Bhopal gas tragedy: Rupee depreciation not ground for 'top-up' of settlement, say UCC successor firms

Now, the actual argument before the court is that the settlement has become inadequate because the rupee depreciated, Senior advocate Harish Salve contended.
A view of abandoned Union Carbide Factory is seen from Atal Ayyub Nagar one of the most affected areas in Bhopal Friday Nov. 23 2018.  (File | PTI)
A view of abandoned Union Carbide Factory is seen from Atal Ayyub Nagar one of the most affected areas in Bhopal Friday Nov. 23 2018. (File | PTI)

NEW DELHI: Successor firms of the Union Carbide Corporation (UCC) told the Supreme Court on Thursday that the depreciation of the rupee since 1989, when a settlement was arrived at between the company and the Centre, cannot be a ground to now seek a "top-up" of compensation for the victims of the Bhopal gas tragedy.

A five-judge bench headed by Justice Sanjay Kishan Kaul reserved its verdict on a curative petition of the Centre seeking an additional Rs 7,844 crore from the successor firms of UCC for extending greater compensation to the victims of the 1984 tragedy which had claimed more than 3000 lives and caused damage to the environment.

Senior advocate Harish Salve, appearing for the respondents, told the bench, also comprising Justices Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari, the Government of India never suggested at the time of the settlement that it was inadequate.

"There are series and series of affidavits starting from 1995 and ending as late as 2011, where the Union of India has opposed every single attempt to suggest that the settlement (of 1989) is inadequate. Affidavits upon affidavits were filed," Salve said.

Now, the actual argument before the court is that the settlement has become inadequate because the rupee depreciated, he contended.

"Go back to 1989 and just compare,but that (depreciation) cannot be a ground for top-up. That is the long and short of their submission," Salve said, adding the settlement of USD 470 million (Rs 715 crore) had taken place because a judicial order was passed by a district judge in 1987.

However, during the arguments on the curative petition, the Centre has not made any submission about the depreciation of the rupee.

Salve said nothing has been ever suggested by the Centre or anybody else that the UCC offered more in any negotiation or discussion on settlement than what was accepted between the parties.

"The Attorney General of the day said that my shoulders are broad enough, I take responsibility and I think this is the best for the people responsible. The five-judges who sat there said our shoulders are broad enough, we take responsibility," he said.

Salve said the then Attorney General Fali S Nariman started negotiating the settlement after the district court order and by the time the matter reached the top court, it was found that Nariman was stuck at USD 440 million and the government at USD 500 million.

"So, this court gave a slight nudge to both the parties and USD 470 million was finalised and settlement took place," he said, elaborating on the background as to how the settlement was reached.

He added the contamination in the soil was first discovered in 1997 after the CBI had taken over the entire premises of the fertilizer manufacturing unit in 1984 following the tragedy and the government of Madhya Pradesh had cancelled the lease to the Union Carbide India Limited (UCIL).

Salve referred to several conspiracy theories related to the case, saying there was one which claimed the then Prime Minister Rajiv Gandhi had met Warren Anderson in a hotel in Paris before the settlement.

He said Anderson had by then retired as the UCC chairperson. The top court also heard intervenors represented by senior advocate Sanjay Parikh and advocate Karuna Nundy.

The top court had on Wednesday told the Centre it cannot act like a "knight in shining armour" and decide the curative plea seeking additional funds from UCC as a civil suit, and asked the government to "dip into its own pocket" to provide enhanced compensation.

The Centre wants another Rs 7,844 crore from the US-based UCC's successor firms over and above the USD 470 million (Rs 715 crore) it got from the American company as part of the settlement in 1989.

A curative petition is the last resort for a plaintiff after an adverse judgement has been delivered and the plea for its review rejected.

The Centre had not filed a review petition for rescinding the settlement which it now wants enhanced.

The Centre has been insisting that the enormity of the actual damage caused to human lives and environment could not be assessed properly at the time of the settlement in 1989.

On January 10, the top court had questioned the Centre for pursuing its curative plea seeking additional funds from UCC, saying the government cannot reopen a settlement that was reached with the company after over 30 years.

The UCC, now owned by Dow Chemicals, gave a compensation of Rs USD 470 million (Rs 715 crore at the time of settlement in 1989) after the toxic methyl isocyanate gas leak from the Union Carbide factory on the intervening night of December 2 and 3, 1984 killed over 3,000 people and affected 1.02 lakh more.

The survivors of the tragedy have been fighting for long for adequate compensation and proper medical treatment for ailments caused by the poisonous gas leak.

The Centre had filed the curative petition in the apex court in December 2010 for enhanced compensation.

On June 7, 2010, a Bhopal court had sentenced seven executives of Union Carbide India Limited (UCIL) to two years' imprisonment. The then UCC chairman Warren Anderson was the prime accused in the case but did not appear for the trial. On February 1, 1992, the Bhopal CJM court declared him an absconder.

The courts in Bhopal had issued non-bailable warrants against Anderson twice in 1992 and 2009 before his death in September 2014.

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