Bhopal Gas Tragedy compensation [Day 2]: Cannot be knight in shining armour or play to gallery in all cases: Supreme Court

The Supreme Court on Wednesday reiterated the limitations of its jurisdiction under curative petitions, stating that it could not revisit or reopen issues it had earlier considered in review petitions. (Union of India v. Union Carbide Corporation).A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari, hearing a plea concerning compensation for deaths and injuries caused by the 1984 Bhopal Gas Tragedy, told Attorney General (AG) R Venkataramani that the Central government could not at this stage fasten additional liability on Union Carbide Corporation."We have all sympathies for those who have suffered, but ultimately you have to fit in the jurisdiction of curative...Court cannot be a knight in shining armour for everybody. We are constrained by law...Tomorrow you might say that the air travelled much more beyond Bhopal, we would like to give benefit to peripheral areas," Justice Kaul remarked. .The Bench is hearing a curative petition filed by the Central government in 2010 challenging an earlier top court order concerning the settlement amount made by Dow Chemicals/Union Carbide Corporation to the families of the victims and survivors of the Bhopal Gas Tragedy.The Supreme Court had yesterday stated that it could not turn the case into a suit to determine the compensation paid to victims afresh..The top court at the outset of today's hearing said that nobody doubts the enormity of the tragedy. However, it emphasised that questions regarding the assessments of liability remained. The AG began by saying that he may be a little emotive in his submissions, to which Justice Kaul replied,"There may have been more severe cases with less (compensation) ...It is easy to be emotive. But we do not have the privilege to play to the gallery. Whole issue is under what jurisdiction are we hearing...Every dispute has to have closure...Can we keep opening some routes which are closed?"The AG said that access to justice was key in the matter, and pointed out that the apex court had invoked its parens patriae (parent of the nation) jurisdiction earlier with respect to compensation. Arguing that the amount offered by the respondents was a pittance, the AG stated, "I urge this Court that some of the legal impediments be travelled through by [relying on] some of the judgments I am about to place." Justice Oka responded to this saying,"Can we expand scope and take it somewhere else?""Lordships are sitting in a Constitution bench," the AG replied. Justice Kaul then quipped, "It is like quicksand. You keep expanding everything. On the lighter side, normally the government is very hesitant to expand a case's scope." The AG underscored that the Court is looking at a situation which was not fully understood in 1992, the year the review judgment was passed.The Bench then observed that nothing stopped the Central government from taking a proactive role and increasing the compensation from its end. The Court said that in the presence of a settlement, it could not get into aspects of what would otherwise be a trial..The AG underscored that the doctrine of restitution allows for further compensation even in such cases. The Bench then made it clear that a curative petition could not be treated as a review of a review judgment, and remarked, "Attorney, a curative is not review of review...There was no trial or determination. You cannot now fasten additional liability after a settlement was willingly arrived at by parties...Nothing arose (during trial). Both sides took a decision. We cannot foreclose that."Justice Khanna weighed in, remarking,"Can a change in the settlement be done unilaterally? We cannot say that you will have a free ride." "Question of additional liability will come from what the statutory authorities, the welfare commissioner have found," the AG replied. Towards the end of the hearing, AG Venkataramani said, "This is a case with rough edges. Like a diamond also has sometimes. So if I have to handle a diamond and shine it, I will." Justice Kaul replied, "Then it should be done in a way that the diamond does not disappear.".Arguments in the matter are likely to conclude tomorrow, after the Court hears the respondents (Union Carbide Corporation) and the impleadment applications of NGOs.

Bhopal Gas Tragedy compensation [Day 2]: Cannot be knight in shining armour or play to gallery in all cases: Supreme Court

Abhimanyu Hazarika

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