‘Polluter pays’ principle elusive in Bhopal case

Dinesh C. Sharma

Science Commentator

ON March 14, the Supreme Court dismissed the curative petition filed by the Centre in the 1984 Bhopal gas disaster case. This ends the vexed litigation relating to civil liabilities in the most heinous environmental disaster and corporate crime in modern history.

The methyl isocyanate (MIC) that leaked from the pesticide manufacturing plant of Union Carbide India Limited in Bhopal on the night of December 2, 1984, instantly suffocated thousands of people to death and caused grievous injuries to several others.

The inter-generational effects of the exposure to the toxic gas and ground pollution caused by the dumping of hazardous waste in and around the factory site linger even after nearly four decades. Litigation to fix civil liability and criminal negligence of the company and its officials had gone on in the district court and the High Court for decades. The apex court was the survivors’ last hope for justice. Therefore, the summary dismissal of the curative petition has come as a shocker to them.

The way successive Central and state governments and their agencies have dealt with the disaster right from the beginning is a sordid saga of apathy, negligence and utter disregard for the rights of the victims. To begin with, the Central Government took it upon itself the exclusive right to represent the victims, seek compensation for them and strike a compromise with Union Carbide by passing a new law — Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. This was the first blunder. The government filed a suit for compensation in Bhopal in 1988, some amount was awarded and, as expected, Union Carbide challenged it in higher courts.

The company used the Indian cases to resist litigation in the US saying that it had subjected itself to the judiciary in India. With intense lobbying on behalf of Union Carbide and a nudge from the Supreme Court, the Central Government committed a bigger blunder. It reached a settlement with Union Carbide for a pittance —$470 million (around Rs 715 crore in 1989) — in exchange for closing all civil and criminal proceedings against it.

It was only after the victims sought a review of the order that the Supreme Court agreed that the extinguishment of criminal liabilities in the settlement was not appropriate. Criminal cases were filed against company officials in the district court in Bhopal. In 2010, the district court convicted officers who ran the plant on a daily basis of negligence. This judgment brought back the 1984 disaster into focus, leading to a public outcry. Under this pressure, the Centre formed a Group of Ministers to consider additional compensation to the victims of the disaster and then filed the curative petition in the Supreme Court, seeking enhancement of the compensation as well as reimbursement expenses incurred on relief and rehabilitation.

After hearing it for 13 years, the SC has dismissed the curative petition now, saying that the compensation given as part of the compromise in 1989 was final while standing by the 1989 judgment that had termed the compensation as ‘just, equitable, and reasonable.’ The Centre’s claim for a ‘top-up’ in the compensation amount, in the court’s view, has no foundation in any known legal principle.

Organisations representing survivors of the tragedy, who impleaded themselves in the curative petition, questioned the credibility of the very compromise the Central Government struck with Union Carbide. Citing information and documents unearthed through the RTI Act in India and the US, the victims claimed in the court that the settlement was achieved through fraudulent means by Union Carbide. The court was given documentary evidence of how officials of Union Carbide misled government officials into believing that the majority of survivors suffered only temporary injuries.

The court brushed all such evidence aside, saying that the settlement was ‘the most appropriate course of action’ taken by the court in 1989. Moreover, it said, the Central Government in the curative petition did not plead any fraud. Unfortunately, the court has chosen to treat it purely as dispute between the Union of India and Union Carbide, referring to victim organisations disparagingly as a ‘private party’ seeking to ‘ride on the coattails of the Union (of India).’

Due to the mistakes made by the Central Government in committing to a settlement prematurely, and due to the nudge from the Supreme Court, Union Carbide never went to trial in India for the worst-ever industrial disaster it caused in Bhopal. The scope of the tragedy has expanded and new effects of MIC have emerged. The court has admitted that the quantum of compensation settled in 1989 was based on a broad and general estimate. The figures for death and ‘grievous and serious personal injuries’ were put at 3,000 and 30,000, respectively.

The curative petition filed in 2010 provided an opportunity for both the Centre and SC to correct a historical blunder committed in 1989, in line with the new understanding of environmental jurisprudence since the tragedy in 1984. Several judgments have interpreted the ‘polluter pays’ principle to include the absolute liability to pay compensation to victims of any pollution caused and costs incurred for the restoration of the environmental degradation caused. In the 1985 oleum gas leak case, the court had observed that “the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on the hazardous or inherently dangerous activity by the industry or enterprise.”

The SC observation in the March 14 order that it was the responsibility of the Union of India as a welfare state to fulfil any deficit in the settlement fund goes against the tenets of the ‘polluter pays’ principle. Instead of bringing Union Carbide to book and making it pay for the continuing medical and environmental tragedy in Bhopal as the polluter, the court has sought to blame the Central Government and questioned the victims themselves.

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