Why Union Government is delaying Curative Petition for enhanced compensation for Gas Victims?

Lalit Shastri

The Union Carbide plant in Bhopal, which was shut down after the poisonous gas leak on the midnight of December 2 and 3 1984, stands testimony to the worst industrial disaster witnessed by humankind

Union of India apparently does not want to press Curative Petition Nos. 345-347 of 2010 seeking enhanced compensation for the Bhopal gas victims as the Government counsel told the Supreme Court’s Constitution Bench on Tuesday 20 September that more time was required to seek instructions from the Government.

The next hearing in this matter is on 11 October 2022.

Giving a backgrounder of the entire matter linked with compensation for the victims of the 1984 Bhopal gas disaster and the petitions now pending both in Supreme Court of India and the Madhya Pradesh High Court, ND Jayaprakash, Co-Convener Bhopal Gas Peedith Sangharsh Sahyog Samiti, told Newsroom24x7 that compliance of the directions issued to the Union of India and the State of Madhya Pradesh by the Supreme Court on 9 August 2012 in Writ Petition (C) No.50 of 1998 (which is currently pending before the MP High Court as WP No.15658 of 2012) is crucial in determining the magnitude and gravity of the adverse effects of the Bhopal gas leak disaster on the health and wellbeing of the residents of Bhopal.

On 22 December 2010, the Union of India filed Curative Petition Nos.345-347 of 2010 against the Impugned Judgment and Order dated 14th and 15th February 1989, 4th May 1989 and the Judgment and Order dated 3rd October 1991 passed by this Hon’ble Court in Civil Appeals Nos.3187-88 of 1988. The objective of filing the Curative Petition was to seek additional compensation for the victims of the Bhopal gas leak disaster of 02/03 December 1984 because by June 2010 it had dawned upon the Union of India that the magnitude and gravity of the impact of the disaster had been grossly underestimated at the time of the Settlement in 1989. The submission of the Union of India in this regard was that:

“The Respondents are liable to pay additional compensation on each of the following counts:

A. Claim on account of incorrect and wrong assumption of facts and data in the impugned judgments and orders passed by this Hon’ble Court;

B. Claim on account of actual expenditure incurred by the state towards relief and rehabilitation; and

C. Claim on account of Environmental Degradation.”

The sequence of events leading to the filing of the Curative Petition before the Hon’ble Supreme Court were as follows:

Supreme Court on 14/15 February 1989 directed an overall settlement of claims between the Petitioner, Union of India (UOI), and the Respondent, Union Carbide Corporation (UCC) for U.S. $ 470 million [See (1989) 1 SCC 674] and also directed consequential termination of all civil and criminal proceedings without hearing the victims, who were then parties before the Court.

UCC deposited the Settlement amount in the State Bank of India at New Delhi on 24 February 1989 but it could not be disbursed among the gas victims because neither the claims for compensation (600,000 +) had been processed nor had the number of potential beneficiaries identified until then. Therefore, the Settlement amount paid in Dollars was not converted into Rupees but was retained in a separate Dollar account.

In March 1989, the Settlement was challenged by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) vide Review Petition No. 229 of 1989 in Civil Appeals Nos. 3187-88 of 1988; by the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) vide Writ Petition (Civil) No. 293 of 1989; and by others before the Hon’ble Supreme Court. The challenge was on three grounds: (a) that the Settlement sum was less than one-sixth of the claim originally made by the Union of India before the Bhopal District Court on 29.01.1988; (b) that the Settlement did not disclose the total number of beneficiaries; and (c) that the quashing of all pending and and (c) that the quashing of all pending and future criminal cases against all the accused in the case was improper.

On 4 May 1989, responding to the criticisms raised against the Settlement, the Supreme Court issued a clarificatory order [See (1989) 3 SCC 38] disclosing that the Settlement was based on the assumption that the disaster caused only 3000 deaths and had inflicted injuries in varying degree to just 102,000 others. The Supreme Court also assured the petitioners that:

“Para 30: … If the total number of cases of death or of permanent, total or partial, disabilities or of what may be called ‘catastrophic’ injuries is shown to be so large that the basic assumptions underlying the settlement become wholly unrelated to the realities, the element of ‘justness’ of the determination and of ‘truth’ of its factual foundation would be seriously impaired. The ‘justness’ of the settlement is based on these assumptions of truth.”

Due to the undue delay in the disbursement of the Settlement amount, the new National Front Government announced on 5 March 1990 the decision to sanction Rs.360 crores from its own resources as interim relief to the Bhopal gas victims for three years. That is, to pay Rs.200 per person per month to all 500,000 + residents present in the 36 gas-affected wards on the night of 2 December 1989.

The Supreme Court on 3 October 1991 dismissed the Review Petitions filed by BGPMUS and Writ Petition filed by BGPSSS and others against the Settlement of 14/15 February 1989. However, while upholding the Settlement amount of U.S. $470 million, the Court revoked the termination of all criminal cases and reinstated them. [See 1991 4 SCC 584].

The apex Court had also ruled that the health status of the gas victims should be monitored and that a specialized 500-bedded hospital should be built with the best of equipments and with the best of expertise for medical surveillance and for providing expert medical treatment to the gas victims. [See para 203 of Judgment].

Under the Office of the Welfare Commissioner, 40 Claim Courts were set up in Bhopal in October 1992 to adjudicate all the 1,029,515 claims that had been filed until then.

When no attempts were made to either monitor the health status of the gas victims or build a specialized hospital for them, Writ Petition (C) No.50 of 1998 was filed by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS), the Bhopal Group for Information & Action (BGIA), and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) before the Supreme Court of India seeking medical relief on 14 January 1998. One of the main pleas in it was to:

“Direct the State of Madhya Pradesh to issue a Health Card to each of the Bhopal Gas victim disclosing to each of the said victim the full information on his [/her] medical status, and to direct government to provide free medical assistance to the said persons at all times.”

On 3 March 1998, Counter Affidavit by Respondent Nos.3 & 4 (State of Madhya Pradesh) was filed. It stated as follows:

(a) “…that the State of M.P. has taken up the task of monitoring health status of the survivors of the disaster through Centre for Rehabilitation Studies, Bhopal.”[Para 12, page 74 of the Case File in WP(C) No.50 of 1998]

A 350-bedded super specialty hospital called the Bhopal Memorial Hospital & Research Centre (BMHRC) was established on 1 July 2000 for providing tertiary medical care to Bhopal gas victims.

It took the 40 Claim Courts nearly 12 years (October 1992 to July 2004) to adjudicate all the 1,029,515 claims for compensation (As on 31.07.2004, about Rs.1536.27 Crores were awarded as compensation to 574,376 claimants).

Since bulk of the Settlement amount had been retained in a separate Dollar account, due to increasing difference in the Dollar=Rupee exchange rate, the Settlement amount, which was approximately about Rs.700 crores in 1989, effectively increased to Rs.3085+ crores by 2004. With just half that amount, all the 574,376 valid claims had been settled. Therefore, about Rs.1540+ Crores of the Settlement amount remained unutilized with the Government of India in 2004.

The Order of 19 July 2004 in response  to Civil Appeals Nos.3187-88 of 1988, the Welfare Commissioner, Bhopal, was directed by the Supreme Court to disburse the remaining amount in the Settlement Fund (which was equivalent to the amount that had already been disbursed) on a pro-rata basis to all those who had been awarded compensation after taking into account the remaining unsettled claims.

Since the Supreme Court had ipso facto recognized that the magnitude of the Bhopal disaster was FIVE times greater than was assumed at the time of the Settlement, BGPMUS & BGPSSS filed I.A.s. Nos. 48-49 on 14 September 2004 in Civil Appeals Nos. 3187-3186 of 1988 seeking enhancement of the original Settlement amount by a factor of FIVE. The said I.A.s were dismissed vide order dated 04.05.2007. A subsequent I.A. that was filed by the same parties on 13.10.2007 was disposed of by the Hon’ble Court on 25.02.2008 as “withdrawn”.

On 28 August 2008, nine members of BGPMUS & BGPSSS filed a joint application before the Court of the Welfare Commissioner, Bhopal, for purposes of “determination of facts”. The pleas included determination of the magnitude & gravity of the disaster as well as awarding compensation to all gas-victims with the benefit of the prevailing U.S. Dollar – Rupee exchange rate going to the victims in terms of the Supreme Court Order of 16 October 1992. The Court of the Welfare Commissioner dismissed the application of 28 August 2008 filed by members of BGPMUS & BGPSSS on 31 January 2009.

On 28 October 2009, the same petitioners filed Writ Petition No. 11276 of 2009 against the Welfare Commissioner’s order of 31 January 2009 before the High Court of Madhya Pradesh at Jabalpur. This petition was dismissed on 30 November 2009. Thereafter, on 17 March 2010, eight members of BGPMUS & BGPSSS file Special Leave Petition (Civil) No.12893 of 2010 before the Supreme Court against the Order of the Madhya Pradesh High Court.

A comprehensive reconsideration and review was done by the Union of India at the highest level of all issues pertaining to the Bhopal gas tragedy and its aftermath on 24 June 2010 and a Curative Petition (Nos.345-347 of 2010) was filed by Government of India against the Supreme Court’s Judgment of 14/15 February 1989 in Civil Appeals No.3187-3188 of 1988 seeking enhanced compensation. The plea was that, at the time of the settlement, the number of dead and injured had been underestimated. Moreover, the cost of medical care and remediation of the polluted environment had also not been taken into consideration at that time.

On 13 April 2011, application of Bhopal Group for Information & Action (BGIA) and 4 other organizations for impleadment as parties was admitted by the Court. A few months later, on 5 September 2011, the Supreme Court directed that SLP(C) No.12893/2010 would be considered after Curative Petition (C) Nos. 345-347 of 2010 are decided by the Constitution Bench.

The Supreme Court acceded to the pleas of the Petitioners (BGPMUS, BGIA & BGPSSS) in WP(C) No.50 of 1998 and issued several directions through its Judgment on 9 August 2012 [reported in (2012) 8 SCC 326] especially to: (a) carry out research work & ensure that its benefits are provided to the gas victims [paras 35(7) & 35(8)]; (b) operationalize medical surveillance, computerization of medical records, provision of ‘health booklets’, etc. [para 35(9)]; (c) fill vacancies of specialist doctors and supporting staff [para 35(10)]; (d) provide treatment of high quality to gas victims by providing autonomy to the Bhopal Memorial Hospital & Research Centre (BMHRC) by converting into a teaching hospital [para 35(11)]; (e) remediate the contaminated environment in and around the Union Carbide factory [para 35(12)]; (f) evolve a common referral system and evolve a a standardized protocol for treating each category of ailment [paras 35(17) & Para 35(18)]; etc. The case was also transferred to the High Court of Madhya Pradesh at Jabalpur for exercising supervisory jurisdiction in the implementation of the said directions.

On 24 October 2013, BGPMUS & BGPSSS filed I.A. Nos.22-24 of 2013 in Curative Petition Nos.345-347 of 2010 for impleadment as parties.

on 15 May 2015, BGPMUS & BGPSSS filed Contempt Petition (C) No.832 of 2015 in WP No.15658 of 2012 against eight officials of the UOI and the Government of Madhya Pradesh for failing to comply with the directions the Supreme Court issued on 9 August 2012 in WP(C) No.50 of 1998.

On 10 September 2015, BGPMUS & BGPSSS also filed a copy of the Contempt Petition as an additional affidavit in I.A. Nos. 22-24 in Curative Petition (Civil) Nos.345-347 of 2010.

Significantly, BGPMUS & BGPSSS were not only the first organizations to file Review Petition No.229 of 1989 and Writ Petition (C) No.293 of 1989 respectively against the Bhopal Settlement in March 1989 but also were the first onesto seek enhancement of compensation by a factor of FIVE before the Supreme Court as early as 14 September 2004.

It is evident that compliance of the directions issued to the Union of India and the State of Madhya Pradesh by the Supreme Court on 9 August 2012 in Writ Petition (C) No.50 of 1998 (which is currently pending before the MP High Court as WP No.15658 of 2012) is crucial in determining the magnitude and gravity of the adverse effects of the Bhopal gas leak disaster on the health and wellbeing of the residents of Bhopal.

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