A Constitution Bench gave Solicitor General Tushar Mehta time till October 11 to get instructions from the Centre on whether it wants to “press” its curative petition seeking enhancement of compensation to the victims of the Bhopal gas tragedy, over and above the $470 million already paid by Union Carbide.
“The government will have to take a stand whether it is going to press the curative petition or not,” Justice Sanjay Kishan Kaul, heading the five-judge Bench, observed.
The victims, represented by advocate Karuna Nundy, said the court should hear them irrespective of the government’s decision.
But the court said it would wait for the Centre to clarify its position about the curative petition.
“We will see whether you are required to be heard at all. If the government presses it (curative petition), maybe your task will be simpler,” Justice Kaul said.
Senior advocate Sanjay Parikh, also for the survivors, said the intensity of the tragedy has only increased fivefold in the number of victims and extent of injuries and deaths over the years.
The Bench, at this, wondered whether the compensation could keep changing over time like that. “Can it be said something happened five years, 10 years later?” the court asked.
Justice Kaul said, “any system must provide for certainty. There cannot be perpetual uncertainty. There is no ideal situation for anything”.
One of the lawyers, appearing for the respondent company, agreed that there should be a “finality to the litigation”. The curative petition was filed 19 years after the review petition was decided.
Ms. Nundy said exceptions are made for “very, very rare cases” as like the Bhopal gas tragedy.
“Until the curative petition was filed by the government, you did not see the need to file any curative?” Justice Kaul asked the lawyer.
In its curative plea, the Centre has contended that the compensation, determined in 1989, was arrived at on assumptions of truth unrelated to realities.
A five-judge Bench of the Supreme Court had in 2011 issued notice to the Union Carbide Corporation, now a wholly owned subsidiary of Dow Chemicals Co., U.S.; Dow Chemicals ; McLeod Russel India, Kolkata, and Eveready Industries, Kolkata.
The Centre had sought a re-look of the May 4, 1989 and subsequent October 3, 1991 orders of the Supreme Court, contending that the 1989 settlement was seriously impaired.
The government has sought additional funds of over ₹7,400 crore from the pesticide company.
The tragedy had unfolded in Bhopal (in the State of Madhya Pradesh) on the intervening night of December 2-3,1984 when the highly dangerous and toxic gas, Methyl Isocynate (MIC),escaped from the Union Carbide India Limited (UCIL). It resulted in the death of 5,295 human beings, injuries to almost 5,68,292 persons besides loss of livestock and loss of property of almost 5,478 persons.
The court had dismissed a curative petition filed by the CBI in 2010 for enhancement of punishment.
The agency had filed the curative petition to correct the Supreme Court’s “colossal failure of justice” in 1996 when it chose to dismiss the 1984 Bhopal Gas tragedy as a result of an act of negligence,and not culpable homicide,by former Union Carbide chairman Warren Anderson and his Indian employees. Mr. Anderson died in 2014.
Dismissing the curative plea in 2011, the court had held that "no satisfactory explanation has been given to file such curative petitions after about 14 years from the 1996 judgment.”
The CBI had wanted the Supreme Court to “restore” the criminal charge of Section 304 Part II IPC (culpable homicide not amounting to murder) against the accused persons. It had approached the Supreme Court facing public outcry over a Bhopal court order that sentenced Union Carbide executives to two years’ imprisonment. Those convicted included former Union Carbide India chairman Keshub Mahindra.
