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Children born with congenital disabilities, believed to be caused by the exposure of their parents to gas leakage during the Union Carbide gas leak disaster in 1984, along with their relatives and supporters take part in a candle light vigil to pay homage to the victims of the tragedy to mark its 38th anniversary, in Bhopal on December 1, 2022.
| Photo Credit: PTI

A Constitution Bench of the Supreme Court on Wednesday made it clear to the government that it will not “try” the curative petition of the Centre like a suit, by re-opening a $470 million compensation settlement finalised with the Union Carbide Corporation (UCC) over 30 years ago in the Bhopal gas leak tragedy case.

“The court cannot act like a knight in shining armour granting panacea for all. We are bound by the constraints of law. Of course, we have some leeway, but you [government] cannot say we should try your curative petition like an original suit… Certainly, we will not do it,” Justice Sanjay Kishan Kaul, heading the five-judge Bench, told Attorney General R. Venkataramani.

The court was hearing the government’s curative plea, filed in 2010, for enhancement of compensation. The Centre wants the UCC to pay it. The company has said it would not pay a farthing more if the settlement reached with the government in 1989 was set aside.

Curative jurisdiction is a rare remedy evolved by a Constitution Bench of the Supreme Court in 2002 in the Ashok Hurra versus Rupa Hurra case. A party can take only two limited grounds in a curative petition — one, that he or she was not given an opportunity to be heard, and two, the judges were biased. A curative petition, which follows the dismissal of the review petition, is the last legal avenue open in the Supreme Court

Mr. Venkataramani urged the court to consider the enormity of the tragedy, the human cost. He said there were times when the court had to go beyond the conventional principles of law. Mr. Venkataramani said the number of claimants among the victims had increased. The court had always “left open a considerable avenue for a re-look of the 1989 settlement” in all its past decisions in the Bhopal gas tragedy case.

“It is not that we are not sensitive. Nobody doubts the enormity of the tragedy. People suffered. But the government, in its wisdom, put a closure to it through a settlement. The government did not file a review… Now, can we keep opening some wounds periodically? Over 30 years down the line can we entertain your curative petition on ground of data the government places on record,” Justice Kaul asked the top law officer.

Justice A.S. Oka, on the Bench, said if the government, as a welfare state, felt the victims were entitled to more, it should pay them.

“If they are entitled to more, please pay them. But what do we do in a curative petition… Look at the Hurra jurisdiction,” Justice Oka pointed out.

Justice Kaul said a welfare state need not worry about liability if it wanted to act to protect the rights of the people.

“After a quarter of a century, you [government] are saying you could have done better. But you want the other side [UCC] to pay. Nobody prohibits the Government of India from taking a proactive stand and say the people need to get more… The question is can you fix it on them,” Justice Kaul observed.

Justices Sanjiv Khanna and J.K. Maheshwari said the facts and figures of the settlement were known to the government all along, all these years.

The court also highlighted the prospect that reopening the 1989 settlement would raise questions on the sanctity of deals arrived at with the government.

The five-judge Bench had raised questions about how the government had come directly in a curative plea without first seeking a review. The Supreme Court had consented to the settlement by means of a decree in February 1989. The court had refused to re-open the settlement in an order in 1991.

The tragedy had unfolded in Bhopal, Madhya Pradesh, on the intervening night of December 2-3, 1984 when the highly dangerous and toxic gas, Methyl Isocynate, leaked from the Union Carbide India Limited. It resulted in the death of 5,295 people, injuries to almost 5,68,292 people besides loss of livestock and loss of property of almost 5,478 people.

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