Bhopal gas tragedy: Supreme Court reluctant to re-open settlement

In today's hearing, a new jurisprudence may have emerged from the arguments of the Attorney General for India on the possibility of claiming additional compensation without reopening a settlement based on a civil suit.

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TODAY, the constitution bench of the Supreme Court comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K Maheshwari heard the Union Government's curative petition on additional compensation to the victims of the 1989 Bhopal Gas tragedy from the Union Carbide Corporation ('UCC'), now owned by Dow Chemicals, and Union Carbide India Limited.

The curative petition, in Union of India & Ors. versus Union Carbide Corporation & Ors. (2010), was filed in 2010 against the 1989 settlement of 470 million dollars. The petition seeks additional compensation of Rs. 7,844 crore rupees over the amount already paid. The initial stand of the Union Government was not clear on whether it wanted to pursue the matter. However, in the previous hearing, the Attorney General for India ('AGI'), R Venkataramani, expressed his willingness to pursue the matter.

What is the scope of the curative petition, questions Supreme Court

At the outset, the bench, led by Justice Kaul, was reluctant to hear the curative petition as it was filed 19 years after the settlement between the Union Government and the UCC. While the AGI was of the view that the settlement needed some 'immediate closure' so that some relief is granted and it does provide leeway for any future claims, Justice Khanna critically opined that it cannot be unilaterally changed because "somebody feels that it can be enhanced".

The bench flagged two preliminary concerns before the AGI: whether a curative petition would at all lie when a review petition has not been filed, and what is the scope of the curative petition. The respondent, led by senior advocate Harish Salve, told the court that the matter is not "extraordinary", and UCC is not willing to pay a "farthing" more than what was decided on the settlement decree in a suit. Moreover, he said that the court cannot interfere in the settlement, as it had not even done so in 1991.

The AGI told the court that the case is of an 'exceptional' nature and the stand of the respondent to pay or not is not a "final word". The available literature around the globe on gas tragedies has a necessary mention of the Bhopal gas incident, he pointed out. But the bench remarked that several curative petitions are filed every year but "hardly anything comes out of it".

Salve mentioned that the review petition does not say anything to set aside the settlement. He said, "I cannot be directed by a court in a five-judge bench, hearing a curative petition, to say pay more. My liability has never been established…this is not a case where as and when the data comes, please feel free to add to my liability." He mentioned that in the review petition, it was argued that the settlement is bad in law because there is no reopener clause. But the court had said that the settlement cannot be bad just because there is no reopener clause. He said this case cannot be taken up like a 'public forum' debate where the data from non-governmental organisations is taken up to show that more people died than what the Union Government estimated.

Additional compensation can be granted without reopening the settlement, the Attorney General claims

The respondent was of the view that the settlement was 'full and final' and it cannot be reopened just because new facts and figures have surfaced. On this aspect, the AGI told the court that they are not trying to open the settlement, but only asking for additional compensation. The court asked the AGI to explain whether an addition to the compensation could take place without opening the settlement. The bench was of the opinion that there are many 'slippery slopes' if the settlement is opened, as it would lead to more complications.

Justice Kaul put up an alternative hypothetical scenario, where some newly arisen facts show that the incident was not as horrific as it was claimed, and the respondents want to claim back the excessive amount. "Can that be permitted?," he asked the AGI.

The AGI again emphasised, "We are not asking for the settlement to be annulled." But the court countered the AGI's submission and said that the settlement is between two parties and the court cannot interfere in terms of how it is reached. Justice Kaul said, "…one of the parties is the Union of India and it's not a weak party for someone to say there is oppression…"

The court further said, "…this may not be the best of the settlement. People should have got more for it. But the question is, can we reopen it?" The AGI submitted that there are situations where the courts have amended and added to the settlement. However, the court did not agree to this.

The bench told the AGI that this is not an issue of the property where someone can claim that they got more or less. It is a tortious claim settled by both parties. "Having settled, is it open for one of the parties…to say they could have settled for more?" The AGI said that there are some unexplored dimensions of law in this case. Salve pointed out, "AGI must give us something in writing on the unexplored dimensions of law involved here."

Can data not on record be taken into consideration?

On the aspect of new estimated data, Salve cited the previous order of the Supreme Court and said that the documents submitted by non-governmental organisations are not on record. It is only the joint compilation of the UCC and the Union Government that is on record. He made this argument in reference to the intervenors, the survivors' organisations that claimed a revision of the figures of death and injuries suffered by the victims.

It must be noted that the survivors' organisations were assured by the Union Government and the Government of Madhya Pradesh that their data would also be a part of the Union's submissions.

The court asked the Union Government, "Can we look into what is not a part of the record." Salve replied that this court has already stated that there is no liberty to file anything beyond the curative petition. But the AGI told the court that the interveners were originally the petitioners in many of the proceedings.

During the hearing in October last year, the Union Government relied on the Supreme Court's judgment in Charan Lal Sahu versus Union of India & Ors. (1989), in which the validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was upheld, and submitted that the exclusive right to claim damages only rests with the Union Government. The court considered this and did not grant the liberty to the interveners to file pleadings. But it allowed certain documents to be placed on record with the assistance of the AGI. In furtherance of this, the AGI told the court that he has received two documents, which also include the documents placed by the interveners. He told the court that these documents by the interveners were part of the record even before the court started hearing the curative petition.

Nevertheless, the AGI urged the court to allow the documents to be placed on record, regardless of any objections, if these documents throw light on the substance of the matter. Further, the AGI pointed out that when a specific record is not placed before the court, it is a violation of the principle of natural justice as it would not amount to a fair hearing. Justice Kaul questioned, "According to you, the Government did not get a fair hearing? Or the Government did not know how to give a fair hearing to others?"

The bench did not allow the AGI to place the documents on record before the grounds of the curative petition are clearly stated.

Funds not disbursed 

Salve told the court that the Reserve Bank of India has filed an affidavit stating that an amount of 50 crore rupees is yet to be disbursed. At this juncture, the court asked, "Have you disbursed all the amount that has been deposited?" The AGI answered affirmatively. But the court opined, "There are many hurdles in your way." Pointing to the settlement fund, Justice Kaul remarked, "My recollective of the last hearing says that it was pointed out that there are still funds lying, deposited by Union Carbide, which are not disbursed…They say it's 50 crores. You [AGI] will be able to answer better." The AGI stated that those settlement funds are inadequate, as the Union Government has claimed in the curative petition. He also indicated that the figures for death and injuries are much beyond the claims that were made in the settlement. But the court asked, "How come the amount is still lying? …that means people are not getting the money. Are you responsible for the money not going to the people?" 

"We have sympathy for the people who died, but please do not turn this into ad-hocism", the bench remarked. The AGI, maintaining his stance, told the court that just because 26 years have passed, the respondent cannot be relieved of their wrongdoing.

The hearing will continue tomorrow.