RANGANATH MISRA -
(1.) I entirely agree with mynoble and learned brother Venkatachaliah and hope and trust that thejudgment he has produced is the epitaph on the litigation. I usually avoidmultiple judgments but this seems to be a matter where something morethan what is said in the main judgment perhaps should be said.
(2.) EARLY in the morning of 3/12/1984, one of the greatestindustrial tragedies that history has recorded got clamped down on theotherwise quiet township of Bhopal, the capital of Madhya Pradesh. Theincident was large in magnitude 2,660 people died instantaneously andquite a good number of the inhabitants of the town suffered from severalailments. In some cases the reaction manifested contemporaneously andin others the effect was to manifest itself much later.
Union Carbide Corporation ('UCC' for short), a multinationalone, has diverse and extensive international operations in countries likeIndia, Canada, West Asia, the Far East, African countries, Latin Americaand Europe. It has a sister concern known as Union Carbide India Limited ('UCIL' for short). In the early hours of 3/12/1984,there was a massive escape of lethal gas from the MIC Storage Tank ofthe plant into the atmosphere which led to the calamity.
Several suits were filed in the United States of America for damages by the legal representatives of the deceased and by many of the601affected persons. The Union of India under the Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985 took upon itself the right to suefor compensation on behalf of the affected parties and filed a suit forrealisation of compensation. The suits were consolidated and JudgeKeenan by his order dated 12/05/1986, dismissed them on the groundof forum non conveniens subject, inter alia, to the following conditions:
(1 Union Carbide shall consent to submit to the jurisdiction ofthe courts of India and shall continue to waive defences based onthe statute of limitations; and.
(2 Union Carbide shall agree to satisfy any judgment renderedagainst it in an Indian court, and if appealable, upheld by any appellate court in that country, whether such judgment and affirmancecomport with the minimal requirements of due process.
(3.) THE United States court of Appeals for the Second Circuit by itsdecision of 14/01/1987, upheld the first condition and in respect ofthe second one stated:
"In requiring that UCC consent to enforceability of an Indianjudgment against it, the District court proceeded at least in part onthe erroneous assumption that, absent such a requirement, theplaintiffs, if they should succeed in obtaining an Indian judgmentagainst UCC, might not be able to enforce it against UCC in theUnited States. THE law, however, is to the contrary. Under NewYork Law, which governs actions brought in New York to enforceforeign judgments ... a foreign country judgment that is final, conclusive and enforceable where rendered must be recognised and willbe enforced as 'conclusive between the parties to the extent that itgrants or denies recovery of a sum of money' except that it is notdeemed to be conclusive if:
1. the judgment was rendered under a system which doesnot provide impartial tribunals or procedures compatible withthe requirements of due process of law;
2. the foreign court did not have personal jurisdiction overthe defendant.
Article 53. Recognition of Foreign Country Money Judgments.Although 5304 further provides that under certain specified conditions a foreign country judgment need not be recognized, none ofthese conditions would apply to the present cases except for the possibility of failure to provide UCC with sufficient notice of proceedings or the existence of fraud in obtaining the judgment, which donot presently exist but conceivably could occur in the future."
THE court rejected the plea advanced by UCC of breach of due processby non-observance of proper standards and ultimately stated:602
"Any denial by the Indian courts of due process can be raisedby UCC as a defence to the plaintiffs' later attempt to enforce resulting judgment against UCC in this country."
After Judge Keenan made the order of 12/05/1986, in September of that year Union of India in exercise of its power under the Actfiled a suit in the District court at Bhopal. In the plaint it was stated thatdeath toll up to then was 2660 and serious injuries had been suffered byseveral thousand persons and in all more than 5 lakh persons had soughtdamages up to then. But the extent and nature of the injuries or the aftereffect thereof suffered by victims of the disaster had not yet been fullyascertained though survey and scientific and medical studies had alreadybeen undertaken. The suit asked for a decree for damages for suchamount as may be appropriate under the facts and the law and as may bedetermined by the court so as to fully, fairly and finally compensate allpersons and authorities who had suffered as a result of the disaster andwere having claims against the UCC. It also asked for a decree for effective damages in an amount sufficient to deter the defendant and othermultinational corporations involved in business activities from committing wilful and malicious and wanton disregard of the rights and safety ofthe citizens of India. While the litigations were pending in the US courtsan offer of 350 million dollars had been made for settlement of the claim.When the dispute arising out of interim compensation ordered by theDistrict court of Bhopal came before the High court, efforts for settlement were continued. When the High court reduced the quantum ofinterim compensation from Rs. 350 crores to a sum of Rs. 250 crores, bothUCC and Union of India challenged the decision of the High court byfiling special leave petitions. It is in these cases that the matter wassettled by two orders dated February 14 and 15, 1989.' On 4/05/1989,the Constitution bench which had recorded the settlement proceeded toset out brief reasons on three aspects:
"(a) How did this court arrive at the sum of 470 million USdollars for an overall settlement?
(b) Why did the court consider this sum of 470 million US dollars as 'just, equitable and reasonable'?
(c) Why did the court not pronounce on certain importantlegal questions of far-reaching importance said to arise in theappeals as to the principles of liability of monolithic, economicallyentrenched multinational companies operating with inherentlydangerous technologies in the developing countries of the ThirdWorld questions said to be of great contemporary relevance tothe democracies of the Third World?"