LEGAL ENGLISH FINAL DRAFT

RESEARCH PROJECT TOPIC

FOR BANNING-“IT WAS FIVE PAST MIDNIGHT IN BHOPAL”

SUBMITTED BY: SANKALP SRIVASTAVA

SUBMITTED TO: MR. RAKESH NAMBIAR

ROLL NO.: B024 FY BALLB (DIV B)

TITLE: FIVE PAST MIDNIGHT IN BHOPAL

INTRODUCTION

Bhopal Gas Tragedy is also known as the Bhopal Disaster in which thousands of people lost their
lives. It is considered the world's worst industrial disaster. It occurred on the cold wintry night in
the early hours of 3 December, 1984.

At around midnight, the chemical reaction started in the Union Carbide (India) Limited factory
that culminated in the leakage of deadly Methyl Isocyanate (MIC) gas from one of the tanks of
the factory. As a result, a cloud of gas gradually started descending and enveloping the city in its
lethal folds. And the city and lakes turned into a gas chamber.

How MIC leakage took place?

As per official data, the leakage of the MIC took place from the Plant Number C. For cooling the
plant, methyl isocyanate gas was mixed with water. It led to the generation of volumes of gases
and as a result, put tremendous pressure on tank Number 610. Finally, the pressure of the gas
increases and released tonnes of the poisonous gas and diffused a large number of areas. It is said
that approximately 5 lakhs people were exposed to the leakage of MIC

WHAT HAPPENED AFTER THE LEAKAGE OF THE GAS?

In 1984 approximately Bhopal had a population of about 8.5 lakhs and more than half of the
population on the morning after a leakage at midnight were coughing, complaining about
itchiness in eyes, skin and were facing breathing problems. Some people suffered from
pneumonia, internal haemorrhage, and death. Even, the people living in villages and slums in the
neighbouring areas were affected most.

The situation becomes worst because for several hours the alarm system of the Union Carbide
factory does not work. It was not raised by the factory managers. On 3rd December, morning
thousands of people were running hospitals with several different types of complaints.
At that time, Bhopal does not have many hospitals that can accommodate half of the city
population. People were not able to breathe, were suffering and yes they were in a confusing
state also that what is happening with them and why. Also, doctors were confused, what
happened suddenly that people are facing so many difficulties.

This account of one of the worst public health disasters of the past 20 years makes for
uncomfortable, even scary, reading, but it is simultaneously unputdownable. Journalist
Dominique Lapierre and scriptwriter Javier Moro spent three years in Bhopal in the Indian state
of Madhya Pradesh in the late 1990s, where in 1984 a cloud of toxic gas had escaped from a
pesticide plant owned by US firm Union Carbide, killing and injuring thousands. In an
investigative tour de force, Lapierre and Moro interviewed witnesses and participants from India
and the United States and spliced together the causes and aftereffects of the catastrophic poison
cloud. The result reads like a thriller, albeit one whose terrifying outcome is known from the
outset. Sometimes the story is incredible enough to seem entirely fictional—it seems impossible
that negligence and greed could have such awful results, and that those who knew about the
potential dangers did nothing to prevent them, although they could have done so without much
effort or cost.

Facts defamatory statements used, are indicated in paragraphs 235, 316, 329. 336 and 337 of the
Book, which reads as under:

"at Page 235 - "don't you worry, I could feed the whole city" he informed the police Chief who
had come to make sure that his troops would be adequately fed.

At Page 316 - Yet calls were coming in one after another without interruption in the command
room on the second floor. One of them was from Arjun Singh, Chief Minister of Madhya
pradesh. Rumour had it that he had left his official residence and taken refuge outside the city.
Arjun Singh was calling in by Radio to speak to the Police chief, Swaraj Puri. "you must stop
people leaving", the head of the Government intimated to him. "put barricades across all the
roads leading out of the city and make people go back to their homes. " the Chief Minister, it
seemed, had no idea of the chaos prevailing in Bhopal that night. In any case Puri had a good
argument to put to him. Sir, he answered, - "how can I stop people leaving when my own
policemen have disappeared along with the other fugitives?"

At Page 329 - Out side the situation was worsening. Swaraj puri, the Police Chief who, during
the previous night, had deplored the disappearance of his men, feared violent action. With no
means of opposing it, he decided to resort to a stratagem, he summoned a driver of the only
vehicle left to him with a loud speaker. "drive all over town", he ordered him, "announcing that
there's been another gas leak at Carbide. " the effect of the ruse was miraculous. The rioters who
had been about to overrun the factory made off in disarray. In a matter of minutes the city was
empty. Only the dead remained.

At Page 336 - "ah, the wonders of Indian hospitality! Police chief Swaraj Puri, who on the night
of the tragedy had watched his policemen flee, was at the foot of the plane in the company of the
city's Collector to welcome the visitors with warm handshakes. All that was missing was the
traditional garland of flowers and a pretty hostess to give them a welcoming tilak. Anderson and
his companions took their seats in an official Ambassador brought to the foot of the steps. The
car took off like the wind and left the airport via a service gate to avoid the pack of journalists
waiting in the arrivals hall. The police chief and the collector followed in a second car. " "thank
you for having gone to the trouble of fetching us," anderson said to the uniformed inspector
sitting beside the driver. "it's standard procedure, sir There's considerable tension in the city. It's
our duty to look after your safety. " "the car climbed towards the Shyamla Hills, entered the
grounds of the research center and stopped in front of the company's splendid guest house.
Anderson was astonished to find two squads of policemen assembled on either side of the door to
the establishment. An officer was waiting on the steps. "

at Page 337 - At that moment the Police Chief and the collector arrived. They were accompanied
by a magistrate in his distinctive black robe. The American felt reassured; certainly, there had
been come misunderstanding. They were coming to set them free. In fact, the magistrate had
been summoned to notify the three visitors of the reasons for their arrest. He informed them that
by virtue of Article 92, 120b, 278, 304, 426 and 429 of the Indian Penal Code, they were
defendant of "culpable homicide causing death by negligence, making the atmosphere noxious to
health, negligent conduct with respect to poisonous substances, and mischief in the killing of
livestock. " The first charge was punishable with life-imprisonment, the others carried sentences
of between three and six months. "naturally, all those charges carry the right to bail," intervened
Keshub Mahindra, the president of Carbide's indian subsidiary. "i m afraid, that is, unfortunately,
not the case, "replied the magistrate. "so what about our meeting with Chief Minister Arjun
Singh?" asked the American anxiously. "you will be notified about that as soon as possible, "the
police Chief informed him. "

Statutory provisions

Defamation

Defamation refers to the act of publication of defamatory content that lowers the reputation of an
individual or an entity when observed through the perspective of an ordinary man. If defamation
occurs in spoken words or gestures (or other such transitory form) then it is termed as slander
and the same if in written or printed form is libel. Defamation in India is both a civil and a
criminal offence. In Civil Law, defamation falls under the Law of Torts, which imposes
punishment in the form of damages awarded to the claimant (person filing the claim). Under
Criminal Law, Defamation is bailable, non-congnizable and compoundable offence. Therefore,
the police cannot start investigation of defamation without a warrant from a magistrate (an FIR
cannot be filed). The accused also has a right to seek bail. Further, the charges can be dropped if
the victim and the accused enter into a compromise to that effect (even without the permission of
the court). Defamation as a criminal offence is listed under section 499 of the Indian Penal Code.
The punishment, mentioned under section 500, can j extend upto simple imprisonment for a term
of two years, or with fine, or both.

INJUNCTION

Under India Legal System, the law relating to injunction has been provided in the Specific Relief
Act, 1963. Injunction is categorized in two form i.e. Permanent Injunction and Temporary
Injunction. Section 37 of Specific Relief Act, 1963 provides that "temporary Injunction are such
as are to continue until a specified time, or until the further order of the court, and they may be
granted at any stage of a suit." The procedure for seeking temporary injunction has been
provided under Order XXXIX of the Code of Civil Procedure, 1908. However, an injunction
being discretionary equitable relief cannot be granted when equally efficacious relief is
obtainable in any other usual mode or proceeding.

Temporary Injunction
Temporary injunctions, as the name suggests, are the injunctions that are given for a specific
period of time or until the court gives further order regarding the matter in concern. They can be
obtained during any stage of the trial and are regulated by the Code of Civil Procedure (CPC),
1908[3]:

 Section 94: The section provides for supplemental proceedings, to enable the court
to prevent the ends of justice from being defeated. Section 94(c) states that a court
may grant temporary injunction and in case of disobedience commit the person guilty
thereof to the civil prison and order that his property be attached and sold. Section
94(e) of the Code enables the court to make interlocutory orders as may appear to it to
be just and convenient.

 Section 95: If it is found by the court that there were no sufficient

grounds to grant the injunction, or the plaintiff is defeated in the suit,
the court may award reasonable compensation to the defendant on his
application claiming such compensation.

Order XXXIX:

Rule 1: It enlists the situations when a court may grant temporary injunction. These
are:

 Any property in dispute in a suit is in danger of being wasted, damaged or alienated by

any party to the suit, or wrongfully sold in execution of a decree, or
 the defendant threatens, or intends, to remove or dispose of his property with a view to
defrauding his creditors,
 the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit.
  Rule 2: It provides that an interim injunction may be granted for restraining the
defendant from committing a breach of contract or other injury of any kind to the
plaintiff.

 Rule 3: It states that a court shall direct a notice of application to the opposite party,
before granting the injunction to the plaintiff. However, if it seems to the court that the
purpose of the injunction would be defeated by the delay, it may not provide the
notice.
 Rule 4: It provides for vacation of already granted temporary injunction.

 Rule 5: It states that an injunction directed to a corporation is binding not only on the
corporation itself, but also on all members and officers of the corporation whose personal
action the injunction seeks to restrain.

LEGAL ISSUE INVOLVED

In the book titled “ It was five past midnight in Bhopal” the author have made statements which
are defamatory in nature and lowers the dignity of the plaintiff and presents him before the
society in a manner which would result in lowering his reputation.

ANALYSIS: ARGUMENTS

IT is stated by the plaintiff that the aforesaid statements made in the book are not true, they are
not based on correct facts and they are the imagination of the authors and have been made
deliberately to malign the reputation of the plaintiff accordingly the suit in question was filed
before the learned Court in February 2005. Alongwith the suit an application for temporary
injunction under Order 39 rule 3 was filed.

1. The paragraph at page no. 235 “Don’t you worry……..” is defamatory The incident
which took place had been narrated to the Defendants by Shyam Babu amongst other,
which by no means suggests that the Police Chief / Plaintiff was not performing his
duties or was not worried about the well being of the general public. In this regard, it is
 respectfully submitted that it is the part of the Plaintiff s duties to watch over the interests
of his own Policemen also and caring about them in no way conveys the impression that
he is an unprincipled police officer, as alleged.
2. The information at page no. 316 of the book is absolutely false, incorrect and illusory,
the author in their research have found the role of the police at the time of tragedy
wanting in certain regard which was observed and collected from newspaper, magazine
and other publication on the subject and nowhere has the author contended that he found
any proof or evidence of the role played by the Police in general and the Plaintiff in
particular during that night.
3. At page no. 336 is derogatory in nature, this paragraph shows that Swaraj Puri (plaintiff)
was uncaring and unprincipled and the whole police team displayed unwarranted pride in
welcoming Anderson and it also shows the lack of control of the plaintiff or his
subordinates and that he, has been made the subject of hatred in the eyes and the opinion
of people.
4. It is incorrect to say that it is inconceivable and impossible for a judicial magistrate to
visit an accused instead of the accused being presented in the Court. Under the Indian
Judiciary, Magistrate can and does exercise all or any of the powers with which he is
vested within the justified limit of local area/jurisdiction. It is not un-common for the
Magistrate to have held the remand proceedings at the place other than their Courts which
normally is done in the cases where there is risk of law and order. It is denied that any
dis-repute was caused to the judiciary also, which succumbed to the influence of the main
accused of the gas tragedy as alleged by plaintiff in the said paragraph. It is denied that
any impressions of judiciary of having helped and comforted the accused have been
made.
COUNTER ARGUMENTS

1. Article 19(1)(a) of Indian Constitution says that all citizens have the
right to freedom of speech and expression. Freedom of Speech and
expression means the right to express one's own convictions and
opinions freely by words of mouth, writing, printing, pictures or any
other mode.

Freedom of Speech and Expression is not absolute but restrictions can be imposed on it and of
the grounds of imposing it is defamation the law says that “Just as every person possesses the
freedom of speech and expression, every person also possesses a right to his reputation which is
regarded a property. Hence nobody can so use his freedom of speech or expression as to injure
another’s reputation. Laws penalizing defamation do not, thereof, constitute infringement of the
freedom of speech.” Since the book has some content which are defamatory in nature it can be
banned on the ground of defamation.

2. There is a period of limitation to institute a civil or criminal defamation;

for civil defamation, it is 1 year from the date of the event and for
criminal defamation, it is a period of 3 years from the date of the event.

Civil defamation is governed by the rider under Section 5 of the limitation act which vests final
discretion to condone the period of limitation to the Court.
CONCLUSION

On the basis of the above arguments I can conclude some contents of the book titled “It was five
past midnight in Bhopal” are defamatory in nature because right to freedom of speech and
expression is not absolute, restriction can be imposed on it.