vil Appeal Nos 3187 and 3188 of 1988
From the Judgment and Order dated 441988 of the Madhya Pradesh High Court in CR No 26 of 1988
Anil B Dewan JB Dadachanji Mrs AK Verma for the appellant
K Parasaran A Mariarputham Miss A Subhashini and CL Sahu for the Respondents
131 The following Order of the Court was delivered ORDER The Bhopal Gas Leak tragedy that occurred at midnight on 2nd December 1984 by the escape of deadly chemical fumes from the appellant s pesticide factory was a horrendous industrial mass disaster unparalleled in its magnitude and devastation and remains a ghastly monument to the de huma nising influence of inherently dangerous technologies
The tragedy took an immediate toll of 2660 innocent human lives and left tens of thousands of innocent citizens of Bhopal physically impaired or affected in various degrees
What added grim poignance to the tragedy was that the industrial enterprise was using Methyl Iso cyanate a lethal toxic poison whose potentiality for destruction of life and biotic communities was apparently matched only by the lack of a pre package of relief procedures for management of any accident based on adequate scientific knowledge as to the ameliorative medical procedures for immediate neutralisation of its effects
It is unnecessary for the present purpose to refer in any detail to the somewhat meandering course of the legal proceedings for the recovery of compensation initiated against the multi national company initially in the Courts in the United States of America and later in the District Court at Bhopal in Suit No 113 of 1986
It would suffice to refer to the order dated 4 April 1988 of the High Court of Madhya Pradesh which in modification of the interlocutory order dated 17 December 1987 made by the learned District Judge granted an interim compensation of Rs250 crores
Both the Union of India and the Union Carbide Corporation appealed against that order
This Court by its order dated 14 February 1989 made in those appeals directed that there be an overall settlement of the claims in the suit for 470 million US dollars and termination of all civil and criminal proceedings
The opening words of the order said Having given our careful considera tion for these several days to the facts and circumstances of the case placed before us by the parties in these proceedings including the pleadings of the parties the mass of data placed before us the material relating to the proceedings in the Courts in the United States of America the offers and counter offers made between the parties at different stages 132 during the various proceedings as well as the complex issues of law and fact raised before us and the submission made thereon and in particular the enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster we are of opinion that the case is pre emi nently fit for an overall settlement between the parties covering all litigations claims rights and liabilities related to and arising out of the disaster    Emphasis Supplied It appears to us that the reasons that persuaded this Court to make the order for settlement should be set out so that those who have sought a review might be able effec tively to assist the Court in satisfactorily dealing with the prayer for a review
The statement of the reasons is not made with any sense of finality as to the infallibility of the decision but with an open mind to be able to appreciate any tenable and compelling legal or factual infirmities that may be brought out calling for remedy in Review under Arti cle 137 of the Constitution
The points on which we propose to set out brief reasons are the following a How did this Court arrive at the sum of 470 million US dollars for an over all settle ment 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 important legal questions of far reaching importance said to arise in the appeals as to the principles of liability of monolithic economically entrenched multi national compa nies operating with inherently dangerous technologies in the developing countries of the third world questions said to be of great contemporary relevance to the democracies of the third world There is yet another aspect of the Review pertaining to the part of the settlement which terminated the criminal proceedings
The questions raised on the point in the Re view petitions prima facie merit consideration and we should therefore abstain from saying anything which might tend to pre judge this issue one way or the other
133 The basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief
The suffering of the victims has been intense and unrelieved
Thousands of persons who pursued their own occupations for an humble and honest living have been rendered destitute by this ghastly disaster
Even after four years of litigation basic questions of the fundamentals of the law as to liabil ity of the Union Carbide Corporation and the quantum of damages are yet being debated
These of course are impor tant issues which need to be decided
But when thousands of innocent citizens were in near destitute conditions without adequate subsistential needs of food and medicine and with every coming morrow haunted by the spectre of death and continued agony it would be heartless abstention if the possibilities of immediate sources of relief were not ex plored
Considerations of excellence and niceties of legal principles were greatly over shadowed by the pressing prob lems of very survival for a large number of victims
The Law s delays are indeed proverbial
It has been the unfortunate bane of the judicial process that even ordinary cases where evidence consists of a few documents and the oral testimony of a few witnesses require some years to realise the fruits of litigation
This is so even in cases of great and unquestionable urgency such as fatal accident actions brought by the dependents
These are hard realities
The present case is one where damages are sought on behalf of the victims of a mass disaster and having regard to the complexities and the legal questions involved any person with an unbiased vision would not miss the time consuming prospect for the course of the litigation in its sojourn through the various courts both in India and later in United States
It is indeed a matter for national introspection that public response to this great tragedy which affected a large number of poor and helpless persons limited itself to the expression of understandable anger against the industrial enterprise but did not channel itself in any effort to put together a public supported relief fund so that the victims were not left in distress till the final decision in the litigation
It is well known that during the recent drought in Gujarat the devoted efforts of public spirited persons mitigated in great measure the loss of cattle wealth in the near famine conditions that prevailed
This Court considered it a compelling duty both judi cial and humane to secure immediate relief to the victims
In doing so the Court did not enter upon any forbidden ground
Indeed efforts had 134 earlier been made in this direction by Judge Keenan in the United States and by the learned District Judge at Bhopal
What this Court did was in continuation of what had already been initiated
Even at the opening of the arguments in the appeals the Court had suggested to learned counsel on both sides to reach a just and fair settlement
Again when counsel met for re scheduling of the hearings the suggestion was reiterated
The response of learned counsel on both sides was positive in attempting a settlement but they expressed a certain degree of uneasiness and scepticism at the prospects of success in view of their past experience of such negotiations when as they stated there had been uninformed and even irresponsible criticism of the attempts at settlement
The learned Attorney General submitted that even the most bona fide sincere and devoted efforts at settlement were likely to come in for motivated criticism
The Court asked learned counsel to make available the particulars of offers and counter offers made on previous occasions for a mutual settlement
Learned counsel for both parties furnished particulars of the earlier offers made for an overall settlement and what had been considered as a reasonable basis in that behalf
The progress made by previ ous negotiations was graphically indicated and these docu ments form part of the record
Shri Nariman stated that his client would stand by its earlier offer of Three Hundred and Fifty Million US dollars and also submitted that his client had also offered to add appropriate interest at the rates prevailing in the USA to the sum of 350 million US dollars which raised the figure to 426 million US dollars
Shri Nariman stated that his client was of the view that amount was the highest it could go upto
In regard to this offer of 426 million US dollars the learned Attorney General submitted that he could not accept this offer
He submitted that any sum less than 500 million US dollars would not be reasonable
Learned counsel for both parties stated that they would leave it to the Court to decide what should be the figure of compensation
The range of choice for the Court in regard to the figure was therefore between the maximum of 426 million US dollars offered by Shri Nariman and the minimum of 500 million US dollars suggested by the learned Attorney General
In these circumstances the Court examined the prima facie material as to the basis of quantification of a sum which having regard to all the circumstances including the prospect of delays inherent in the judicial process in India and thereafter in the matter of domestication of the decree in the United States for the purpose of execution and di rected that 470 million US dollars which upon immediate payment 135 and with interest over a reasonable period pending actual distribution amongst the claimants would aggregate very nearly to 500 million US dollars or its rupee equivalent of approximately Rs750 crores which the learned Attorney General had suggested be made the basis of the settlement
Both the parties accepted this direction
The settlement proposals were considered on the premise that Government had the exclusive statutory authority to represent and act on behalf of the victims and neither counsel had any reservation as to this
The order was also made on the premise that the Bhopal Gas Leak Disaster Registration and Processing of Claims Act 1985 was a valid law
In the event the Act is declared void in the pending proceedings challenging its validity the order dated 14 February 1989 would require to be examined in the light of that decision
We should make it clear that if any material is placed before this Court from which a reasonable inference is possible that the Union Carbide Corporation had at any time earlier offered to pay any sum higher than an out right down payment of US 470 million dollars this Court would straightaway initiate suo motu action requiring the con cerned parties to show cause why the order dated 14 Febru ary 1989 should not be set aside and the parties relegated to their respective original positions
The next question is as to the basis on which this Court considered this sum to be a reasonable one
This is not independent of its quantification the idea of reasonable ness for the present purpose is necessarily a broad and general estimate in the context of a settlement of the dispute and not on the basis of an accurate assessment by adjudication
The question is how good or reasonable it is as a settlement which would avoid delays uncertainties and assure immediate payment
The estimate in the very nature of things cannot share the accuracy of an adjudication
Here again one of the important considerations was the range disclosed by the offers and counter offers which was between 426 million US dollars and 500 million US dollars
The Court also examined certain materials available on record includ ing the figures mentioned in the pleadings the estimate made by the High Court and also certain figures referred to in the course of the arguments
There are a large number of claims under the Act
In the very nature of the situation doubts that a sizeable number of them are either without any just basis or were otherwise exaggerated could not 136 be ruled out
It was therefore thought not unreasonable to proceed on some prima facie undisputed figures of cases of death and of substantially compensatable personal injuries
The particulars of the number of persons treated at the hospitals was an important indicator in that behalf
This Court had no reason to doubt the bona fides of the figures furnished by the plaintiff itself in the pleadings as to the number of persons suffering serious injuries
From the order of the High Court and the admitted posi tion on the plaintiff s own side a reasonable prima facie estimate of the number of fatal cases and serious personal injury cases was possible to be made
The High Court said   
In the circumstances leaving a small margin for the possibility of some of the claims relating to death and personal injuries made by the multitude of claims before the Director of Claims of the State Government being spurious there is no reason to doubt that the figure furnished by the plaintiff Union of India in its amended plaint can be safely accepted for the purpose of granting the relief  of interim payment of damages
It has been stated by the plaintiff Union of India that a total number of 2660 persons suffered agonising and excruciating deaths and between 30000 to 40000 sustained serious injuries as a result of the disas ter    Emphasis supplied There is no scope for any doubt that the cases referred to as those of Serious injuries  include both types of cases of permanent total and partial disabilities of various degrees as also cases of temporary total or partial disabil ities of different degrees
The High Court relied upon the averments and claims in the amended pleadings of the plain tiff the Union of India to reach this prima facie finding
Then in assessing the quantum of interim compensation the High Court did not adopt the standards of compensation usually awarded in fatal accidents actions or personal injury actions arising under the Motor Vehicles Act
It is well known that in fatal accidentactions where children are concerned the compensation awardable is in conventional sums ranging from Rs15000 to Rs30000 in each case
In the present case a large number of deaths was of children of very young age
Even in the case of adults according to the general run of damages in comparable cases the damages assessed on the 137 usual multiplier method in the case of income groups com parable to those of the deceased persons would be anywhere between Rs80000 and Rs 100000
But the High Court discarded and rightly these ordi nary standards which if applied would have limited the aggregate of compensation payable in fatal cases to a sum less than Rs20 crores in all
The High Court thought it should adopt the broader principle in MC Mehta vs Union of India AIR 1987 SC 1086
Stressing the need to apply such a higher standard the High Court said As mentioned earlier the measure of damages payable by the alleged tort teaser as per the nature of tort involved in the suit has to be correlated to the magnitude and the capacity of the enterprises because such compensation must have a deterrent effect   Emphasis supplied Applying these higher standards of compensa tion the High Court proceeded to assess damage in the following manner Bearing in mind the above factors in the opinion of this Court it would not be unrea sonable to assume that if the suit proceeded to trial the plaintiff Union of India would obtain judgment in respect of the claims relating to deaths and personal injuries at least in the following amounts a Rs2 lakhs in each case of death b Rs2 lakhs in each case of total permanent disability c Rs1 lakh in each case of permanent partial disa blement and d Rs50000 in each case of temporary partial disablement Emphasis supplied Half of these amounts were awarded as interim compensation
An amount of Rs250 crores was awarded
The figures adopted by the High Court in regard to the number of fatal cases and cases of serious personal injuries do not appear to have been disputed by anybody before the High Court
These data and estimates of the High Court had a particular significance in the settlement
Then again it was not disputed before us that the total number of fatal cases was about 3000 and of grievous and serious personal injuries as verifiable from the records of the hospitals of cases treated 138 at Bhopal was in the neighbourhood of 30000
It would not be unreasonable to expect that persons suffering serious and substantially compensable injuries would have gone to hospi tals for treatment
It would also appear that within about 8 months of the occurrence a survey had been conducted for purposes of identification of cases of death and grievous and serious injuries for purposes of distribution of certain ex gratia payments sanctioned by Government
These figures were it would appear less than ten thousand
In these circumstances as a rough and ready estimate this Court took into consideration the prima facie findings of the High Court and estimated the number of fatal cases at 3000 where compensation could range from Rsl lakh to Rs3 lakhs
This would account for Rs70 crores nearly 3 times higher than what would otherwise be awarded in comparable casses in motor vehicles accident claims
Death has an inexorable finality about it
Human lives that have been lost were precious and in that sense price less and invaluable
But the law can compensate the estate of a person whose life is lost by the wrongful act of anoth er only in the way of the law is equipped to compensate ie by monetary compensations calculated on certain well recog nised principles
Loss to the estate which is the entitle ment of the estate and the loss of dependancy  estimated on the basis of capitalised present value awardable to the heirs and dependants are the main components in the compu tation of compensation in fatal accident actions
But the High Court in estimating the value of compensation had adopted a higher basis
So far as personal injury cases are concerned about 30000 was estimated as cases of permanent total or partial disability
Compensation ranging from Rs2 lakhs to Rs50000 per individual according as the disability is total or partial and degrees of the latter was envisaged
This alone would account for Rs250 crores
In another 20000 cases of temporary total or partial disability com pensation ranging from Rs 1 lakh down to Rs25000 depend ing on the nature and extent of the injuries and extent and degree of the temporary incapacitation accounting for a further allocation of Rs 100 crores was envisaged
Again there might be possibility of injuries of utmost severity in which case even Rs4 lakhs per individual might have to be considered
Rs80 crores additionally for about 2000 of such cases were envisaged
A sum of Rs500 crores approxi mately was thought of as allocable to the fatal cases and 42000 cases of such serious personal injuries leaving behind in their trail total or partial incapacitation either of permanent or temporary character
139 It was considered that some outlays would have to be made for specialised institutional medical treatment for cases requiring such expert medical attention and for reha bilitation and after care
Rs25 crores for the creation of such facilities was envisaged
That would leave another Rs225 crores
It is true that in assessing the interim compensation the High Court had taken into account only the cases of injuries resulting in permanent or temporary disabilities total or partial and had not adverted to the large number of other claims said to run into lakhs filed by other claimants
Such cases of claims do not apparently pertain to serious cases of permanent or temporary disabilities but are cases of a less serious nature comprising claims for minor injuries loss of personal belongings loss of live stock etc
for which there was a general allocation of Rs225 crores
If in respect of these claims allocations are made at Rs20000 Rs 15000 and Rs 10000 for about 50000 person or claims in each category accounting for about one and half lakhs more claims the sums required would be met by Rs225 crores
Looked at from another angle if the corpus of Rs750 crores along with the current market rates of interest on corporate borrowings of say 14 or 14 12  is spent over a period of eight years it would make available Rs 150 crores each year or even if interest alone is taken about Rs 105 to 110 crores per year could be spent year afteryear perpetually towards compensation and relief to the victims
The court also took into consideration the general run of damages in comparable accident claim cases and in cases under workmens compensation laws
The broad allocations made are higher than those awarded or awardable in such claims
These apportionments are merely broad considerations gener ally guiding the idea of reasonableness of the overall basis of settlement
This exercise is not a predetermination of the quantum of compensation amongst the claimants either individually or category wise
No individual claimant shall be entitled to claim a particular quantum of compensation even if his case is found to fall within any of the broad categories indicated above
The determination of the actual quantum of compensation payable to the claimants has to be done by the authorities under the Act on the basis of the facts of each case and without reference to the hypothetical quantifications made only for purposes of an overall view of the adequacy of the amount
140 These are the broad and general assumptions underlying the concept of justness  of the determination of the quan tum
If the total number of cases of death or of permanent total or partial disabilities or of what may be called catastrophic  injuries is shown to be so large that the basic assumptions underlying the settlement become wholly unrelated to the realities the element of justness  of the determination and of the truth  of its factual foundation would seriously be impaired
The justness  of the settle ment is based on these assumptions of truth
Indeed there might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise but when one speaks of justice and truth these words mean the same thing to all men whose judgment is uncommitted
Of Truth and Justice Anatole France said Truth passes within herself a penetrating force unknown alike to error and falsehood
I say truth and you must understand my meaning
For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense
They bear within them a shining beauty and a heavenly light
I firmly believe in the triumph of truth and justice
That is what upholds me in times of trial   As to the remaining question it has been said that many vital juristic principles of great contemporary relevance to the Third World generally and to India in particular touching problems emerging from the pursuit of such danger ous technologies for economic gains by multi nationals arose in this case
It is said that this is an instance of lost opportunity to this apex Court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing coun tries by economic forces of the rich ones
This case also it is said concerns the legal limits to be envisaged in the vital interests of the protection of the constitutional rights of the citizenry and of the environment on the permissibility of such ultra hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises
The prospect of exploi tation of cheap labour and of captive markets it is said induces multi nationals to enter into the developing coun tries for such economic exploitation and that this was eminently an appropriate case for a careful assessment of the legal and Constitutional safeguards stemming from these vital issues of great contemporary relevance
These issues and certain cognate areas of even wider signif icance 141 and the limits of the adjudicative disposition of some of their aspects are indeed questions of seminal importance
The culture of modern industrial technologies which is sustained on processes of such pernicious potentialities in the ultimate analysis has thrown open vital and fundamental issues of technology options
Associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate in a comprehensive sense in such contexts arise
These indeed are issues of vital importance and this tragedy and the conditions that enabled it happen are of particular concern
The chemical pesticide industry is a concomitant and indeed an integral part of the Technology of Chemical Farming
Some experts think that it is time to return from the high risk resource intensive high input anti ecologi cal monopolistic hard  technology which feeds and is fed on its self assertive attribute to a more human and hu mane flexible eco conformable soft technology with its systemic wisdom and opportunities for human creativity and initiative
Wisdom demands says Schumacher a new orienta tion of science and technology towards the organic the gentle the non violent the elegant and beautiful
The other view stressing the spectacular success of agricultural production in the new era of chemical farming with high yielding strains points to the break through achieved by the Green Revolution with its effective response to and successful management of the great challenges of feeding the millions
This technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesti cides
This say its critics has brought in its trail its own serious problems
The technology options before scien tists and planners have been difficult
Indeed there is also need to evolve a national policy to protect national interests from such ultra hazardous pursuits of economic gains
Jurists technologists and other experts in Economics environmentology futurology sociolo gy and public health etc
should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanction
One aspect of this matter was dealt with by this Court in MC Mehta vs Union of India supra which marked a significant stage in the development of the law
But at the hearing there was more than a mere hint in the submissions of the Union Carbide that in this case the law was altered with only the Union Carbide Corporation in mind and 142 was altered to its disadvantage even before the case had reached this Court
The criticism of the Mehta principle perhaps ignores the emerging postulates of tortious liabil ity whose principal focus is the social limits on economic adventurism
There are certain things that a civilised society simply cannot permit to be done to its members even if they are compensated for their resulting losses
We may note a passage in Theories of Compensation RE Goodin Oxford Journal of Legal Studies It would however be wrong to presume that we as a society can do anything we like to people just so long as we compensate them for their losses
Such a proposition would mistake part of the policy universe for the whole
The set of policies to which it points policies that are permissible  but only with compensa tion  is bounded on the one side by a set of policies that are permissible even without compensation  and on the other side by a set of policies that are impermissible even with compensation 
 But in the present case the compulsions of the need for immediate relief to tens of thousands of suffering victims could not in our opinion wait till these ques tions vital though they be are resolved in the due course of judicial proceedings
The tremendous suffering of thou sands of persons compelled us to move into the direction of immediate relief which we thought should not be subordi nated to the uncertain promises of the law and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff
A few words in conclusion
A settlement has been record ed upon material and in circumstances which persuaded the Court that it was a just settlement
This is not to say that this Court will shut out any important material and compel ling circumstances which might impose the duty on it to exercise the powers of review
Like all other human institu tions this court is human and fallible
What appears to the court to be just and reasonable in that particular context and setting need not necessarily appear to others in the same way
Which view is rightin the ultimate analysis is to be judged by what it does to relieve the undeserved suffering of thousands of innocent citizens of this country
As a learned author said Wallace Mendelson Supreme Court Statecraft The Rule of Law and Men In this imperfect legal setting we expect judges to clear 143 their endless dockets uphold the Rule of Law and yet not utterly disregard our need for the discretionary justice of Plato s philoso pher king
Judges must be sometimes cautious and sometimes bold
Judges must respect both the traditions of the past and the convenience of the present   But the course of the decisions of courts cannot be reached or altered or determined by agitational pressures
If a decision is wrong the process of correction must be in a manner recognised by law
Here many persons and social action groups claim to speak for the victims quite a few in different voices
The factual allegations on which they rest their approach are conflicting in some areas and it becomes difficult to distinguish truth from false hood and half truth and to distinguish as to who speaks for whom
However all of those who invoke the corrective process es in accordance with law shall be heard and the court will do what the law and the course of justice requires
The matter concerns the interests of a large number of victims of a mass disaster
The Court directed the settlement with the earnest hope that it would do them good and bring them immediate relief for tomorrow might be too late for many of them
But the case equally concerns the credibility of and the public confidence in the judicial process
If owing to the pre settlement procedures being limited to the main contestants in the appeal the benefit of some contrary or supplemental information or material having a crucial bearing on the fundamental assumptions basic to the settle ment have been denied to the Court and that as a result serious miscarriage of justice violating the constitutional and legal rights of the persons affected has been occa sioned it will be the endeavour of this Court to undo any such injustice
But that we reiterate must be by proce dures recognised by law
Those who trust this Court will not have cause for despair


Summary:
The appellant who inflicted serious injuries on another was charged under section 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under section 326 of the Penal Code and the Sessions Judge accepting the verdict convicted him under section 326
It was contended that the conviction was illegal inasmuch as the offence under section 326 was not a minor offence with reference to the offence under section 307
Held that as it was open to the Sessions Judge on the facts of the case to charge the appellant alternatively under sections 307 and 326 of the Code the case was covered by section 237 of the Criminal Procedure Code and the conviction under section 328 of the Penal Code was proper even though there was no charge under the section
Begu vs King Emperor 52 IA 191 applied
In order that a conviction may be set aside for non compliance with the provisions of section 342 of the Criminal Procedure Code it is not sufficient for the accused merely to show that he was not fully examined as required by the section but he must also show that such examination has materially prejudiced him