Bhopal Gas Tragedy: Supreme Court Expresses Displeasure At Centre Not Implementing 1991 Direction To Take Insurance Policies For Future Claims

A 5 Judge Bench comprising Justice S.K. Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath and Justice J.K. Maheshwari commenced with the hearing of the matter on Tuesday (10.01.2023). The primary obstacle that the Attorney General had to face was the slew of queries on the scope of the Union Government’s curative petition. The judges raised questions about Centre’s intention to reopen/add on to a settlement which was arrived at in 1989, on the basis of subsequent developments. The Attorney General vehemently argued that in the present case, considering the enormity of the tragedy, the Apex Court ought to travel beyond the conventional principles to do complete justice to the victims of the disaster. Attempting to substantiate the claim for additional compensation on the ground that the settlement between the Government and the delinquent Corporation was based on an incorrect assumption of total number of deaths, injuries and losses, the Attorney General concluded his submissions on Wednesday.

The curative petition which was filed by the Union Government in December, 2010, argued that apart from incorrect assumption of deaths, injuries and losses, the settlement figure does not factor in the subsequent environmental degradation. As per the plea, the earlier figures for death was 3000 and for injury was 70,000, whereas the actual figures for death is 5295 and for injury, it is 5,27,894.

When the matter came up for hearing for the first time before this Constitution Bench, in September, 2022, it had asked the Solicitor General of India, Mr. Tushar Mehta to seek instructions from Centre regarding its present stand on the curative petition filed by it more than a decade ago. In October, 2022, the Attorney General informed the Bench that the Union Government was keen to pursue the curative petition. Accordingly, the Bench permitted the Union Government to represent the claims of persons who have suffered the Bhopal gas leak. So far as the other non-governmental organisations were concerned, without foreclosing their right to be heard, the Bench refused to grant them liberty to file pleadings.

On Wednesday, at the threshold, Justice Kaul acknowledged the enormity of the tragedy. However, he made it abundantly clear that the Court cannot afford to be guided by emotions; it ‘does not have the privilege to play to the galleries’. He added that though the Attorney General has time and again urged the Bench to not delve into technicalities considering its unprecedented nature, every dispute ought to have a closure at some point in time. Even if the Court is sensitive to the disaster that took place in Bhopal, it ought to bear in mind the ramification it’s decision would have on other matters.

Justice Oka indicated that the Attorney General limits his submissions to the aspect of the scope of curative petition in terms of the judgment of the Constitution Bench in Rupa Hurra v. Ashok Hurra, and if, at all, the scope can be expanded by a Co-ordinate Bench.

“We are conscious of that fact and have sympathies for those who suffered. But, ultimately you have to place it within the four walls of curative jurisdiction.”

In the context of the legal maxim, ‘ubi jus ibi remedium’, the Attorney General submitted, that if somebody has a right, law will always find a remedy. He emphasised that when the settlement was entered into, the Government did not have an answer to the situation ‘fully and effectively’. The same ought not to preclude it from claiming the additional compensation on behalf of the affected persons.

Justice Kaul was of the opinion that the Union Government might be eager to don the robe of a parens patriae and seek additional compensation, but, the question for consideration would be, ‘can the burden of the same be fixed on Union Carbide Corporation?’

“You (UoI) acted on a premise for a quarter of a century. Now,you say you want to act differently. No one prohibits the Govt.of India from taking a proactive step and say that we feel that the people deserve more. Do it, nobody is stopping you.But can you fix it on them (UCC)?”

The Attorney General argued that the settlement order reflects that the endorsement of the settlement was based on certain assumptions and those ‘assumptions are no longer valid, relevant or final’.

Justice Kaul was perturbed that the effect of the said argument, essentially, is to re-open the settlement.

“That is the problem. When you say the assumption is not final, are you opening the whole thing?”

He noted that a bare reading of the plaint would indicate that the Union Government had the ‘present in mind, the future in mind and unknown possibilities of future in mind’ when it drafted the plaint. Thus, he reckoned, when the settlement was drawn, all the future possibilities were also borne in mind by the Centre.

Justice Kaul added, “If as a welfare society, you (UoI) are so concerned that you should have paid more, you should have paid more.”

The Attorney General responded that the liability to pay compensation was on the Corporation and not the Union Government.

“If UoI was the delinquent, all these questions would have been asked to the UoI. But when someone else is the delinquent…”

Refusing to accept the Attorney’s submission, Justice Kaul stated, if the Government as a welfare State decides to take a stand that the people deserve more compensation, they are not prohibited from paying the additional amount, irrespective of liability.

“You as a welfare state adopt a different principle, you are liable or not. Is it that I don’t want to pay, but I think I can get it from you (UCC)?...Have you paid that extra? You want to enjoy the welfare state principles, but say that as and when I can take it from them (UCC), we (UoI) will pay.”

Justice Kaul explained to the Attorney General the constraints of the curative jurisdiction. He stated that a curative petition cannot be a review of the review.

“We cannot be a knight in shining armour...Not possible. We are constrained by law. Of course we have some leeways. But we cannot say that we will decide a curative petition on the basis of jurisdiction of an original suit”, the Judge remarked.

The Attorney General responded that the curative petition was based on the culmination of the determination made by the Welfare Commission’s, which was retained as a possibility by the Apex Court in the review judgment. He argued that as per the determination the numbers of death and injuries considerably varies from the initial figures on which the settlement was arrived at.

Addressing the Attorney General’s concern, Justice Kaul clarified that no aspersions are being cast on the Union Government. In fact, he stated that the Government had taken a pragmatic view of the objective with which any civil proceeding of similar nature is launched. Instead of delaying the process, the idea was to provide immediate succour to the families that had lost their near and dear ones.

While the Attorney General was taking the Court through the relevant documents, Justice Oka noted that in the 1991 judgment of the Apex Court, wherein it had rejected the Centre’s plea to reconsider the settlement proceedings, it had provided for a detailed scheme directing the Union Government to get insurance for a minimum of 1 lakh people for future claims.

“There is a complete scheme, which deals with not less than 1 lakh people whose claim may arrive in future. Does your curative petition say anything about the implementation of this scheme?”

He added -

“So, we take it that the scheme was not implemented.”

The Attorney General responded, “The adequacy of the amount got exhausted.”

However, the judge was not satisfied with his response. Justice Oka was baffled that the Union Government, that has approached the Court seeking additional compensation, did not discharge it’s share of the burden -

“In 1991 it got exhausted? This is a 1991 direction to take insurance policy for not less than 1 lakh people. We understand your concern for the claimants…But here is a case that in 1991 the Court had directed you to do something. Today we are in 2023… and we find a scenario that this would have helped lakhs of people if not more, and that part is not implemented by the Union of India.”

Justice Kaul also expressed displeasure that the Union Government seems to have failed to implement the direction of the Court, which would have benefited the affected families.

“Also under the judgments of the Court what I (Union Govt.)was required to do,I have not done.But, don’t tell me that I have not done something, I was required to do. I am at default....causing for some embarrassing comments in the curative of what you have done or not done”

The Attorney submitted that several hospitals were set up in Bhopal to ensure free medical facilities for the affected people, who might not have applied for the claims.

Justice Kaul felt that providing free medical treatment might not be a substitute for the insurance that the Government was directed to take out for a minimum of 1 lakh people for future claims.

The Attorney General emphasised on the aspect of larger interest in the curative petition -

“...If the curative petition proceeds to present a very highly arguable question of an error vitiating the settlement, for a good number of reasons....the curative petition has been rightly presented in the larger interest of justice…Throughout these proceedings UoI alone was permitted to represent the interest of the victims, it shall continue to do so as long as UoI is able to present an arguable case that the settlement needs a re-consideration.”

Justice Oka noted that since the review judgment of the Apex Court categorically observes that there was no judicial determination on the question of liability, if the Attorney’s submissions are to be accepted then at the threshold the Court has to decide the issue of liability.

Senior Advocate, Mr. Harish Salve appearing on behalf of the Corporation submitted that the Government’s case is not that there is any amount remaining to be paid for which they need additional compensation. The case is, primarily, to compare the assumption of 1989 with the actuals and to revise the settlement. Referring to a document, he averred that when the NGOs had said that the Union Government was to pay something more, the Centre said that they owed them nothing more.

Justice Kaul asked if the Union Government was liable to pay the money to the NGOs. To this, the Attorney General clearly stated that the liability to pay was on Union Carbide.

Justice Kaul expressed his opinion -

“As a Govt. are you liable to pay. You say that we want to recover from UCC. Then we understand. Because then we will note that the Govt. wants to pay more…It is very easy to dip into someone else’s pocket and take out the money. Dip into your own pocket and give the money and then see if you can dip into their (UCC) pocket or not.”

The Bench said that they will briefly hear the Counsels appearing on behalf of the non-government organisations tomorrow (12.01.2023). The matter has been directed to be listed on Thursday for hearing.

[Case Status: UoI And Ors. v. M/s. Union Carbide Corporation And Ors. Curative Petition (C) No. 345-347/2010]