‘The only thing the government has done correctly — it should have been done 14 or 15 years before — is to increase the compensation, if they genuinely believe that the victims have not got their amount.'
Fali S. Nariman, 81, is one of India's most illustrious lawyers and constitutional jurists and a former nominated Member of the Rajya Sabha. His recently published autobiography, When Memory Fades (Hay House, 2010) is a fascinating read in which he devotes one chapter to the Bhopal gas leak case in which, as senior counsel, he represented Union Carbide Corporation. In an interview with Karan Thapar on CNN-IBN's Devil's Advocate, Mr. Nariman re-looks at the issues from a reflective distance and offers his insights and impressions of what may be in store. Edited excerpts from the interview:
Mr. Nariman, after 25 years and after all that's been revealed and has emerged, do you regret accepting the Union Carbide brief?
Well, let me put it this way, If I had to live my life all over again, as a lawyer, and the brief came to me and I had foreknowledge of everything that later came in, I would certainly not have accepted the civil liability case which I did.
So, in other words, with hindsight, you would have said no?
Yes, only with hindsight.
Looking back at that time in 1985, when you accepted the brief, did you see this largely or simply as a legal case rather than as a national tragedy and, in that sense, was that the mistake you made?
Yes, I think so. Because I thought this was one more case which would add a feather to my cap. I mean one is always ambitious at that age. But I found later – but then it's too late, one can't walk out of the case one has already taken up – that it was not a case, it was a tragedy. And in a tragedy, who is right, who is wrong etc., all becomes marred in great deal of justifiable emotion.
There is something very interesting embedded in the beginning of your answer – one can't walk out of a case once taken. But that does suggest that whilst you were the lawyer, you were beginning to have regrets about accepting the brief?
This is why I was very happy when, at the court's suggestion, the compromise ultimately took place: of civil liability between $500 million-odd, which the government was suggesting ultimately, and $350 million, which the Union Carbide suggested. And then I left it to the court and the court fixed $470 million.
I think the court had this problem before it. This was only an interim order. You remember, this was an interim order directing us to pay compensation, from which we came to the Supreme Court, Union Carbide came to the Supreme Court.
Let me raise this issue with you. This whole matter, after 1989, went into appeal, the appeal judgment came out in 1991 and, at that time in the appeal judgment, the Supreme Court said that it was unlikely that the settlement would be found to be inadequate. The Supreme Court has been proven to be hugely wrong. But that apart, the Supreme Court then said that in the event it was inadequate, those who fall ill thereafter would be the responsibility of the Government of India, totally letting Union Carbide off the hook. Was that fitting and fair and proper?
Because it's a settlement. There is no question of fitting and fair because if it had been a regular hearing, which [means that] after looking at all the documents and taking the evidence they had found that there was liability, then it would not be fair. But if it was without admitting liability that this sum was paid up, then the question was, and this was again argued in the second round, who should be liable. And the court said unanimously it is the government only which would have to foot the bill.
You are saying two very important things to me: that perhaps the victims, and the need for adequate compensation, would have been better served if a settlement hadn't been reached but a proper case for liability had been fought.
That was the dilemma. If that had been fought, it would have taken more years.
But it would have got a better outcome?
But the victims wouldn't have been helped because, in the meanwhile, what?
Unreformed tort law
So there was a trade-off between the time a court case would take and the fact that the settlement might not be as good as a court outcome but it would be quicker and faster. Is that right?
Let me tell you one thing. In tort cases, the law has been, right through, that unless liability is ascertained and fixed, there can be no interim compensation. In England, they altered that by statute long, long ago.
We haven't done it in India.
We haven't done it as yet.
As a result of which we wanted an interim settlement, we wanted a quick settlement and as a result of which the liability was never established in a court case. Let me put the second critical question to you. Would you today, maybe with the benefit of the hindsight, accept that at the end of it all, the settlement was inadequate and therefore unjust?
No, no I don't think so.
But surely it was inadequate? Surely, you accept that?
I am not sure. I have no means to say that it is inadequate. I think the fault perhaps is not only the quantum of the settlement, if you put it like that, but the delay in its distribution.
The delay in its distribution is explained in the manner in which the procedure and the law works in India but the quantum of settlement has turned out to be derisory not just for those who died but also for those who were crippled and disabled for life as well as those who were marginally injured. You surely must accept that the quantum is inadequate.
The inadequacy arises because there was a very large sum of money which was sought to be distributed amongst people living in certain areas not by reason of what they suffered but by their living in those areas. This was the problem.
As a result of which too many people qualified?
Too many people qualified.
Plight of hardcore victims
So the amount given shrank miserably?
Whereas the hardcore really suffered. So if you ask me, the answer would be yes, qua the hardcore victims.
What you are saying is qua the hardcore victims, the settlement was inadequate?
And therefore, qua the hardcore victims, the settlement was also unjust?
You accept both?
Government will not succeed
Let's turn now to the steps the Government of India is trying to take today in 2010, in a sense to remedy the situation. First of all, they want to reopen the settlement with the hope of increasing the compensation. Do you think that's likely to succeed?
No, I don't think so.
Because a settlement is a settlement and unless there is some fraud involved, it's never reopened.
Even though, for the very hardcore, the settlement has turned out to be inadequate and unjust. Even then the settlement can't be reopened?
Yes, because the court had, in fact, stated that even assuming it was wrong with regard to the quantum, it would be the responsibility of the government to make up that extra amount.
But the same judgment that you cite, of May 1989, also ends by saying that the court would not leave people in despair. Doesn't that hold out a small hope that if the government goes back and proves that there are people in despair because the settlement was inadequate, it must be re-opened?
I don't think so. That's not my reading of the judgment. My reading of the judgment is that since there are, maybe, more victims or the compensation may not be sufficient, it would be the government's duty because it is the government which took over all the victims' claims by that special Act.
So if compensation has to be enhanced today, it is for the government to enhance out of its own coffers. You don't believe the Supreme Court of India will reopen the settlement and increase the compensation paid by Union Carbide?
Yes, I believe so.
So that settlement of 1989 is full and final, full stop?
Criminal cases and Section 300 CrPC
The second thing the government is trying to do is to prosecute Keshub Mahindra and six or seven others under 304 (2). Do you believe that is likely to succeed or do you see it as an essential breach of the Code of Criminal Procedure?
I don't know very much about that criminal case, or judgment. I have just seen a copy of the judgment. I haven't examined the 10,000 pages of events because I was not in that trial court in Bhopal.
But Section 300 of the Code of Criminal Procedure says that a person cannot be tried for the same offence, with the same facts, twice. Would re-opening the case, even under 304(2) rather than 304(A), amount to a breach of Section 300?
Yes, because 300 not only says another offence, it says for another offence, based on the same facts, involving a higher degree of punishment. So that for the same set of facts, you cannot have another offence and convict them, either on appeal or otherwise, and then say that they are liable to a higher degree of punishment.
Just to be absolutely clear, what you're saying is the attempt of the government to re-prosecute Keshub Mahindra and others under 304(2) is going to be a breach of Section 300.
Yes, of course it is. And therefore my contention is whether Justice [A.M.] Ahmadi was right in dropping that charge under Section 304(2) or not is an irrelevant consideration at this stage. He could have been challenged when the trial was going on.
But not now?
But the point is that the belief that the government can re-open the case and now charge Keshub Mahindra under a higher offence, 304(2) rather than 304(A), is a belief that has been emboldened by the advice of the Attorney General.
Then you'd better ask the Attorney General.
But you believe the Attorney General is wrong?
So once again the government is intending to do something that would be wrong, that would be illegal, and would be struck down?
You see, this only raises the expectations of everybody.
To dash them?
Ultimately to dash them, but then public memory is short.
Once again the government is embarked on something which legal luminaries like you are saying is wrong and will not succeed?
I wish you had asked somebody who was not acquainted with the case and he will probably confirm it.
Finally, the government is also attempting, one more time, to extradite Warren Anderson. The man is 89. What are the chances of success?
It looks grim to me but if they have any means to do so, well, certainly they can do it.
What lies ahead?
Then what is the point of these three exercises, because you've made it clear, as a leading lawyer, that they are unlikely to succeed? They are probably wrong in law and they would be struck down by the court. So what purpose will be served?
The only thing which the government has done, in my opinion, correctly — but it should have been done 14 or 15 years before — is to increase the compensation if they genuinely believe that the victims have not got their amount.
So all that the government can do is pay more from its own exchequer but the attempt to re-prosecute, the attempt to open the settlement and get more compensation, as well as the attempt to extradite Warren Anderson, all three are unlikely to succeed?
Unlikely is correct.