The Supreme Court on Tuesday expressed doubts over the legality of the Centre’s demand that American company Union Carbide be directed to pay additional compensation of more than ₹7,400 crore to the victims of the 1984 Bhopal gas tragedy, saying that populism cannot form the basis of a judicial intervention.
A Constitution bench, headed by justice Sanjay Kishan Kaul, questioned the government for its endeavour to not follow the terms of a settlement arrived at before top court in 1989 regarding damages to be paid by the company. “If we allow the government to reopen a settlement 25 years after, the sanctity of a settlement goes away. What signal does it send that the Union government can reopen anything even if it settles something today? In this [connected] world of trade and commerce, the message may go that the Indian government may not agree to a settlement even it enters into one today,” commented the bench, which also comprised justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari.
Through a curative plea in 2010, the government sought a reconsideration of the May 1989 judgment and a 1991 order of the Supreme Court, arguing that the 1989 settlement was grossly inadequate. It sought additional funds of over ₹7,400 crore from the chemical company, which was held accountable for the loss of more than 5,000 lives on the intervening night of December 2-3, 1984 when the toxic Methyl Isocynate (MIC) gas escaped from company’s plant in Bhopal, leading to what is recognised as one of the worst public health disasters in the world.
The toll was pegged at 5,295 and the number of people suffering serious ill-effects was put at 40,399, according to the latest official health estimate submitted by the government in the court in its 2010 curative petition. Commencing the arguments on behalf of the Centre before the Constitution bench, attorney general R Venkataramani submitted that curative petition was being pursued since it was an “extraordinary case” where the unparalleled disaster claimed several lives. According to AG, 1989 settlement before the top court relied on “incorrect and wrong assumption of facts and data” regarding deaths and other cases of injuries, so, the government was pressing for additional compensation.
The bench, however, told Venkataramani that the Centre has “several legal hurdles to cross” because the jurisdiction of the apex court in a curative petition is very limited, and the government cannot expect the bench to reopen the entire thing and try the matter as an original suit.
“If you question the justness of the settlement, that will amount to reopening the settlement completely. The government can’t say that we lead a settlement on behalf of the victims today to challenge it tomorrow… Populism cannot be the basis of a judicial review or judicial intervention,” it told the AG.
Venkataramani urged the bench not to focus on technicalities of the matter and treat this as a human problem.
Responding that the court has full sympathy with the victims, the bench asked the AG if the court can shut its eyes from the fact that the government was much present when the settlement took place in 1989. “You did not file a review petition and filed a curative petition 19 years after this court passed some orders on the review petition filed by NGOs and victims. Did it take 25 years for the government to realise that the compensation was very less? Can you say reopen the whole thing after 100 years?,” observed the bench.
Senior counsel Harish Salve and Sidharth Luthra, appearing for the chemical company, implored the bench to examine at the threshold the legal question whether the Centre can maintain the curative petition in law when it did not even file a review petition. The lawyers also read out from the previous orders of the top court to argue that not only did the Union government record its statement that it would not press for any additional claim in this case, but the victims were paid twice.
At this point, the bench noticed that ₹50 crore were still lying with the RBI for disbursal to the victims of the gas tragedy and asked the AG as to why this amount remains unpaid till date.
The bench will continue hearing the matter on Wednesday.
Reacting to the development, Rachna Dhingra of Bhopal Group for Information and Action said: “The Union Carbide Corporation is a proclaimed absconder and today they told the court that they will not abide by any order of the SC. Can they even think of saying this to its victims and courts in America.”
