Bhopal Gas Tragedy compensation: Supreme Court asks if settlement amount can be revised in a curative petition

The Supreme Court on Tuesday stated that it could not turn the case involving compensation for families of victims affected by the 1984 Bhopal Gas Tragedy into a suit to determine the compensation afresh. (Union of India v. Union Carbide Corporation).A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari asked Attorney General (AG) R Venkataramani to what extent the top court could involve itself in a curative petition against a signed settlement between parties, a review of which was also disposed of.When the AG sought to bring to the Court's attention some fresh documents, Justice Kaul remarked,"The settlement was arrived at a particular stage of time. 10-20 years later can we open it up again on the basis of some fresh documents? It was by two parties. One of them is the Union of India, not a weak party. What has been troubling us is the scope of this after the period of time. Maybe you are right that settlement was not the best. But can we reopen it?".The Bench is hearing a curative petition filed by the Central government in 2010 challenging an earlier top court order concerning the settlement amount made by Dow Chemicals/Union Carbide Corporation to the families of the victims and survivors of the Bhopal Gas Tragedy..At today's hearing, the judges at the outset stated that they would not allow the scope of the curative petition to be widened. Justice Kaul pointed out that as per the settlement, even if the funds for compensation had fallen short, the Central government has to cover the same. He remarked,"If this was a [Article] 226 [proceedings], I would maybe happily mould relief. But here on a review filed after many years, we are on the jurisdiction of a curative. Would I have done differently in different jurisdiction? I do not know. How will we deal with it in the present jurisdiction, that is the issue."Senior Advocate Harish Salve, appearing for Union Carbide Corporation, also underscored that a signed settlement could not be meddled with at this stage."There was a settlement. I cannot be directed by judges hearing a curative to pay more. My liability has never been established. If the decree is to be set aside, the suit restores and consequences will follow. My client did agree to have his liability increased if more data found. There is no reopening clause...It cannot be like a public forum debate, that here is all the data by NGOs and government got its figure wrong."To this, the AG responded saying, "I do not know whether a signed settlement makes a difference if it is bad or unjust.".After the AG cited fresh medical reports to show that injuries and illnesses still persist and are seen among victims, Justice Khanna remarked,"The data on cause of death is not so simple. If we open up medical data, it will be a full-fledged trial.""We cannot make it a suit. We are only asking in what manner you want to open the settlement. If it was shown that the scenario was less horrific than it was made out to be, can they say they will reduce the compensation?" Justice Kaul weighed in..The AG replied that the willingness of the respondents to pay is not to determine the Union government's stance or the outcome of the case. "Question to be answered is where do we go with the increasing deaths and claimants as documented by the Welfare Commissioner?"As regards reliance on medical data showing that more claimants were eligible post the settlement, Justice Kaul said, "Whole problem is this would be dependent on evidence. Suit never went to trial, we do not have evidence. How much causation is seen even today?" The AG replied saying that for all practical purposes, such claims must be deemed valid.On the aspect of increasing the amounts disbursed, Justice Khanna said, "Look at the irony. Initially you gave ₹1-3 lakh to families. Then 25 years later, you gave 10 lakhs, by then an entire generation has passed.".Justice Kaul wondered how after decades have passed, the figures of those claiming to have been affected with minor injuries/illnesses could be revised. "If you cannot come up with them (figures) after 25 years, it reflects poorly on the government...You cannot have a scenario where so many years later where you have new findings and say our decision was motivated."Justice Khanna added,"The problem is...26 years down the line, can you revisit compensation in a curative? For revised death figures I can understand. But the minor injuries, revising it so much indicates a possible ulterior motive. Do we accept that the organisations were not aware of minor injuries?"Justice Nath noted that the settlement was in consideration of future litigation too.In response, the AG said,"All over the world, there are several categories of unevaluated medical complications."Justice Oka pointed out that even in the review petition, the contention of low compensation was raised. "But now that chapter is over. It says if there is shortfall, the government must pay. My question is why did government not pay that time? If Union of India was satisfied that compensation was low, it should have disbursed it then, and then initiated recoveries. Why did you not pay them in 11 years?"As the hearing drew to a close, the AG argued, "Wrongdoing is wrongdoing, one's negligence cannot be escaped from only because it is 20 years later. I would say this Court can say revising the figures is possible. The scheme and the Act were envisaged at that point of time, as per the events unfolded then. It is not that injuries always unfold easily.".The hearing will continue tomorrow. .[Follow our coverage of today's hearing]