Speculations on government response have been put to rest with the outcome of the deliberations and discussions of the GoM. A case has been made out for enhancement of the compensation based on the degree of severity ranging from death, permanent disability, cancer cases, renal failure to temporary disability on a scale of Rs ten to one lakh.
It is proposed that the Bhopal Memorial Hospital & Research Centre (BMHRC) and the Trust which has a corpus of Rs 436 crore, be taken over by the Government after due formalities. Only time will prove the implementation of these assurances.
Though the issue of compensation should be the priority, the issue of Warren Anderson’s extradition has evoked considerable emotionalism in being compared with extradition of Nazi war criminals from South America. That the State facilitated Anderson’s release and departure is now well established. Efforts in attachment of his property in the US issue of a non-bailable warrant (BW) for arrest drew a blank in the past. Later initiatives after India signed an Extradition Treaty with the US in 1999 led nowhere.
Though CBI claims to have enough evidence to nail him and that Anderson still remains charged under Section 304 inspires optimism. But it does not advance the likelihood of extradition. There is every possibility of the request for extradiction being declined on grounds of ill health and age.
2. As regards the Indian offenders, the Government proposes a Curative petition be filed for a reconsideration of the 1996 judgment which confined the trial to changes under Section 304A of the IPC . Curative Petitions are a new genre in the invocations to Supreme Court to reconsider a case, under its inherent powers. Resorted to in earlier instances (A.I.R. Antulay Vs R.S.) Nayak (1988), and definitively laid down in Rupa Ashok Hurra Vs Ashok Hurra (2002) , as to how the Supreme Court can be approached even after the review process is over to cure a grave miscarriage of justice.
Essentially this will involve the setting aside of the 1996 judgment.
But in an attempt to do so it is not clear how the Court will address and override the provisions of Section 300 of the Code of Criminal Procedure (“CRPC”) which provides that once convicted or acquitted of an offence arising out of certain facts, no person can be tried for the same or any other offence on the very same facts.
Keshab Mahindra and his co-accused stand convicted. On what exception does the Government expect that the Supreme Court shall be able to ignore the case of double jeopardy, which is enshrined in Article 20 of the Indian Constitution.
3. While the criminal proceedings are important to demonstrate that the justice is being done and the guilty should not escape unpunished for under it is the Civil Law that provides relief and rehabilitation.
Which is why in cases of this nature the only realistic outcome is the quantum of compensation, prompt just and fair. In this instance too, the Attorney General has been asked to examine whether a Curative Petition would merit consideration.
Under law, the settlement is a consent order, and the provisions of Order 33 Rule 3 of the Code of Civil Procedure clearly provides that consent of the parties, is not set aside save in the exceptions provided as in Rule 3B in the same Order which requires that Court has to give notice to interested parties' objection was raised. This was agitated in the Sahu case and hereafter in bunch of the repeated invocations by way of reviews, appeals and miscellaneous petitions, in 1992. The Court relied on Clause (d) of the Explanation to Subsection (1) of the Rule to hold that the victims would be bound by the settlement though not named in the suit as a position conceded by all On what basis this was determined is not clear, and how the Government will dislodge this.
And finally the murkiest angle, more than the accumulated toxic waste. The clean up of the site – put on the backburner, ignored in the settlement, in the transfer of business, the unconditional handover of the land to the State. Why hold Dow liable, when their predecessor in interest was let off scot free.
When the Supreme Court absolved UCIL of all liabilities, why was environmental remediation, a standard claim in damage in all toxic industrial disasters overlooked? Our government deemed it fit to shut the door.
As on date this is on Dow’s side. The Supreme Court’s dispensations are the warranties in favour of Dow.
Kumkum Sen is a Partner in Rajinder Narain & Co and can be reached at Kumkumsen@rnclegal.com
