Bhopal Gas Tragedy : How Can Centre Now Seek To Reopen Its Settlement With Union Carbide ? Supreme Court Asks AG

“The settlement was arrived at, at a particular point of time. Can we say that 10 years hence, 20 years hence or 30 years hence, open the settlement on the basis of fresh documents?”

A few minutes into the submissions, the Judge asked the Attorney General for India -

“What is the scope of such a curative petition, especially at this point in time?”

The petition filed in December, 2010 seeks additional compensation of Rs. 7413 crores and re-examination of the Apex Court’s order dated 14.02.1989 where the compensation was fixed at US $ 470 Million (INR 750 crore). The plea also seeks re-examination of the subsequent orders of the Court, which determined the mode of payment and settlement. The Union Government claims that the settlement was based on an incorrect assumption of total number of deaths, injuries, losses and did not factor in the subsequent environmental degradation. As per the curative plea, the earlier figure for deaths was 3,000 and that for injury cases was 70,000. However the actual number of deaths is 5,295 and the injury figure stands at 5,27,894.

In September, 2022, when the matter came up for hearing before the Constitution Bench comprising Justice S.K. Kaul, Justice Sanjiv Khanna, Justice AS Oka, Justice Vikram Nath and Justice JK Maheshwari, it had asked the Solicitor General of India, Mr. Tushar Mehta to seek instructions from Centre regarding its present stand on the curative petition filed by it more than a decade ago. Advocate, Ms. Karuna Nundy, representing a group of victims impleaded subsequently, supported the claim of enhancement raised in the curative petition and sought the Court’s permission to substantiate the enhanced claim. However, the Bench thought it fit to await the response of the Union Government. It is pertinent to note that, even then, Justice Kaul had noted that it has to be considered if the compensation can at all be enhanced upon re-determination at such a belated stage.

Subsequently, in October, 2022, the Attorney General for India, Mr. R. Venkataramani informed the Bench that the Union Government was keen to pursue the curative petition. Accordingly, the Bench permitted the Union Government to represent the claims of persons who have suffered the Bhopal gas leak. So far as the other non-governmental organisations were concerned, the Bench did not grant them liberty to file pleadings, but did not foreclose their right to be heard.

On Tuesday, at the outset, Justice Kaul asked the Attorney General to make submissions bearing in mind that the Centre was before the Apex Court in curative jurisdiction. Senior Advocate, Mr. Harish Salve appearing for the Union Carbide Corporation apprised the Bench that the Union Government has filed new sets of documents. Justice Kaul clarified that, at this stage, no documents other than the ones already on record are to be filed as compilation by the parties. He gently reminded the Union Government not to treat the curative petition as a retrial. The Attorney General indicated that the emerging facts in the matter may be considered by the Bench. Without disputing the settlement, he made submissions on the inadequacy of the compensation and a requirement to amend the same.

“Just have a look at the settlement. Did it bring about a just conclusion?”, the Attorney General submitted.

Justice Kaul was of the opinion that the settlement was not between unequals, as it was between a Corporation and a Government of a country and, hence, there was no scope for oppression.

Another question that the Judge had raised at different junctures in the hearing was with respect to a part of the compensation, i.e., INR 50 crores still lying with the Reserve Bank of India (RBI). On 29th June, 2022, RBI by way of a letter disclosed the availability of INR 50 crores 25 lakhs with respect to the Bhopal gas tragedy.

“One aspect is, is the fund exhausted? During last day's hearing it was pointed out that there are still funds lying which were deposited by Union Carbide that are lying un-disbursed…How are 50 crores lying undisbursed. This means the people are not getting the money. Are you (Union Govt.) responsible for the money not going to the people?”

Justice Kaul also asked the Attorney General to explain why the Union Government had moved a curative petition, though it did not file a review, “Attorney, please address us why and how not having filed a review, a curative is moved?”

Mr. Salve apprised the Bench that the scope of the curative petition has gone beyond the issue raised in the original suit. He categorically pointed out that the issue of relief and rehabilitation and disposal of toxic waste was not a part of the suit. It was indicated that the curative petition is evasive as it does not provide the legal principle on which it is based.

Justice Kaul raised a question for the Attorney General to answer, “Can you add to the settlement one way or the other?”

Justice Nath expressed concern that the occurrence was in 1984, but the settlement was arrived at in 1989 (almost after 5 years), yet the Union Government did not have the correct data regarding the people affected by the gas leak.

Mr. Salve apprised the Bench that as per Union’s affidavit filed in October, 2006, each and every claimant has received the compensation. The Attorney General countered the argument and submitted that the same did not take into account the increase in the number of death and injury recorded subsequently. He added that the issue is beyond pending claims and is also about the quantum of compensation.

Much like his brother judges, Justice Khanna asked the Union Government, “It took 25 years to realise that the compensation fixed earlier was wrong?”

He added -

“Look at the irony. In 1984-85 people would have died, at that time you gave INR 1 - 3 lakhs to the family members. After 25 years you enhance it to 10 lakhs. By that time one generation would have gone. You take 25 years to decide the correct amount.”

Justice Khanna identified that the number of injured have skyrocketed, as the figures for minor injury have gone up astronomically. In this regard, Mr. Salve submitted that the definition of ‘minor injury’ as per an affidavit of the Centre was broad enough and covered 'whoever was present and filed a claim because of the trauma they had to suffer due to the gas leak'.

Considering Mr. Salve’s submission, Justice Kaul noted -

“Nothing is wrong with giving money to everybody for trauma. But can you re-open a settlement in terms of that, that is the question… All the sympathy for all the people who have suffered, cannot ask us to turn into certain adhocism because you (UoI) say that you are wiser today.”

As the Attorney General pressed the enhanced claim for compensation stating the unprecedented nature of the disaster, Justice Kaul reminded him that the Bench was not dealing with a writ, but a curative jurisdiction.

“Now we are in curative. What we say as Apex Court in a matter has a lot of ramification...How I do it in the jurisdiction in which we are now, that is our concern. We should not be stepping into something which is not permissible....and open the Pandora’s box…”, the Judge reckoned.

Justice Khanna enquired if the Government deciding to enhance the quantum of compensation unilaterally would act as a fundamental basis for the change in the settlement. He further stated, “The occurrence is of 1984, compromise is of 1989, almost 5 years down the line. Do we accept that the Govt. and all the organisations were not aware of the minor injury figures?”

The Attorney General responded, “Even today, I had an interaction with the ICMR scientist. All over the world, there are several unanswered questions on medical evaluation of certain categories of ailments and disabilities.”

Justice Kaul expressed doubt whether the matter can be reopened merely because the Union Government has now come across some subsequent developments.

Justice Nath asked the Attorney general if it was not evident from the language of the instrument of settlement that it takes into account the future litigation, leaving nothing open for determination on a later date.

The Attorney General elucidated that there was a process of registration for the person who had suffered the gas leak, which was open till 1996-97. He emphasised that even after settlement the process of registration was kept alive.

Justice Kaul observed, “Attorney, if I may say so, populism cannot be the basis for judicial review…”

Justice Oka pointed out that in the review judgment the Apex Court had said that if there is a shortfall in compensation, then the same ought to be paid by the Government. Thereafter, he raised a question for the Attorney General, “The Govt. was satisfied that they should be paid more money. The curative petition is of 2010, why did you not pay for 11 years?”

As the judges enquired about the quantum of disbursal, the Attorney General submitted, “Between 1992-2004, 1549.33 crores was disbursed. On pro rata basis...an equal amount of 1517.93 crores was paid after 2004.”

After hearing the Attorney General, Justice Kaul was of the view that the Union Government is essentially praying for a retrial of the original suit.

“You are saying let’s try the suit again from where it was despite our having appropriated the amount.”

He stated that if it is so, then as Mr. Salve argued the Union Government can be said to be walking out of the settlement, and therefore the Corporation would also not be bound by the same. The Judge observed, “You cannot have the cake and eat it too”.

The Judges were perturbed that the Union Government sought additional compensation from the Corporation, without assailing the settlement.

The Attorney General argued that at the point in time the settlement was entered into, the Union Government was indeed concerned about providing immediate justice to the victims of the disaster.

The matter will be taken up tomorrow for further hearing, i.e., on 11.01.2023.

[Case Status: UoI And Ors. v. M/s. Union Carbide Corporation And Ors. Curative Petition (C) No. 345-347/2010]