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

A Constitution Bench of the Supreme Court, on Tuesday, commenced with the hearing of Centre’s curative petition filed in 2010 seeking additional compensation for Bhopal gas tragedy victims from US-based corporation, Union Carbide (now owned by Dow Chemicals). During the course of the hearing the Court raised queries regarding the scope of the curative petition that was filed almost 19 years after the judgment was pronounced in the matter. The Judges of the Apex Court were concerned if the settlement arrived between the delinquent Corporation and the Government of India can be reopened on the basis of fresh documents, that too, after such an inordinate delay. Justice Kaul opened the hearing with a query in this regard -“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...

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

Sohini Chowdhury

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