The Supreme Court told the Centre on Wednesday it cannot act like a “knight in shining armour” and decide its curative plea seeking an additional Rs 7,844 crore from the successor firms of Union Carbide Corporation (UCC) for giving compensation to the victims of the 1984 Bhopal gas tragedy.
The top court said it has already spoken about ‘maryada’ (sanctity) of its curative jurisdiction and is constrained by law despite having some leeway.
A five-judge Constitution bench headed by Justice Sanjay Kishan Kaul told Attorney General R Venkataramani, appearing for the Centre, “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 Centre wants another Rs 7,844 crore from the US-based UCC’s successor firms over and above the USD 470 million (Rs 715 crore) it got from the American company as part of the settlement in 1989.
Justice Kaul, who questioned the Centre over the filing of the curative plea, said, “I began by saying ‘maryada’ of the jurisdiction. You see, we cannot be a knight in a shining armour. It is not possible. We are constrained by law, although we have some leeway. But we cannot say that we will decide a curative petition on the basis of jurisdiction of an original suit”.
A curative petition is the last resort for a plaintiff after an adverse judgement has been delivered and the plea for its review rejected. The Centre had not filed a review petition for rescinding the settlement which it now wants enhanced.
The bench, also comprising Justices Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari, which heard Venkataramani for over seven hours, including the hearing on Tuesday, said, “As far as liability and quantum of compensation is concerned, it is always open to the parties to say that I want to enter into settlement and get rid of any kind of litigation. Now, you (Centre) want to modify the settlement. Can you do it unilaterally? It is not a decree but a compromise”.
Venkataramani said the apex court had endorsed the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the scheme under it.
“Anything that was to be determined by the Welfare Commissioner under the Act and the scheme was to be brought before the court at a later point of time. That is exactly what we are trying to do now,” he said, explaining the rationale behind filing the curative petition.
The Centre has been insisting that the enormity of the actual damage caused to human lives and environment could not be assessed properly at the time of the settlement in 1989.
The AG said looking at the enormity of the human tragedy, which was unprecedented, it is very important to go beyond some of the conventional principles. Justice Kaul responded, saying “Nobody doubts the enormity of the tragedy and undoubtedly people have suffered. It is easy to get emotive but we on this side of the bench have to refrain because we do not have the privilege to play to the gallery.”
He told Venkataramani the judges have to see on what jurisdiction they are sitting and ultimately every dispute ought to have a closure at some point of time.
“It is not that we are not sensitive to what had happened, but when the Supreme Court does something it has wider ramification. There has to be sanctity of a settlement, especially in today’s time, when there is so much international trade and commerce,” Justice Kaul said and pointed out that the Centre did not file a review petition but a curative petition after over 20 years of the agreement.
Venkataramani said the tragedy had made huge difference to the lives of people as children were born with deformities and mothers have to bear a burden for a long time.
Justice Kaul said, “You acted on a premise for quarter of a century. Now, you say you want to act differently. No one prohibits the government of India from taking a proactive approach that it feels strongly that these people deserve more. Problem is you are putting it on them (UCC). Can we open everything at this point of time?
In curative (petition), this court has to travel a very narrow path.” Venkataramani said he is trying to connect the dots and he is going back to 1989, when the settlement took place but there were more dots after 1989.
Justice Kaul said if in a welfare society, the government is so concerned that the victims need to be paid more, then it should have paid them. The Attorney General said the question here is not about who pays but whose liability it is to pay.
The hearing remained inconclusive and will continue on Thursday. The top court had on Tuesday questioned the Centre for pursuing its curative plea seeking additional funds from UCC, saying the government cannot reopen a settlement that was arrived at with the company after over 30 years.
The UCC, now owned by Dow Chemicals, gave a compensation of Rs USD 470 million (Rs 715 crore at the time of settlement in 1989) after the toxic methyl isocyanate gas leak from the Union Carbide factory on the intervening night of December 2 and 3, 1984 killed over 3,000 people and affected 1.02 lakh more.
The survivors of the tragedy have been fighting for long for adequate compensation and proper medical treatment for ailments caused by the poisonous gas leak. The Centre had filed the curative petition in the apex court in December 2010 for enhanced compensation . On June 7, 2010, a Bhopal court had sentenced seven executives of Union Carbide India Limited (UCIL) to two years’ imprisonment.
The then UCC chairman Warren Anderson was the prime accused in the case but did not appear for the trial.
On February 1, 1992, the Bhopal CJM court declared him an absconder. The courts in Bhopal had issued non-bailable warrants against Anderson twice in 1992 and 2009 before his death in September 2014.
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