Informed consent is a process with respect of which the patient learns about an actual

procedure of the medical and surgical intervention as this includes everything such as clinical
trials, and here patient understands the risk and benefits of the procedure of the treatment.

Informed consent is a normal and a starting process of giving all the information to the
patients regarding everything. Basically, this is purposed so that the patients or the
responsible whoever is so agreed to all the statements and try to figure out all the
consequences from treatment. This is done by keeping the safety feature in the sight.

This informed consent process provides you with all the health care factors and gives you all
the opinion regarding the treatment and procedural way to be cured.
Whereas, now we will discuss what this informed consent form contains and what is the
responsibility of a patient.

This information includes:

 The exact position of the patient.
 Treatment procedure and its name which is provided by the health care providers.
 Benefits and risk of the treatment procedure.
 If treatment is not given to the patient then what will be the consequences.

Informed consent is a critical aspect of medical practice that involves obtaining permission
from a patient before carrying out any medical intervention or treatment. The concept of
informed consent means that patients have the right to know and understand the possible risks
and benefits associated with any medical procedure or treatment, and should be able to make
informed decisions about their healthcare

It is crucial for protecting

patient autonomy and promoting patient-centered care. When patients are fully informed
about their
healthcare needs and are empowered to make decisions about their health, it can lead to better
health
outcomes and improved patient satisfaction. Informed consent also plays a crucial role in
safeguarding
patient rights and ensuring that physicians uphold high ethical standards in their practice.

Legal implications of informed consent are also significant. When informed consent is
obtained, it serves
as legal protection for doctors and hospitals. Without informed consent, doctors run the risk
of facing
legal consequences, such as malpractice lawsuits, for medical interventions or treatments that
result in
harm to the patient. Therefore, obtaining informed consent should be a standard practice in
any medical
setting to avoid potential legal implications.
Ethical concerns raised by informed consent are also important. Informed consent serves as a
tool for
promoting patient autonomy, but some patients may not have the necessary information or
education to
make informed decisions about their healthcare. Physicians must ensure that patients are
aware of their
options and risks associated with any medical procedure, and that they fully understand their
health
condition to make an informed decision. Sometimes, patients may face pressure from
providers or family
members to make certain healthcare choices. Therefore, medical providers must act ethically
in
obtaining informed consent from patients and respect their autonomy in decision-making.

Responsibility of the patient:

 The sign you have done on the basis of reading all the treatment procedure and you
are agreeing to all the facts and the circumstances.
 Patient can ask questions and before that you must completely understand all the
points of the information.
 You can further talk to the health care providers so that they can help you with the
exact satisfaction and you may choose the whole treatment procedure or the one
portion.

Whereas, if there is any query then the patient should consult to the health providers.

Informed consent is the main responsibility of the doctors to provide the required information
to the patient and make sure that the information is correct to the point and this information
should be provide in simple words without creating hectic words. It is good if the information
is shared verbally as patients are not from the background of medical so it is not that easy for
them to understand. However,written informed consent is also valid.

Why informed consent is required?

In the report of Nuremberg Code (Ref.1)[1] addresses that the voluntary informed consent is
required as it is the fundamental ethical principle. The participant has to give their autonomy
which implies the responsibility must be given to the individual to make the decision and
give consents related to their medical conditions. It is not only essential for the safety and the
protection of the patient but also for the respect and integrity of the patient.

The form signed is a legal document that shows the acceptance of a patient and agreement to
the medical procedure specified by the healthcare providers. Once the consent form is signed
it means that the patient has received all the relevant information about the procedure and
agreed with their free will. This signifies that the healthcare provider can proceed with the
treatment. If any participant denies to the treatment suggested by the doctors, then may not
sign the form. Everyone has the right to refuse to the treatment if they are capable of taking
decisions. The legal competent that is capable to make medical decisions have the legal and
moral right to refuse any treatment.

Can other person sign a consent form on the behalf of the

patient?
The following are such cases where another person can sign the consent form:

 Minor- When the patient is a minor who is incapable of making decisions for their
betterment. The parents or guardian of the minor can sign the form on their behalf.
 Advance Directive - In this case, the patient himself has directed the other person to
make their future medical decisions. A form has to fill prior to giving consent which
is called an advance directive. It will allow someone else to be consent on your
behalf.
 Cannot give consent- when the person is incapable to give consent then the other can
give the consent. These are the cases where the patient is in coma and Alzheimer.

Types of Informed Consent

The following are the types of informed consent:

1. Consent- A participant who is an adult is capable to give permission or consent on

their own provided that they must be 18 years old and above.

2. Parental Permission- When the patient is a minor then there is the need to take the
parental permission which is duly signed by the parents or the guardians of the child.
A child is incapable to know what is right and wrong for them, that's why there is a
need of parental permission.

3. Assent- It is the child's affirmative agreement where the content of the informed
consent form is written with simple terms and is easy to be read by the child. The
reading level of the content should be written in such a way that the child of age 7 to
17 years can understand it easily.

4. Verbal- In this type, the participant verbally read the content and verbally gives their
consent. Although it contains all the written contents in it.

5. Short Form- There is various challenges when it comes to informed consent. The
short form is required when there is a language barrier. In India, this problem is very
common because many people are unable to understand English. So, the approved
consent is translated to the patients in their native language for better understanding of
the concerned matter.

Informed consent is a process not a mere form

It is an important document which is related to your health factors so that the patient is aware
of every situation regarding to the health and what should be the upcoming treatment related
to the human body. There are few requirements which should be considered in the informed
consent document i.e. it should be in the simple and plain language there should not be any
use of hard words or ambiguity. There should also some extra information regarding the
informed consent so that it is easy for everyone to get the actual extract of the information.

Moreover, this should not be treated as a formality, it should be taken as much as serious and
the complete procedure should be followed by doctors and patient as well. There should be a
proper management so that it will become easy for everyone. To make it easy doctors can
provide them counseling and this counseling procedure should be done in easy language, so
that they can understand properly.

Legal Scenario of Informed Consent

The duty of doctors is to inform the patient about their conditions and all the possible risks
involved. But if the doctor is unable to perform their duties then they will be liable for
medical negligence. In medical negligence cases, the doctors carelessly or improperly treat
the patient it can be either without adequate technical skills or knowledge. There was a case
where[2], the surgeon while performing the surgery discovered that her womb was ruptured.
He sterilized her without taking consent of her. The doctor was held liable for medical
negligence. The liability of the doctors in case of absence of disclosure of the information
will be as medical negligence and hence the doctor will be liable for the same.[3]

The following are the cases where the consent is required

to be taken and if not then the legal actions will be taken:
 Right to Refusal- the patient has the right to protect their body from any kind of
interventions. If any patient has not given consent for the treatment then the doctors
cannot perform the treatment on them and if they operate then it will be punishable. In
Indian, the burden of proof lies on the doctor to justify their actions which would be
illegal in the absence of consent. Indian courts may presume the consent to be implied
but up to certain limits. Beyond that, the specific proof needs to be presented to the
court.

 Minor's consent-Section 3 of Indian Majority Act, 1875, sets the age of majority as
18 years in India. Therefore, the person below the age is minor and cannot give
consent. The parental consent will be considered lawful.

 Medical termination of Pregnancy- In the minor or a lunatic for termination of

pregnancy, the parental consent is required. The Medical Termination of Pregnancy
Act, 1971 provisions ensures that no pregnancy shall be terminated without the
consent of the women. The termination must be done only in good faith and n the
benefit of a person's life.

Special circumstances
If there is any condition in which a person is somehow incapable of giving the informed
consent then there are certain requirements which must be followed by that person so that
there should not be any query:

1. There should be a proper explanation.

2. There is a requirement of individual assent.
3. Person best preference should be considered and for their best interest.
4. If there is any substitute consent then that must be verified that is this sufficient toall
the essential requirements. Similarly, if doctors do the same then they should also
have a very clear explanation regarding everything. Moreover, it is not expected from
the doctors but still if there is any issue then they should present it very carefully.

The main importance of this document is that it gives you the surety of treatment and make
sure that if there is any risk related to your health then it should be already discussed with
you.

Doctors' duty towards the informed consent

As the health and life is the most basic requirement of the human body so there should not be
any risk related to the health status of a human body. In India, doctors are considered as equal
to the god who are lifesavers for us and give us the ray of hope in the toughest time. There
should not be lack of knowledge from their side because it is considered that doctors are the
one who always serve their patient in any situation and it is clearly visible by the recent
example of coronavirus in the society.

Sometimes doctors forget about the informed consent document due to any of the reason such
as not sufficient time, lack of their duty or due to any other reasons. So it is very important
that doctors should perform their duty perfectly, there should not be any lacking point which
can raise question on their profession. Health is the most preferred thing for a normal human
being and if a doctor shows any point of carelessness towards it, this would be totally wrong.
Throughout the whole treatment, a doctor should act as responsible and should work with
complete dedication.

Conclusion
The rights of a person are determined through their human status. The informed consent is an
important tool in clinical trials. The responsibilities and importance of this consent must be
ethical and genuine for the betterment of the participant. This paper involves a brief
description of informed consent. The legal perspective, its importance and the requirement of
the consent form is explained. The guidelines on informed consent in India should be based
on complex factors such as diversity, culture, level of education and the demographical
scenarios.

In conclusion, informed consent is a critical component of healthcare that ensures patients

have the
right to make informed decisions about their healthcare. It is essential for physicians to obtain
informed consent from patients to avoid potential legal consequences and protect patient
autonomy. Healthcare
providers must adhere to ethical standards in obtaining informed consent, ensuring that
patients have
the necessary information to make informed decisions. When medical practices adhere to
informed
consent, patient outcomes improve, and risks of medical malpractice are minimized.

The landmark case in Indian courts that has elaborated fairly comprehensively on the issue of
medical consent is the Honourable Supreme Court Judgement in Samira Kohli vs Dr Prabha
Manchanda & Anr, ( Civil Appeal No. 1949 of 2004) delivered on 16 January 2008. The
Honourable Court thoroughly evaluated medical jurisprudence as it has evolved in India, the
US, and the UK and finally concluded principles of consent (at Para 32). These are
paraphrased as under:

1. All treatments including surgery require consent. The person consenting should
have the capacity and competence to consent, should consent voluntarily and
should have adequate information concerning the nature of his treatment.
2. This “ adequate information” has to be provided by the treating doctor or member
of his team. The essence is to enable the patient to make a balanced judgement as to
whether he should undergo the treatment being suggested by the treating doctor or
not. So the doctor should explain the nature, procedure and purpose of the
suggested treatment, and alternatives available, and outline of substantial risks and
adverse consequences of refusing treatment. In explaining risks remote or
theoretical risks that may cause the patient to be frightened enough to refuse
treatment being suggested need not be described.
3. Consent for only a diagnostic procedure does not extend to a therapeutic treatment.
Likewise, consent for a specific treatment does not mean consent for any other
treatment, even if performed for the possible benefit of the patient. The only
exception to this is when, during surgery on an unconscious patient, the
other/additional treatment is necessary to save the life and/or the health of the
patient and the other/additional treatment cannot be delayed till the patient regains
consciousness.
4. If common diagnostic and operative procedures are being contemplated, common
consent for the same may be taken. Similarly, common consent may be taken for a
surgical procedure as well as additional or further procedures that may become
necessary during the course of surgery.
5. The nature and extent of information to be furnished by the doctor to the patient to
secure the consent need not be of the stringent and high degree mentioned in
Canterbury but should be of the extent which is accepted as normal and proper by a
body of medical men skilled and experienced in the particular field. It will depend
upon the physical and mental condition of the patient, the nature of the treatment,
and the risk and consequences attached to the treatment.

https://www.legalserviceindia.com/legal/article-8452-case-analysis-of-samira-kohli-v-s-prabha-
manchanda.html

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https://legalvidhiya.com/bandhua-mukti-morcha-v-union-of-india-ors-1984-air-802-eliminate-the-
use-of-child-labours-under-the-age-of-14/

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https://indiankanoon.org/doc/1344892/

Legal Aspects Of Bhopal Gas Tragedy

The Bhopal gas tragedy is, till date, the world’s worst industrial disaster. It occurred in
December of 1984 at Bhopal in Madhya Pradesh. The tragedy was a result of the leak of the
methyl isocyanate (MIC) gas from the Union Carbide India Ltd (UCIL) plant which
manufactured pesticides. On the night of December 2-3, 1984, there was a leak of the MIC
gas which is considered to be the most toxic chemical in industrial use. All around the city of
Bhopal, people were exposed to this gas and the immediate effects of inhaling the gas were
coughing, vomiting, severe eye irritation and a feeling of suffocation. Thousands of people
died immediately and lakhs of people sustained permanent injuries.

Background And Effects Of The Leakage: - The MIC in the Union Carbide Plant was
primarily used for the production of carbaryl, which is a pesticide. It is alleged that most of
the safety systems were not functioning and that most of the safety valves were in poor
condition around the time the incident took place. During the night of December 2-3, 1984,
large amounts of water entered into the tank numbered 610 which contained about 42 tonnes
of methyl isocyanate. At the time, workers were cleaning out pipes with water, and some
claim that owing to bad maintenance and leaking valves, it was possible for the water to leak
into tank 610. This resulted in an exothermic reaction which caused the temperature and the
pressure inside the tank to increase. Due to this urgent venting of pressure, large volumes of
MIC gas were released into the atmosphere. The gases flooded the city of Bhopal, causing
great panic as people woke up with a burning sensation in their lungs. Thousands died
immediately from the effects of the gas and many were trampled in the panic. The long term
health effects of the gas include visual impairment, blindness, respiratory difficulties,
immune and neurological disorders, lung injury, female reproductive difficulties and birth
defects among children born to affected women.

The Legal Battle: - In the February of 1985, the Indian Government filed a case in the U.S
Court for a claim of $3.3 billons against the Union Carbide Corporation. But by 1986 all of
these litigations in the U.S District were transferred to India on the grounds of forum non
conveniens. It means that the case should be transferred to a more convenient forum so that
the trial proceeds smoothly. Meanwhile in March 1985, the Bhopal Gas Leak Disaster
(Processing of Claims) Act was passed which empowered the Central Government to become
the sole representative of all the victims in all kinds of litigations so that interests of the
victims of the disaster are fully protected and the claims for compensation are pursued
speedily. In the year 1987, cases were filed in the Bhopal District Court which ordered the
Union Carbide Corporation to pay 350 crores as interim compensation. But the interim order
could not be decreed and therefore the UCC refused to pay the amount. Later on, at the High
Court, this interim compensation amount was reduced to 250 crores. Both the Union of India
and the UCC preferred appeals by special leave against this High Court's order.

The Settlement Order: - But a major twist to these legal proceedings came through the
settlement order which was stroked out between the Indian Government and the Union
Carbide in an out of Court settlement in February 1989. Through this deal the liability of the
Union Carbide was fixed at $470 millions in full and final settlement of all claims, rights, and
liabilities arising out of the disaster. The terms of the settlement were such that it limited
liability under all future claims as well, whether they were civil or criminal. This would mean
that henceforth, all kinds of liability arising out of the disaster could be fixed only upon the
Government of India and the Union Carbide would be held liable only to the extent of $470
millions.

The actual wordings of the settlement are thus:

‘This settlement shall finally dispose of all past, present and future claims, causes of action
and civil and criminal proceedings (of any nature whatsoever wherever pending) by all Indian
citizens and all public and private entities with respect to all past, present and future deaths,
personal injuries health effects compensation, losses, damages and civil and criminal
complaints of any nature whatsoever against UCC, Union Carbide India Limited, Union
Carbide Eastern, and all of their subsidiaries and affiliates as well as each of their present and
former directors, officers, employees, agents representatives, attorneys, advocates and
solicitors arising out of, relating to or concerned with the Bhopal gas leak disaster, including
past, present and future claims, causes of action and proceedings against each other.’

This was indeed a bad move as the settlement would limit liabilities under future claims as
well. Moreover, $470 millions was not sufficient to compensate all the injured. In fact, it is
hardly 15% of the original claim of $3.3 billions at the U.S Supreme Court.

This obviously evoked criticisms from all corners. A number of review petitions were filed at
the Supreme Court questioning the validity of the settlement order. The settlement order was
challenged on various grounds. Firstly, it was pointed out that the settlement order was
between the Union of India and the Union Carbide Corporation, whereas the actual people
who are going to be affected by such a settlement order would be the victims of the tragedy.
Thus, the first argument raised was that the settlement order is void because no notice was
given to any of the people whose interests would be affected.

It was also assailed on the grounds that this order also applied to future claims and this would
mean stifling prosecution and that it was opposed to public policy. The order was also
questioned for the inadequacy of the compensation and for the absence of any re opener
clause. The absence of re opener clause is a very significant issue as latency period for the
manifestation of the effects of the toxic injuries was unpredictable and therefore the amount
of compensation was wrongly arrived at. Moreover, a lot genuine claims might arise in the
future and limiting the liability arising out of such a major industrial disaster with such
gravity and magnitude, without a re opener clause is clearly against justice, and if such a
thing be allowed, it would definitely amount to unfair treatment from the view of the lakhs of
people who were injured as a result of the gas leak.

But all these contentions were rejected by the Supreme Court and the validity of the
settlement order was upheld in the case, Union Carbide Corporation v Union of India, the
judgement being delivered on October 3, 1991. The Court upheld the validity of the
settlement order in all aspects except the condition quashing the criminal proceedings. The
condition quashing the criminal proceedings alone was held unjustifiable but all other aspects
including the amount of compensation decided in the settlement order were held to be valid.

The Court was of the opinion that the subject matter of the deal was not illegal and that there
was no valid reason to render the contract void. The settlement only limits the liability of the
Union Carbide and this does not affect the victims in anyway because in any case the
settlement fund is to be found insufficient, then the deficiency is to be made good by the
Union of India. Thus, no liability could be fixed on the Union Carbide. This would obviously
mean that if the claims exceed $470 millions, the excess liability can only be compensated by
the Union of India and the Union Carbide cannot be made responsible for that in any manner.

The settlement order was reached because of the urgent demands to compensate the victims.
The very basic consideration motivating the conclusion of the settlement order was the
compelling need for urgent relief. Though the amount stroked out may prove to be inadequate
the deal stands valid in all aspects and no further liability could be placed on the Union
Carbide. The rationale behind the judgement is that withdrawal of a prosecution with a good
motive, such as providing relief to the victims of a disaster is not opposed to public policy
and hence the deal would stand valid. Moreover, on the question of accord and satisfaction, it
was held that even a promise to pay a lesser sum would be a full satisfaction of the claim if it
was agreed upon by both parties based on a compromise. Therefore, the whole claim is
discharged at $470 millions as the Government of India agreed upon this as a full and final
settlement for all past and as well as future claims.

The Criminal Proceedings: - Apart from these civil proceedings, criminal proceedings
were also initiated before the Chief Judicial Magistrate in Bhopal. The case was instituted in
the year 1987. Since the clause in the settlement order which quashed the criminal
proceedings was held invalid and unjustifiable, the criminal proceedings initiated could
continue. The judgement was delivered only on June 7, 2010, 26 years after the disaster. The
proceedings were initiated under Section 304 A, and Sections 336, 337, and 338 read with
Section 35 of the Indian Penal Code. Section 304 A deals with causing death by negligence.
Sections 336, 337 and Section 338 deal with the offences of endangering life and personal
safety of others. This is read along with Section 35 which deals with the aspect of common
intention.

In this case, the prosecution argued that the whole disaster was a result of running a
defectively designed plant with a number of operational defects without any reasonable care.
The prosecution submitted the findings by the Council of Scientific and Industrial Research
(CSIR) to substantiate their contentions. The team of scientists from the CSIR noticed that
MIC was stored in large tanks instead of stainless steel drums. The flare tower and the vent
gas scrubber had been out of service for five months before the disaster. The gas scrubber
therefore did not treat escaping gases with sodium hydroxide (caustic soda), which might
have brought the concentration down to a safe level. To reduce energy costs, the refrigeration
system, designed to inhibit the volatilization of MIC, had been left idle. Slip-blind plates that
would have prevented water from pipes being cleaned from leaking into the MIC tanks
through faulty valves were not installed. Carbon steel valves were used at the factory, even
though they corrode when exposed to acid. On the night of the disaster, a leaking carbon steel
valve was found, allowing water to enter the MIC tanks. The pipe was not repaired because it
was believed it would take too much time and be too expensive. Thus, insufficient caution in
design choice of material and other alarming instruments, inadequate control on systems of
storage and on quality of stored materials and as well as lack of necessary facilities for quick
effective disposal of material are the main reasons which lead to the incident. All these show
that the business was carried out with reckless indifference to the public. The Company
authorities had the knowledge and the properties of how dangerous a gas is MIC and still
carried on the activities with gross negligence, recklessness and utter disregard to the public.
The element of criminality is introduced by the accused having run the risk of doing such an
act with recklessness and indifference to the consequences. The UCC being a company
dealing with a substance like MIC, it owes a duty of care to the public. The activities of the
enterprise falls far below the standards required and therefore, the prosecution argued that it
amounted to gross negligence.

For all these contentions, the UCC came up with several defences. Firstly, they argued that
the reports by the CSIR cannot be admitted as evidence. It was that CSIR was merely a fact
finding body and that it was constituted for a very limited purpose. Therefore, it was argued
that its contents could not be taken as proof. Secondly, it was contended that the Company
had obtained all licenses and approvals from the Government for carrying out the business
under the Designed Transfer Agreement & Technical Service Agreement. All other permits
required were also duly obtained and hence the UCC argued that they carried out their
business in a completely authorised manner with the permission being obtained by the
Government of India itself. Moreover, it was submitted that none of the Company officials
had any criminal intention to cause any harm to any member of the public. The Company
refused to admit any kind of negligence on its part and further argued that the officials were
in no way involved with the day to day activities of the business and therefore they cannot be
held responsible for any negligence on the part of the workers. It was further argued that the
accused officials were not even present in the occasion where the disaster took place. All
these were based on the principle that vicarious liability is not applicable under criminal law
and therefore the directors cannot be held liable for the negligence of the workers.

The UCC also denied all allegations that the UCIL plant in India was not properly designed.
It further submitted that the MIC plant at Bhopal was designed in the same pattern as that of
the MIC plant in Verginia, USA. But it is important to note that The Government of India
was never permitted to visit the plant at Vergina. Also, no brochure or any other documentary
evidence demonstrating the similarity between the two plants at Verginia and Bhopal was
produced before the court by the UCC to support its contentions.

The Judgment: - But all of these contentions were rejected and all the accused were found
guilty and were subjected to imprisonment and were also liable to fine. But these orders could
not be enforced as some of the accused did not appear in the Court. Mr. Warren Anderson,
who was the chairman of the UCC at the time the disaster took place, is still absconding and
all requests for his extradition still remain unsuccessful as the U.S Government rejected it.

Legal Issues: One of the main issues which the Bhopal Gas tragedy raises is the issue of
absolute liability. This issue was elaborately discussed in the case of M.C Mehta v Union of
India. The principle of absolute liability states that when an enterprise is engaged in
hazardous or inherently dangerous industry and if any harm results in account of such activity
then the enterprise is absolutely liable to compensate for such harm and that it should be no
answer to the enterprise to say that it had taken all reasonable care and that the harm occurred
without any negligence on its part. In such industries, the principle of safe design would be
that one does not guard merely against the most predictable, routine type of accidents. Rather
one tries to anticipate the worst that could happen, even if it is highly unlikely, and not only
guard against it, but prepare to contain it and make sure that there is no way for that even to
take place.

This is the principle of absolute liability and liability can be fixed even if there is no
negligence on part of the accused. In the case of absolute liability, even the defences
available under strict liability would not apply. Thus, even if the accident is some freak
incident, liability would still be fixed. In such a case, it would be no good defence to argue
that the direct or the proximate cause of the accident or the causa causan of the accident was
not the carrying of such hazardous activity, but it actually is an Act of God or that it is due to
some third party intervention. Even if the Company had taken extreme precautions to ensure
that such events do not take place, responsibility would still be fixed on them. This principle
of absolute liability in India evolved primarily because of the awakening that the Bhopal Gas
Disaster and the Oleum Gas Leak case gave.

The Bhopal Gas Tragedy is also in a way responsible for the passing of the Public Liability
Insurance Act, 1991 which provides for compulsory insurance of any unit or factory
undertaking a hazardous activity.

Apart from all of this, the tragedy has recently been much discussed in the light of the
Nuclear Liability Bill. This bill has a lot of controversial provisions which aim at capping the
total liability in case of a nuclear accident. The bill also prohibits the victims from suing the
suppliers directly and allows them to recover only from the operators. The bill also lays a cap
on the amount that an operator can recover from the suppliers.

In the light of the events that followed Bhopal, it is clear that there is a need for a proper
mechanism of compensation and it is important that any kind of cap on liability should be
removed as it would be unconstitutional.

Conclusion: - The tragedy is still considered to be the world’s worst industrial disaster. To
prevent such events from occurring in the future, the government should thoroughly check
and regulate such industries. They should be placed under constant surveillance and the
activities of such industries should be monitored at least once in every six months. Any kind
of repair in any of the machines or equipments should be immediately attended to. The
government should take it upon itself to make sure that everything is functioning properly.

Apart from this, the government should also make sure that there is a proper mechanism for
compensation to the victims. It should ensure speedy justice and should make sure that proper
relief is given to the victims.

In the event of such a large scale disaster as Bhopal, the questions like who is right and who
is wrong and who was negligent and who was not become totally irrelevant in the plight of
thousands of people who get affected in one single night.

It is totally unjustifiable to leave even a single victim without providing relief. Hopefully,
such incidents should never occur again, and even if they do, we should not forget the lessons
from Bhopal and we should make sure that any law capping the limit on the liability of such
large magnitude disasters should be declared as unconstitutional.

The author can be reached at: [email protected]

Indian kanoon
The Bhopal Gas Leak Tragedy that occurred at midnight of
2nd December, 1984, by the escape of deadly chemical fumes
from the appellant's factory was a great industrial disaster
and it took an immediate toil of 2600 human lives and left
tens of thousands of innocent citizens of Bhopal physically
affected in various ways. As per the figures furnished by
the Union of India in its amended plaint a total number of
2,660 persons suffered agonising and excruciating deaths
between 30,000 to 40,000 persons sustained serious injuries
as a result of the said disaster.
Legal proceedings for the recovery of compensation for
the victims were initiated against the multi-national compa-
ny first in the U.S. Courts and later in Distt. Court at
Bhopal in Suit No. 113 of 1986. The present appeals concern
with the order dated 4th April, 1988 passed by the Madhya
Pradesh High Court whereby it modified the interlocutory
order dated 17.12.1987 made by the Distt. Judge and granted
interim compensation of Rs.250 crores. Both the Union of
India and the Union Carbide Corporation have appealed to
this Court against that order.
The Court by its order dated the 14th February,1989
made in these appeals directed that there shall be an over-
all settlement of the claims in the suit for 470 million
U.S. Dollars and termination of allcivil and criminal
proceedings. On May 4, 1989 the Court pronounced its reasons
for its aforesaid order dated 14.2.89thus:
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 Article 137 of
the Constitution. [132C-D]
129
The basic consideration motivating the conclusion of the
settlement was the compelling need for urgent relief. Con-
siderations of excellence and niceties of legal principles
were greatly over-shadowed by the pressing problems of very
survival for a large number of victims. [133A, C]
The instant 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 question 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. This Court considered it a compelling
duty. both judicial and humane, to secure immediate relief
to the victims. In doing so, the Court did not enter upon
any forbidden ground. What this Court did was in continua-
tion of what had already been initiated. [133E-F, H; 134A]
The range of choice for the Court in regard to the
figures was, therefore, between the maximum of 426 million
U.S. Dollars offered by Shri Nariman and the minimum of 500
million U.S. Dollars suggested by the Attorney General.
[134F-G]
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, the Court
directed that 470 million U.S. Dollars which upon immediate
payment and with interest over a reasonable period, pending
actual distribution amongst the claimants, would aggregate
very nearly to 500 million U.S. Dollars or its rupee equiva-
lent of approximately Rs.750 crores which the Attorney
General had suggested. be made the basis of the Settlement.
[134G-H; 135A-B]
The Settlement proposals were considered on the premises
that the 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 premises that the Bhopal Gas Leak Disaster
(Registration and Processing of Claims) Act 1985 was a valid
law. [135B-C]
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. [140B-C]
The compulsions of the need for immediate relief to tens of
130
thousands of suffering victims could not wait till these
questions, vital though they be, are resolved in due course
of judicial proceedings. [142D-E]
A settlement has been recorded 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 any compelling circumstances
which might impose a duty on it to exercise the powers of
review. Like all other human institutions, 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 day. Which view is
right, in the ultimate analysis, is to be judged by what it
does to relieve the undeserved suffering of thousands of
innocent citizens of this country. [142F-G]
Decisions of courts cannot be reacted or altered or
determined by agitational pressures. If a decision is wrong,
the process of correction must be in a manner recognised by
law. All of those who invoke the corrective processes 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 hem good and bring them imme-
diate relief, for, tomorrow might be too ate for many of
them. But the case equally concerns the credibility of, and
the public confidence in, the judicial process. [143B, D-E]
Those who trust this Court will not have cause for despair.
[143F]
M.C. Mehta v. Union of India, AIR 1987 SC 1(186; Theo-
ries of Compensation, R.E. Goodin: Oxford journal of Legal
Studies, 1989 p.57 and Wallace Mendelson.. Supreme Court
Statecraft--The Rule of Law and men, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3187 and 3188 of 1988.
From the Judgment and Order dated 4.4.1988 of the Madhya Pradesh High Court in CR No.
26 of 1988.

Anil B. Dewan, J.B. Dadachanji, Mrs. A.K. Verma for the appellant.

K. Parasaran, A. Mariarputham, Miss A. Subhashini and C.L. Sahu for the Respondents.

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 2,660 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 Rs.250 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 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.

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 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 U.S.A., 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 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 Rs.750 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 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 30,000 to 40,000
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 Rs.15,000 to Rs.30,000 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 usual multiplier-method in the case of income groups com- parable
to those of the deceased-persons, would be anywhere between Rs.80,000 and Rs. 1,00,000.
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 Rs.20
crores in all. The High Court thought it should adopt the broader principle in M.C. Mehta v.
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)
Rs.2 lakhs in each case of death: (b) Rs.2 lakhs in each case of total permanent disability; (c) Rs.1 lakh
in each case of permanent partial disa- blement and (d) Rs.50,000 in each case of temporary partial
disablement."

(Emphasis supplied) Half of these amounts were awarded as interim compensation. An

amount of Rs.250 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 at Bhopal, was in the neighbourhood of 30,000. 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 Rs.l lakh to Rs.3 lakhs. This would
account for Rs.70 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 i.e. 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 30,000 was estimated as cases of
permanent total or partial disability. Compensation ranging from Rs.2 lakhs to Rs.50,000 per
individual according as the disability is total or partial and degrees of the latter was
envisaged. This alone would account for Rs.250 crores. In another 20,000 cases of temporary
total or partial disability com- pensation ranging from Rs. 1 lakh down to Rs.25,000 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 Rs.4 lakhs per
individual might have to be considered. Rs.80 crores, additionally for about 2000 of such
cases were envisaged. A sum of Rs.500 crores approxi- mately was thought of as allocable to
the fatal cases and 42,000 cases of such serious personal injuries leaving behind in their trail
total or partial incapacitation either of permanent or temporary character.

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. Rs.25 crores for the creation of such facilities was envisaged.

That would leave another Rs.225 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 Rs.225 crores. If in respect of these
claims allocations are made at Rs.20,000, Rs. 15,000 and Rs. 10,000 for about 50,000 person
or claims in each category--accounting for about one and half lakhs more claims--the sums
required would be met by Rs.225 crores.

Looked at from another angle, if the corpus of Rs.750 crores along with the current market
rates of interest on corporate borrowings, of say 14% or 14 1/2 % 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.

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 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 M.C.
Mehta v. 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 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," R.E. Goodin:

Oxford Journal of Legal Studies, 1989, P. 57.

"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 right,in 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 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.