Curative Petition in the Supreme Court

Dow is a named respondent in a forthcoming ‘curative petition’, in the Indian Supreme Court. The curative petition refers to petitions filed before the Supreme Court that seek to prevent the abuse of court process and to cure a gross miscarriage of justice.

The Indian Government (GoI) states its aim as to: ‘…cure the gross miscarriage of justice and perpetration of irremediable injustice being suffered by the victims of the Bhopal Gas Tragedy’. GoI states that the settlement compensation ‘…was based on certain factual assumptions which have been found to be completely incorrect and far removed from reality.’

The Concept of Curative Petition came through the landmark judgment of the Supreme Court in the case of Hurra vs Hurra {Rupa Ashok Hurra vs.Ashok Hurra(2002)4SCC338}. In its judgment the Supreme Court held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgment in exercise of its inherent powers.

The Supreme Court can exercise discretionary powers and choose to admit or dismiss a curative petition, depending on whether it fulfills the parameters laid down in the Rupa Ashok Hurra Case. It’s noteworthy that in para 50 of the judgment it’s stated that it was not possible to enumerate all the grounds on which a curative petition may be entertained. The Hurra case (2002) is the only successful curative petition so far.

What Happens If the Supreme Court Rules in Favour of the Disaster Survivors?

For Dow to be held liable, the court would have to impose judgment upon Union Carbide Corporation (UCC); it would seek to lift the corporate veil and then apply the judgement to Dow. Both Dow and UCC have already submitted that they don’t accept India’s jurisdiction and a successful curative petition, imposing a larger civil settlement upon the US companies, is likely not to be complied with and require enforcement.

A court attempting enforcement would have two chief options: seeking recognition of the judgment in the parent state (US); or pursuing the companies’ assets in the home jurisdiction (India).

Precedent involving pursuit of other foreign judgments in US courts is far from encouraging. In respect of Indian assets, Dow seems to have prepared itself by organizing internal ownership of its 100% owned Indian subsidiaries (according to regulatory filings) with other overseas affiliates. For example, Dow maintains that its chief Indian subsidiary DCIPL is actually owned by Dow Singapore and not Dow Michigan. This use of ‘separate legal personality’ would also need to be challenged by veil lifting/ piercing.

Discrepancies in the Morbidity and Mortality Figures

The curative petition has been filed by the GoI and it alone has the power to modify its key submissions, namely the morbidity and mortality figures that will dictate the size of any potential award. The figures presented by the GoI would require a settlement of up to $1.5billion.

The figures for injuries, sickness and disabilities presented by the GoI are derived from disputed medical categorisations produced by the Government of Madhya Pradesh’s Directorate of Claims with the scheme and guidelines based upon the assessment of injury and disability in relation to occupational hazards. The assessments focussed questions around employment and fitness for work but, as 70% of claimants were women and children, the vast majority of those assessed were not in employment and these cases were typically attributed only minor injury status.

Of more than 1 million original claimants for compensation, only 35% were ever assessed under the medical categorisation scheme- the majority of assessments were undertaken after the settlement was upheld by Supreme Court review in 1991. The three most vital tests needed for assessment of gas exposure induced injury – Pulmonary Function Test, Exercise Tolerance Test and Urinary Thiocyanate Test – were carried out on less than 10% of claimants.

The curative petition, as compared to the Supreme Court order of 1989, increases the number affected by a factor of close to 6 while, at the same time, significantly downgrading the numbers in the most seriously affected categories with 93% of claimants presented as suffering only minor (temporary) injury.

The curative petition gives a figure of 5,295 deaths caused by the disaster

 

Category

 

Assumptions of May 1989 SC order

 

Category

As %

 

Assumptions of Curative Petition 2010

 

Category

as %

 

Increase/Decrease

Permanent

Disability

30,000 29.4% 4902 .9% 6 times less
Temporary

disability

20,000 19.6% 35,455 6.2% 2 times more
Utmost severe cases 2000 2% 42 .007% 47 times less
Minor injuries 50,000 49% 527,894 93% 11 times more
TOTAL   


102,000   568,293   6 times more

The Case for Higher Figures of Those Injured

Despite the disputed findings of the MP Govt’s Directorate of Claims, the 2003 Annual Report of its own Bhopal Gas Tragedy Relief and Rehabilitation Department records that over 570,000 people suffered injuries through exposure to Union Carbide’s gases.

Further, according to the MP Govt’s 2008 Action Plan (GoI approved), the number of survivors with exposure induced chronic respiratory disorders alone was 100,000 and “25 to 30 % of the survivors have neurological and mental illnesses as a consequence of the disaster”. The incidence of lung, eye, GIT and general morbidities was 4 to 5 times higher than a matched unexposed population.

Data presented in Annual Reports published by the Bhopal Gas Tragedy Relief & Rehabilitation Dept. also shows that in the first ten years of the disaster the annual number of chronic patients in hospitals allocated for the treatment of gas victims remained steady in the range of 80 to 90% of the affected population (400-500,000). The fact that the percentage of population with chronic illnesses continues to be so high testifies to the residual injury caused by inhalation of Methyl isocyanate.

An Indian Council of Medical Research (ICMR) report on the findings of a long-term study reveals that, contrary to the categorisation of temporary injury adopted for the petition, those acutely exposed to the gas cloud suffered multi-systemic injuries, leading to highly elevated, continuing rates of morbidity and mortality. The ICMR identified the excess occurrence of illness (morbidity) among the affected population over the unaffected population and reported that 95% of the affected population (531,881) are affected by some physical and mental health condition and reports injuries of the utmost severity at well above 33,000.

When the number of deaths already noted in affected communities is subtracted, a figure of 508,432 permanently injured people remains and this is the number submitted by groups advocating for survivors in the curative petition before the Supreme Court.

Even Union Carbide itself would expect high number of permanent injuries since internal documents from 1974 on the toxic health hazards of MIC assert that airborne exposure is “likely to cause permanent residual injury, in spite of prompt treatment”.

The Case for Higher Figures of Deaths

India’s curative petition mentions a figure of 5,295 deaths caused by the disaster but the Welfare Commissioner of the Government of Madhya Pradesh (tasked with authority to oversee the categorisation, assessment and adjudication of compensation claims) registered 15,248 official deaths due to the gas disaster until 1997, at which point registration was prematurely discontinued. Registration of a further 6,000 death claims was rejected.

Despite formally acknowledging over 15,000 deaths, the Welfare Commissioner later took the decision to arbitrarily downgrade 10,044 cases to injury only (giving rise to the government’s figure of 5,295 deaths). A ‘special leave petition’ seeking review of the Welfare Commissioner’s decision to downgrade is also before the Supreme Court and has been integrated into the curative petition hearings.

The MP government’s Centre for Rehabilitation Studies reported a further 370 deaths in the year 2000 and, assuming that the death toll in the 13 years after 1997 was half that of the first 13 years (1984 to 1997) we arrive at a figure of 22,872 by the time the curative petition was filed in 2010.  

The Indian Council of Medical Research (ICMR) undertook a decade-long (1984 to 1994) epidemiological study involving over 80,000 exposed and over 21,000 unexposed gas-affected populations. The findings were published in 2004 and, according to this study, in the 9 years following the disaster (1985 to 1993), 9667 persons died as a consequence of the disaster.

To this must be added ICMR’s estimate of 2500 deaths in the month of December 1984, and the ICMR’s findings regarding spontaneous abortions attributable to exposure in the first five years, which is 3500.

The ICMR discontinued the research in 1994, however it can be conservatively assumed that the death rate fell by half in the next nine years (1994 to 2002) and to one fourth in the following nine years (2003 to 2011). This presents us with an estimated current death toll of 22917, which is over 4 times the figure presented by the Government of India in the pending Curative Petition.

A study by Amnesty International (Clouds of Injustice, 2004) estimates an immediate death toll of between 7-10,000 people. This number is partly based on an estimated 7,000 funeral shrouds sold, for the bodies of those of Hindu faith, although an equal number of Muslims are likely to have perished. If added to the ICMR figures for ongoing deaths, the estimated total would be closer to 30,000.

However, survivor organisations argue the much more conservative figure of 22,917 in their own application to support the curative petition.

More on the overall death toll.

What is the estimated cost of compensating the victims?

Compensation rates were left to the discretion of claims courts and, for example, compensation for death was set between Rupees 100,000 (just over $1000) to 500,000 (around $5,500); for permanent injury between Rupees 50,000-200,000. The vast majority of claimants were granted the lowest rate per category.

Based upon averaging out the applied rates (e.g. Rupees 300,000 for death, and rupees 125,000 for permanent injury), and setting them to the figures explained above, we get a total compensation requirement of Rupees 379,439,080,000.

This converted to $8.1 billion in April 2011 (when the survivors’ application was filed).

 

We believe Dow & DuPont must finally accept responsibility for Bhopal. Until then, The Bhopal Medical Appeal funds two award-winning clinics in the city. Both offer free, first-class care to victims of the gas disaster or the ongoing water contamination. The survivors have nowhere else left to turn – please help if you can.