SCO Explains: The Bhopal Gas Tragedy, 40 Years Later

Transcript.

On January 12th, 2022 a 5-Judge Constitution Bench reserved Judgment in a dispute that is very familiar to the Court—the Bhopal Gas Tragedy. In 2010, a curative petition was filed by the Union government to increase compensation for the victims. Ever since 42 tonnes of highly toxic methyl isocyanate leaked from a pesticide plant owned by the Union Carbide Corporation (or UCC) in 1984, the sheer scale of the damage and loss of life has brought the amount of compensation owed to the victims into stark focus.

In 1989 the Supreme Court facilitated a settlement between Union and UCC for $470 million dollars. However, even at the time many believed that this settlement was insufficient. Prompted by widespread protests, the SC agreed to review the settlement., In 1991 the Court refused to increase the settlement amount.

With few options remaining, the Union filed a curative petition. Curative petitions are a relatively new judicial innovation. The SC introduced this avenue for justice in 2002, to allow the Court to provide relief when one of their own past Orders resulted in a ‘gross miscarriage of justice’. Meant as a last resort, curative petitions greatly restrict the situations where the SC can provide relief.

A 5-Judge Constitution Bench led by Justice Sanjay Kishan Kaul heard the case over three days in January 2022. The Union and other civil society organisations claimed that new facts had emerged since the 1989 tragedy and the damage caused was far greater than what they originally assumed. Attorney General R. Venkataramani, representing the Union, argued that the immense amount of human suffering justified the Court’s intervention through a curative petition, Further, the Attorney General was clear that the Union did not want the bench to re-consider the 1989 settlement. It only wanted the Court to direct UCC to pay additional compensation.

Throughout the hearings the Bench repeatedly voiced their hesitation at expanding the scope of a curative petition in order to increase the compensation amount. In the words of Justice Kaul, they were concerned about opening a ‘Pandora’s box’ by increasing the settlement without re-opening the original settlement proceedings.

They also pointed out that all the victims who had filed claims had received their compensation, but the Union had taken an exorbitant amount of time to give the victims their compensation. Further, due to shifting exchange rates, nearly half of the initial settlement still remained after addressing all the claims. This leftover amount was handed to the victims once again and there is currently still 50 crore rupees remaining from the settlement.

Senior Advocate Harish Salve, representing UCC, argued that the Union has changed its stance since the 1989 settlement. In 1991 they were in favor of re-opening the settlement proceedings and between 1995 and 2011 they had submitted affidavits to the SC opposing every claim that the settlement was inadequate.

Will the Supreme Court expand the scope of curative petitions to provide relief in cases where there is an overwhelming social interest? Stay tuned to the SCObserver website to find out.