The Union Carbide Corporation (UCC) on January 10 said it is not willing to pay a "farthing" more if a settlement with the Centre in 1989 is set aside by the Supreme Court even as a Constitution Bench asked the government why ₹50 crore of the $470 million paid by the company has still not reached the Bhopal gas leak tragedy victims after all these years.
The Centre, in a curative plea, has contended that the 1989 settlement is seriously impaired. It has sought additional funds of over ₹7,400 crore from the pesticide company. The government said there is fresh data of more human suffering caused by the incident.
"My client is not willing to pay a farthing more. They say this is what they settled for, and if you (government) don't want the settlement, let the law take its course. That is our submission," senior advocate Harish Salve, for UCC, apprised the court.
Justice Sanjay Kishan Kaul, the lead judge on the five-member Bench, said the government was walking a "slippery slope" by seeking to "re-open" the settlement after over 30 years through a curative petition.
Attorney General R. Venkataramani, appearing for the Centre, said UCC’s position to pay or not was not the “final word”. The tragedy presented an extraordinary situation. The government was not looking to re-open the settlement but only wanted to “add” to it. “The settlement was not just,” he said.
"So why did you settle then? One of the parties to the settlement was the Union of India no less, not a weak party… Let's say, on the other hand, a situation arises that the actual scenario is less horrific than made out to be… Can the other side (UCC) come out and say that an excess amount was paid in the settlement and they want the money back? Can we permit that?" Justice Kaul asked.
Justice A. S. Oka said a 1991 decision of the apex court, while refusing to re-open the settlement, had made it clear that it was the duty of the government to pay any additional compensation to the victims if there was a shortfall.
"We were told that ₹50 crore of the settlement amount is lying undisbursed… Have you not exhausted the settlement amount? How is ₹50 crore lying undisbursed? This means that people are not getting the money… Are you responsible for the money not going to the people?" Justice Kaul asked the government side.
Mr. Venkataramani said the number of claimants among the victims had increased since 1991. The court had always "left open a considerable avenue for a re-look of the 1989 settlement" in all its past decisions in the Bhopal gas tragedy case.
“This is not a case of mere division of property in which somebody gets more or less. This concerns a settlement based on a tortious claim,” Justice Kaul responded.
Mr. Salve countered the settlement was arrived at on the basis of a “consent decree” sourced from a suit. If the decree is 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 to his client as and when fresh data was revealed. Fresh documents and material cannot be inserted into the court record in the limited jurisdiction of a curative petition.
“The fact is that there is a settlement. For me, this is not any extraordinary case. Today, I am not facing any judicial review. Now one party is coming in a curative saying I was hopelessly ill-informed at the time of the settlement, that too, in the highest court… The government is not opposing the settlement. They don’t want it to be set aside, yet they want to burden me with payment of an additional amount. I really don’t know under what jurisdiction they can do that?” Mr. Salve said.
The five-judge Bench highlighted that the government had opted to directly file a curative plea in December 2010 for enhancement of the “full and final” settlement amount paid by UCC without first seeking a review. The Supreme Court had consented to the settlement by means of a decree in February 1989. The court had even refused to re-open the settlement in an order in 1991.
The tragedy had unfolded in Bhopal (in the State of Madhya Pradesh) on the intervening night of December 2-3,1984 when the highly dangerous and toxic gas, methyl isocyanate (MIC), leaked from the Union Carbide India Limited (UCIL). It resulted in the death of 5,295 people, injuries to almost 5,68,292 persons besides loss of livestock and loss of property of almost 5,478 persons.