Charan Lal Sahu Vs.

Union of India:
1990 AIR 1480
DEV CHAUDHARY BALLB SECTION A RAJWANT SINGH BAMEL

Background:

Union Carbide (India) Limited (UCIL), which was a subsidiary of the New York based Union

Carbide Corporation (UCC) owned a plant in Bhopal to manufacture pesticides. A highly

toxic gas, Methyl Isocyanate (MIC) was used in the process and there was a massive leak

from the storage tank on the night between 2 nd and 3rd December 1984, which resulted in

death of approximately 3000 people and injuries to thousands of others.

The tragedy was followed by large number of suits being filed against the companies in both

India and the United States. With regard to this, the Government took a major step by

enacting the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 with the object to

“confer powers on the Central Government to assure that claims arising out of, or

connected with, the Bhopal Gas Leak Disaster are dealt with speedily, effectively, equitably

and to the best advantage of the claimants and for matters incidental thereto.” 1 Section 3

of the Act empowered the Central Government to file suits on behalf of the victims

exclusively, hence, taking away the rights of affected to file suits on their own. Though it

was specifically mentioned that in case of suits that were already filed before the enactment

of the aforesaid Act, the Central Government shall represent the victims or act in addition to

them with the permission of the Court. Hence the writ.

1 Preamble of the “ Bhopal Gas Leak Disaster ( Processing of Claims) Act, 1985”
Issues:

The following core issues that came up, were,

1) Whether or not the Act was in accordance with the Fundamental Rights guaranteed

under Article 14, 19 and 21 of the Indian Constitution?

2) Whether or not the Act was in accordance with the Principles of Natural Justice?

2.1) Whether being a joint tort feasor, the Union on India had any locus standi

to compromise on behalf of the victims as it itself had permitted the

establishment of such factories without necessary safeguards?

2.2) Whether or not the victims and their legal heirs were given opportunity to

be heard?

2.3) Whether or not, due to conflict on interests, the Central Government was

acting as a judge in its own cause?

3) Whether or not the Central Government is legislatively competent to destroy/

demand the citizens to surrender their rights in guise of giving aid?

--------------------------------------------------------------(1)---------------------------------------------------------

Whether or not the Act was in accordance with the Fundamental Rights guaranteed under

Article 14, 19 and 21 of the Indian Constitution?

The contention of the petitioners was that the Act infringed on their individual rights to

legal remedy against the UCC and UCIL for the consequences of carrying out dangerous and

hazardous activities in India. It was argued that the “one could not take away the right of a

person, the liberty of a person, to institute proceedings for his own benefit and for his

protection.”2 Sections 3,4 and 11 of the aforesaid Act were contented to be in violation of

Article 14, 19(1)(g) and 21 of the Constitution because the procedure that was established

under these Sections deprived the just and legitimate rights of the victims to assert and

obtain their just dues and therefore such rights cannot be destroyed because under law,

victims have a right to ventilate their rights. Another argument in this regard was “that it

has been asserted by the Government that the Act was passed pursuant to Entry 13 of the

List I of the Seventh Schedule to the Constitution. It was therefore submitted that to the

extent it was a law relating to civil procedure, it sets up a different procedure for the Bhopal

gas victims and denies to them equality before law, violating Article 14 of the

Constitution….” Attention was also drawn to the provisions of the Universal Declaration of

Human Rights in support of their argument.

The Government argued that there were various reasons to enact the Act and some of

them were- “ the plight of the impoverished, the urgency of the victims need, the presence of

the foreign contingency lawyers, the procedure of settlement in USA in mass action, the

strength of the foreign multinationals, the nature of injuries and damages.”3 Further, it was

2 Para. 33
3 Para. 99
argued by the Government that the Preamble to the Constitution of India, read with the

Directive Principles, Articles 38, 39 and 39A of enjoins the State to take up responsibility.

The taking up of this responsibility has been derived directly from the doctrine of “parens

patriae.”

“Parens Patriae” means the “father of the country” and it is the inherent power and

authority of a legislature to provide protection to the person and property of persons non

suijuris, such as minor insane or incompetent persons. The judges agreed that the “victims

cannot be considered to be any match to the multinational companies or the government

with whom in the conditions that the victims or their representatives were after the disaster

physically, mentally, financially, economically and also because of the position of litigation

would have to contend and in such a situation of predicament, the victims could be

legitimately be considered to be disabled”4 and therefore the power was vested in the

Central Government. Further it was ruled that the Act in question had been passed in

recognition of the right of the sovereign to act as a parens patriae. The judges ruled that “it

is necessary for the State to ensure the Fundamental Rights in conjunction with the Directive

Principles of State Policy to effectively discharge its obligations and for this purpose if

necessary, to deprive some rights and privileges of the individual victims or their heirs to

protect their rights better and secure these further.”

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 US 592, 73 L. Ed. 2d 995, 1028. Ct, 3260 in this

connection. There it was held by the Supreme Court of the United States of America that

Commonwealth of Puerto have standing to sue as parens patriae to enjoin apple growers'

discrimination against Puerto Rico migrant farm workers. This case illustrates in some aspect

the scope of 'parens patriae'. The Commonwealth of Puerto Rico sued in the United States

4 Para. 100
District Court for the Western District of Virginia, as parens patriae for Puerto Rican migrant

farm workers, and against Virginia apple growers, to enjoin discrimination against Puerto

Ricans in favour of Jamaican workers in violation of the Wagner-Peyser Act, and the

Immigration and Nationality Act. The District Court dis- missed the action on the ground

that the Commonwealth lacked standing to sue, but the Court of Appeal for the Fourth

Circuit reversed it. On certiorari, the United States Supreme Court affirmed. In the opinion

by White, J. joined by Burger, Chief Justice and Brennan, Marshall, Blackman, Rennquist,

Stevens, and

O'Connor, JJ., it was held that Puerto Rico had a claim to represent its quasi sovereign

interests in federal court at least which was as strong as that of any State, and that it had

parens patriae standing to sue to secure its residents from the harmful effects of

discrimination and to obtain full and equal participation in the federal employment

service scheme established pursu- ant to the Wagner-Peyser Act and the Immigration and

Nation- ality Act of 1952. Justice White referred to the meaning of the expression "parens

patriae". According to Black's Law Dictionary, 5th Edition 1979, page 1003, it means

literally 'parent of the country' and refers traditionally to the role of the State as a

sovereign and guardian of persons under legal disability.

Justice White held that in order to maintain an action, in parens patriae, the state must

articulate an interest apart from the interests of particular parties, i.e. the State must be

more than a nominal party. The State must express a quasi-sovereign interest.

Again an instructive insight can be obtained from the observations of Justice Holmes of the

American Supreme Court in the case of Georgia v. Tennessee Copper Co., 206 US 230, 51
L.Ed. 1038, 27 S Ct 618, which was a case involving air pollution in Georgia caused by the

discharge of noxious gases from the defendant's plant in Tennessee. Justice Holmes

described the State's interest as follows: "This is a suit by a State for an injury to it in its

capacity of quasi-sovereign. In that capacity the State has an interest independent of and

behind the titles of its citizens, in all the earth and air within its domain. It has the last word

as to whether its mountains shall be stripped of their forests and its inhabitants shall

breathe pure air. It might have to pay individuals before it could utter that word, but with it

remains the final power.

When the States by their union made the forcible abatement of outside nuisances

impossible to each, they did not thereby agree to submit to whatever might be done. They

did not renounce the possibility of making reasonable demands on the ground of their still

remaining quasi-sovereign interests"

The Court in Collector of Customs, Madras v. Nathella Sampathu Chetty [1962] 3 SCR 786

emphasized that the constitutional validity of the statute would have to be determined on

the basis of its provisions and on the ambit of its operation as reasonably construed. It has

to be borne in mind that if upon so judged it passes the test of reasonableness, then the

possibility of the powers conferred being improperly used is no ground for pronouncing the

law itself invalid.

Hence the Court ruled that the Act was constitutional and not infringing on the

Fundamental Rights of the victims under Articles 14, 19 and 21.

-------------------------------------------------------(2)----------------------------------------------------------------

Whether or not the Act was in accordance with the Principles of Natural Justice?

-----------------------------------------------------(2.1)---------------------------------------------------------------

1. Whether being a joint tort feasor, the Union on India had any locus standi to

compromise on behalf of the victims as it itself had permitted the establishment of such

factories without necessary safeguards?

The contention of the Government was that it only represented the victims as a party

and did not adjudicate between the victims and the UCC and hence the rights of the

victims were adjudicated by the Court only. It was later stated that such a representation

of the victims by the Government cannot be considered to be bad anywhere and hence

there was no scope of violation of any principle of natural justice. The Government

contended that it was acting on behalf of the victims because the Doctrine of Necessity

applied in the present case. The Court agreed with the Attorney General and referring to

Halsbury’s Laws of England, in which it is stated that,” even if all the members of a

tribunal competent to determine a matter were subject to disqualification, they might be

authorized and obliged to hear that matter, by virtue of the operation of the common

law doctrine of necessity”5 ruled that even if the Central Government might somewhere

be liable in a case of this nature, it would be proper that it should be able and authorized

to represent the victims because only the Government is capable of representing the

victims (has locus standi) in such a peculiar case and the doctrine of necessity would

apply and the principles of natural justice are not violated.

5 Para 105
 The Court also referred to the case of J. Mohapatra vs. State of Orrisa6. In this case, there

was dispute as to selection of books meant for Government libraries. The selection was

done on basis of recommendations by a Committee and there were allegations that the

Committee had members who recommended their own books. The Court dwelling into

the Doctrine of Bias, commented on its exception in the following way: “An adjudicator,

who is subject to disqualification on the ground of bias or interest in the matter which he

has to decide, may be required to adjudicate if there is no other person who is competent

or authorized to adjudicate or if a quorum cannot be formed without him or if no other

competent tribunal can be constituted. In such cases, the principal of natural justice

would have to give way to necessity for otherwise there would be no means of deciding

the matter and the machinery of justice or administration would break down.”7

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Whether or not the victims and their legal heirs were given opportunity to be

heard?

One of the basic principles of Natural Justice is that people affected by an action or inaction

should have a Right to be Heard. In this case, the petitioners contended that they were not

given any right to be heard as the Central Government took control to represent all the

victims together. Even by doing so they could have got their say if the Court notified them

about the due proceedings, settlement agreement through newspapers, television, radio or

any other adequate sources. The CJ Sabyasachi Mukherji remarked in the present case,” The

general principle as distinguished from an absolute rule of uniform application seems to be

6 1984 4 SCC 103

7 Para. 4 (1)- J. Mohapatra vs. State of Orrisa, 1984 4 SCC 103
that where a statue does not in terms exclude this rule of prior hearing but comtemplates a

post decisional hearing amounting to a full review of the original on merits than such a

statue would be construed as excluding the audi alteram partem rule as the pre decisional

stage. If the statue conferring the power is silent with regard to giving of pre decisional

hearing to the person affected, the administrative decision after post decisional hearing was

good.”8

Reference to the case of Maneka Gandhi vs Union of India 9 were her passport was

impounded by the authorities without giving her any prior notice or opportunity to be

heard. The legal question was “ can a post decisional hearing mitigate the injustice caused

by the lack of pre decisional hearing. All the Judges agreed that it was a clear violation of the

Doctrine of audi alteram partem and hence the Court decided to give a post decisional

hearing to her.”10

Finally, the Court ruled that some say was actually given to the victims by Section 4 of the

aforesaid Act to represent themselves before the Court before it comes to any conclusion in

respect of any settlement. It was because of the mass tort action and the magnitude and

nature of this case that it was near to impossible to hear each and every concerned.

8 Para 8
9 AIR 1978 SC 597
10 SP Sathe, Administrative Law, 7th Ed., Pg. 236
----------------------------------------------------(2.3)----------------------------------------------------------------

Whether or not, due to conflict on interests, the Central Government was

acting as a judge in its own cause?

It was contended by the Petitioners that the Central Government owns 22% shares in UCIL

and hence there is a conflict of interest between the victims and hence on that ground the

latter is disentitled to represent the former in their battle against UCIL and UCC which

would make the government a judge in its own cause, thus breaching this principle of

natural justice. The Court on this aspect, ruled that” These are statutory independent

organisations namely UTI and LIC who own 20-22% share in UCIL. The Government has

certain amount of say in LIC and UTI and hence there is no conflict on interests in real sense

of matter with respect to the given case. Secondly, in such a critical situation, only the

Central Government can pursue and effectively represent the victims.”11

Therefore the Court ruled that the Doctrine of Necessity would over ride the possible

violation of the principles of natural justice that no one should be a judge in his own cause.

Thus it can be seen that the Court applied to Doctrine of Necessity in its widest scope in this

case. It seemed that Court in this case was in agreement to an extent that the principles of

natural justice would be violated due to the enactment of the Act but the sheer magnitude

and complexity of the situation led the Court to make this exception to the Doctrine of Bias

applicable to this case. The Court found that it was only the Government which was capable

of leading, representing and taking forward the cause of the victims, even though it may be

denying them the right to be heard in some sense and would be a judge in its own cause in

some sense, but the situation called for the exception to be adopted.

11 Para 102
----------------------------------------------------(3)-------------------------------------------------------------------

Whether or not the Central Government is legislatively competent to destroy/ demand

the citizens to surrender their rights in guise of giving aid?

The victims contended that it is not permissible for the State to grant legal aid at the cost of

destroying rights that in here in citizens or by demanding the rights of the citizens to the

State. On interpretation of the Act it was noticed that Sections 3 and 4 gave exclusive power

to the Government to represent the victims and hence there is deprivation of victims right

to sue for the wrongs done to them which is uncanalised and unguided and the expression

“due regard” in Section 4 of the Act does not imply consent and hence it violates the rights

of the victims.

In response, the Central Government’s argument was that the Act was passed to give effect

to the Directive Principles as enshrined under Article 39A of the Constitution of India. The

Court ruled that the Central Government is legislatively competent in enacting such

provisions taking DPSP under Article 39 as a feasible defense for such competency .

CONCLUSION

This case has been a unique case in itself where the urgency of the situation and the lack of

legislations and administrative provisions led to the enactment of the Act in a haste and this

subsequent case where the Supreme Court “had” to interpret that the situation called for

the exceptions in Administrative Law to apply. The Judges also suggested various ways 12 in

which such future situations could be taken care of. “The Bhopal gas tragedy and the legal

12 All the judges proposed a common fund that such companies, who will be engaging in dangerous
activities, would have to maintain for such calamities. This was in forceful submissions made by the
petitioners that big MNC’s from world over were exploiting the Third World by coming and indulging in
dangerous activities, for profit, with total disregard for human rights.
response thereto have been the subject of great controversy. A review petition against the

above settlement award was filed before the Supreme Court in the Union Carbide Corpn. Vs

India. Objections were taken to the competence of the Supreme Court to withdraw criminal

prosecutions and pass such an order in the course of the hearing of appeals arising out of

the interlocutory orders in the suit. The Court, however, set aside the order quashing

criminal prosecutions and imposing an embargo on future prosecutions….”13

“To do a great right after all, it is permissible sometimes to do a little wrong” 14

13 SP Sathe, Administrative Law, 7TH Ed., Pg. 603

14 Para 124