80. While reaching this conclusion we are not unlawful of the force of the petitioners' case. The Sahu's case laid down that Section 4 of the Act contemplated and conferred a right on the victims of being heard. It also held that they were not so heard before the Government agreed to the terms of the settlement. According to the Sahu's case, victims should have an opportunity of being heard in the Review Proceedings. The petitioners who were litigating the matter did not represent all the victims and victim groups.
81.In the ultimate analysis, the crucial question is whether the opportunity to the affected persons predicated in the Sahu case (AIR 1990 SC 1480) can reasonably be said to have been afforded. Indeed, at the very commencement of the hearing of the review petitions, Smt. Indira Jaising made a pertinent submission that the court should determine and clarify the nature and scope of the review hearing: whether they partake of the nature of a "Fairness Hearing" or of the nature of a "post-decisional hearing" or whether the court would device some way in which the victims at large would have an effective sense of participation as envisaged in the Sahu decision. Smt. Indira Jaising submitted that the opportunity of being heard in the review suggested and indicated by the Sahu decision cannot be understood to confer the opportunity only to those who were eonomine parties to the review petitions.
82. In the present hearings Shri Nariman placed before us a number of press-clippings to show that, from time to time, largely circulated newspapers in the country carried detailed news reports of the settlement and of the subsequent legal proceedings questioning them. Shri Nariman's contention is that in view of this wide publicity the majority of the affected persons must be presumed to have had notice, though not in a formal way and to have accepted the settlement as they had not bestirred themselves to move the Court.
83. Shri Nariman also raised what he urged were basic objections as to the scope of the review jurisdiction and to the enlargement of the scope of the review hearings to anything resembling a "Fairness Hearing" by treating the concluded settlement as a mere proposal to settle. Shri Nariman said that the Court could either review the orders dated 14th and 15th February, 1989 if legal grounds for such review under law were strictly made out or dismiss the review petitions if petitioners fail to make out a case in accordance with the accepted principles regulating the review jurisdiction; but the court could not adopt an intermediate course by treating the settlement as a proposed or provisional settlement and seek now to do what the Union of India was expected to do before the settlement was reached.
84. The whole issue, shorn of legal subtleties, is a moral and humanitarian one. What was transacted with the court's assistance between the Union of India on one side and the UCC on the other is now sought to be made binding on the tens of thousands of innocent victims who as the law has now declared, had a right to be heard before the settlement could be reached or approved. The implications of the settlement and its effect on lakhs of citizens of this country are, indeed, crucial in their grim struggle to reshape and give meaning to their torn lives. Any paternalistic condescension that what has been done is after all for their own good is out of place. Either they should have been heard before a settlement was approved in accordance with the law declared by this Court or it, at least, must become demonstrable in a process in which they have a reasonable sense of participation that the settlement has been to their evident advantage or, at least, the adverse consequences are effectively neutralised. The ultimate directions on Point J that we propose to issue will, we think serve to achieve the last mentioned expectation legal and procedural technicalities should yield to the paramount considerations of justice and humanity. It is of utmost importance that in an endeavour of such great magnitude where the court is trusted with the moral responsibility of ensuring justice to these tens of thousand innocent victims, the issues of human suffering do not become obscure in procedural thickets. We find it difficult to accept Shri Nariman's stand on the scope of the review. We think that in a situation of this nature and magnitude, the Review-proceeding should not be strict, orthodox and conventional but one whose scope would accommodate the great needs of justice. That apart, quite obviously, the individual petitioners and the petitioner-organisations which have sought review cannot be held to represent and exhaust the interest of all the victims.
Those represented by the petitioner-organisations - even if their claims of membership are accepted on face value - constitute only a small percentage of the total number of person medically devalued. The rest of the victims constitute the great silent majority.
When an order affects a person not a party to the proceedings the remedy of an affected person and the powers of the Court to grant it are well-settled. For instance, in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 on a writ petition filed under Article 226 of the Constitution by A for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of B, the High Court made an order cancelling the allotment though 'B' was not a party. Later, B filed a writ petition under Article 226 for impleading him as a party and for rehearing the whole matter.
The High Court granted it. Before this Court, the objection was this (para 8):
"Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction".
This Court rejected the contention observing that (para 8):
"It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude and High Court from exercising the power of review which inherits in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who are not made parties to the proceedings before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interest were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J."
85. The nature of the present review proceedings is indeed sui generis. Its scope is pre-set by the terms of the order dated 4th May 1989 as well as what are further necessarily implicit in Sahu’s decision (AIR 1990 Sc 1480). In the course of the order dated 4th May 1989, it was observed:
"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 settlement, 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 occasioned, it will be the endeavour of this Court to undo any such injustice. But that, we reiterate, must be by procedures recognised by law.
Those who trust this Court will not have cause for despair".
The scope of the review in the present case is to ensure that no miscarriage of justice occurs in a matter of such great moment. This is, perhaps, the last opportunity to verify our doubts and to undo injustice, if any, which may have occurred. The fate and fortunes of tens of thousands of persons depend on the effectiveness and fairness of these proceedings. The legal and procedural technicalities should yield to the paramount considerations of justice and fairness. The considerations go beyond legalism and are largely humanitarian. It is of utmost importance that great issues of human suffering are not subordinated to legal technicalities.
But in view of our conclusion on Point J that on the material on record, the settlement found should be sufficient to meet the needs of a just compensation and the order we propose to pass with regard to Point J., the grievance of the petitioners on the present contention would not, in our opinion, really survive. Contention (I) is answered accordingly.
Re: Point (J)
86. Before we go into the question whether the settlement should be set aside on grounds of inadequacy of the settlement fund, certain subsidiary contentions and arguments may be noticed. They deal with (i) that there has been an exclusion of a large number of claims on the ground that despite service of notices they did not respond and appear for medical documentation and (ii) that the whole exercise of medical documentation is faulty and is designed and tends to exclude genuine victims. These contentions are really not directly germane to the question of the validity of the settlement. However, they were put forward to discredit the statistics emerging from the medical documentation done by the Directorate of Claims on which the UCC sought to rely. We may as well deal with these two contentions.
87. The first contention is that the claims of a large number of persons who had filed their claims are not registered on the ground that they did not respond to the notices calling upon them to undergo the requisite medical tests for medical documentation. It was urged that no effective service of notice had taken place and that the claims of a large number of claimants - according to them almost over 30% of the total number - have virtually gone for default. While the victim-groups allege that there was a systematic attempt to suppress the claims, the Directorate of Claims would say that the lack of response indicated that the claims were speculative and spurious and, therefore, the claimants did not offer themselves to medical examination.
In order to appreciate this grievance of the victim-groups it is perhaps, necessary to advert to the provisions of the Act and the Scheme attracted to this stage of processing of the claims. Section 9 of the Act enjoins upon the Central Government to frame a scheme providing for any or all of the matters enumerated in clauses (a) to (i) of sub-section (2) of Sec. 9. The Scheme, known as the "Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985" was promulgated by notification dated 24th September, 1985, published in the Gazette of India. Para 4 of the Scheme deals with the manner of filing of claims and specifies the forms in which they should be filed. Para 5 (1) requires the Deputy Commissioner of Claims to place the claims in the appropriate category amongst those enumerated in sub-para (2) of para 5. Sub-para (2) requires the registration of the claim under various heads such as "death", "total disablement resulting in permanent disability to earn livelihood", "temporary partial disablement resulting in reduced capacity to earn livelihood" and so on. Sub-paras (3), (4) and (5) of para 5 of the Scheme provide:
"(3) On the consideration of a claim made under paragraph 4 of the Scheme, if the Deputy commissioner is of the opinion that the claim fall in a category different from the category mentioned by the claimant, he may decide the appropriate category after giving an opportunity to the claimant to be heard and also after taking into consideration any facts made available to him in this behalf by the Government or the authorities by the Government in this behalf.
(4) Where the Deputy Commissioner is of the opinion that a claim made under paragraph 4 does not fall in any of the categories specified in sub-paragraph (2) he may refuse to register the claim:
Provided that before so refusing he shall give a reasonable opportunity for a personal hearing to the claimant.
(5) If the claimant is not satisfied with the order of the Deputy Commissioner under sub-paragraph (3) or sub-paragraph (4) he may prefer an appeal against such order to the Commissioner, who shall decide the same".
The stage at which medical examination was required related presumably to the exercise under sub-paragraph (3) of para 5 of the Scheme. Failure of a claimant to respond to the notice and offer himself for medical examination would entail a refusal to register the claim. It is manifest that such a refusal is appeal able under the Scheme. But this grievance does not survive in view of the stand taken by the Government in these proceedings. In the affidavit of Sri Ramesh Yeshwant Durev, dated 5th December, 1989 in W.P. No. 843/88, it is stated:-
"That all claimants who did not respond to the first notice were given a second and then a third notice to appear at one of the medical documentation centres for their medical examination. Wide publicity was also done by way of beating of drums in mohallas, radio announcements and newspaper advertisements. In addition to all these, ward committee members were also involved in motivating the claimants to get themselves medically examined. All those claimants who approach the Director of Claims even now are given a fresh date on which to appear for medical examination after service of all three notices and he makes an application for medical examination, his medical examination is arranged at one of the two medical documentation centres - TB Centre and JP Hospital - specially kept functioning for such claimants. It is relevant to point out that this arrangement has been approved by Supreme Court vide order dated 29 September, 1989 ......"
"For the reasons given above a fresh public notice and fixing of dates for medical documentation is also not needed. It may be pointed out here that that these people will still have an opportunity to file claims when the Commissioner for Welfare of the gas victims issues a notification in terms of para 4 (i) of Bhopal Gas Leak Disaster (Registration & Processing of Claims) Scheme, 1985 inviting claims".
This assurance coupled with the right of appeal should sufficiently safeguard the interest of genuine claimants.
88. It was urged by the petitioners that the very concept of injury as an element in the eligibility for medical documentation was erroneous as it tended to exclude victims who did not have or retain some medical documentation of their initial treatment immediately after the exposure. The stand of the Director of Claims on the point is this:-
"That it is unlikely that a person who was injured and suffered during the post-exposure period is not in possession of any form of medical record. The line of treatment was widely publicised. Therefore, the patient must have received treatment from one of the private practitioners, if not from one of the many temporary and permanent govt./semi-govt. institution or institution run by voluntary organisations, and he must be in possession of some form of record.
Every claimant is advised to bring relevant medical record at the time of medical examination. Documents of post-exposure medical record are accepted even after the medical documentation of the claimant is over.
It is incorrect to say that the documents for post-exposure period are just not available. Had it been so, 55% of the claimants who fall in category 'B' to 'CF' would also have been categorized as 'A'. In this connection it may be clarified that even in post-exposure period prescriptions were issued. Besides this, private practitioners were also issuing prescriptions in printed form. It is therefore incorrect to say that there is dearth of documentation. However, bearing this point in mind, a very liberal approach in admitting documents was adopted as will be clear from the guidelines for evaluation. It will also be relevant here to state that the claimants are being helped to get the benefit of any medical records available in any hospital or dispensary. Institutions like ICMR, CMO (Gas Relief) Jawahar Lal Nehru Hospital, Bhopal Eye Hospital, India Red Cross Society, BHEL Hospital and the Railway Hospital have treated numerous gas victims during the post-exposure period. The relevant medical records from them have been retrieved and are being linked with respective claim folders so that the benefit of such post exposure record is extended to these claimants.
It will be irrational and unscientific to admit all claims without reference to any documentary evidence as suggested by the petitioner ..."
(See the affidavit dated 5th December, 1989 of Sri Ramesh Yeswant Durve filed in W.P. No. 843/88.)
89. As to the charge that after the purported settlement, Government is playing down the seriousness of the effects of the disaster, and that the medical documentation did not help proper evaluation it is, perhaps, necessary to read the affidavit dated 5th December, 1989 of the Additional Director of Claims, in W.P. No. 843 of 1988. The Additional Director says:
"The Medical Documentation Exercise has been an unique effort. It was possibly for the first time that such a comprehensive medical examination (with documentation, evaluation and categorisation) of such a large population was undertaken anywhere in the world. There was no earlier experience or expertise to fall back upon. The whole exercise had, therefore, to be conceived, conceptualised and concretised locally. But care was taken to ensure that the guidelines were approved by legal and medical experts not only at the State level but also at the National level. The guidelines were also approved by GOI's Committee of Experts on Medical Documentation. In other words, a systematic arrangement was organised to make the most objective assessment of the medical health status of the claimants in a scientific manner.
It has to be recognised in this context that the guidelines for categorisation can only be a broad indicator as it is not possible for anyone to envisage all types of situations and prescribe for them. Likewise, the examples cited are only illustrative examples' and not 'exhaustive instruction'.
Hundreds of graduate and post-graduate doctors assisted by qualified para-medical staff have examined the claimants with the help of sophisticated equipments. It cannot be reasonably contended that all of them have colluded with the Government to distort the whole exercise.
The exercise of categorisation is not just an arithmetical exercise directly flowing from the evaluation sheet. Had it been so, the same Assistant Surgeon, who does the evaluation can himself do the categorisation also. Post-graduate Specialists have been engaged for this work because the total medical folder has to be assessed keeping the evaluation sheet as a basic indicator. In doing the categorisation, the postgraduate Specialist takes into account symptoms reported, clinical findings, specialist's opinions and investigation reports".
The Additional Director accordingly asserts:
"...it will be meaningless to suggest that the Govt. is jeopardising the interest of the claimants by deliberately distorting the Medical Documentation Exercise. Similarly, it will be absurd to suggest that the Govt. is trying to help UCC in any way".
The Additional Director also refers to the attempts by unscrupulous persons to exploit the situation in pursuit of unjust gains and how the authorities had to encounter attempts of impersonation and "attempts by claimants to pass of other's urine as their own". It was said that there were urine donors. The affidavit also discloses certain malpractices involving medical prescriptions and certificates by some members of the medical profession and ante-dated urinethiocynate estimations. The Additional Director says that despite all this Government endeavoured to give the benefit to the claimants wherever possible. It is stated:
"The State Govt. had to preserve the scientific character and ensure the credibility of the exercise of evaluation. Bearing this limitation in mind, wherever possible, the government has attempted to give the benefit to the claimants. The various guidelines relating to documentation of the immediate post-disaster phase are proof of this intention. At the same time, government has had to adhere to certain quality standards so that the exercise could stand up to scrutiny in any Court of law or in any scientific forum".
The stand of the Directorate cannot be brushed aside as arbitrary. However, provisions of appeal ensure that in genuine cases there will be no miscarriage of justice.
90. Shall we set aside the settlement on the mere possibility that medical documentation and categorisation are faulty? And that the figures of the various kinds of injuries and disablement indicated are undependable? As of now, medical documentation discloses that "there is no conclusive evidence to establish a casual link between cancer-incidence and MIC exposure". It is true that this inference is tentative as it would appear studies are continuing and conclusions of scientific value in this behalf can only be drawn after the studies are over. While the medical literature relied upon by the petitioners suggests possibilities of the exposure being carcinogenic, the ICMR studies show that as of now the annual incidence of cancer registration is more among the unexposed population as compared to the exposed population". (See Sri Ramesh Yeshwant Durve's affidavit dated 5th December, 1989, para 9). Similarly, "there is no definite evidence that derangement in immune system of the gas exposes have taken place". But the literature relied upon by petitioners does indicate that such prognosis cannot be ruled out. These matters are said to be under close study of the ICMR and other research agencies using, as indicated, the "multi-test CMI technique to screen the status of the immune system".
91. But the whole controversy about the adequacy of the settlement-fund arises on account of the possibility that the totality of the awards made on all the claims may exceed the settlement-fund in which even the settlement-fund will be insufficient to satisfy all the Awards. This is the main concern of the victims and victim-groups. There is, as it now stands, a fund of one thousand two hundred cores of rupees for the benefit of the victims. The main attack on its adequacy rests solely on the possibility that the medical documentation and categorisation based thereon, of the victims' medical status done by the Directorate of Claims is faulty. The charge that medical documentation was faulty and was calculated to play down the ill-effects of the exposure to MIC is, in our opinion, not substantiated. This attack itself implies that if basis of the severity of the injuries is correct then the settlement-fund may not, as a settlement, be unreasonable.
92. At the same time, it is necessary to remind ourselves that in bestowing second thought whether the settlement is just, fair and adequate, we should not proceed on the premise that the liability of the UCC has been firmly established. It is yet to be decided if the matter goes to trial. Indeed, UCC has seriously contested the basis of its alleged liability. But it is true that even to the extent a settlement goes, the idea of its fairness and adequacy must necessarily be related to the magnitude of the problem and the question of its reasonableness must be assessed putting many considerations into the scales. It may be hazardous to belittle the advantages of the settlement in a matter of such complexity. Every effort should be made to protect the victims from the prospects of a protracted, exhausting and uncertain litigation. While we do not intend to comment on the merits of the claims and of the defences, factual and legal, arising in the suit, it is fair to recognise that the suit involves complex questions as to the basis of UCC's liability and assessment of the quantum of compensation in a mass tort action. One of the areas of controversy is as to the admissibility of scientific and statistical data in the quantification of damages without resort to the evidence as to injuries in individual cases.