Imagining India is a nightmare … corruption, scams, policy flip-flops, violation of legal rights, lack of respect for institutions (CVC) and now judicial verdicts. This India fits the descripttion of a 'banana republic'—nothing is a given, nothing is final, the rule of law is like elastic; it is stretched to suit the political expediency and compulsions of a coalition government.
The latest in the list is the filing of a curative petition in the Supreme Court to reopen the Bhopal Gas Leak compensation case. The trigger point, after 20 years, was the inadequate punishment in a criminal case! Before firing a salvo/ missile, one must identify the real target and send it in that direction; but here is a case of a misdirected missile.
Shift the blame while sacrificing those who can be made easy scapegoats and guinea pigs (those who are politically expendable) and mete out punishment so it appears that action has been taken. But the rule of law requires a prior adjudication, a determination that gives the benefit of the doubt—innocent till proven guilty. This has been given a go-bye. This is evident from precedent. There was Bofors—a JPC white-washed it and gave it a clean chit. Nothing was done to recover the money that caused a loss to the exchequer; there was Tehelka—those who dared to expose the systems and scandals and blow the whistle were crucified but the distortions/loopholes were not fixed. Then comes the 2G scam, where governments went into deep slumber and suddenly the CBI raids Raja as if expecting to find 'spectrum' in his house. This is an eye-wash. And then there is Bhopal, where the government had a constitutional duty to look after its people, provide relief and rehabilitation, but failed miserably.
Filing the curative petition is a facet of 'strong arm tactics' and has to be seen in its correct perspective and context. Let's look at the facts that emerge from the record:
1) The Government of India and Union Carbide Corporation (UCC) enter into a settlement in February 1989.
2) The settlement was filed in court and the Supreme Court recorded the terms of settlement by two separate orders dated February 14 and 15, 1989, based on the settlement [Union Carbide Corporation vs Union of India (1989) 1 SCC 674]. The settlement clearly provides that it finally disposes of all past, present and future claims, causes of action and civil and criminal proceedings, with respect to all past, present and future deaths, personal injuries, health effects, compensation, losses, damages and civil and criminal complaints of any nature whatsoever against UCC, Union Carbide India Ltd (UCIL), Union Carbide Eastern, and all of their subsidiaries and affiliates.
3) An attempt was made to re-open this settlement, which was rejected by the Supreme Court in 1991. However, the Supreme Court left the settlement and the orders undisturbed, holding that if the settlement fund is exhausted, the reasonable way to settle claims would be for the Union of India, as a welfare state, to make good the deficiency [Union Carbide Corporation vs Union of India (1991) 4 SCC 584].
4) Another attempt was made to re-open the settlement (on the grounds that compensation was inadequate). This was yet again rejected by the Supreme Court in 2007.
5) The Bhopal incident happened in 1984. The operator of the plant was UCIL. Its legal successor was Mcleod Russel, which has been renamed as Eveready Industries India Ltd. This company is fully alive and solvent even today. So far, so good. The government found none of this actionable, even though protesters and victims have been crying hoarse. Now drag in Dow Chemicals, which is nowhere on the scene and had no link or connection to the incident. A reverse merger took place in 2001 between a subsidiary of Dow and UCC, 17 years later—at a time when UCC was no longer doing business in india, resulting in shares of UCC (the surviving entity) being transferred to the Dow Chemical Company. The real culprit (now called Eveready India Ltd) remains a separate and distinct entity, which again has no link with Dow.
6) The government (EGoM) takes the view that the ministry of chemicals & fertilisers and CBI may be directed to file appropriate motions before the courts concerned and request the courts, specifically the MP High Court, to expeditiously decide the question of liability of Dow Chemicals Company or its successors to UCC/UCIL. Once this question is decided, various legal proceedings involving Dow and others liable can be taken forward. The government makes an application, which is pending. But without awaiting the verdict of the court, the government jumps the gun and, in a pre-determined manner, makes Dow a party and lodges its claim in the Supreme Court without establishing Dow's role and link, as none exists. It appears that the curative petition would amount to contempt of court.
Clearly, the government is shifting the blame and onus, though it has to foot the tab. The whole case is misconceived. Only the objective of sending a political signal is achieved—'we are on the job!'
This is the report card that shows a faulty approach, one which would fall in the category of 'rarest of the rare'. The government cannot re-open a case that is settled, i.e., it cannot be unsettled. In doing so, it will be using/abusing the legal process for serving a political end.
So what is the way ahead? How do we 'cure' this? India is seen as a mature democracy, growing economy and a haven for private/foreign investment. Investors come where there is certainty, minimum risk and their rights are secured. This means the integrity and sanctity of contracts/promises have to be adhered to; the government, as a sovereign, must fulfil its commitments; judicial verdict must be complied with in letter and spirit.
The government, having agreed to a settlement, is bound by it. It has given its word in a written document, received money by way of compensation and now cannot post facto wriggle out of it. If it takes the view that the compensation was not sufficient, it is obliged to pay out the balance as it has committed to do as a welfare state.
In the end, the government is duty bound to be just and fair. It cannot target companies or institutions but must target the real problems, the real issues and, in doing so, must reach out to the real people to provide prompt relief and rehabilitation and put them out of their misery and suffering. India will then truly be a 'shining India'.
In doing so, we need a complete overhaul and a 180-degree turn in the government's stand and approach as it plays out a political game in the legal arena. The 'climate' must change (and not at Cancun) to re-imagine India as the India that Gandhi-Nehru-Ambedkar foresaw. Namely, an India with obedience to the rule of law. It is the beginning of yet another struggle.
