The story so far: The Union of India calls the Bhopal gas leak tragedy the world’s largest industrial disaster. On the intervening night of December 2-3, 1984, methyl isocyanate (MIC) gas escaped from the Union Carbide India Limited (UCIL) plant in Bhopal, Madhya Pradesh, leading to hundreds of deaths. Thirty-nine years after the incident, a Constitution Bench of the Supreme Court led by Justice S. K. Kaul has reserved its judgment on a curative petition filed by the Centre in November 2010 to enhance the $470 million (about ₹725 crore at the then exchange rate) compensation fixed in a 1989 settlement reached with Union Carbide Corporation (UCC), now a wholly owned subsidiary of Dow Chemicals, with the imprimatur of the apex court. The government has sought an additional amount of ₹675.96 crore in compensation from the pesticide company. The UCC has refused to pay a “farthing more”. The court made it clear that it would not “try” the curative petition like an ordinary suit and reopen the settlement.
What is the basis for the plea for more compensation?
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. However, a fortnightly report submitted by the Welfare Commissioner, Bhopal Gas Victims, and which is a part of the case records in the Supreme Court, shows the number of deaths have increased to 5,479 as on December 15, 2022. The Commissioner’s report further said the number of cases of cancer and renal failure were 16,739 and 6,711, respectively. Likewise, the curative petition said the estimated numbers for temporary disability and minor injury cases were 20,000 and 50,000, respectively, in 1989. But they are actually 35,455 and 5,27,894. The government’s chart in the apex court shows that the total number of cases of deaths, disability, injuries, loss of property and livestock have increased to 5,74,376 from the 2,05,000 “assumed” on May 4, 1989.
What do the victims say?
The Bhopal Gas Peedith Mahila Udyog Sanghathan, a body formed by the gas leak victims, and Bhopal Gas Peedith Sangharsh Sahayog Samiti, composed of responsible citizens, both represented by senior advocate Sanjay Parikh, have told the court that the Bhopal Memorial Hospital and Research Centre has medical records of over 4.5 lakh gas victims spanning 22 years. On an 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.
Is more relief possible in a curative petition?
The firm stand voiced by the Constitution Bench against re-opening the 1989 settlement between the government and UCC finds its roots in the limits placed on curative jurisdiction. The curative plea is a remedy evolved by the Supreme Court in the 2002 judgment in the Ashok Hurra versus Rupa Hurra case. It is the rarest-of-rare remedies when “the duty to do justice shall have to prevail over the policy of certainty of a judgment and declining justice would be oppressive to judicial conscience and perpetuate an irremediable injustice”.
A party can take only two limited grounds in a curative petition — one, that he or she was not given an opportunity to be heard, and two, that the judges were biased. A curative petition, which follows the dismissal of the review petition, is the last legal avenue open in the Supreme Court. The government had not filed a review petition, but directly came for curative relief in 2010.
What are the rival contentions?
Attorney General of India R. Venkataramani has urged the court to look beyond the conservative principles of law, that is, look beyond the restrictions of the curative jurisdiction, to deliver complete justice to the victims by directing the UCC to pay up. The top law officer has argued that the government did not want to “re-open” the 1989 settlement but “add” to it. The government said the Parliament had placed it in the role of the protector of the victims by enacting the Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985. It has an obligation to protect the victims’ interests “effectively and equitably”.
The UCC, through senior advocate Harish Salve, countered that the 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 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.
What did the court observe during the hearing?
At the heart of the legal dispute is a paragraph from the October 3, 1991 order of the Supreme Court. The paragraph discussed the “unlikely event” of the 1989 settlement funds being found insufficient to satisfy the claims of all the victims.
While stressing that the victims should not be left to “fend for themselves”, the court, in 1991, had said the “reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare state and in the circumstances under which the settlement was made, should not be found wanting in making good the deficiency, if any”.
The government has interpreted these words by saying that it has done its duty by coming to the court with a plea to direct the UCC to top-up the compensation amount. The court, in turn, said if the government, as a welfare state, felt the victims were entitled to more, it should pay them.
“It is not that we are not sensitive. Nobody doubts the enormity of the tragedy. People suffered… but the court cannot act like a knight in shining armour granting panacea for all. We are bound by the constraints of law,” the Constitution Bench said, reserving the case for verdict.