A desolation Called Peace: Finality of Bhopal gas leak case is another tragedy

On March 14, a five-judge bench of the Supreme Court (SC) dismissed a curative petition that called for a reconsideration of the financial settlement between the Union Carbide Corporation (UCC, now owned by Dow Chemicals) and the Indian government, in the Bhopal gas tragedy case. It is widely accepted that the settlement agreed upon between UCC and the Indian government — $470 million — was grossly inadequate, given the nature and the scale of the tragedy, and its lasting effects. Nonetheless, the SC refused to reopen the settlement, on the basis that the money was needed at the time for the purposes of urgent relief, that the amount had been considered and deliberated upon by the court previously, and that the scope of curative jurisdiction is extremely narrow.

However, what the SC failed to adequately consider was the argument that the settlement amount had been arrived at on the basis of the suppression of crucial facts. It was argued that in 2009, in a set of proceedings before the Southern District Court of New York, the Bhopal victims (who were also before the SC in the curative proceedings) had obtained internal UCC documentation, showing that the injuries that resulted from the gas leak were likely to be major, residual, and permanent — and that this was known to UCC before the settlement.

This was further supplemented by the fact that UCC’s internal studies many years prior to the gas leak showed the same conclusion. However, these studies were not public, and were not searchable online until as late as 2014. Indeed, future studies by the Indian Council of Medical Research affirmed this, showing repeatedly that many of the injuries were progressive in nature, and resulted in worsened and prolonged problems over the course of a lifetime.

For these reasons, even though the settlement was entered into in 1989, the flawed basis upon which the amount was computed could only be understood properly decades later, in the 2010s. It is precisely to deal with this kind of injustice that the SC’s curative jurisdiction exists. As the name suggests, curative implies “to cure” — ie, to cure a prior error or mistake that, thus far, has been impossible to cure.

Ever since its introduction in 2002, the SC has (rightly) used its curative jurisdiction sparingly, to correct gross injustices that were the result of errors or mistakes. But it is difficult to see what could ever be a grosser injustice than a settlement for the worst industrial disaster in our history, which was arrived at on the basis of incomplete information, and whose after-effects are still being felt to this day.

Furthermore, one striking feature of this case is that ever since the Bhopal gas tragedy, the victims — the individuals who suffered from the gas leak — have been given short shrift by the State. The initial settlement was entered into by the Government of India, acting in its capacity as parens patriae — the protector of citizens unable to protect themselves. The victims had little to no say in how they wished to prosecute their remedies against UCC. Subsequently, attempts to reopen the settlement were opposed by the Indian government.

In this context, the curative hearings were an important opportunity for the victims of the tragedy to have their day in court, especially given the new facts that had come to light. That this came so late in the day — at the curative stage, and many decades after the settlement — was no fault of their own, as they had been actively shut out of the process on many occasions. Consequently, it was incumbent upon the SC to parse their claims (especially about the flawed basis of the settlement) with care and rigour. Instead, however, the SC did the opposite. During oral arguments, it accorded little time to the counsel for the victims, instead treating the case primarily as between the government and UCC.

This is reflected in the judgment, where the SC summarily dismissed the victims’ arguments about the flawed basis of the settlement, without adverting to — or considering — the evidence for it; somewhat ironically, the court refused to accede to the government’s request for topping up the settlement on the basis that the government had neither pleaded nor shown that the initial settlement was based on fraud, but at the same time, also refused to engage with — and indeed, expressed irritation at — this argument, when it was made by the victims’ counsel.

Indeed, the judgment appears animated by a spirit of “why should we now flog a dead horse” — even though apart from civil proceedings, the absence of UCC has meant that the victims have not been able to access criminal justice either. Nonetheless, the court spoke about the need for bringing a finality to proceedings, and the perils of the entire set of proceedings against UCC restarting from scratch were the settlement to be reopened, and the amount enhanced. But what the court forgot is that there is nothing honourable about an unjust finality: In the words of the Roman historian Tacitus, it is “to create a desolation, and call it peace.”

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal