Bhopal Gas Tragedy Compensation Day #3: Sr. Adv. Salve Points Out Union’s Contradictory Stances, SC Reserves Judgment
Additional Compensation for Bhopal Gas Tragedy VictimsJudges: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Vikram Nath J, J.K. Maheshwari J
Today, the 5-Judge Constitution Bench led by Justice S.K. Kaul concluded hearings in the Union’s plea to increase the compensation awarded to victims of the bhopal gas tragedy. The Bench heard Senior Advocate Sanjay Parikh and Advocate Karuna Nundy, representing organisations created by victims of the tragedy during the morning session. In the afternoon, Sr. Adv. Harish Salve, representing Union Carbide, argued against enhancing the compensation and Attorney General R. Venkataramani briefly gave his final arguments.
Background
In December 1984 a pesticide plant owned by the Union Carbide Corporation (UCC) in Bhopal, Madhya Pradesh leaked 42 tonnes of a toxic chemical called methyl isocyanate. After the Federal District Court in New York dismissed the Union government’s case for reparations in February 1985, with directions to approach Indian Courts, Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act in March 1985. The Act gave the Union the power to legally represent all the victims of the Bhopal gas tragedy.
In February 1989 UCC and the Union finalised a settlement, facilitated and confirmed by the Supreme Court, for $470 million. The terms of the settlement also required the Union to pay any additional compensation if the amount was not sufficient to satisfy all claims. In October 1991 the Supreme Court refused to re-open the settlement in a review petition, holding that the lack of a ‘re-opener’ clause in the settlement did not make it invalid.
In 2010 the Union filed a curative petition at the SC requesting an increase in the settlement amount, to be paid by Union Carbide. Curative petitions were introduced by the SC in 2002 as a last recourse for a litigant. The SC only grants relief in these cases when there has been a ‘gross miscarriage of justice’ arising from a past SC Order.
The case came up for hearing before the Constitution Bench led by Justice S.K. Kaul on September 20th, 2022 and the Union expressed their desire to keep pursuing the case three weeks later, on October 11th.
According to Adv. Karuna Nandy, the Curative Petition is valid because a serious ‘fraud’ was committed. Material facts that were crucial to the settlement had been suppressed by Union Carbide leading to a ‘Gross Miscarriage of Justice.’ Justice Kaul stated that Adv. Karuna Nandy’s arguments concerned rules of evidence, and therefore fell outside the scope of the Curative Petition.
Sr. Adv. Sanjay Parikh, representing victims of the tragedy, argued that the Court actively participated in deciding the quantum of the 1989 settlement. Therefore they also had the power to enhance this amount. Justice Kaul immediately clarified that the SC simply acted as a mediator to the settlement. They were not a ‘third party’ in the case. He said the SC could not have forced anyone to accept the terms.Mr. Parikh responded that the SC has consistently highlighted the ‘justness’ of the settlement. If new facts emerged, the Court could reconsider the settlement.
Mr. Parikh pointed out that toxic waste in the area had not been disposed of yet, and had contaminated the groundwater in the affected area. Justice Kaul asked why the Union had not done anything about this in 40 years since the tragedy. Sr. Adv. Harish Salve, representing Union Carbide, appeared next and explained the toxic waste situation. The Madhya Pradesh government took possession of the land in 1989. They then demanded that Union Carbide should pay for the waste disposal, at the MP High Court.
Mr. Salve stated that in the 1991 case, the Union supported the petitioners’ claims to set aside the settlement and restart the proceedings. Further, the Union, in a series of affidavits between 1995 & 2011, opposed every attempt to suggest that the settlement was inadequate.