SC notice to MNCs on compensation to Bhopal gas victims

However,the court said it will first hear the curative petition filed by CBI in the criminal case in which it has sought restoration of the stringent charge of culpable homicide not amounting to murder against the accused,which attracts a maximum punishment of 10 years’ jail term,against them for the world’s worst industrial disaster that left over 15,000 people dead and thousands maimed.

“We will keep the criminal matter first and then the civil matter of compensation will follow,” a 5-judge Bench headed by Chief Justice S H Kapadia said while deciding to hear both the petitions in an open court.

Curative petitions are generally heard in chambers of judges, “We propose to sit on a day-to-day basis from April 13 to hear the criminal matter,” the bench,also comprising Justices Altamas Kabir,R V Raveendran,B Sudershan Reddy and Aftab Alam,said.

The court also issued notices to the four companies on the petition filed by the government seeking transfer of the writ petition pending before the Madhya Pradesh High Court in which the issue relating to the environmental damage caused due to the leakage of the poisonous gas has been raised.

The petition in the High Court has raised the issue as to who is liable to pay compensation for the environmental damage as Dow Chemicals Company’s owes UCC since 2001 and Attorney General G E Vahanvati said “a comprehensive view can only be taken by this (SC) court”.

“We want to know in the High Court who is the successor of UCC. Whether Dow Chemical is the successor of UCC and who will pay the compensation for environmental damage. This aspect of damage has not been determined in the 1989 settlement. It is better you (SC) deal than the High Court”,Vahanvati said when the Bench wanted to know from him about the petition in the High Court.

“We are just issuing notice”,the bench said after the Attorney General made it clear that he was not pressing for stay of hearing before the High Court which is scheduled to hear the petition on March 17.

Senior advocate Harish Salve,appearing for Dow Chemicals,said the company was opposing the Centre’s plea seeking transfer of the petition from the High Court to the apex court. The Bench,which had issued notices in the criminal case,said it was granting three weeks to the parties to file any document before it commences the hearing on April 13.

The bench had on August 31 last decided to re-examine its own judgement that led to lighter punishment of two years imprisonment for the accused including former Union Carbide India Chairman Keshub Mahindra. The light punishment had triggered a nationwide outrage.

The court had sought a response from the seven accused on the CBI plea seeking restoration of the stringent charge of culpable homicide.

Besides Mahindra,Vijay Gokhale,the then Managing Director of UCIL,Kishore Kamdar,then Vice President,J N Mukund,then Works Manager,S P Choudhary,then Production Manager,K V Shetty,then Plant Superintendent and S I Quereshi,then Production Assistant were convicted and sentenced to two years’ jail term by a trial court in Bhopal on June 7 this year.

The curative petition in the criminal case was filed after a nationwide outrage over the trial court judgement in the 26-year-old case following which the Centre appointed a group of ministers (GoM) to recommend steps including ways to get the punishment enhanced.

The charge under section 304 part-II was diluted to section 304A by a bench comprising the then Chief Justice A M Ahmadi and Justice S B Majmudar on the plea of the accused in the 1984 gas disaster case.

CBI has sought reconsideration of the apex court’s September 13,1996,judgement which had whittled down the charge to ‘causing death due to rash and negligent act’ against Mahindra and six others.

All the accused were tried as per the 1996 judgement of the apex court under section 304A of Indian Penal Code which attracts a maximum punishment of two years’ imprisonment for causing death by a rash and negligent act.

Government had on December 3,the anniversary of the gas tragedy,moved the apex court seeking enhancment of the compensation from Rs 750 crore to Rs 7,700 crore for the victims.

However,the apex court had not issued notices on the plea of the Ministry of Chemicals and Fertilizers seeking payment of additional damages the companies.

The apex court had also dismissed the petition to review its judgements and orders on October 3,1991.

The petition filed by the Centre in the capacity of legal guardian of the victims of the gas tragedy has contended that the figure of 470 million dollars was arrived by the apex court on “incorrect and wrong assumption of facts and data in the impugned judgments”.

The Centre has submitted that the apex court in its 1989 judgment had observed that the settlement was based on certain ‘assumptions of truth’ and if the said assumptions are unrelated to ‘realities’,then the ‘element of justness’ of the settlement would seriously be impaired and liberty was given to approach the court.

Government has asked the apex court to exercise its jurisdiction to address the error in its judgements on the issue “in public interest” apparent.

It said the companies are responsible for the disaster and as such “the tax payers’ money cannot be utilized for meeting the liability of the companies which are tort-feasors (wrong doers)”.

The Centre maintained that UCC and its subsidiary named in its petition were jointly and severally liable for payment of the claims as “it has emerged that basic underlying assumptions of fact and data in the impugned judgments and orders are incorrect,thereby vitiating the very foundation on which the compensation was awarded”.

The Centre contended that in the comprehensive review conducted by it in June,2010,it has emerged that the figures that formed the basis of the compensation awarded by this court are “completely incorrect”.

It said the compensation in 1989 was decided on the basis of assessment that there were 3000 deaths,20,000 people with temporary injury and 50,000 with minor injury.

However,the figure as estimated now stands as 5,295 deaths,35,000 people with temporary injury and 5.27 lakh with minor injury,the petition said.

“In these circumstances,the petitioner is approaching this court for remedying the manifest injustice that has resulted from the incorrect assumptions of fact in the impugned orders pursuant to the liberty granted by this court,” the Centre said in its petition.

Government said filing of the curative petition was an attempt by it “to cure gross miscarriage of justice and perpetration of irremediable injustice being suffered by the victims of the Bhopal gas tragedy.