Curative petition filed, but where is the cure to the Bhopal gas tragedy?

It remains to be seen whether the Supreme Court will honour the pledge made to the victims on May 4, 1989, in some measure, undoing the damage that was done by the acceptance of settlement signed behind their back.

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What is the judicial history behind the grant of victims' compensation in the Bhopal gas tragedy?

TODAY, a curative petition filed by the Union of India versus the Union Carbide Corporation ('UCC'), an American Chemical Corporation now owned by Dow Chemical Company, an American multinational chemical corporation, pertaining to the Bhopal Gas Disaster, came up for hearing before the Supreme Court. Curative Petition (Civil) No. 345-347 of 2010 was filed against the judgment dated October 03, 1991 in Review Petition No. 229 of 1989, etc., filed by the Bhopal Gas Peedith Mahila Udyodg Sanghathan ('BGPMUS') and by others against the Bhopal Settlement orders passed by the Supreme Court on February 14/15, 1989 in Civil Appeals Nos. 3187-3188 of 1988.

The disaster occurred on December 2-3, 1984 and the victims have been agitating for compensation and medical treatment since then. The case wound itself through several courts, both in the U.S.A. and in India. In 1985, Judge J.F. Keenan of a district court in New York held on the basis of the doctrine of forum non conveniens that the forum to hear the cases for compensation was India and not the U.S.A., although UCC was headquartered in the U.S.A. and all the evidence of standards of safety to be maintained at the gas plant in Bhopal was available in the U.S.A. at the UCC plant. Eminent lawyer, the late jurist and economist Nani Palkhiwala had filed an affidavit in the U.S. court to the effect that India had the necessary legal infrastructure to hear the case and hence the case should be heard in India.

It was only after this that the claims came to be heard in Indian courts. One wonders whether his analysis was at all correct, having regard to the fact that 38 years later, the Supreme Court today heard a curative petition asking for the reopening of the settlement between the Union of India and UCC.

Also read: Why the survivors of Bhopal gas disaster continue to agitate for justice even after 37 years

It was jurist and senior advocate Fali S. Nariman who represented UCC at that time in the Supreme Court of India on a special leave petition filed by the Union of India against the interim order of the High Court, upholding the order of the district court granting interim compensation to the victims. The district court had ordered 350 crore rupees to be disbursed to the victims, which on appeal was upheld, but the amount was reduced to 250 crore rupees. This was challenged by the Union of India and the UCC.

It is worth recalling that since then, Nariman has regretted taking up the brief. However, neither UCC nor Dow acknowledge the criminal negligence that led to the death and destruction caused on that account and continue to oppose the reposing of the settlement tooth and nail. It is also worth recalling that the interim order was truly unique in that the district judge and the high court had both relied on the fact that it was now a matter of routine in the United Kingdom in suits for damages for personal injury to grant interim damages, and the interim order had a sound legal basis.

In the Supreme Court, without notice to the victims, the Union of India, represented by the then Attorney General for India K. Parasaran, entered into a settlement dated February 14-15, 1989 with UCC. The parties agreed that all criminal proceedings would be dropped and a sum of USD 470 million dollars would be given to all victims in a "full and final" settlement of all dues The brief written settlement was accepted by a Supreme Court bench headed by then Chief Justice R.S. Pathak, who later become a judge of the International Court of Justice.

The victims were so outraged that they approached the court to reopen the case on multiple grounds, including primarily that they were not heard and that the number of victims was not quantified.

Meanwhile, a petition filed by the late journalist Rajkumar Keswani (the only journalist who had warned a few months earlier, in a series of three articles, that there was a disaster waiting to happen at UCC Bhopal due to neglect of the plant) challenging the validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was pending at the Supreme Court and was yet to be decided when the settlement was authorised. The challenge was to the power of the Union of India to supplant the victims and give to it the authority to litigate on their behalf .It was by virtue of this authority that the settlement was signed by the then Attorney General on behalf of the victims. They were never heard and the order of the court was delivered without consulting the victims. The victims learnt through the press that all their claims were "settled".

Also read: Rajkumar Keswani's warning about a gas tragedy in Bhopal fell on deaf ears

On March 6, 1989, the BGPMS filed a review petition on the ground that they were not heard, and on March 9, 1989, the Bhopal Gas Peedit Sangharsh Sahyog Samiti filed a writ petition challenging the settlement. The Union of India then filed written submissions on August 30, 19990 and November 20, 1990 supporting the review petition, through then Attorney General for India, the late jurist Soli J. Sorabjee, who was then the Attorney General for India. In an ex post facto justification, a Constitution bench of five judges, on May 4, 1989 held that it was informed that the figure of USD 470 million dollars was for 1,02,000 injured and 3,000 dead persons.(these figures of injured and dead came on record for the first time). It further held that in the event that it was established that the figures exceeded this, the claims could be reopened.

"If, owing to the pre-settlement procedures being limited to the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this Court to undo any such injustice. But that, we reiterate, must be by procedures recognised by law. Those who trust this Court will not have cause for despair."

Obviously, the challenge to the validity of the Act authorising the right to represent the victims should have been heard before the settlement was signed. Hence the settlement was kept in abeyance while the validity of the Act was decided. On December 22, 1989, a Constitution bench of the Supreme Court held that the Act was valid, subject to the condition that victims were heard and interim relief was given to the victims by the Union Government of India (The court further held that the victims should have been heard before the settlement was entered into).

What is the basis of the instant curative petition before the Supreme Court?

It is this observation which is the basis of the instant curative petitions in which the Union Government argues that the number to victims far exceeds the number anticipated in the settlement, and hence, there is a case for reopening the settlement and direct UCC or its successor-in-interest, Dow Chemicals, to increase the amount of settlement commensurate with the additional number of victims found to be injured or dead.

In a separate judgement dated October 3, 1991, the court held that the parties had no right to agree to quash of the criminal proceedings and hence, they were restored. It is a matter of great concern that criminal proceedings are pending before the Sessions court in Bhopal, while American businessman Warren Anderson, the Chairman of UCC, was allowed to escape to the U.S. He has since died, and the criminal proceedings against him have abated.

Meanwhile, from 1992 to 2004, the actual claims of the victims running into one million in number were adjudicated, and a final figure of 5,73,000-odd victims were recognised as having suffered various degrees of injury/death. The number of victims was considerably higher compared to the number on which the settlement was based. Obviously, there was a case for re-opening of the settlement based on the Supreme Court order of May 4, 1989.

On December 22, 2010, two curative petitions were filed, one seeking a reopening of the settlement of 1989 on the ground that the actual number of victims far exceeded the estimated number; the other sought to change the prosecution from being under Section 304A (causing death by negligence) of the Indian Penal Code to Section 304(ii) (punishment for culpable homicide not amounting to murder). The latter was rejected.

What survives to be decided is the curative petition to enhance the compensation on the fact that the number found to be injured and dead is 5,73,000+, which is far more than the estimated number on which the settlement was based .

The Union of India, represented by Attorney General R. Venkatramani, has informed the court that it intends to pursue the curative petition and demand a reopening to enhance the compensation on the ground that the number of victims exceeds the estimated number. Impleadment applications have been filed by the victims' organisations. It is these petitions which came up for hearing today.

Even if the court does reopen the settlement, the litigation is not likely to end there.

It remains to be seen whether the Supreme Court will honour the pledge made to the victims on May 4, 1989, in some measure, undoing the damage that was done by the acceptance of settlement signed behind their back. In 2010, the Union of India estimated the additional compensation amount to be around 7,800+ crore rupees.

Also read: Bhopal: A Toxic Tragedy Continues

What are the other outstanding issues with regard to the compensation settlement?

Even if the court does reopen the settlement, the litigation is not likely to end there. There is a special leave petition filed by the victims still pending in the Supreme Court, in which they argue that the government has underestimated the injury caused to them. Those who have suffered major injury have been categorised as having suffered minor injury, and the number of dead is far larger than those who are acknowledged as dead. If the victims succeed in their contention, the settlement will require yet another reassessment.

Medical records which were directed by the Supreme Court to be computerised have not yet been computerised. As a result, the true picture of injured and dead is not before the court. Contempt proceedings have been initiated before the Madhya Pradesh High Court, which are still pending. Meanwhile, the victims question the categorisation of the nature of the injury suffered by them, as recorded in the order of the claims court. The end of the tragedy, which took place on December 2 and 3 in 1984, is nowhere in sight.

(Disclaimer: The author had appeared in court on behalf of the victims in 1989 and thereafter.)