Review Petition & Bhopal Gas Victims Organisations - Lawyers Note (Jan 12, 2023)

Brief Note on behalf of

Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) &

Bhopal Gas Peedith Sangharsh Sahyog Samiti (BGPSSS) 

IN 

CURATIVE PETITION NOS. 345-347 OF 2010 IN CA NOS. 3187-3188/1988

BRIEF NOTE BY SANJAY PARIKH, SENIOR ADVOCATE

1. Applicants herein - BGPMUS & BGPMSS who represent the gas victims, have filed IA Nos. 22-24 in the present Curative Petition. They were the first to approach the Hon’ble Court ( in W.P(Civil) No. 843/1988) for interim relief measures for the gas victims with respect to food, medical and ex-gratia cash assistance, even before the Settlement orders dated 14/15.2.1989 was passed.

2. BGPMUS had filed Review Petition No. 229/1989 and BGPMSS had filed WP(C) 293/1989 challenging the Settlement Orders. In the judgement (Charan Lal Sahu 1990(1) SCC 613 at 706, para 127) by which the constitutional validity of the 1985 Act was decided, this Hon’ble Court held that appropriate notice to the gas victims was necessary before arriving at any settlement but in the circumstances, as a measure of post decisional hearing, observed that they will have an opportunity of hearing in the pending review proceedings.

3. The Review Petitions filed before this Hon’ble Court were supported by the Union of India. The present Curative Petition has been filed by the UOI “as parens patriae of the victims of the world’s largest industrial disaster.†The applicants representing the gas victims are therefore, directly concerned with outcome of the present proceedings.

4. 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:

(i) The order dated 14.2.1989 notes “having given our thoughtful consideration for several days†“we hold it just, equitable and reasonable to pass the following order†. The order then records the amount of U.S. Dollars 470 millions. Thereafter in para-2 the Court records its appreciation for the parties “in accepting the terms of settlement suggested by this Court†. Reason noted was pressing urgency to provide immediate and substantial relief to the victims. UCC Vs UOI 1989(1) SCC 674
(ii) The settlement was therefore, not an ordinary settlement in a suit between two parties. It was an order of the Court which was accepted by the parties.
(iii) 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 470 million US Dollars was arrived at. The order categorically states that the basis was justness on assumption of truth and if justness of the settlement is questioned on the basis of supplemental information or material “having a crucial bearing on the fundamental assumptions basic to the settlement resulting in serious miscarriage of justice, it will be endeavour of this Court to undo any such injustice†and that “those who trust this Court will not have cause for despair†. (para-38). The Court records in para-14 that it would initiate proceedings to set aside order dated 14.2.1989, even suo moto, in a certain eventuality.
(iv) These observations were referred to in Charan Lal Sahu 1990(1) SCC 613(para121) as well as in the Review Judgement [(1991) 4 SCC 584, para — 48 and 174].
(v) In para 56-65, the Review Judgement [(1991) 4 SCC 584) decided the question whether this Court had jurisdiction to withdraw and dispose of the suit dehors Art 139-A? The majority justified passing of the order of 14/15.2.1989 on the basis of Art. 136 and 142 of the Constitution.
(vi) In the same Review judgment, in exercise of its plenary jurisdiction and powers under Art 142 that Re: Quashing and Termination of Criminal Proceedings, the Settlement was reviewed, and the quashing and termination of criminal proceedings brought about by the Settlement order was set-aside (paras 74-93). Similarly, the part of the settlement relating to immunity from future criminal liability was also set aside. (Para. 94-104).

5. On the basis of the aforenoted, it is submitted that the settlement order being passed under Art.136 read with Art.142 and its recognition in subsequent orders/judgments, this Hon’ble Court has power, which it always retained, to pass necessary orders if it is satisfied that in the changed situation, the settlement order ceases to be just and that continuation of the same order would result in grave miscarriage of justice.

6. This Hon’ble Court in its under order dated 4th May 1989 examined whether the Settlement amount of INR 725 crores was just and reasonable by apportioning it under different heads for each category of victim - i.e. death, utmost severe cases, permanent disability, temporary disability, minor injuries. This amount being provided for immediate relief ought to have been disbursed to victims immediately as that was the purpose of the settlement. The amount was meant for the approximate number of victims envisaged under the order dt. 4th May, 1989. Therefore, the interest accrued thereon was also meant for the same number of victims.

7. Subsequently, upon adjudication of the claims by the Claims Tribunals, the number of victims was found to be drastically higher. Therefore, the additional amount on the same parameters, as given in the order dt. 4th May 1989, ought to have been provided to the additional number of victims. This Hon’ble Court had retained with itself the power and jurisdiction to grant additional compensation for the victims of the disaster to satisfy the justness in changed circumstances, as mentioned above.

8. The present proceedings do not amount to seeking review/setting aside of the settlement order but effectuating the continuing process of imparting complete justice in exercise of its inherent powers and in exercise of jurisdiction under Article 142, which this Hon’ble Court had exercised while ordering the settlement. There is no impediment for this Hon’ble Court to hold that if further amount is not granted, it will affect the justness of the settlement and would therefore, result in grave miscarriage of justice.

9 That in para-174 of the Review Judgement refers to para-38 of the May 4,1989 order as well as Charan Lal Sahu to hold that the review proceedings therein were sui generisin nature and its purpose was to ensure that no miscarriage of justice occurs in the matter “in a matter of such great moment.†It further added: “It is of utmost importance that great issues of human suffering are not subordinated to legal technicalities.†But owing to the fact that the number of affected victims was not available, as it became available later, the judgement said that “on the material on record, the settlement fund should be sufficient to meet the needs of a just compensation...†(pr. 174-176). If the material was available to show unjustness of compensation, this Court, as it observed, would not have hesitated to do the needful. It is therefore, not a case where the Court is powerless to look into the settlement order for passing such order which is just and fair.

10 The Review Judgement recognizes the continuing process of adverse/toxic impact of the gas leak on the victims (Pr. 29-33, 124-135, 141, 205-209).

11 Categorization of victims was done in absence of medical records because of which the victims/their dependents being deprived of fair assessment of their injuries (even death cases) and award of compensation based thereon and enhancement of compensation if with passage of time, the injury aggravates. The process of finalising the medical records is still not complete. See the last order dated 3.1.2023 passed by the High Court of Madhya Pradesh in Cont. Petition (C) 832/2015.

12 The Office of the Welfare Commissioner has been submitting Fortnightly Reports of Number Of Victims whose claims have been processed and sanctioned. Last of such reports (giving statistics as on 15.12.2022) shows the increased number of sanctioned cases of deaths, permanent/partial disability and temporary partial disability, as well as the number of cancer and renal failure cases which have been sanctioned. (Compilation-2, Vol-IV of UOI, Page 1633).

13 Medical surveillance is of utmost importance. BHMRC has medical records of over 4.5 lakh gas victims spanning 22 years. But that data has not been digitalized, analyzed or categorized.

14 On an average, every day about 2000 gas victims undergo medical treatment at BMHRC, while in the six hospitals and 19 clinics run by the Gas Relief Department of the State Government, another 4000 gas victims undergo medical treatment. These victims cannot under any circumstances be termed as remaining "temporarily injured" or merely suffering from "minor" injuries even after 38 years of the occurrence of disaster.

(Anuj Kapoor)

Counsels for BGPMUS & BGPSSS

(Applicants in IA No. 22-24)

Date: 12.01.2023