I'm a fallen angel in Bhopal episode: Nariman

Jurist and senior Supreme Court lawyer Fali S Nariman regrets being the lead lawyer for Union Carbide in the 1984 gas leak case and has said with hindsight, he would not have accepted the brief. "If I had to live my life all over again, as a lawyer, and the brief came to me and I had foreknowledge of everything that later came in, I would not have accepted the case," Nariman told Karan on Devil's Advocate.

Karan Thapar: Hello and welcome to 'Devil's Advocate'. Does Fali Nariman regret being the lead lawyer of the Union Carbide in the Bhopal gas leak case? In his recently published autobiography, 'Before Memory Fades', he devotes an entire chapter to the subject but doesn't quite answer the question. Well, let's see if he is prepared to do so today.

Mr Nariman, after 25 years, and after all that's been revealed and has emerged, do you regret accepting the Union Carbide brief?

Fali Nariman: Well, let me put it this way. If I had to live my life all over again, as a lawyer, and the brief came to me and I had foreknowledge of everything that later came in, I would certainly not have accepted the civil liability case which I did.

Karan Thapar: So, in other words, with hindsight, you would have said no.

Fali Nariman: Yes, only with hindsight.

Karan Thapar: Looking back at that time in 1985, when you accepted the brief, did you see this largely or simply as a legal case rather than as a national tragedy and, in that sense, was that the mistake that you made?

Fali Nariman: Yes, I think so, because I thought this was one more case which would add a feather to my cap. I mean one is always ambitious at that age. But, I found later, but then it's too late. One can't walk out of the case one has already taken up. That this involved, it was not a case; it was a tragedy. And in a tragedy, who is right, who is wrong etc all becomes marred in great deal of justifiable emotion.

Karan Thapar: There is something very interesting embedded in the beginning of your answer -one can't walk out of the case once taken. But that does suggest that whilst you were the lawyer, you were beginning to have regrets about accepting the brief.

Fali Nariman: This is why I was very happy when, at the court's suggestion, the compromise ultimately took place of civil liability between 500 million odd which the government was suggesting, ultimately, and 350 million which the Union Carbide suggested. And then, I left it to the court and the court fixed 470 million.

Karan Thapar: I'll come to that settlement in a moment's time and some other questions it raised but first, let me draw your attention to the criticism you personally faced in the 80s and 90s because you accepted the Union Carbide brief.

The prestigious Human Rights Tribune said that by accepting the brief, you had allowed Union Carbide to cash in on your human rights credentials and that wasn't just an unwarranted advantage for Union Carbide but, people argued, that it also meant that great harm was done to the protection and promotion of Human Rights. Looking back, would you accept there's merit in that criticism?

Fali Nariman: Yeah, there is merit. That is why I cited it myself in the seminar article which I wrote--

Karan Thapar: --which is also in your autobiography--

Fali Nariman: --which is also in my autobiography.

Karan Thapar: So you accept that the Human Rights cause, without your intention, was damaged by your accepting the Carbide brief?

Fali Nariman: Yeah. I think I was described along with others as a fallen angel. I am no angel, of course, but nor am I a devil. But fallen angel would perhaps sum up what others thought of this whole episode.

Karan Thapar: Did this hurt to your reputation or how people perceived you hurt you at that time?

Fali Nariman: No, it didn't hurt me as such but the very fact that people were holding such views was something which irked me. Let us put it like that.

Karan Thapar: And you wished it wasn't the case?

Fali Nariman: I wished it wasn't.

Karan Thapar: And, in fact you wished you could have undone it.

Fali Nariman: Yeah, because we look before and after and find for what is not. That's the usual thing.

Karan Thapar: The second criticism that you faced was that you ended up being party to the settlement that wasn't considered either reasonable or just. Let me explain that for the audience. To begin with, the 1989 judgment was predicated on the assumption that the numbers dead were 3000 and the numbers injured were somewhere between 30,000 and 40,000. But, even at the time of the settlement in 1989, there was more reason to believe that both those figures were substantially higher. Looking back, do you think the court should have made a greater inquiry and taken greater scrutiny of the figures before assuming these were factually correct?

Fali Nariman: You see, I think, the court had this problem before it. This was only an interim order. You remember, this was an interim order directing us to pay compensation from which we came to the Supreme Court, Union Carbide came to the Supreme Court.

Karan Thapar: That you are talking about the Madhya Pradesh High Court order----

Fali Nariman: --the Madhya Pradesh...

Karan Thapar: --which went to the Supreme Court--

Fali Nariman: --which went to the Supreme Court. Madhya Pradesh order modified the order of the district judge to a lesser extent and Carbide carried it further. And judges felt, and they were continuously mentioned and they were prominent judges including Venkatachaliah and so on who felt that something now must be done for the victims. And how soon can that be done? This was before any documents were filed and anything that happened--

Karan Thapar: --that I understand. The judges felt the need to act, and to act quickly, but they did so on the basis of assumptions they never verified. The figures turn out to be hopelessly wrong.

Fali Nariman: I don't that even today whether they are hopelessly right or hopelessly wrong--

Karan Thapar: --no one has verified them--

Fali Nariman: --no one has verified them. You remember there was Tata Institute of Social Sciences that was doing door-to-door verification and then, for some obscure reason, that was stopped.

Karan Thapar: But are you then saying to me that the assumption that only 3000 were dead and only 30,000 to 40,000 were injured, which was the assumption on which the 89 settlement was based, was an acceptable assumption because that's another aspect of the settlement that has been hugely criticised?

Fali Nariman: Yes but, you see, the victims' counsel were also there. That is the problem.

Karan Thapar: So the victims should have challenged it.

Fali Nariman: Yes, and they also virtually, I mean they didn't expressedly accede to this; they didn't want a settlement as all. In the first place, they were absolutely against the Union of India taking over all that claims.

Karan Thapar: But then, what you are saying to me is that the fact that this assumption was accepted by the courts as much owns the responsibility as is the responsibility of the victims and the victims' advocates?

Fali Nariman: Yes, whoever that was there and on the basis of whatever they knew at that point of time.

Karan Thapar: So the victims should have challenged it if they had the reason to challenge it and if they didn't challenge it, it means that they ipso facto accepted it?

Fali Nariman: Yeah, but the fact that they thereafter challenged it and that challenge was negative is also important because that would have escaped because of very long argument because the Union of India wanted to get out under a new Attorney General, wanted to get out this settlement--

Karan Thapar: --And they couldn't--

Fali Nariman: --couldn't because the court said - no, it is fair and reasonable.

Karan Thapar: Alright, now let's come to the second level of criticism. It is that the only thing offered by the 1989 settlement to those who were asymptomatic at that time but were likely to fall ill, and, in the end that number swelled into the hundreds of thousands, was a Union Carbide funded hospital in Bhopal and advice to the government of India to take out a group insurance policy. Now surely, in the circumstances, that wasn't just inadequate, it almost mocked what was really needed for these people.

Fali Nariman: Maybe.

Karan Thapar: You accept that?

Fali Nariman: Yeah, maybe maybe. I appreciate that, all that criticism, I appreciate. But the problem is that no one moved at the right point of time. Why after 16 years, all this has been now raked up, because of the finding in the criminal case, which had virtually nothing to do with the civil case because the civil case, please remember, was against the American corporation for which I appeared. The UCIL, the Indian company, was the criminal case which languished for 15 years and judgment just came out a few weeks ago.

Karan Thapar: But, you are making a very important point once again. You are saying that even on this issue of looking after those who were asymptomatic but were bound to fall ill, and that number into hundreds of thousands, no one at that time objected. It was that failure to object at that time that meant that this became the accepted settlement.

Fali Nariman: Yes, it did become the accepted settlement and we have not yet found any statistical, proper, even a guesstimate as to how many were the victims in each category.

Karan Thapar: Even 26 years later, we do not have a reliable guesstimate?

Fali Nariman: Yes, because of the enormity of it. I don't blame people because this blame game has to stop. Blame the judges, blame the lawyers, blame the clan, blame everybody.

Karan Thapar: That I understand. Let me raise one other issue with you. This whole matter, after 89, went into appeal, the appeal judgment came out in 1991 and, at that time in the appeal judgment, the Supreme Court said that it was unlikely that the settlement would be found to be inadequate.

The Supreme Court has been proven to be hugely wrong. But, that apart, the Supreme Court then said that in the event it was inadequate, those who fall ill thereafter would be the responsibility of the Government of India, totally letting Union Carbide off the hook. Again, was that fitting and fair and proper?

Fali Nariman: Because, it's a settlement. There is no question of fitting and fair because if it had been a regular hearing, which after looking at all the documents and taking the evidence they had found that there was liability, then it would not be fair. But if it was without admitting liability that this sum was paid up, then the question was, and this was again argued in the second round as to who should be liable. And the court said unanimously it is the government only which would have to foot the bill and therefore, I think it is blame game--

Karan Thapar: --let's come out of the blame game, I am not into the blame game either but I am into analysing--

Fali Nariman: --you are entitled to it--

Karan Thapar: --you are saying two very important things to me that perhaps the victims, and the need for adequate compensation would have been better served, if a settlement hadn't been reached but a proper case for liability had been fought.

Fali Nariman: That was the dilemma. If that was fought, that would have taken more years--

Karan Thapar: --but it would have got the better outcome.

Fali Nariman: But the victims wouldn't have been helped because, in the meanwhile, what?

Karan Thapar: So there was a tradeoff between the time a court case would take and the fact that the settlement might not be as good as a court outcome but it would be quicker and faster. Is that right?

Fali Nariman: Let me tell you one thing. In tort cases, the law has been, right through, that unless liability is ascertained and fixed; there can be no interim compensation. In England, they altered that by statute long ago.

Karan Thapar: We haven't done it in India

Fali Nariman: We haven't done it as yet.

Karan Thapar: As a result of which we wanted an interim settlement, we wanted a quick settlement and as a result of which the liability was never established in a court case. But you are saying to me again, aren't you, that if the court case had gone through, it might have taken longer, but you could have had a better outcome from the point of view of the victims. Then let me put the second critical question to you. Would you today, maybe with the benefit of the hindsight, accept that at the end of it all, the settlement was inadequate and therefore unjust?

Fali Nariman: No, no I don't think so.

Karan Thapar: But was it was inadequate? Surely, you accept that?

Fali Nariman: I am not sure. I have no means to say that it is inadequate. I think the fault perhaps is not only the quantum of the settlement, if you put it like that, but the delay in its distribution.

Karan Thapar: The delay in its distribution is explained in the manner in which the procedure and the law works in India but the quantum of settlement has turned out to be derisory not just for those who died but also for those who were crippled and disabled for life as well as those who were marginally injured. You surely must accept that the quantum is inadequate.

Fali Nariman: Let me tell you. The inadequacy arises because there was a very large sum of money which was sought to be distributed amongst people living in certain areas not by reason of what they suffered but by their living in those areas. This was the problem.

Karan Thapar: As a result of which too many people qualified--

Fali Nariman: --too many people qualified--

Karan Thapar: So the amount given shrank miserably.

Fali Nariman: Whereas the hardcore really suffered. So, if you ask me, the answer would be yes, quell the hardcore victims.

Karan Thapar: Ok, what you are saying is quell the hardcore victims; the settlement was inadequate

Fali Nariman: Yes.

Karan Thapar: And therefore, quell the hardcore victims; the settlement was also unjust.

Fali Nariman: Yes.

Karan Thapar: You accept both?

Fali Nariman: Yes.

Karan: Let's take a break at that point. I want to come back and put to you what the government is now trying to do. How do you, as one of the country's foremost lawyers, respond to the efforts that the government has decided upon 26 years later. That's in a moment's time. See you after the break.

Karan Thapar: Mr Nariman, let's turn now come to the steps that the government of India is trying to today in 2010, in a sense to remedy the situation. First of all, they want to reopen the settlement with the hope of increasing the compensation. Do you think that's likely to succeed?

Fali Nariman: I don't know

Karan Thapar: Why?

Fali Nariman: Because a settlement is a settlement and unless there is some is fraud involved, is never reopened.

Karan Thapar: Even though, for the very hardcore, the settlement has turned out to be, as you agreed in Part 1, inadequate and unjust. Even then the settlement can't be reopened?

Fali Nariman: Yes, because the court had in fact stated that even assuming it was wrong, with regard to the quantum, it would be the responsibility of the government to make up that extra amount.

Karan Thapar: But the same judgment that you cite of May 1989 also ends by saying that the court will not leave people in despair. Doesn't that hold out a small hope that if the government goes back and proves that there are people in despair because the settlement was inadequate, it must be reopened?

Fali Nariman: I don't think so.

Karan Thapar: You don't think so?

Fali Nariman: That's not my reading of the judgment. My reading of the judgment is that since there are, maybe, more victims or the compensation may not be sufficient, it would be the government's duty because it is the government which took over all the victims' claims by that special act.

Karan Thapar: So, if compensation has to be enhanced today, it is for the government to enhance out of its own coffers. You don't believe that the Supreme Court of India will reopen the settlement and increase the compensation paid by Union Carbide.

Fali Nariman: Yeah, I believe so.

Karan Thapar: So that settlement of 1989 is full and final, full stop?

Fali Nariman: Yeah.

Karan Thapar: The second thing that the government is trying to do is to prosecute Keshub Mahindra and some six or seven others under 304 (2). Do you believe that is likely to succeed or do you see it as an essential breach of the criminal code of procedure.

Fali Nariman: I don't know very much about that criminal case, that criminal case after judgment. I have just seen a copy of the judgment. I haven't examined the 10,000 pages of events so I am afraid, because I was not in that trial court in Bhopal.

Karan Thapar: But the section 300 of the code of criminal procedure says that a person cannot be tried for the same offence, with the same facts, twice. Would reopening the case, even under 304(2) rather than 304(A), amount to a breach of section 300 of the criminal court of procedure.

Fali Nariman: Yes, because 300 not only says another offence, it says for another offence, based on the same facts involving a higher degree of punishment so that, for the same set of facts, you cannot have another offence, and convict them, either on appeal or otherwise, and then say that they are liable to a higher degree of punishment.

Karan Thapar: Just to be absolutely clear what you are saying is the attempt of the government to re-prosecute Keshub Mahindra and others under 304(2) is going to be a breach of section 300.

Fali Nariman: Yes absolutely.

Karan Thapar: Its illegal?

Fali Nariman: Yes of course it is and therefore my contention is whether justice Ahmadi was right in dropping that charge under section 304 part 2 or not, is an irrelevant consideration at this stage.

Karan Thapar: At this stage.

Fali Nariman: Yes, he could have been when the trial was going on.

Karan Thapar: But not now.

Fali Nariman: Not now.

Karan Thapar: But the point is that the belief that the government can reopen the case and now charge Keshub Mahindra under a higher offence, 304(2) rather than 304(A), is a belief that has been emboldened by the advice of the Attorney General

Fali Nariman: Then you better ask the Attorney General.

Karan Thapar: But you believe the Attorney General is wrong?

Fali Nariman: Of course.

Karan Thapar: Wrong?

Fali Nariman: Yes.

Karan Thapar: So once again the government is intending to something that would be wrong, that would be illegal, and will be struck down?

Fali Nariman: You see, this only raises the expectations of everybody.

Karan Thapar: To dash them?

Fali Nariman: Ultimately to dash them, but then public memory is short.

Karan Thapar: But that's another matter. Once again the government is embarked on something which legal luminaries like you are saying is wrong and would not succeed?

Fali Nariman: I wish you had asked somebody who was not acquainted with the case and he will probably confirm it.

Karan Thapar: And you say it is illegal and wrong.

Fali Nariman: Yes of course.

Karan Thapar: Finally, the government is also attempting, one more time, to extradite Warren Anderson. The man is 89. What are the chances of success?

Fali Nariman: It looks grim to me but if they have any means to do so, well, certainly they can do it.

Karan Thapar: Then what is the point of these three exercises that the government is embarked upon cause you made it clear, as a leading lawyer, that they are unlikely to succeed. They are probably wrong in law and they would be struck down by the court. So what purpose will be served?

Fali Nariman: The only thing which the government has done, in my opinion, correctly and it should have done 14 or 15 years before is to increase the compensation if they genuinely believe that the victims have not got their amount.

Karan Thapar: So that's the compensation that they pay from their own coffers. What you already made clear is that any attempt to make Union Carbide to pay more is not going to succeed?

Fali Nariman: Not likely.

Karan Thapar: So all that the government can do is, from its own exchequer, pay more, but the attempt to re-prosecute, the attempt to open the settlement and get more compensation, as well as the attempt to extradite Warren Anderson, all three are unlikely to succeed.

Fali Nariman: Unlikely is correct.

Karan Thapar: Unlikely is correct?

Fali Nariman: Yes

Karan Thapar: But that is your considered opinion as a senior lawyer?

Fali Nariman: Yeah.

Karan Thapar: And you stand by that?

Fali Nariman: Yeah

Karan Thapar: Mr Nariman, we concentrated today on one critical chapter of your autobiography. I know that there's a lot more in it. One day I hope I can come back and talk about the rest. But today, thank you very much for speaking so openly about Union Carbide.

Fali Nariman: Thank you.

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