Bhopal Gas Tragedy Compensation Day #2: Union Argues SC Envisioned Increasing Compensation in 1991

Additional 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

Ajoy Karpuram | 11th Jan 2023

Today, the 5-Judge Bench led by Justice S.K. Kaul continued to hear the Union’s plea to enhance the $470 million settlement for the damage caused by Union Carbide to the victims of the Bhopal gas Tragedy. Attorney General (AG) R. Venkataramani argued that errors were made when deciding the settlement, requiring the SC to intervene and enhance the compensation granted to the victims. Further, he argued that the significant human tragedy involved in the case is sufficient reason for the Court to move past ‘conventional principles’ and provide relief in the curative petition.

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.

In Focus

  • Can the SC grant relief relief in a curative petition if there is significant human tragedy involved in the case?

AG Venkataramani: Humanitarian Grounds Sufficient for SC to Decide the Curative Petition

The Attorney General repeated his argument from yesterday, stating that the human tragedy involved in the Bhopal Gas Tragedy required the SC move past conventional principles to hear the case. Justice Kaul however, insisted that the Court did not have the privilege to ‘play to the galleries’. Justice Oka added that the AG was essentially asking the Court to expand the jurisdiction of curative petition in this case. 

The Supreme Court introduced the concept of ‘curative jurisdiction’ in R. Ashok Hurra v Ashok Hurra (2002). Relief is granted in curative petition cases sparingly, when the Supreme Court decides that one of their past Orders cause a ‘gross miscarriage of justice’. 

The AG argued that the settlement was based on certain assumptions which were erroneous. According to him, this resulted in a miscarriage of justice which justified the Court’s intervention through a curative petition. He also pointed out that the 1992 SC Judgement reviewing the original case held that the compensation must be left open-ended as there may be developments in the future. 

However, Justice Khanna prompted the AG to read the next few lines. The Court also held that the Union government had an obligation to pay compensation to the victim if there was any shortfall from the settlement amount. Justice Kaul added to this, stating that the settlement was finalised with the knowledge that there could be unknown developments in the future and chose to close the possibility of future reconsideration. 

The AG concluded his arguments today. Tomorrow (January 12th, 2022) the Bench is expected to finish hearing the case after hearing arguments from the victims’ families, and the Union Carbide Corporation.