Bhopal gas tragedy: Union government’s curative petition dismissed

After having heard the parties on merits, the court's five-judge bench noted that the Union government has failed to utilise settlement funds that are still pending with the Reserve Bank of India, and even if the figures of victims turned out to be more than what was evaluated, the pending funds are sufficient to address contingent claims. Leaders of survivor organisations have jointly condemned the decision of the court, terming it a "judicial assault on the rights of victim survivors".

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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 dismissed the Union government's curative petition for payment of additional compensation to the victims of the 1989 Bhopal Gas tragedy from the American chemical corporation Union Carbide Corporation (UCC), now owned by American multinational corporation Dow Inc., and chemical company Union Carbide India Limited.

The bench, which had reserved its judgment on January 12, said that the settlement could only be vitiated on the ground of fraud, which the Union government did not plead. Thus, it rejected the government's plea to seek additional compensation and stated that the revision of the compromise under Article 142 of the Constitution is not an appropriate course of action or method to impose greater liability on UCC.

It also said that the expeditious adjudication of claims is necessary, especially in the context of tort claims involved in the instant case.

The curative petition was filed in 2010 against the 1989 settlement of US $470 million ordered by the Supreme Court. The curative petition sought an additional compensation of INR 7,844 crore over the amount already paid.

The court remarked that it is dissatisfied with the Union government's failure to offer any rationale of taking up the issue after a delay of two decades. However, the bench has ordered the Union government to utilise the sum of INR 50 crore lying with the Reserve Bank of India (RBI) to satisfy pending claims of the gas tragedy's victims, if any, in accordance with the Bhopal Gas Leak Disaster (Proceedings of Claims)Act, 1985.

The judgment read by Justice Kaul stated: "It is the Union's own stand that the Commissioner had adjudicated all claims to the procedure established by law…further, it has been admitted in the proceedings in the court's order dated 19.7.2004 that the amount of settlement was found to be in surplus of the actual requirement…the court provided compensation that was more than what was reasonably awarded to them under the law. This reinforces the position that the settlement amount was sufficient to compensate the claimants.

It further stated: "The responsibility was placed on the Union of India, being a welfare State, to make good the deficiency and to take out the relevant insurance policies. Surprisingly, we are informed that no insurance policy was taken out. This is gross negligence on the part of the Union of India and in breach of the directions made in the review judgment [of 1991]."

The Justice Kaul-led bench said that the Union government cannot be negligent on this aspect and then seek a prayer from the court to fix the responsibility on UCC.

On the aspect of reopening the settlement, the court observed that either the settlement is valid, or it is to be set aside on the grounds of fraud. During the hearings, advocate Karuna Nundy, representing one of the victim organisations, had pleaded that fraud was committed by misrepresenting the figures of death and injuries.

The bench said: "No such fraud has been pleaded by the Union of India. There only contention relates to number of victims, injuries and costs that were not contemplated at the time when the settlement was effected."

The bench said that even if the figures of affected persons turned out to be larger than what was contemplated, an excess amount of funds remain to satisfy such claims.

Moreover, the court came heavily on the Union government for not being able to prevent environmental degradation at the site of the tragedy. The court said: "It was known that the medical facilities would have to be extended to rehabilitate people and there was bound to be environmental degradation. In fact, it is the UCC's allegation that Union and State Governments did not proactively detoxify or decommission the site, thereby aggravating the problem."

A brief recap of arguments 

Initially, it was not clear whether the Union government wanted to pursue the petition but during a preliminary hearing in October last year. Then the Attorney General of India R Venkataramani clarified that the government is keen to pursue it.

The organisations representing the victims were not pleaded as parties in the curative petition and in furtherance of that, the court did not allow the parties to intervene. But the court did not foreclose the rights of the parties to be heard at the discretion of the court.

The leaders of five organisations representing survivors – the Bhopal Gas Peedit Mahila Stationery Karmchari Sangh, the Bhopal Gas Peedit Mahila Purush Sangharsh Morcha, the Bhopal Gas Peedit Nirashrit Pensionbhogi Sangarsh Morcha, the Bhopal Group for Information & Action, and the Children Against Dow-Carbide — expressed satisfaction at the Union government's commitment to pursue the petition.

The hearing began on January 10 this year, and the bench, at the outset, remarked that it was reluctant to hear the curative petition as it was filed 19 years after the settlement reached finality.

The bench had even warned that there are many "slippery slopes" if the settlement is reopened.

It had also questioned whether the curative petition would at all lie when a review petition had not been filed.

The Attorney General told the court that immediate closure was needed considering the enormity of the disaster. But the settlement did provide leeway for future claims, he had told the court.

He tried convincing the court that the case was 'exceptional' in nature and available literature around the globe clearly considers the Bhopal gas tragedy as one of the biggest gas disasters of all time.

The respondents, led by senior advocate Harish Salve, had taken a clear position that UCC is not willing to pay a "farthing" more than what was decided in the settlement suit, as it was 'full and final'.

During the proceedings, the respondents highlighted how the Union government has not disbursed an amount of INR 50 crore lying with the RBI.

The Attorney General had claimed that these funds were inadequate. But the court questioned him, "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?"

It was also brought up that the 1991 Supreme Court review judgment had directed the Union government to institute an appropriate medical insurance policy to deal with future claims. The Attorney General did not have an answer as to why this wasn't done by the government. According to the court, the settlement was left open-ended on the aspect of the contingent class of future claims that would have been settled through the insurance policies.

The Attorney General's core argument hinted towards a new jurisprudence that would allow the court to revise the settlement without reopening it.

He relied on the judgment of a five-judge Constitution bench of the court in Rupa Ashok Hurra versus Ashok Hurra & Anr. (2002) and argued that the grounds for a curative petition as laid down in the judgment are not exhaustive of any appealing reason which may persuade the court to do complete justice under Article 142.

The Supreme Court in Rupa Ashok Hurra held that the curative petition must be treated as a rarity and should only be considered in cases where the order contravenes the doctrine of natural justice or is without the jurisdiction, or there is a likelihood of public confidence being shaken by reason of association or closeness of a judge with the subject matter in dispute.

Despite these arguments, the bench requested the Attorney General to take a conscious call on whether the Union government wanted to proceed with the curative petition and warned that the court will not try the matter as a suit.

Responses of survivor organisations 

Leaders of five victim organisations have jointly condemned the Supreme Court's decision, calling it a "judicial assault on the constitutional and legal rights of the Bhopal survivors".

Rashida Bee, President of the Bhopal Gas Peedit Mahila Stationary Karmchari Sangh, allegedly remarked that the victims were denied their rights because of the "pro-corporate bias" of the Supreme Court bench.

Bee said: "The counsel for Union Carbide that continues to abscond from charges of culpable homicide was given ample time to speak by the bench, while the counsel for the survivors' organisations was only heard for 45 minutes. Apparently, the bench believes in a 'fugitive entitlement doctrine'."

Balkrishna Namdeo, President of the Bhopal Gas Peedit Nirashrit Pensionbhogee Sangharsh Morcha, said that the court dismissed the case for additional compensation due to their insistence that the case must attain finality as per the wishes of the corporate counsel.

Namdeo questioned: "How can you impose finality when the corporation's crimes continue to victimise people? When gas affected people continue to die untimely deaths from cancers and other exposure-induced chronic diseases?"

"When the criminal remains absconding, and the suffering of its victims, including that of their progeny, continues, how can a Supreme Court bench draw the curtain over the injustice in Bhopal?" Namdeo asked. 

Rachna Dhingra of the Bhopal Group for Information & Action, allegedly claimed that the court deliberately ignored the arguments and facts presented by the survivors' organisations. 

Dhingra said that the victim organisations presented the official figures of injury and death which were analysed by an international expert on epidemiology. The figures provided that the 1989 settlement perpetrated a gross miscarriage of justice.

"The bench said that only an argument of fraud could reopen that settlement, while entirely ignoring our counsel's detailed submissions on the fraud committed by Union Carbide to procure the settlement of 1989," Dhingra stated.

Nawad Khan, President of the Bhopal Gas Peedit Mahila Purush Sangharsh Morcha, stated that the organisations refuse to accept the injustice delivered by the court today. 

Khan said that the organisations fought and won against the injustice of the 1989 settlement and they will resume the fight again. 

"We will fight in the court and we will fight on the streets till justice is done in the world's worst corporate massacre," he asserted.

Nousheen Khan of Children Against Dow Carbide said that today's decision exposed the perversity of the Supreme Court bench. He claimed that even though the bench took the government to task for ignoring the health impact on the next generation, it failed to hold the corporation accountable for the crime against the unborn.