Thread by @barandbench

#SupremeCourt Constitution bench led by Justice Sanjay Kishan Kaul to hear pleas regarding compensation paid to Bhopal Gas tragedy victims.

Court to consider if impleading applicant NGOs could be of assistance.

#law #Bhopal #Constitution #SupremeCourtofIndia @karunanundy

Bench assembles.

AG R Venkataramani: I have filed the joint compilation as per Lordships' directions. The IAs for condoning delay have also been placed.

SC: That is alright. But Mr Attorney, at some point, these are curative.

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SC: There cannot be fresh documents in a curative.

AG: No no, not like that. In order to collect certain documents.

SC: The settlement has arrived at a particular stage of time. 10-20 years later can we open it up again on the basis of some fresh documents?

AG: Some facts have certainly emerged for your consideration which lordships may need to look at in this case.

SC: Was review filed or not? As i understand it was not. Curative after 5 years? Correct or no?

AG: Yes. But notwithstanding, but look at literature around the world

AG: Everyone talks about the Bhopal Gas Tragedy.

SC: Does the amount stand fully disbursed.

AG: Yes. But beyond that, government took a stand for additional escalation.

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Sr Adv Harish Salve for Union Carbide Corp: There was a settlement. I cannot be directed by judges hearing a curative saying pay more. My liability has never been established. If the decree is to be set aside, the suit restores and consequences will follow. My client did...

Salve: agree to have his liability increased if more data found. There is no reopening clause. Please see the settlement. Union must then say we want to set aside the degree, which lordships at this stage must not be troubled with. Lordships are exercising some extraordinary...

Salve: jurisdiction. It cannot be like a public forum debate, that here is all the data by NGOs and govt got its figure wrong. UCC will not pay like this.

AG: Your willingness to pay will not determine.

SC: Normally if someone walks out of a settlement, then its benefit...

SC: must come back.

AG: Not suggesting that. But did it bring out a just solution.

SC: But it was by two parties. One of them is Union of India, not a week party. What has been troubling us is the scope of this after the period of time. Maybe you are right that settlement...

SC: was not the best. But can we reopen it.

AG: Settlements have been amended if Justice of cause demands. That is what I will argue, on those lines.

SC: It is not a division of properties but a tortuous claim. Now Union is saying i should have settled for more, can NGOs piggyback on this in a curative? I am just putting this in place to understand the contours.

AG: Need to look at it differently than from earlier.

Salve: He cannot go beyond the curative. We need to know its construct. Everything he has said so far is beyond it.

SC: We are not allowing any such thing.

Salve: It is my reservation. NGO data cannot be cited.

SC: I am absolutely clear what i meant by compilation.

Salve: I have done an analysis of the indices.

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Justice Oka: Please see page 198 of the review judgment.

Justice Kaul: To my understanding, there are some funds lying undisbursed (by Union Carbide). So then it is not a case of it being exhausted. Second, as my brother says, were the funds to fall short also, Union has to make it up.

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SC: How are 50 crores lying undisbursed? That means people are not coming money. Are you responsible for this?

AG: No of claimants by welfare commissioner went beyond what the review judgment had in mind.

SC: Today question is it is your (Union of India's) curative Petition.

AG: In the review judgment, it has left open for the Court to relook at the settlement and corpus.

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AG: In a case of this nature, where there are substantial lapses of the due process of law ...

SC: but this is going beyond the curative. Here the clause is, if the situation arose to increase the claim, you do it.

AG: We are not looking at an isolated tort case. Some anxious thought has gone into it. Human rights also involved.

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Salve: The criminal curative has been dismissed.

Salve: Maintainability of IAs have to be gone into. Lordships have said nothing beyond primary issue of curative can be filed.

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Salve: Not only was curative jurisdiction unknown when all this started. We had said we will abide by orders and that is how the suit started.

Salve: Question is what would your lordships be doing in a curative? Can you exercise some extraordinary jurisdiction to alter the settlement? The petition only states this is the amount, therefore ... Legal principles not stated. See their rejoinder to our counter.

AG: If Lordships can look at the facts we have placed and the enormity of the tragedy of the case, and then take a call. If the petition is found enough for the Court to examine the issue, I would have done my job. Those affected have been impleaded.

SC: You will have to first canvass the case on if we need to examine it, then we will look at your facts.

AG: I will.

SC: That is why we did not reject it at the threshold. You cite the documents later.

Justice Khanna: We know what the grounds to crystallise a curative are.

Justice Khanna: can you show us the same. As to the documents, the data on cause of death is not so simple. If we open up medical data, it will be a full fledged trial.

Justice Kaul: We cannot make it a suit. Only asking in what manner you want to open the settlement.

SC: If it was shown that the scenario was less horrific than it was made out to be, can they say they will reduce the compensation?

Judges discuss.

AG now reading from pleadings.

AG: Question to be answered is where do we go with the increasing deaths and claimants as documented by the welfare Commissioner.

Justice Nath: Show us the paragraphs in review judgment in which liberty of given to the Union (of India) to challenge the settlement?

AG: Will get

Salve: Was instructed to represent my client in the suit. If now an amendment to the settlement is now called for, Union Carbide may or may not agree to the jurisdiction. My presence here should not be taken as us acceding to anything.

SC: You are looking far too ahead.

Salve: Not stating it out of arrogance or anything.

AG: More we get into the context, so many rules, the highways and bylanes the courts have looked at.

SC: one thing we were discussing, when you revised your calculation in 2010. What was possession of the medial problems...

SC: 25 years hence. Lots of medial conditions can emerge over that period of time.

AG: They looked at exposure to such environments that lead to ...

SC: Whole problem is this would be dependent on evidence. Suit never went to trials we do not have ...

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SC: evidence since the suit never went to trial. How much causation seen even today?

AG: These dimensions brought in from the perspective of the welfare commissioner categorising the increasing claims. For all practical purposes, These must be treated as valid.

Salve reads from pleadings to argue that settlement cannot be interfered with.

Justice Khanna: It took you 25 years to figure that the compensation was wrong?
I was looking at the income tax slabs. In 1984-85 it was, exemption was 15,000. In 2010, it was increased.

Justice Kaul: How can money still lie with .. cannot understand

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Justice Oka asks counsel about figures of claimants and status of disbursement.

Justice Khanna: Look at the irony. Initially you gave 1-3 lakh to families. Then 25 years later you gave 10 lakhs, by then an entire generation has passed.

AG: Welfare commissioner ...

Justice Kaul: If you cannot come up with them (figures) after 25 years. It reflects poorly on the government.

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Salve goes through pleadings.

Justice Kaul to AG: If as per law you are entitled to get into claims, go ahead, but we cannot entertain that in a curative. Multiple figures are ...

AG: Just a second.

Bench says fresh claims cannot be mixed in a curative.

Justice Kaul: File a suit for whatever you think is recoverable.

Justice Khanna: Please turn to the table again.

Justice Khanna: No. of minor injuries go up substantially adding 1000 odd crore to compensation. These figures will have to be ...

AG: I have given only the abstract

Justice Kaul: De hors the settlement, you think you are entitled to more. How can you claim that in a curative?

Salve: They want the net present value ...

AG: Commissioner did job as per criteria. Then someone has to say he was wrong.

SC: He may be right. But can we decide that in a curative? There is no trial. We have all the sympathy, but it cannot let us turn to so much ad-hocism.

Justice Khanna asks the AG about the amount paid.

Justice Oka: Have you paid 725+675.96+ ...

AG: It was required to be paid (675).

Justice Oka: That was in addition. How much is the total?

AG: 725+740 ex gratia

Justice Khanna: Also given to those with minor injuries?

Justice Khanna: Mr AG after lunch just come back on these figures.

Sr Adv Sanjay Parikh: Interest accumulated on 725. Because interest became more, question became who is entitled to the interest.

Justice Oka: I have done the mathematics, in the minor injuries part there is an excess of 275 crore. Practically everyone in the area was given and it rose in no. from 50,000 to 5,75,000. Payments under different actual heads, number more than what was deciphered.

*correction- Justice Kaul:

Parikh: Tribunal after a point stopped hearing claims.

SC: AG will read the two orders after lunch.

Bench rises.

Hearing to continue post lunch.

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Justice Kaul: If this was a 226 I would happily mould relief. But here on a review filed after many years, we are on the jurisdiction of a curative. Would I have done differently in diff jurisdiction. I do not know How will wedeal with it in the present jurisdiction that is issue

AG: All of these have been points of reflection for me too.

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SC: Jurisdiction also evolved. But whether a curative one can, is the issue.

AG: I understand. But the dimensions of this case are such ... One way is invoking 142 to do complete justice.

AG reads from Pleadings.

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AG: If both sides' figures made available to the Court for it to take a call on relief, rather than looking at assumptions, which i would think is the pressing issue in this curative.

Salve: The review challenge..

AG: I have a thought process, do not interrupt it.

Salve: All those paras cited are for court saying award was wrongly upheld.

AG: I do not whether a signed settlement makes a difference if it is bad or unjust.

SC: You are saying you do not want to affect the settlement but add more amounts in a curative, address us on that.

AG: What fairness would emanate if...

SC: Court did not say how much to take. Both sides negotiated.

AG: Court also applied its mind.

Justice Khanna: The problem is ... 26 years down the line can you revisit compensation in a curative ... For revised death figures I can understand. But the minor injuries, revising it so much indicates a possible ulterior motive. Do we accept that the organisations were not ...

Justice Khanna: ... aware of minor injuries?

AG: all over the world there are several categories of unevaluated medical complications.

SC: You cannot have scenario where so many years later you have new findings and say our decison was motivated.

Justice Nath: Settlement was for future litigation too.

AG: Assumptions on ad hoc basis were placed before the Court. By '97 the registrations before welfare commissioners was complete.

SC: It took 13 years?

Salve: There were protests by NGOs that they would not accept the compensation.

Justice Oka: In review the contention of low compensation was raised. But now that chapter is over. It says if there is shortfall govt must say. My question is why did government not pay that time?

Justice Oka: If Union of India was satisfied that compensation was low, it should have disbursed it then and then initiated recoveries.

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Justice Oka: Why did you not pay them in 11 years?

Justice Nath: Real difficulty is that 1000 crores paid to 5,75,000.

Justice Kaul: You did not settle on the principle that everyone was affected, but paid compensation on that basis.

Salve: Claimants were paid compensation pro-rata as well as additional amounts.

Justice Oka: Is the curative for claimants to get more payment?

AG: Yes

Justice Oka: which you have not recovered so far.

AG: 1549.33 crores disbursed by RBI to us (to a question by Justice Kaul). On a pro rate basis, an equal amount released later

Salve reads from pleadings about amount paid by Union Carbide.

Salve: Union of India can pay more if they wish but they cannot do this by saying that the old settlement was bad.

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SC: Some people have may ailments because of the tragedy, others may ... How you determine this after 20 years? The table is made very conveniently. 3000 cr was disbursed.

AG: Of course. But to whom is the question.

AG: Wrongdoing is wrongdoing, one's negligence cannot be escaped from only because it is 20 years later.

SC: But we are not even reopening

Salve: The word is revoke.

AG: I would say this Court will say revising the figures is possible

AG: The scheme and the Act envisaged at that point of time as per the events unfolded then. It is not that injuries always unfold easily.

SC: Curative relief without challenging the settlement is getting an additional amount from them which you want us to direct.

Justice Kaul: Tomorrow if you like it we can open anything, what is happening.

AG: Let me continue tomorrow. Grateful.

Salve: I may be missing for a while.

SC: will not end in a while. (Counsel smile)

Bench rises for the day

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