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http://www.thehindu.com/opinion/interview/it-was-not-a-case-it-was-a-tr...
Opinion Interview
Published: June 27, 2010 23:58 IST | Updated: June 28, 2010 00:02 IST
Fali S. Nariman: `In a tragedy, who is right, who is wrong etc., all become marred in great deal of justifiable emotion.' Photo: Shiv
Kumar Pushpakar
THE HINDU
The only thing the government has done correctly it should have been done 14 or 15 years before is to increase the compensation, if
they genuinely believe that the victims have not got their amount.'
Fali S. Nariman, 81, is one of India's most illustrious lawyers and constitutional jurists and a former nominated
Member of the Rajya Sabha. His recently published autobiography, When Memory Fades (Hay House, 2010) is a
fascinating read in which he devotes one chapter to the Bhopal gas leak case in which, as senior counsel, he
represented Union Carbide Corporation. In an interview with Karan Thapar on CNN-IBN's Devil's Advocate,
Mr. Nariman re-looks at the issues from a reflective distance and offers his insights and impressions of what may
be in store. Edited excerpts from the interview:
Mr. Nariman, after 25 years and after all that's been revealed and has emerged, do you regret
accepting the Union Carbide brief?
Well, let me put it this way, If I had to live my life all over again, as a lawyer, and the brief came to me and I had
foreknowledge of everything that later came in, I would certainly not have accepted the civil liability case which I did.
So, in other words, with hindsight, you would have said no?
Yes, only with hindsight.
Looking back at that time in 1985, when you accepted the brief, did you see this largely or simply as a
legal case rather than as a national tragedy and, in that sense, was that the mistake you made?
Yes, I think so. Because I thought this was one more case which would add a feather to my cap. I mean one is always
ambitious at that age. But I found later but then it's too late, one can't walk out of the case one has already taken
up that it was not a case, it was a tragedy. And in a tragedy, who is right, who is wrong etc., all becomes marred in
great deal of justifiable emotion.
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The settlement
There is something very interesting embedded in the beginning of your answer one can't walk out
of a case once taken. But that does suggest that whilst you were the lawyer, you were beginning to
have regrets about accepting the brief?
This is why I was very happy when, at the court's suggestion, the compromise ultimately took place: of civil liability
between $500 million-odd, which the government was suggesting ultimately, and $350 million, which the Union
Carbide suggested. And then I left it to the court and the court fixed $470 million.
I think the court had this problem before it. This was only an interim order. You remember, this was an interim
order directing us to pay compensation, from which we came to the Supreme Court, Union Carbide came to the
Supreme Court.
Let me raise this issue with you. This whole matter, after 1989, went into appeal, the appeal
judgment came out in 1991 and, at that time in the appeal judgment, the Supreme Court said that it
was unlikely that the settlement would be found to be inadequate. The Supreme Court has been
proven to be hugely wrong. But that apart, the Supreme Court then said that in the event it was
inadequate, those who fall ill thereafter would be the responsibility of the Government of India,
totally letting Union Carbide off the hook. Was that fitting and fair and proper?
Because it's a settlement. There is no question of fitting and fair because if it had been a regular hearing, which
[means that] after looking at all the documents and taking the evidence they had found that there was liability, then
it would not be fair. But if it was without admitting liability that this sum was paid up, then the question was, and
this was again argued in the second round, who should be liable. And the court said unanimously it is the
government only which would have to foot the bill.
You are saying two very important things to me: that perhaps the victims, and the need for adequate
compensation, would have been better served if a settlement hadn't been reached but a proper case
for liability had been fought.
That was the dilemma. If that had been fought, it would have taken more years.
But it would have got a better outcome?
But the victims wouldn't have been helped because, in the meanwhile, what?
Unreformed tort law
So there was a trade-off between the time a court case would take and the fact that the settlement
might not be as good as a court outcome but it would be quicker and faster. Is that right?
Let me tell you one thing. In tort cases, the law has been, right through, that unless liability is ascertained and fixed,
there can be no interim compensation. In England, they altered that by statute long, long ago.
We haven't done it in India.
We haven't done it as yet.
As a result of which we wanted an interim settlement, we wanted a quick settlement and as a result
of which the liability was never established in a court case. Let me put the second critical question to
you. Would you today, maybe with the benefit of the hindsight, accept that at the end of it all, the
settlement was inadequate and therefore unjust?
No, no I don't think so.
But surely it was inadequate? Surely, you accept that?
I am not sure. I have no means to say that it is inadequate. I think the fault perhaps is not only the quantum of the
settlement, if you put it like that, but the delay in its distribution.
The delay in its distribution is explained in the manner in which the procedure and the law works in
India but the quantum of settlement has turned out to be derisory not just for those who died but
also for those who were crippled and disabled for life as well as those who were marginally injured.
You surely must accept that the quantum is inadequate.
The inadequacy arises because there was a very large sum of money which was sought to be distributed amongst
people living in certain areas not by reason of what they suffered but by their living in those areas. This was the
problem.
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Just to be absolutely clear, what you're saying is the attempt of the government to re-prosecute
Keshub Mahindra and others under 304(2) is going to be a breach of Section 300.
Yes, absolutely.
It's illegal?
Yes, of course it is. And therefore my contention is whether Justice [A.M.] Ahmadi was right in dropping that charge
under Section 304(2) or not is an irrelevant consideration at this stage. He could have been challenged when the
trial was going on.
But not now?
Not now.
But the point is that the belief that the government can re-open the case and now charge Keshub
Mahindra under a higher offence, 304(2) rather than 304(A), is a belief that has been emboldened by
the advice of the Attorney General.
Then you'd better ask the Attorney General.
But you believe the Attorney General is wrong?
Of course.
So once again the government is intending to do something that would be wrong, that would be
illegal, and would be struck down?
You see, this only raises the expectations of everybody.
To dash them?
Ultimately to dash them, but then public memory is short.
Once again the government is embarked on something which legal luminaries like you are saying is
wrong and will not succeed?
I wish you had asked somebody who was not acquainted with the case and he will probably confirm it.
Finally, the government is also attempting, one more time, to extradite Warren Anderson. The man
is 89. What are the chances of success?
It looks grim to me but if they have any means to do so, well, certainly they can do it.
What lies ahead?
Then what is the point of these three exercises, because you've made it clear, as a leading lawyer,
that they are unlikely to succeed? They are probably wrong in law and they would be struck down by
the court. So what purpose will be served?
The only thing which the government has done, in my opinion, correctly but it should have been done 14 or 15
years before is to increase the compensation if they genuinely believe that the victims have not got their amount.
So all that the government can do is pay more from its own exchequer but the attempt to
re-prosecute, the attempt to open the settlement and get more compensation, as well as the attempt
to extradite Warren Anderson, all three are unlikely to succeed?
Unlikely is correct.
Keywords: Bhopal Gas tragedy, GoM report, Anderson, Rajiv Gandhi, P.V. Narasimha Rao, Arjun Singh, Congress
government, Fali Nariman, Karan Thapar
Printable version | Dec 13, 2014 12:00:41 PM | http://www.thehindu.com/opinion/interview/it-was-not-a-case-itwas-a-tragedy-nariman/article488996.ece
The Hindu
13-Dec-14 12:00 PM