A week ago, I received the first number of Human Rights Tribune. In the article ‘Fallen Angels’, it is suggested that lawyers who are human rights activists should not accept briefs of those who “violate” the human rights of others. This sounds heroic, but the suggestion is impractical and fraught with grave consequences: it puts an almost impossible burden on the lawyer, of pre-judging guilt; and it precludes the person charged with infringing the human rights of another the right to be defended by a “lawyer of his choice” in my country, a guaranteed constitutional right. Even if a human rights lawyer were to take the risk of pre-judging guilt, how would he do it? By reading newspaper reports? By conducting a mini trial of his own?…
…The allegations in the article about the Union Carbide Corporation (UCC) litigation in India, in which I was the lead counsel, are factually incorrect. The assertion that repeated attempts to delay proceedings were key elements of Carbide’s court-room strategy”, and the veiled suggestion that “crass legal antics” played a part in the outcome of the case, are entirely contrary to the record….
…The suit was filed by the Union of India representing all gas victims in the District Court of Bhopal in September 1986, and UCC filed its written statement of defence two months later in December, 1986. Several interlocutory applications were thereafter filed by both parties. In November 1987, a judge of the High Court of Madhya Pradesh issued (suo motu) notice to UCC to show cause why the suit should not be tried by the High Court of Madhya Pradesh itself “to avoid any delaying tactics” by UCC. After considering the response of the UCC to this notice, a division bench (of two judges) of the same high court set aside the notice. In its judgment delivered on December 3, 1987, the high court observed: “It would not be correct to say that the UCC has adopted delaying tactics and is preventing its trial. It does not appear that the UCC had taken any unnecessary adjournments or are obstructing the trial.”
There was no appeal from this order by anyone, neither by the Union of India (nor) by any organisation representing gas victims in the suit. Meanwhile, on December 17, 1987, District Judge Deo passed an order directing UCC to deposit Rs 3,500 million as “substantial interim compensation,” without deciding liability. UCC approached the High Court of Madhya Pradesh in revision: the revision petition was admitted on February 1, 1988; and after an expedited final hearing, the High Court (on April 4, 1988) modified the order of District Judge Deo and passed a decree for “interim damages” in the sum of Rs 2,500 million. Appeals were filed by UCC and by the Union of India from this judgement of the High Court. Both appeals were admitted by the Supreme Court of India on September 8, 1988. UCC did not ask for any stay of the High Court order for “interim damages”, and the Union of India made no attempt to execute the order of the High Court though expressed to be executable as a decree.
Meanwhile, further hearing of the suit proceeded in Bhopal, but not before Judge Deo: the suit was transferred from his Court on the specific directions of the High Court since he had wrongly prejudged the merits of the case and had thus not acted with “strict judicial impartiality” (paras 53 and 55 of the order of the High Court dated October 13, 1988). Repeated efforts were made to proceed with the trial, but even an order for mutual discovery of documents was resisted by the Union of India. More than a year and half after the suit was filed the Union of India stated to the Court, on an affidavit (filed in June 1988) that “the stage of discovery has not yet reached”! The trial of suit could not therefore begin….
...Ultimately, at the instance of the court, the settlement order dated 14th/15th February, 1989 was passed. A sum of $ 470 million was brought into Court (within a week) in full and final settlement... ...As to the role of Gas Victim Organisations (who had filed writ and review petitions) the Chief Justice had this to say (in his judgement dated October 3, 1991):
“It may be right that some people challenging the settlement who have come before the Court are the real victims. I assume that they are innocent and unaware of this rigmarole of the legal process. They have been led into a situation without appreciating their own interest. This would not be the first instance where people with nothing at stake have traded in the misery of others.”
Fali S. Nariman is a senior advocate of the Supreme Court. This is an edited extract from Fali S. Nariman’s Before Memory Fades (Hay House, distributed by Penguin India)