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The law empowering the Indian government to represent Bhopal’s gas victims was unconstitutional. In effect, two guilty parties negotiated with each other, says Aman Hingorani.

india Updated: Jun 15, 2010 22:02 IST
Hindustan Times

The law empowering the Indian government to represent Bhopal’s gas victims was unconstitutional. In effect, two guilty parties negotiated with each other, says Aman Hingorani.

Law Minister Veerappa Moily’s reported statement on introducing a bill in Parliament to help people claim compensation from companies for disasters like the 1984 Bhopal gas tragedy can only be met with incredulity. Twenty-five years ago, the government introduced the stand-alone Bhopal Gas Disaster (Processing of Claims) Act, 1985 to do just the opposite. By becoming the representative of the Bhopal victims, the government denied them their right to take the Union Carbide Corporation (UCC) and its subsidiary, Union Carbide India Limited (UCIL), to court for compensation. But could the government have represented the victims when it was as guilty and liable to the victims as UCC and UCIL?

We can’t ignore the fact that at the time of the disaster, various Indian investors, including Life Insurance Corporation of India (LIC), the Industrial Development Bank of India Limited (IDBI) and other public sector institutions, owned 49.1 per cent of UCIL. Further, by granting a licence to manufacture pesticides, the government made the collaboration agreement between UCC and UCIL subject to Indian laws, which include the Insecticide Act of 1968 that regulates the import, manufacture and use of insecticides with a view to safeguard human life from danger. Many central and state agencies, empowered under various acts like the Factories Act 1948, regulated at all times Carbide’s operations, which were approved by the government.

Despite the Canadian government asking UCC in 1972 to shut down its Bhopal operations for fear of damage to life and environment, the Indian government let the plant set up in the heart of the city. Further, authorities had permitted the area around the plant to be used for dumping of hazardous chemicals for years. Successive tests on soil, water and vegetables from the residential areas around the plant confirm their contamination by toxic heavy metals and chemical compounds.

It’s difficult to understand how the executive in India escaped its liability towards victims both as a joint tortfeasor (wrong-doer) with UCC and UCIL and for failing to discharge its constitutional obligations of providing pollution-free air and water to people. The novel way out was to enact the Bhopal Gas Disaster Act. It was challenged before the Supreme Court, which regrettably upheld it in 1990 on the ground that it was passed in exercise of the sovereign power of the State and in recognition of the right of the sovereign to act as parens patriae (parent of the nation). However both the Supreme Court premises in such a reasoning are fallacious. The full bench of the apex court, in the ‘Privy Purse’ case, held in 1971 that there is no such thing as ‘sovereign power of the State’ under the Constitution. It held that in India, the executive can’t exercise sovereignty over citizens, as legal sovereignty vests in the Constitution and political sovereignty lies with the people of the country. So the statement ‘India is a sovereign State’ implies that people (political sovereign) or the Constitution (legal sovereign) are sovereign — not that the State enjoys sovereign powers.

The Indian State, as a representative of sovereign people, may be sovereign in relation to other countries. But it can’t be sovereign qua its own people from whom it derives its ‘sovereignty’. Also, the doctrine of parens patriae has its roots in the common law concept of the ‘royal prerogative’ of the British Crown. It includes the right of the British Crown to take care of its subjects under disability, which the Indian State cannot surely claim.

The executive is as guilty as UCC and UCIL. Unsurprisingly, Parliament came to its rescue by enacting the aforesaid Act and the Supreme Court upheld it. As a result, one guilty party negotiated with another for the compensation due to victims who were precluded by law from even asserting their claim against the State or Union Carbide. The law empowering the government to represent the victims was unconstitutional. Had the Supreme Court not reviewed its earlier order and set aside the settlement that quashed criminal prosecutions, the recent two-year sentence awarded to the convicted Indian officials of UCIL wouldn’t have been there. We are yet to hear about criminal action being taken against State officials for their culpability in the entire affair.

And now, the government feels that the existing laws have failed to hold companies financially responsible for man-made disasters and there is a need for a stand-alone law to encourage citizens to claim damages from companies. What’s perhaps been overlooked is that it’s not the laws that have failed us, but the men and women who run the Indian State.

(Aman Hingorani is Advocate, Supreme Court of India. The views expressed by the author are personal)

First Published: Jun 15, 2010 22:00 IST