The Supreme Court on March 14 dismissed the government’s curative petition to secure more money from Union Carbide Corporation (UCC) to pay the victims of the Bhopal gas tragedy as an attempt which came 39 years too late after what came to be known as ‘the world’s largest industrial disaster’.
The Constitution Bench led by Justice Sanjay Kishan Kaul said any attempt to enhance the compensation should have been made in the immediate aftermath of the tragedy and not three decades later.
The top court said the Union of India, as a “welfare state”, showed “gross negligence” by not “making good the deficiency” by taking out a relevant insurance policy for the victims.
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Justice Kaul, reading out the unanimous verdict of the five-judge Bench, said the Centre’s curative petition for a “top-up” of the $470 million (about ₹725 crore at the then exchange rate) compensation fixed in a 1989 settlement reached with imprimatur of the apex court, had “no foundation in any known legal principle”. The settlement was final, the court noted.
It explained that the settlement reached with UCC, now a wholly-owned subsidiary of Dow Chemicals, could be set aside only if it was found invalid or based on fraud. The government had based its claim for additional funds of ₹675.96 crore from the pesticide company on neither grounds.
The court said the government must have surely known that there would be a need for more medical facilities to rehabilitate the victims. It was in the know that there was bound to be environmental degradation.
It referred to UCC’s own allegation that neither the Union nor the State of Madhya Pradesh had taken steps to “proactively detoxify or decommission the site” in the aftermath of the fatal escape of Methyl Isocynate (MIC) gas in the intervening night of December 2-3, 1984.
The basis of the $470 million settlement reached on May 4, 1989, was that there were only around 3,000 death cases in the gas leak incident. The government’s curative petition in 2010 said the actual figure is 5,295 deaths.
The Bhopal Gas Peedith Mahila Udyog Sanghathan, a body formed by the gas victims, and Bhopal Gas Peedith Sangharsh Sahayog Samiti, composed of ‘responsible citizens’, both represented by senior advocate Sanjay Parikh, had told the court that Bhopal Memorial Hospital and Research Centre had medical records of over 4.5 lakh gas victims spanning 22 years.
On average, every day about 2,000 gas victims undergo medical treatment at the Centre. Another 4,000 victims undergo treatment at the six hospitals and 19 clinics run by the Gas Relief Department of the Madhya Pradesh Government. These victims cannot be dismissed as merely suffering from “minor” injuries nearly 40 years after the tragedy, they had argued.
The court noted that even if the number of victims has risen over the years, there was still an “excess amount” available to satisfy their claims.
“The Welfare Commissioner has specified in an order of January 31, 2009, that, including the pro rata compensation, nearly six times the amount of compensation has been disbursed to victims in comparison with Motor Vehicles accident claims… A sum of ₹50 crore lying with the Reserve Bank of India shall be utilised by the Union of India to set aside pending claims, of any, in accordance with the Bhopal Gas Leak Disaster [Processing of Claims] Act of 1985 and the scheme framed thereunder,” the court directed.
The Bench said the government’s request to the court to use its extraordinary powers under Article 142 of the Constitution to order enhancement of compensation was not the “appropriate course of action”.
The government has not shown any rationale behind its effort to “rake up” the issue after decades of the settlement.
The UCC had refused in court to pay a “farthing more”. The UCC, through senior advocate Harish Salve, had countered the 1989 settlement was arrived at on the basis of a “consent decree” sourced from a suit. If the decree was set aside, the suit proceedings should be restored. The liability of UCC for the tragedy was never established. There was no “re-opener clause” in the settlement. More and more liability cannot be piled on the company.
The apex court had made it clear that it would not “try” the curative petition like an ordinary suit and reopen the settlement.
The Bench pointed out that the government had never filed a review petition, but had come directly to the apex court invoking the limited jurisdiction of a curative petition, with private parties “hanging on to its coattail”.
