Bhopal Gas Tragedy Compensation Day #1: Union Claims New Facts Justify Increasing SettlementAdditional Compensation for Bhopal Gas Tragedy Victims
Judges: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Vikram Nath J, J.K. Maheshwari J
Today, a 5-Judge Constitution Bench led by Justice S.K. Kaul began hearing the Union’s plea to increase the compensation awarded to victims of the Bhopal Gas Tragedy by the SC in 1989. Attorney General R. Venkataramani argued on behalf of the Union. He attempted to convince the Court to enhance the settlement even though the SC can only exercise limited jurisdiction in a curative petition.
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.
- Can the Union Carbide settlement of 1989 be reopened?
Sr. Adv. Harish Salve: Union Carbide Not Willing to Pay Additional Settlement
Sr. Adv. Harish Salve, representing Union Carbide, objected to the additional documents submitted by the Union, stating it was not a part of the original suit and could not be submitted to the Court in a curative petition. He argued that ‘this is not a public forum debate’, and that there is no cause to re-open the settlement. He specifically highlight the SC’s 1991 Judgment which held that the settlement was valid despite the lack of a re-opener clause.
AG Venkataramani: More Victims than Accounted for in the 1989 Settlement
AG Venkataramani, for the Union, argued that the SC’s Judgment upholding the 1989 settlement left the door open for future claims and that the additional documents were meant to serve as a basis for these claims. Justice Kaul expressed hesitation in entertaining the curative petition. Keeping the limited scope of a curative petition in mind, he directed the Attorney General to argue without referring to documents that were not already part of the record for the time being.
Justice Kaul stated that the Bench was ‘not averse’ to innovating solutions and finding a way to hear the case, but did not want to open a ‘Pandora’s box’ by hearing the case on impermissible grounds. He enquired if the Union wished to set aside the initial settlement so the case can be re-opened. The AG disagreed, stating that this case was independent of the original settlement. The Union was presenting fresh data to justify additional payment.
Mr. Venkataramani argued that the Court could hear the petition as it concerned a grave injustice faced by the victims. He claimed that the welfare commission responsible for hearing claims and granting compensation, established through Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, determined that there were far more victims than initially anticipated. The Bench asked why it took them more than 20 years to discover this.
Mr. Salve objected to the AG’s argument, stating that there were no pending claims before the welfare commission and 50 crore rupees still remained to be paid from the settlement amount. Justice Kaul was taken aback by the amount remaining from the settlement. Justice Oka asked how the Union could approach the Court asking for additional compensation when there were still funds remaining.
The Bench also noted that the increased figures of the damage incurred by the victims were due to ‘minor injury’ claims. Under this heading, the Union included anyone who had been in the area at the time of the gas leak and experienced trauma. Justice Khanna observed that this definition was quite broad.
The Bench and the AG appeared to arrive at an impasse. The AG claimed that the remaining funds and the nature of the claims should not have a bearing on this case. The Bench questioned how they could re-open the suit when most of the settlement was already distributed.
The case will continue tomorrow (January 11th, 2022) and the AG is expected to conclude his arguments.