This is the second and concluding part in a two-part series on the role of the curative petition relating to compensation for the Bhopal gas disaster of 1984. Read part one here.
The lack of will to maintain proper and complete medical records of the victims of the Bhopal gas tragedy for the last four decades through digitisation or other means has been the biggest disservice to them.
This is the only method to determine the extent of the catastrophic nature of the injuries sustained by them. The problem has been compounded by the failure – in a large number of cases – to diagnose and categorise the type and gravity of injuries suffered by gas victims due to acute shortage of medical specialists both at Bhopal Memorial Hospital and Research Centre as well as Bhopal Gas Tragedy Relief and Rehabilitation Department hospitals. Available epidemiological survey reports highlight the gravity of the problem.
Morbidity and mortality rates
According to the ‘Technical Report on Population Based Long Term Epidemiological Studies Part-II (1996-2010)’ published by the National Institute for Research In Environmental Health (NIREH-ICMR) in 2013, the morbidity and mortality rates among the gas-affected population continue to be high.
|Level among 45-64 year olds||Morbidity rate in 1984||Morbidity rate in 2010|
Subsequent age-group-wise morbidity rate is not available in the public domain.
As the table above shows, almost the entire population in the 36 gas-affected wards of Bhopal did inhale the toxic gases and did suffer certain degrees of injury.
Therefore, the assumption at the time of the settlement in 1989 that only 105,000 gas victims had suffered injuries (of whom 3000 died), had absolutely no basis. Over 468,000 gas victims were consciously and unjustly kept out of the ambit of the settlement despite of the fact that surveys conducted by the ICMR in 1984 had established that all of them had suffered injuries due to exposure to the toxic gases.
Moreover, data from the 58th Round of the Long Term Epidemiological Survey conducted by NIREH in February 2021 has revealed that the current “standardised mortality ratio (SRM) was found to be 114.2, 124.1, and 127.4 respectively in the severe, moderate and mild exposed areas.”
In other words, even 38 years after the disaster, mortality rate is still 14% to 27% higher in the gas-affected wards of Bhopal, which again proves that the real death figure due to the disaster would be far higher than the latest admitted death figure of 5479.
Considering the gravity of the long term impact of the disaster on the health of the gas-affected population of Bhopal, NIREH itself on page 34 of the said 2013 report had drawn the following conclusions:
“Hence it is recommended that newer studies on remaining population of the original total gas exposed population of 5,74,000 may be undertaken and extensive follow-up with major focus on clinical disease identification and treatment [be ensured].”
Unfortunately, there has been no follow up action in this regard for the last 10 years. The manner in which injuries sustained by the gas victims have been underplayed for the last four decades is astounding. Nevertheless, the Union government has now come forward to seek higher compensation for the victims.
It may be recalled that the primary purpose of the Union government in filing the curative petition in the Supreme Court was to implicitly challenge the direction in the judgment dated October 3, 1991, which had placed the onus on the Union government to make good the deficiency in the settlement fund, if any.
“…[I]n the – perhaps unlikely – event of the settlement-fund being found inadequate to meet the compensation determined in respect of all the present claimants…the reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare State and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.”
Since the Union government realised that the magnitude of the disaster was far greater than what was assumed at the time of the disaster, it invoked a part of the suo motu order dated May 5, 1989, which had granted a ray of hope to the gas victims with the following assurance to undo any injustice:
“If, owing to the pre-settlement procedures being limited to the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the Court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this Court to undo any such injustice. But that, we reiterate, must be by procedures recognised by law. Those who trust this Court will not have cause for despair.”
The Union government had filed the curative petition specifically to seek compensation for the more than 468,000 victims, who were left out of the ambit of the settlement but whose right to be awarded compensation was subsequently established by the claims courts.
The government had also sought to recover the sums that it had spent for providing relief and rehabilitation to the gas victims, including ex gratia payments. As of now, the entire settlement amount of Rs 3,000 crores (including interest and difference in exchange rate), which should only have been paid to 105,000 gas victims (as per the terms of the settlement), has been shared with over 468,000 other victims, who were unjustly excluded from the ambit of the settlement.
The plea of the two bodies, BGPMUS and BGPSSS, is that the quantum of additional compensation also be based on the degree of injury suffered by each of the 573,000+ gas victims (as corroborated by their medical records). BMHRC is reportedly maintaining medical records of 4.5 lakh gas victims. However, most of it has not yet been digitised or networked with the medical records reportedly being maintained by BGTRRD hospitals. As of now, copies of respective health records have been shared with just a few gas victims.
Bhopal Gas Peedith Stationery Mahila Karamchari Sangh or BGPSMKS and four other organisations representing gas victims also intervened to support the petition. Senior advocate Sanjay Parikh represented BGPMUS and BGPSSS and Karuna Nandy represented BGPSMKS and others.
While hearings in the petitions challenging the constitutional validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, continued for 27 days before a constitutional bench and hearings in the review petitions challenging the Bhopal settlement continued for 19 days before another constitutional bench, the hearings in the Bhopal disaster curative petition were completed in just three days.
While the Attorney General for India was permitted to argue for seven and a quarter hours, Nundy was allotted 40 minutes and Parikh was allotted 50 minutes. Salve, for Dow Chemical which owns Union Carbide now, was allotted 80 minutes in addition to the time he took to interrupt the AG on several occasions.
The time allotted for the hearing appears to have been too short to establish whether or not Union Carbide was liable to pay additional amounts to meet the shortfall.
As to whether there was a shortfall at all in the settlement fund was also not examined. The bench also refrained from examining whether “…material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the Court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned…”
The bench appears to have taken the view that if there was a shortfall, it was the Union of India’s obligation to make good the deficit.
Regarding the assurance granted to the victims in para 38 of the suo motu order dated May 4, 1989, the bench declined to express any specific view. Moreover, the bench refrained from examining if the settlement ever provided “immediate and substantial relief to the victims of the disaster…”.
It also refrained from examining if the settlement was at all “just, equitable and reasonable” despite the fact these were the stated objectives of the Supreme Court when it ordered the settlement on February 14, 1989. Although “(t)he Court directed the settlement with the earnest hope that it would do them good”, the bench refrained from examining if at all the settlement did any good to the gas victims.
To the gas victims’ grave disadvantage, the bench somehow chose not to examine all the relevant aspects relating to the case, which had not been examined earlier because those relevant materials were not available at the time when the review petitions were being heard three decades ago in 1991.
Instead, the bench sought to limit the scope of the hearing because it was apparently more concerned with upholding the “sanctity of the settlement”. The bench seemed to express the view that it would not like to interfere with the matter since it was a mutually agreed settlement between two parties, namely the Union government and Union Carbide Company. However, the facts in this regard appear to be quite different.
Recounting the events that led to the settlement, Senior Advocate Sanjay Parikh, who appeared on behalf of BGPMUS and BGPSSS, submitted:
“The settlement was…not an ordinary settlement in a suit between two parties. It was an order of the Court which was accepted by the parties.”
This assertion is very evident from the court’s order itself. In the order dated February 14, 1989, the court had clearly observed as follows:
“Having given our thoughtful consideration for several days…[and due to the] pressing urgency to provide immediate and substantial relief to the victims…we hold it just, equitable and reasonable to pass the following order”. [Emphasis added]
It was the court, which had determined the quantum of the settlement amount of US $ 470 million on the assumption that it was a reasonable sum. The court had also ordered that: “A memorandum of settlement shall be filed before us tomorrow…” (which the parties, the Union of India and Union Carbide Company, subsequently filed before the court).
In other words, the memorandum of settlement was signed between the Union and UCC in response to the court’s directions in the order dated February 14, 1989 and not earlier.
Thereafter, in the last para of the same order, the court records its appreciation for the parties “in accepting the terms of settlement suggested by this Court”. In short, Parikh argued, it was a court-ordered settlement.
Explaining the point further, Parikh said: “It was for this reason that justification was provided suo moto by this Court in its order and judgement dated 4th May 1989 [1989 (3) SCC 38] as to how the sum of US $ 470 million was arrived at.”
If it was merely a mutually agreed settlement between two parties, there would have been no need or occasion for the court to offer any such justification. In fact, the 1989 suo motu order makes it abundantly clear that the court retained absolute power to initiate proceedings to suo motu set aside the order dated February 14, 1989, in the interest of justice. The said para categorically stated as follows:
“We should make it clear that if any material is placed before this Court from which a reasonable inference is possible that the Union Carbide Corporation had, at any time earlier, offered to pay any sum higher than an out-right down payment of US 470 million dollars, this Court would straightaway initiate suo motu action requiring the concerned parties to show cause why the order dated 14 February, 1989 should not be set aside and the parties relegated to their respective original positions.”
Ordinarily, the court would have had no power to interfere with a mutually agreed settlement by two parties. However, in the case of the Bhopal disaster matter, the court retained absolute power to modify or abrogate that settlement in the interests of justice precisely because it was a court-ordered settlement.
Parikh’s objective in highlighting these aspects was to emphasise that: “The orders dated 14/15.2.1989 were passed by the Supreme Court directing settlement in exercise of its plenary power and under Article 142 of the Constitution.”
Parikh also brought to the attention of the bench that in the judgment dated October 3, 1991, on the review petitions, the constitution bench had again exercised its plenary jurisdiction and powers under Article 142 to modify the settlement orders dated February 14-15, 1989.
Parikh noted that after considering the contentions in the review petitions, the court reviewed the settlement in 1991 and “the quashing and termination of criminal proceedings brought about by the Settlement order was set aside. Similarly, the part of the settlement relating to immunity from future criminal liability was also set aside.
Apart from these modifications in the settlement orders dated February 14-15, 1989, the constitution bench that heard the review petitions had also acknowledged the possibility of “delayed manifestations of toxic morbidity” of the judgment dated October 3, 1991 as noted above. Accordingly, the court highlighted the need for medical surveillance and directed UCC to pay an additional Rs 50 crores for that purpose as noted in the judgment dated October 3, 1991, which was another decision that explicitly modified the terms of the settlement in order to render justice.
All these examples prove that the court had exercised its powers under Article 142 and modified the Bhopal settlement to serve the interests of justice. Nothing prevents the present constitution bench from exercising those powers and modifying the settlement again in the interest of justice after duly examining all the facts and figures relating to the case, which were not before the Court at the time of passing its judgment in the review petitions in 1991.
It may be noted that the adverse impact of the disaster did not disappear soon after the disaster in 1984; its toxic impact in Bhopal continues to persist even nearly four decades later. Since the long term impact of the disaster on the gas victims and its wider ramifications had not been taken into consideration at the time of the settlement and was underplayed when the review petitions were being heard, the plea is that the constitution bench should exercise its powers under Article 142 of the constitution to incorporate the omissions judiciously by suitably modifying the settlement in the best interests of rendering justice.
Harish Salve, for Dow, vehemently opposed the curative petition stating that the prayers in it tantamount to reopening the settlement.
Nevertheless, the AG, in his concluding remarks, stated that para 38 of the May 4, 1989 order could not be interpreted in any other manner than as a reopener clause. The said order was also passed by a constitution bench. Can a similar bench overrule or sidestep that assurance granted to the victims? The fate of the curative petition will depend on the manner in which the present constitution bench chooses to give weightage to the said para.
In addition to the disaster that has had grave impact on all living things, dumping of toxic waste while the Union Carbide plant was in operation from 1969 to 1984 had severely contaminated soil and ground water in and around the plant in Bhopal. A writ petition is currently pending before the Madhya Pradesh high court, seeking to hold them responsible.
The fact is that there has been serious miscarriage of justice. Whose responsibility is it to set it right?
N.D. Jayaprakash is Joint Secretary, Delhi Science Forum and Co-Convener, Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS).