Dip into your own pocket before getting Union Carbide to pay up more: SC to govt on Bhopal gas disaster
“If as a welfare society, you (the government) are so concerned that you should have paid more, you had to do it yourself first…,” a constitution bench, headed by justice Sanjay Kishan Kaul, told attorney general R Venkataramani.
A curative petition cannot be tried as a suit or a “review of a review” petition, the Supreme Court on Wednesday told the Union government, asking why the Centre is waiting for Union Carbide to pay an additional compensation for disbursement to the victims of 1984 Bhopal gas tragedy when the government, as a welfare state, should have come forward to pay this on its own.
“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 (Union Carbide’s) pocket or not...If as a welfare society, you (the government) are so concerned that you should have paid more, you had to do it yourself first. You want to enjoy the welfare State principles, but say that “ as and when I can take it from them, we will pay,” a constitution bench, headed by justice Sanjay Kishan Kaul, told attorney general R Venkataramani.
As the bench, which also comprised justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari, continued hearing the curative petition filed by the Centre in 2010 demanding an additional compensation of more than ₹7,400 crore for the victims, it repeatedly reminded the top law officer that the scope of jurisdiction is extremely limited in a curative petition and that the government cannot expect the court to reopen the whole case.
“We don’t live in Utopia...the government did what it thought was the best at that time for the people who needed succour. It’s not a discredit but a credit that they took something to provide succour to people immediately...Every dispute or tragedy has to have to a closure at some point of time. At that time (when the settlement was agreed upon by the government in 1989), a closure was contemplated. A review petition was also brought which ended in 1991. Now, can we keep opening the same wounds time and again?” it asked Venkataramani.
The AG, on his part, tried to persuade the bench to focus on the enormity of the tragedy and let go of conventions and technical objections regarding whether the government could seek the remedy of additional compensation after agreeing to a settlement amount of over ₹7,400 crore from the chemical company.
Through its 2010 petition, the government has sought a reconsideration of the May 1989 judgment and a 1991 order of the Supreme Court, arguing that the 1989 settlement was grossly inadequate. The company 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 its factory in Bhopal, leading to what is recognised as one of the worst industrial accidents 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.
To AG’s submissions, the bench responded: “Nobody questions the enormity of the case. That people suffered is a fact and we have full sympathy for them. But at the same time, we don’t have the privilege of playing to the gallery. We have to and must decide in accordance with the law. That’s why we must see under what jurisdiction we are hearing it.”
It added: “We cannot be a knight in shining armour...Not possible. We are constrained by law. Of course, we have some leeway under Article 142 but we cannot say that we will decide a curative petition on the basis of jurisdiction of an original suit...certainly not.”
At this point, Venkataramani cited certain parts of the 1989 and 1991 judgments by the Supreme Court in the gas tragedy case to claim that the settlement orders were based on wrong assumption of facts and data and that Union Carbide cannot be left as a “free bird” after paying $470 million as per the 1989 judgment.
“But we did not settle, you settled...Two parties decide to avoid a trial, settle on a figure, without any of the sub-stratum of a suit trial where no finding has taken place. You want to now fasten additional liability. Under which principle of law do you do that? Also, remember there was no trial, no judicial determination on the liability of the company. Assuming we accept your contention, we will have to first examine if the company was liable. Can we do that in a curative petition?” it asked.
At one point during the hearing, the court further noted that its 1991 judgment obligated the Centre to frame a scheme for making good the claims of not less than one lakh victims that may arise in future. “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 a scheme which would have helped at least a lakh of people is not implemented by the Union of India...if you have not done something about it, then we have to say about how you have worked,” the bench told the AG.
Venkataramani wrapped up his submissions imploring the bench to entertain the plea to prevent miscarriage of justice. The bench will continue hearing the case on Thursday when it is expected to grant audience to some NGOs and victims’ organisations. Union Carbide, represented by senior counsel Harish Salve and Sidharth Luthra, assisted by advocate Shiraz Patodia of Dua Associates will also argue on Thursday, following which, the bench said, it will reserve its judgment.