Curative Petition Regarding the 1989 Bhopal Settlement

Government of India (GOI) Files Curative Petition*
In 2010, after the verdict in the criminal case, a Group of Ministers was formed to consider additional compensation to victims of the disaster and other measures. Subsequently, in December 2010, the GOI filed a Curative Petition in the Supreme Court seeking:

  • To require Union Carbide Corporation (UCC) to enhance the settlement amount -- notwithstanding the GOI’s vehement opposition to such relief when previously sought by activists;
  • Reimbursement of relief and rehabilitation expenses incurred by the state and central governments; and
  • A sum for remediating the plant site.

The total request: in excess of $1 billion. The Curative Petition also named The Dow Chemical Company (TDCC) as a respondent. Subsequently, the Madhya Pradesh State Government (MPSG) sought to intervene, as did certain interest groups who also filed an application alleging additional purported grounds for enhancing the settlement and stating that the additional payment should be $8.1 billion.

* A Curative Petition is a procedural device in India’s legal system designed for use in rare and narrowly defined situations to correct judgments entered as a result of procedural judicial error.

UCC responded to these submissions in November 2011, demonstrating that they were legally and factually without merit; asserting that the Indian courts lacked jurisdiction over UCC; and stating that the Curative Petition is legally improper because:

  • The Supreme Court fully considered and rejected objections from non-government organizations (NGOs) on two occasions following its initial validation of the settlement in 1989. First, it considered and overruled such objections in its final judgment in October 1991. Second, in 2007, after the settlement funds were fully paid out, the Court rejected challenges to the adequacy of the settlement on the same grounds the activists now reassert.
  • The GOI -- not UCC -- established the criteria for the acceptance and categorization of claims. The GOI’s claims process was now complete and its determinations were final. In attempting to challenge the Welfare Commissioner’s determinations, certain interest groups greatly exaggerated the number of deaths and serious injuries caused by the disaster by relying on a report from the Indian Council of Medical Research published more than 15 years ago -- a report that simply did not support their claims.

At most, if the GOI was successful with its Curative Petition, it would merely be able to undo the judgment it claims was wrong. Undoing the judgment would mean that GOI would have to pay back the settlement amounts to UCC and UCIL (with interest), the settlement would be unwound, and the GOI would have to proceed with the lawsuit it filed for compensation for victims. It would have to prove wrongdoing on the part of Union Carbide and UCIL, and would have to submit proof of individual damages for all claimants. Of course, to require UCC to defend against such a case 33 years after the events at issue occurred would violate its due process rights.

TDCC Chemical Response to Curative Petition
The Dow Chemical Company (TDCC) also responded to the Curative Petition in November 2011 and demonstrated that:

  • The Indian courts have no jurisdiction over it.
  • Even if UCC was liable, TDCC had no connection with the Bhopal disaster, which occurred 17 years before TDCC acquired the shares of UCC in 2001 and 12 years after the settlement was approved by the Supreme Court.
  • TDCC and UCC remain separate companies, and as a matter of well-established law, TDCC did not acquire UCC’s liabilities.
  • Business transactions alleged by the activists do not legally or factually provide a basis for jurisdiction over TDCC.

The Supreme Court has not scheduled the Curative Petition or the related applications for a hearing, notwithstanding an application by UCC to the Supreme Court in December 2011, for an early hearing. Nor has the Supreme Court ruled on an additional application by UCC submitted in March 2012, for the GOI and others who intend to file replies to UCC’s and TDCC’s responses to do so within two weeks and for the Court to then schedule a hearing.

TDCC Response to Curative Petition
The Dow Chemical Company (TDCC) also responded to the Curative Petition in November 2011 and demonstrated that:

  • The Indian courts have no jurisdiction over it.

  • Even if UCC were liable, jurisdiction over Union Carbide does not translate to jurisdiction over TDCC because TDCC had no connection with the Bhopal disaster, which occurred 17 years before TDCC acquired the shares of UCC in 2001 and 12 years after the settlement was approved by the Supreme Court.

  • TDCC and UCC remain separate companies, and as a matter of well-established law, TDCC did not acquire UCC’s liabilities.

  • Business transactions alleged by the activists do not legally or factually provide a basis for jurisdiction over TDCC.

The Indian Supreme Court has not scheduled the Curative Petition or the related applications for a hearing, notwithstanding an application by UCC to the Supreme Court in December 2011, for an early hearing. Nor has the Supreme Court ruled on an additional application by UCC submitted in March 2012. In that application, UCC asked that the GOI and others who intend to file replies to UCC’s and TDCC’s responses to do so within two weeks and for the Court to then schedule a hearing. Further, the GOI has not responded to UCC and TDCC’s submissions even though it was directed to do so by the Indian Supreme Court.

Actions Against The Dow Chemical Company
Since TDCC acquired the shares of UCC in 2001, repeated attempts have been made to involve TDCC in the criminal proceedings against UCC in India. Non-Governmental Organizations (NGOs) filed two applications with the Chief Judicial Magistrate (CJM) in Bhopal:

  • The first in 2001 seeking an order directing TDCC to appear in those proceedings as UCC’s successor, and
  • The second in 2005 seeking to compel TDCC to produce UCC for trial.

In 2005, the CJM issued an order to serve notice to TDCC to show cause why these applications should not be granted. Dow India, which was served with the notice, appealed the order to the Madhya Pradesh High Court. The High Court stayed the order for nearly seven years pending appeal, but finally dismissed it in 2012. In July 2013, the CJM directed notice to be issued to TDCC in the U.S. to appear and respond to the 2005 application. To date, TDCC has not been served with notice.

An additional NGO application seeks disclosure of all UCC-related business dealings in India, including transactions involving Dow Global Technologies, Inc. (now DGTL) and its licensing of UCC-origin technology to Reliance Industries in India. To date, neither Dow India, DGTL nor TDCC has been served with the notice.

Frequently Asked Questions about the Curative Petition Litigation

1. What does the curative petition filed by the Government of India mean?
A. By filing a curative petition to reopen the settlement of the Bhopal gas disaster some 21 years later, the GOI has, in effect, reneged on an agreement it negotiated and signed with UCC and UCIL. The settlement was reviewed and approved by the highest court in the country, and all parties should be able to rely upon it as a final disposition of potential liabilities related to that event.

Not only is it difficult to see how attempts to reopen such a thoroughly reviewed settlement could be made, but it is also even more difficult to see how liability could be attached in any way to TDCC for the tragedy as the company had no connection whatsoever to this tragedy or its aftermath.

The 1984 gas leak in Bhopal was a terrible tragedy that continues to evoke strong emotions even 33 years later. But allowing these emotions to blur the line of rationality and absolve the filter of logic is not only wrong, but also sends a strong message that the Indian government does not honor rule of law and its own commitments.

India, as a country committed to justice and the rule of law, needs to honor the rule of law’s finality and the integrity of their legally-binding agreements. Without this foundation, there is no basis for confidence or certainty in the investment in any country’s economy.

We expect the Supreme Court of India will demonstrate its continued commitment to these principles when it considers the GOI's curative petition, which has never been set for hearing.

2. What is UCC's reaction to the GOI's curative petition?
A. The GOI’s filing of a curative petition sends a very troubling message to the rest of the world, is unprecedented and, in effect, reneges on an agreement it negotiated and signed with UCC and UCIL. The settlement was reviewed and approved by the highest court in the country, and all parties should be able to rely upon it as a final disposition of potential liabilities related to that event.

UCC opposes any attempt to invalidate the original settlement arrived at by the GOI, UCC and UCIL in 1989.

It’s important to remember that, in directing a final settlement of all Bhopal litigation in the amount of $470 million in 1989, the Supreme Court of India reviewed all U.S. and Indian court filings, applicable law and relevant facts, and an assessment of the victims’ needs. The Court also noted the settlement award was much larger than any previous damage award in India, and was $120 million more than plaintiffs’ lawyers had told U.S. courts was fair.

Furthermore, the Indian Supreme Court also addressed in its 1991 reaffirmation of the decision what appears to be one of the central points upon which critics have based their calls for re-opening the settlement. That is, the Supreme Court required that the GOI make up for any shortfall in the settlement amount (See page 682, paragraph 198 of the Indian Supreme Court’s 1991 ruling), and to acquire a group medical insurance policy to cover 100,000 persons who might later develop symptoms shown to have resulted from being exposed during the gas release. (See pages 684-686, paragraphs 205-208, of the Indian Supreme Court’s 1991 ruling.)

Therefore, the Government of India is the party responsible for paying any additional sums that might be required -- not Union Carbide.

For the complete court decision (part 1), please click here.
For the complete court decision (part 2), please click here.

3. Why is it surprising that the GOI took the step to attempt to re-open the 1989 settlement now?
A. Because in 2007, when the India Supreme Court rejected attempts to reopen the 1989 settlement for the second time, the proponents to reopening the 1989 settlement at that time used the very same grounds that are set forth in the curative petition. The India Supreme Court held in 2007 that “it cannot be done and the said issue has been decided by this court.”

It is instructive (and it was entirely appropriate) that in responding to that request to reopen, the GOI opposed reopening the 1989 settlement, stating in an affidavit dated Oct. 26, 2006, that “the validity of the settlement by no stretch of interpretation can be questioned at this stage as each and every claimant has got compensation as per law and his entitlement,” that “by no logic and reason is it open to say even for a moment that the justness or determination [of compensation] is impaired,” and that “[t]he application filed by the applicants is frivolous and may be dismissed with heavy costs.”

Nothing has changed that would justify the GOI's change in position.

Regarding the GOI's demand for UCC to pay more toward the clean up of the Bhopal site.

1. What is UCC's response to the GOI's demand to pay for the site clean up?
A. UCC strongly disagrees with the GOI's demand to have UCC pay anything toward the clean up of the Bhopal site. Some have tried unsuccessfully to litigate this issue in the U. S., with cases filed in New York Federal court in November 2004, and thereafter, focusing on site remediation and compensation for residents. In June 2012, a Federal court unambiguously concluded in Sahu I that neither UCC nor its retired Chairman Warren Anderson are liable for any environmental remediation or pollution-related personal injury claims made by residents near the Bhopal plant site.

In June 2013, the Federal Court of Appeals for the Second Circuit upheld the 2012 court decision, stating: "...many others living near the Bhopal plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity".

A separate case (Sahu II) -- filed in 2007 in New York District Court -- sought damages to clean up six individual properties allegedly polluted by contaminants from the Bhopal plant, as well as the remediation of property in 16 colonies adjoining the plant. In July 2014, Judge Keenan ruled that UCC was not liable for any on-ongoing pollution from the Bhopal chemical plant. In May 2016, the U.S. Court of Appeals upheld Judge Keenan's decision and ruled that UCC was not liable for any pollution arising out of the disposition of wastes at the former Union Carbide India Limited plant site in Bhopal. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed. For the complete opinion of the U.S Court of Appeals for the Second Circuit, please click here.

2. Some say the amount of funding needed to help survivors and their families was underestimated in that initial settlement. If more money is needed, will it come from UCC?
A. No. the Supreme Court of India has already spoken to any potential need for additional funds. In its 1991 reaffirmation of the 1989 Bhopal settlement, the Court required the GOI to:

As recently as 2006, the GOI filed an affidavit with the India Supreme Court asserting that the settlement was appropriate and reasonable and should not be revisited. In a 2007 decision, the India Supreme Court agreed with this view. At that time, it was noted that the actual disposition amount distributed to individuals and families had in fact been higher than prescribed, with no new claimants stepping forward.

We understand there are virtually no new facts to consider since this issue was considered in 2007. In fact, we understand the proposed curative petition shows that the additional settlement funds being sought are based on a large number of “minor- or no-injury” claims. This is a category which – according to the GOI’s 2006 affidavit – included “mere presence” in an affected part of the city, without physical injury.

3. What role has the GOI played in the aftermath of the Bhopal Tragedy?
A. In its 1991 reaffirmation of the 1989 Bhopal settlement, the India Supreme Court required the GOI to make up for any shortfall in the settlement account and also acquire a medical insurance policy to cover 100,000 people who might later develop symptoms shown to have resulted from being exposed during the gas release.

However, there was no shortfall. The settlement fund was sufficient to compensate all claimants double the amounts the GOI itself set as fair compensation. Therefore, any questions regarding additional compensation for those who died, sustained injuries or continue to suffer health effects as a result of the Bhopal tragedy should be directed to the GOI.

4. Who should clean up the site?
A. Responsibility for the clean-up of the Bhopal site lies with the Madhya Pradesh State Government (MPSG). In 1998, the MPSG, which owned and had been leasing the property to UCIL, took over the facility and assumed all accountability for the site, including the completion of any additional remediation. The Ministry of Chemicals and Fertilizers announced on Aug. 5, 2010, that the cleanup would be undertaken and completed by the state by Dec. 31, 2010...but that has not taken place.

5. Is the reported amount requested in the curative petition ($1.2 billion) incremental, or does it include the $470 million that was already paid out?
A. We understand this proposal to be incremental.

6. What is the legal precedent for this type of activity?
A.None whatsoever. The curative petition is contrary to law and due process.

7. What do we expect the timing would be for a final determination?
A. The final determination was made in 1989 and the adequacy of the settlement has since been re-affirmed by the Indian Supreme Court in 1991 and 2007. We expect and have every confidence that the India Supreme Court will continue to adhere to its long standing tradition of comporting with the rule of law and due process.