Putting aside the Government of India’s failure to meet the procedural requirements for filing a Curative Petition, by filing the petition to reopen the settlement of the Bhopal gas disaster, some 21 years after the settlement, the Government is reneging on the 1989 agreement it negotiated and signed with Union Carbide Corporation (UCC) and its Indian subsidiary, Union Carbide India Limited (UCIL). That agreement was recorded and approved by the India Supreme Court in 1989 and has since been twice reviewed and validated (1991 and 2007) in the face of challenges very similar to what is now brought by the Government of India. In rejecting previous attacks on the settlement agreement, the India Supreme Court has described the agreement as fair, just, appropriate – and final. Given these facts, the Government’s decision to renege on the settlement agreement is a serious breach of its obligations to respect and observe the rule of law.
Not only is it improper to reopen the settlement agreement with regard to UCC, but it is even more inappropriate to try to impose liability for the Bhopal tragedy on TDCC given that TDCC did not become a shareholder in UCC until 2001, some 17 years after the event and 12 years after UCC and UCIL had settled the matter with the full approval of the India Supreme Court. The fact is that TDCC had no connection whatsoever to the tragedy or its aftermath.
Thirty years after the tragedy of the 1984 gas leak in Bhopal, this terrible event continues to evoke strong emotions in some. But India is a country committed to justice, fairness and the rule of law. Allowing the understandable human emotions evoked by the tragedy to do away with these principles, as the Curative Petition seeks to do, is not only wrong, but it sends an unfortunate message that the Indian government does not honor the rule of law or its own commitments. Its actions here will inevitably lead to reluctance by parties in the future to voluntarily resolve and compromise controversies with the Government of India and erosion of confidence in investing in India’s vibrant economy.
The attempt to rewrite the settlement agreement to obtain additional funds is improper for the additional reasons that UCC has never been found legally liable for damages resulting from the Bhopal gas release; rather, the settlement was a voluntary undertaking to compromise disputed liability. As the India Supreme Court noted at the time it approved the settlement, in analyzing whether “the settlement is just, fair and adequate,” it is “necessary to remind ourselves” that “we should not proceed on the premise that the liability of UCC has been firmly established” because “the suit involves complex questions as to the basis of UCC’s liability and assessment of the quantum of compensation in a mass tort action.” October 3, 1991 Order, Paragraph 188.
In any event, the Supreme Court of India’s issuance of notice on the Curative Petition does not mean that it has agreed that the settlement should be reopened or that it is not legally binding on the parties. Nor does it mean that TDCC, which had no connection to the disaster, can be held responsible for it. Those questions can only be decided by the Supreme Court of India after hearing the positions of all the parties and only in accordance with the law. Principles of the rule of law, due process and fundamental fairness should lead the Court to reject the relief sought in the Curative Petition on its merits – just as it did in 1991, and again in 2007, when essentially the same grounds were presented by certain NGOs to justify reneging on the agreement. Indeed, the Government of India itself defended the settlement as fair and appropriate against both of those challenges, and the Welfare Commissioner – the Government of India office charged with administrating the settlement fund – has continued to defend the fairness and finality of the settlement agreement as recently as November 2010.