Thursday, June 24, 2010

For 20 years, Govts failed to act

Rajesh Singh


Although the Centre, stung by charges of complicity and inaction, is now moving swiftly to provide additional monetary compensation to the Bhopal gas victims, for over two decades various governments sat on key recommendations of the Supreme Court that provide for speedy compensation and relief to victims of industrial disasters. Noted jurist Fali Nariman in his recently released autobiography, Before Memory Fades, notes, “It is sad to record that…not one of any of these recommendations have been implemented so far”. He also takes a dig at the NGOs for ignoring the issue. “No one – not even spirited NGOs seem to be interested in lobbying for enactment of new laws as suggested by the court”.

Nariman, who devotes an entire section of the book to the Bhopal tragedy, points out to a set of Apex Court recommendations made on December 22, 1989 – five years after the event happened – that called for new legislation to ensure that victims of such tragedies were compensated immediately and did not get entangled in the web of legalese for years as they waited for their monetary due. While upholding the validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, a Constitution Bench of the Supreme Court said that the Centre should insist that corporations seeking to establish hazardous industries first created a fund before they were issued licences. The money from the fund would be used to promptly compensate victims.

Nariman, who was roundly condemned by human rights activists and some legal experts for having represented Union Carbide Corporation in the disaster case, brushes aside the criticism with characteristic aplomb: “Sentiment is a poor guide to decision making – but toxic torts do generate a great deal of it.” In the book, he seeks to channel the anger reflected in populist demands to the task of ensuring that concrete steps are taken to tackle such disasters in future. The Apex Court, he says, laid down five crucial suggestions to prevent the recurrence of more Bhopals. These, had they been legislated, could have even helped the Bhopal gas leak victims.

One, the basis for damages should be statutorily fixed taking into consideration the nature of damage, its consequences and the capacity of parties to pay. The proposed law should also provide for deterrent or punitive damages. “This is vital for the future”, the Supreme Court remarked – twenty years ago.

Two, laws should be framed for extending interim relief to victims during the pendency of proceedings. This would, at least, reduce the agony of the victims, and is important since interim relief in such cases has been difficult to come by through existing laws.

Three, a law should provide for the establishment of tribunals to determine compensation. The aggrieved industry can challenge the Tribunal’s decision in the Supreme Court, but only after depositing the compensation amount determined by the Tribunal.

Four, a statutory permanent ‘Industrial Disaster fund’ should be created, to which the government and industries, whether public or private, could contribute. The Fund would be used to extend immediate monetary relief to victims.

And five, the “antiquated” Fatal Accidents Act, 1885, should be either drastically amended or replaced with a fresh Act to ensure, besides other things, payment of a fixed minimum compensation on ‘no fault liability’ basis and a provision requiring industrial concerns engaged in hazardous activities to take out a compulsory insurance against third party risks.

Nariman says in the book that, barring the third party insurance suggestion, none has been so far implemented. He is clearly of the view that an early and fair settlement of monetary compensation is one tangible way of delivering justice, since establishment of criminal liability is a long drawn process and may or may not bear fruit.

He explains how within the existing legal framework distribution of compensation money was delayed, either through political intransigence or by the obstacles perhaps unwittingly placed in the way by well-meaning non-governmental organizations. He offers some instances: the Madhya Pradesh High Court on April 4, 1988, modifying a District Court’s order, passed a decree for interim damages to the tune of 2500 million rupees. But, while Union Carbide (perhaps satisfied with the amount) did not challenge the decree, the Centre made no attempt to execute the order that would have – twenty years ago – placed some money in the hands of the victims and their families.

Nariman provides another example. Even as hearing on the above suit continued in Bhopal, the trial of suit could not begin even more than a year and half after the suit was filed, on the technical ground that the Union of India resisted an order for ‘mutual discovery of documents’. In other words, compensation distribution was further delayed.

The eminent jurist further writes that the matter got compounded with the protests by gas victim organizations and individuals, who filed review and writ petitions in the Supreme Court contesting the settlement. Frustrated by the delays in disbursement, Chief Justice of India, Ranganath Mishra in his October 3, 1991 order, scathingly observed:

“It may be right that some people challenging the settlement who have come before the court are the real victims. I assume that they are innocent and unaware of this rigmarole of the legal process. They have been led into a situation without appreciating their own interest. This would not be the first instance where people with nothing at stake have traded in the misery of others”.

(Published in The Pioneer on June 24, 2010)