Background:
Union Carbide (India) Limited (UCIL), which
was a subsidiary of the New York based Union Carbide Corporation (UCC) owned a
plant in Bhopal to manufacture pesticides. A highly toxic gas, Methyl
Isocyanate (MIC) was used in the process and there was a massive leak from the
storage tank on the night between 2nd and 3rd December 1984,
which resulted in death of approximately 3000 people and injuries to thousands
of others.
The tragedy was followed by large number of
suits being filed against the companies in both India and the United States.
With regard to this, the Government took a major step by enacting the Bhopal
Gas Leak Disaster (Processing of Claims) Act, 1985 with the object to “confer
powers on the Central Government to assure that claims arising out of, or
connected with, the Bhopal Gas Leak Disaster are dealt with speedily, effectively,
equitably and to the best advantage of the claimants and for matters incidental
thereto.”[1] Section 3 of the Act empowered the Central
Government to file suits on behalf of the victims exclusively, hence, taking
away the rights of affected to file suits on their own. Though it was
specifically mentioned that in case of suits that were already filed before the
enactment of the aforesaid Act, the Central Government shall represent the
victims or act in addition to them with the permission of the Court. Hence the writ.
Issues:
The following core issues that came up, were,
1)
Whether or not the Act was in
accordance with the Fundamental Rights guaranteed under Article 14, 19 and 21
of the Indian Constitution?
2)
Whether or not the Act was in
accordance with the Principles of Natural Justice?
2.1) Whether being a joint tort feasor, the Union on India had any
locus standi to compromise on behalf
of the victims as it itself had permitted the establishment of such factories
without necessary safeguards?
2.2) Whether or not the victims and their legal heirs were given
opportunity to be heard?
2.3) Whether or not, due to conflict on interests, the Central
Government was acting as a judge in its own cause?
3) Whether or not the Central Government is
legislatively competent to destroy/ demand the citizens to
surrender their rights in guise of giving aid?
--------------------------------------------------------------(1)---------------------------------------------------------
Whether or
not the Act was in accordance with the Fundamental Rights guaranteed under
Article 14, 19 and 21 of the Indian Constitution?
The contention of the petitioners was that
the Act infringed on their individual rights to legal remedy against the UCC
and UCIL for the consequences of carrying out dangerous and hazardous
activities in India. It was argued that
the “one could not take away the right of
a person, the liberty of a person, to institute proceedings for his own benefit
and for his protection.”[2]
Sections 3,4 and 11 of the aforesaid Act were contented to be in violation of
Article 14, 19(1)(g) and 21 of the Constitution because the procedure that was
established under these Sections deprived the just and legitimate rights of the
victims to assert and obtain their just dues and therefore such rights cannot
be destroyed because under law, victims have a right to ventilate their rights.
Another
argument in this regard was “that it has
been asserted by the Government that the Act was passed pursuant to Entry 13 of
the List I of the Seventh Schedule to the Constitution. It was therefore
submitted that to the extent it was a law relating to civil procedure, it sets
up a different procedure for the Bhopal gas victims and denies to them equality
before law, violating Article 14 of the Constitution….” Attention was also
drawn to the provisions of the Universal Declaration of Human Rights in support
of their argument.
The Government argued that there were various
reasons to enact the Act and some of them were- “ the plight of the impoverished, the urgency of the victims need, the
presence of the foreign contingency lawyers, the procedure of settlement in USA
in mass action, the strength of the foreign multinationals, the nature of
injuries and damages.”[3]
Further, it was argued by the Government that the Preamble to the Constitution
of India, read with the Directive Principles, Articles 38, 39 and 39A of
enjoins the State to take up responsibility. The taking up of this responsibility
has been derived directly from the doctrine of “parens patriae.”
“Parens
Patriae” means the “father of the country” and it is the inherent power and
authority of a legislature to provide protection to the person and property of
persons non suijuris, such as minor insane or incompetent persons. The judges
agreed that the “victims cannot be
considered to be any match to the multinational companies or the government
with whom in the conditions that the victims or their representatives were
after the disaster physically, mentally, financially, economically and also
because of the position of litigation would have to contend and in such a
situation of predicament, the victims could be legitimately be considered to be
disabled”[4]
and therefore the power was vested in the Central Government. Further it was
ruled that the Act in question had been passed in recognition of the right of the
sovereign to act as a parens patriae. The judges ruled that “it is necessary for the State to ensure the
Fundamental Rights in conjunction with the Directive Principles of State Policy
to effectively discharge its obligations and for this purpose if necessary, to
deprive some rights and privileges of the individual victims or their heirs to
protect their rights better and secure these further.”
Hence
the Court ruled that the Act was constitutional and not infringing on the
Fundamental Rights of the victims under Articles 14, 19 and 21.
-------------------------------------------------------(2)----------------------------------------------------------------
Whether or
not the Act was in accordance with the Principles of Natural Justice?
-----------------------------------------------------(2.1)---------------------------------------------------------------
1. Whether
being a joint tort feasor, the Union on India had any locus standi to compromise on behalf of the victims as it itself
had permitted the establishment of such factories without necessary safeguards?
The contention of the Government
was that it only represented the victims as a party and did not adjudicate
between the victims and the UCC and hence the rights of the victims were
adjudicated by the Court only. It was later stated that such a representation
of the victims by the Government cannot be considered to be bad anywhere and
hence there was no scope of violation of any principle of natural justice. The
Government contended that it was acting on behalf of the victims because the
Doctrine of Necessity applied in the present case. The Court agreed with the
Attorney General and referring to Halsbury’s Laws of England, in which it is
stated that,” even if all the members of
a tribunal competent to determine a matter were subject to disqualification,
they might be authorized and obliged to hear that matter, by virtue of the
operation of the common law doctrine of necessity”[5]
ruled that even if the Central Government might somewhere be liable in a case
of this nature, it would be proper that it should be able and authorized to
represent the victims because only the Government is capable of representing the victims (has locus standi) in such a peculiar case
and the doctrine of necessity would apply and the principles of natural justice
are not violated.
The Court also referred to the
case of J. Mohapatra vs. State of Orrisa[6].
In this case, there was dispute as to selection of books meant for
Government libraries. The selection was done on basis of recommendations by a
Committee and there were allegations that the Committee had members who
recommended their own books. The Court dwelling into the Doctrine of Bias,
commented on its exception in the following way: “An adjudicator,
who is subject to disqualification on the ground of bias or interest in the
matter which he has to decide, may be required to adjudicate if there is no
other person who is competent or authorized to adjudicate or if a quorum cannot
be formed without him or if no other competent tribunal can be constituted. In
such cases, the principal of natural justice would have to give way to
necessity for otherwise there would be no means of deciding the matter and the
machinery of justice or administration would break down.”[7]
----------------------------------------------------(2.2)----------------------------------------------------------------
Whether or not the victims and their legal heirs were given
opportunity to be heard?
One of the basic principles of Natural
Justice is that people affected by an action or inaction should have a Right to
be Heard. In this case, the petitioners contended that they were not given any
right to be heard as the Central Government took control to represent all the
victims together. Even by doing so they could have got their say if the Court
notified them about the due proceedings, settlement agreement through
newspapers, television, radio or any other adequate sources. The CJ Sabyasachi
Mukherji remarked in the present case,” The
general principle as distinguished from an absolute rule of uniform application
seems to be that where a statue does not in terms exclude this rule of prior
hearing but comtemplates a post decisional hearing amounting to a full review
of the original on merits than such a statue would be construed as excluding
the audi alteram partem rule as the pre decisional stage. If the statue
conferring the power is silent with regard to giving of pre decisional hearing
to the person affected, the administrative decision after post decisional
hearing was good.”[8]
Reference to the case of Maneka Gandhi vs Union of India[9]
were her passport was impounded by the authorities without giving her any prior
notice or opportunity to be heard. The legal question was “ can a post decisional hearing mitigate the
injustice caused by the lack of pre decisional hearing. All the Judges agreed
that it was a clear violation of the Doctrine of audi alteram partem and hence
the Court decided to give a post decisional hearing to her.”[10]
Finally, the Court ruled that some say was
actually given to the victims by Section 4 of the aforesaid Act to represent
themselves before the Court before it comes to any conclusion in respect of any
settlement. It was because of the mass tort action and the magnitude and nature
of this case that it was near to impossible to hear each and every concerned.
----------------------------------------------------(2.3)----------------------------------------------------------------
Whether or
not, due to conflict on interests, the Central Government was acting as a judge
in its own cause?
It was contended by the Petitioners that the
Central Government owns 22% shares in UCIL and hence there is a conflict of
interest between the victims and hence on that ground the latter is disentitled
to represent the former in their battle against UCIL and UCC which would make
the government a judge in its own cause, thus breaching this principle of
natural justice. The Court on this aspect, ruled that” These are statutory independent organisations namely UTI and LIC who
own 20-22% share in UCIL. The Government has certain amount of say in LIC and
UTI and hence there is no conflict on interests in real sense of matter with
respect to the given case. Secondly, in such a critical situation, only the
Central Government can pursue and effectively represent the victims.”[11]
Therefore the Court ruled that the Doctrine
of Necessity would over ride the possible violation of the principles of
natural justice that no one should be a judge in his own cause.
Thus it can be seen that the Court applied to
Doctrine of Necessity in its widest scope in this case. It seemed that Court in
this case was in agreement to an extent that the principles of natural justice
would be violated due to the enactment of the Act but the sheer magnitude and
complexity of the situation led the Court to make this exception to the
Doctrine of Bias applicable to this case. The Court found that it was only the
Government which was capable of leading, representing and taking forward the
cause of the victims, even though it may be denying them the right to be heard
in some sense and would be a judge in its own cause in some sense, but the
situation called for the exception to be adopted.
----------------------------------------------------(3)-------------------------------------------------------------------
Whether or not the Central Government is legislatively competent
to destroy/ demand the citizens to surrender their rights in guise of giving
aid?
The victims contended that it is not
permissible for the State to grant legal aid at the cost of destroying rights
that in here in citizens or by demanding the rights of the citizens to the
State. On interpretation of the Act it was noticed that Sections 3 and 4 gave
exclusive power to the Government to represent the victims and hence there is
deprivation of victims right to sue for the wrongs done to them which is
uncanalised and unguided and the expression “due regard” in Section 4 of the
Act does not imply consent and hence it violates the rights of the victims.
In response, the Central Government’s
argument was that the Act was passed to give effect to the Directive Principles
as enshrined under Article 39A of the Constitution of India. The Court ruled that
the Central Government is legislatively competent in enacting such provisions
taking DPSP under Article 39 as a feasible defense for such competency .
CONCLUSION
This case has been a unique case in itself
where the urgency of the situation and the lack of legislations and
administrative provisions led to the enactment of the Act in a haste and this
subsequent case where the Supreme Court “had” to interpret that the situation
called for the exceptions in Administrative Law to apply. The Judges also suggested various ways[12]
in which such future situations could be taken care of. “The Bhopal gas tragedy and the legal
response thereto have been the subject of great controversy. A review petition
against the above settlement award was filed before the Supreme Court in the
Union Carbide Corpn. Vs India. Objections were taken to the competence of the
Supreme Court to withdraw criminal prosecutions and pass such an order in the
course of the hearing of appeals arising out of the interlocutory orders in the
suit. The Court, however, set aside the order quashing criminal prosecutions
and imposing an embargo on future prosecutions….”[13]
“To do a
great right after all, it is permissible sometimes to do a little wrong”[14]
[1]
Preamble of the “ Bhopal Gas Leak Disaster ( Processing of Claims) Act, 1985”
[2]
Para. 33
[3]
Para. 99
[4]
Para. 100
[5]
Para 105
[6]
1984 4 SCC 103
[7]
Para. 4 (1)- J. Mohapatra vs. State of Orrisa, 1984 4 SCC 103
[8]
Para 8
[9]
AIR 1978 SC 597
[10]
SP Sathe, Administrative Law, 7th Ed., Pg. 236
[11]
Para 102
[12] All the judges proposed a common fund that such
companies, who will be engaging in dangerous activities, would have to maintain
for such calamities. This was in forceful submissions made by the petitioners
that big MNC’s from world over were exploiting the Third World by coming and
indulging in dangerous activities, for profit, with total disregard for human
rights.
[13]
SP Sathe, Administrative Law, 7TH Ed., Pg. 603
[14]
Para 124
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