBI emphasised that the management of the UCC was well aware about the defects in the plant at Bhopal but did not take any remedial action. "As the management was well aware of the defects in the plant, the culpability of Anderson, being its chairman, cannot be denied," the CBI prosecutor said.

The CBI had on Tuesday moved the court for Anderson's extradition, saying that it would be a travesty of justice if he is not put to trial for his alleged role in the 1984 Bhopal gas leakage tragedy. The agency's plea came in the wake of attorney general Goolam E Vahanvati's submission in the Supreme Court last month that if needed, the government may initiate fresh steps to seek his extradition.

Later, the attorney general gave an opinion to the CBI to approach the competent court and seek permission for the extradition. "He is criminally liable to stand trial in India. It would be a travesty and miscarriage of justice if he is not brought before the court of law in India to face trial," said the CBI in its 33-page application for obtaining a Letter Rogatory from the court to the US authorities for the extradition.

"Anderson is liable to be prosecuted on extradition to India for offence under section 304 IPC (culpable homicide not amounting to murder) and/or for the offences punishable with lesser punishment on the facts aforesaid," said the CBI.  "The offence is quite similar to the offence of man slaughter recognised as murder of second degree under the US law," it added.

It said, "On December 2 and 3 nights, 1984, thousands had died and over five lakh persons were injured or permanently disabled. In addition, several thousand animals were also killed. "Anderson, in the capacity of being the UCC chairman, was aware of better safety technology and standards available in the UCC Plant in West Virginia, USA and yet he did not ensure safety measures of same standard at Union Carbide India Limited, Bhopal," the CBI said.

 India had approached the US for Anderson's extradition in 2003, but Washington had rejected the plea in 2004 saying that the provisions of the bilateral extradition treaty between them did not allow his extradition.

The issue of Anderson's extradition had cropped up again after a Bhopal court on June 7 last year convicted UCIL Chairman Keshub Mahindra and six other employees posted at the multinational's plant at Bhopal and awarded them two year's jail term each.

The lighter punishment for the offence, which had left over 15,000 people dead and maimed tens of thousands others, evoked widespread outrage, prompting the government to form a ministerial panel to go into the issue.

As per the ministerial panel's recommendations, the government had decided to seek fresh trial of all the seven surviving accused of the Bhopal gas tragedy on the stringent charge of culpable homicide not amounting to murder, which entails a jail term up to 10 years.

The government, in an extraordinary step, moved the Supreme Court with a curative petition to seek review of its September 13, 1996 judgement, which had ordered trial of the accused on the milder charge of causing death due to rash and negligent act, which entails a maximum jail term of two years.

The apex court had set aside the lower court's order to put Mahindra and others on trial on the stringent charges of culpable homicide not amounting to murder which was upheld by the Madhya Pradesh High Court. The CBI emphasised that it was seeking Anderson's extradition to prosecute him under the stringent provision of section 304 of the IPC (causing death by negligence).

Pointing out that Anderson's trial was separated from those of the others accused in the case, the CBI said, "Since Anderson did not appear before the court, the cognisance taken against him under section 304/326, 324 and 429 read with 35 of the IPC still stands."

It added that the apex court's September 13, 1996 order for the trial of the accused on milder charges of 304 A (causing death due to rash and negligent act) "does not come in the way of" Anderson's prosecution under stringent charges.

Referring to the extradition treaty of September 14, 1999 between the US and India, the investigating agency asserted that the US is bound by the mutual reciprocity principle of the treaty and is obliged to extradite him.

"As per the provision contained in the extradition treaty dated September 14, 1999 between the US and India, reciprocity has been granted for the extraditable offence punishable for a period of more than one year or by a more severe penalty.

"The offence under section 304, 326 IPC, which entails more than one year imprisonment, are covered under the provision of dual criminality as these offences are punishable in India as well as in the US," the CBI said.

Detailing its earlier bids to secure Anderson's presence here in India to face trial, the CBI said that the Bhopal court had issued summons against him first on December 1, 1987 after filing of the chargesheet in this case.

As the CBI approached US National Centre Bureau, Washington for service of the summons to Anderson, it was told that the same could be served only through Letters Rogatory. Accordingly, the CBI got a fresh summon issued against him on July 16, 1988 which was sent for service and a report was received from the Embassy of India, Washington saying that the summons have been served to Anderson.

For Anderson's extradition, the CBI is also relying on the prosecution's evidence, proven before the trial court earlier, that the UCC management knew about the Bhopal plant's structural defect, but ignored it in order to cut cost on the maintenance of its tanks storing highly toxic material.

During the protracted trial, the witness had said the maintenance staff had brought to the management's notice the leaking pipes needing urgent replacement. But, they were told to minimise repair costs by welding the damaged pipes rather than replacing them.