Opinion Upendra Baxi on SC ruling on Bhopal Gas tragedy curative petition: Where did the constitutional sympathy for the victims vanish?

The Court has justified the 1989 Bhopal judicial settlement order because of certain imperatives — for instance, the enormous suffering of the victims. “Without a settlement, immediate funds would not have been available for the victims,” it has said. Hence, invoking the inadequate assets of Union Carbide India Limited (UCIL) in India (Rs 100 crore) and the lump sum settlement, being the “only compensatory mechanism known to common law”, is deemed “far more preferable” than a civil suit “without a reasonable expectation of knowing when the trial would come to an end”. Further, “mere sympathy for the sufferers does not enable us to devise a panacea,” the Court said, especially when it has applied its “mind to the settlement on multifarious occasions”.

The Court has further stated that “providing closure to the lis was also an important aspect, which is more so in the context and scenario faced by the Indian judiciary where delay is almost inevitable.” Reopening the settlement is described as akin to opening a “Pandora’s box” to “the detriment of the beneficiaries.” Does this necessarily mean that the Court cannot reopen the settlement amount even on the ground that a fraud has been practised in reaching it? Saying that the Court could not “countenance” private parties “to ride on the coattails of the Union”, the learned justices write that they “thus do not appreciate the endeavour by Ms Karuna Nundy, counsel for the intervenors, in making out a case that there was a ‘midnight settlement’ whereby a fraud was played upon this Court and the Union”. But, surely, when a counsel argues fraud in a responsible way, as the written submissions clearly reveal, the dignity of the discourse requires a fuller analysis even when the Court is disinclined finally to accept it.

One may ask where did the constitutional sympathy for the victims vanish? It did before the “settled principles of law”, which may not be gainsaid in “curative stage”. Is it ever too late to plead a fraud, contrary to legislative and administrative principles? What are the basic contours of the argument and the Court’s weighing of this? Is justice and fairness ever to be achieved in the province of the curative petition by mere reiteration of “settled principles of law”? And who asked the Court to “devise a panacea” in the curative petition or proceedings?

The Court says the sovereign state of India is unable to “furnish any rationale for raking up this issue more than two decades after the incident”. But how is one to distinguish between mere “raking up” an issue and a genuine policy shift? Is an elaboration by the Attorney General for a “top up” equivalent to “raking up”? What, as a matter of first principles, debarred the Court from fully exercising its new jurisdiction? Is it enough to say, as the Court has, that “we find it difficult to accept that this Court can devise a curative jurisdiction that is expansive in character”? Was not the Bhopal catastrophe a “rarest of rare” case deserving curative judicial sympathy?

Why was the idea of “topping up” and invocation of power to do complete justice not held to be compatible with the curative? The AG said graciously that “topping up” is a complex process. The Court is fully justified in expressing its ire with the Union of India failing to obtain a group life insurance policy for the victims, but does it also compel the conclusion that the power to do complete justice (Article 142) “would not be an appropriate course of action or a method to impose a greater liability on UCC than it initially agreed to bear”? I may not discuss here the argument for environmental harm — detailed by the AG — save to say that Court’s summary disregard is mystifying.

Maybe the Court is haunted by the spectre of the 1989 Bhopal settlement order. Harish Salve, counsel for the Union Carbide, maintained that the Union Of India (UOI) will have to pay back the entire amount of compensation with interest and begin the suit all over again. Maybe the pragmatic concept of justice here prevails over all else.

But does that provide good enough reasons for the Court not to ask the UOI to pursue, in full measure, care and justice duties that are paradigmatically ingrained in the Bhopal Act with the surrogacy of all claims by the UOI? And, should the Supreme Court now abandon all obligations of care and justice owed to the valiant victims of Bhopal? Our Constitution insists not just on closure, but on just closure.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi