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43. Counsel submitted that Section 6 of the Act is unreasonable because it replaces an independent and impar-

tial Civil Court of competent jurisdiction by an Officer known as the Commissioner to be appointed by the Central Government. No qualification, according to counsel, had been prescribed for the appointment of a Commissioner and clause 5 of the Scheme framed under the Act vests in the Commis- sioner the judicial function of deciding appeals against the order of the Deputy Commissioner registering or refusing to register a claim. It was further submitted that clause 11(2) of the Scheme is unreasonable because it replaces an inde- pendent and impartial civil court of competent jurisdiction with the Central Government, which is a joint tort-feasor for the purpose of determining the total amount of compensa- tion to be apportioned for each category of claims and the quantum of compensation payable for each type of injury or loss. It was submitted that the said function is a judicial function and if there is any conflict of interest between the victims and Central Government, vesting such a power in the Central Government amounts to making it a judge in its own cause. It was urged that having regard to the fact that amount received in satisfaction of the claims is ostensibly pre-determined, namely, 470 million dollars unless the order of 14th/15th February is set aside which ought to be done, according to counsel, the Central Government would have a vested interest in ensuring that the amount of damages to be disbursed does not exceed the said amount. Even otherwise, according to counsel, the Government of India has been sued as a joint tort-feasor, and as they would have a vested interest in depressing the quantum of damages, payable to the victims. This would, according to counsel, result in a deliberate under-estimation of the extent of injuries and compensation payable.

These features firmly proved, according to Shri Garg, the grossest negligence of the governments. Shri Garg submitted that the gas victims had legal and moral right to sue the governments and so it had full right to im-

plead all the necessary and proper parties like Union Carbide, UCIL, and also the then Chief Minister Shri Arjun Singh of the State. He drew our attention to Order 2, rule 3, of the Civil Procedure Code. In suits on joint torts, according to Shri Garg, each of the joint tort feasors is responsible for the injury sustained for the common acts and they can all be sued together. Shri Garg's main criticism has been that the most crucial question of corporate responsibility of the people's right to life and their right to guard it as enshrined in Article 21 of the Constitution were sought to be gagged by the Act. Shri Garg tried to submit that this was an enabling Act only but not an Act which deprived the victims of their right to sue. He submitted that in this Act, there is denial of natural justice both in the institution under section 3 and in the conduct of the suit under section 4. It must be seen that justice is done to all (R. Viswanathan v. Rukh-ul-Mulk Syed Abdul Wajid, [1963] 3 SCR 22). It was urged that it was necessary to give a reasona- ble notice to the parties. He referred to M. Narayanan Nambiar v. State of Kerala, [1963] Supp. 2 SCR 724.

70. It was further submitted by the learned Attorney General that while the Govt. of India had proceeded against the UCC, it had to represent the victims as a class and it was not possible to define each individual's right after careful scrutiny, nor was it necessary or possible to do so in a mass disaster case. The settlement was a substitute for adjudication since it involved a process of reparation and relief. The relief and reparation cannot be said to be irrelevant for the purpose of the Act. It was stated that the alleged liability of the Govt. of India or any claim asserted against the alleged joint tort-feasor should not be allowed to be a constraint on the Govt. of India to protect the interests of its own citizens. Any counter-claim by UCC or any claim by a citizen against the Govt. cannot vitiate the action of the State in the collective interest of the victims, who are the citizens. Learned Attorney General submitted that any industrial activity, normally, has to be licensed. The mere regulation of any activity does not carry with it legally a presumption of liability for injury caused by the activity in the event of a mishap occurring in the course of such an activity. In any event, the learned Attor- ney General submitted the Govt. of India enjoys sovereign immunity in accordance with settled law. If this were not the case, the Sovereign will have to abandon all regulatory functions including the licensing of drivers of automobiles. Hence, we have to examine the question whether even on the assumption that there was negligence on the part of the Govt. of India in permitting/licensing of the industry set up by the Union Carbide in Bhopal or permitting the factory to grow up, such permission or conduct of the Union of India was responsible for the damage which has been suffered as a result of Bhopal gas leakage. It is further to be examined whether such conduct was in discharge of the sovereign functions of the Govt., and as such damages, if any, result- ing therefrom are liable to be proceeded against the Govt. as a joint tort-feasor or not. In those circumstances, it was further asserted on behalf of the Union of India that though calculation of damages in a precise manner is a logical consequence of a suit in progress it cannot be said to be a condition precedent for the purpose of settling the matter. Learned Attorney General urged that the accountabil- ity to the victims should be through the court. He urged that the allegation that a large number of victims did not give consent to the settlement entered into, is really of no relevance in the matter of a compromise in a mass tort action. It was highlighted that it is possible that those who do not need urgent relief or are uninformed of the issues in the case, may choose to deny consent and may place the flow of relief in jeopardy. Thus, consent based upon individual subjective opinion can never be correlated to the proposal of an overall settlement in an urgent matter. Learned Attorney General urged further that if indeed con- sent were to be insisted upon as a mandatory requirement of a Statute, it would not necessarily lead to an accurate reflection of the victims' opinion as opinions may be diverse. No individual would be in a position to relate himself to a lump sum figure and would not be able to define his expectations on a global criteria. In such cir- cumstances the value of consent is very much diminished. It was urged that if at all consent was to be insisted it should not be an expression of the mind without supporting information and response. To make consent meaningful it is necessary that it must be assertion of a fight to be exer- cised in a meaningful manner based on information and com- prehension of collective welfare and individual good. In a matter of such dimensions the insistence upon consent will lead to a process of enquiry which might make effective consideration of any proposal impossible. For the purpose of affording consent, it would also be necessary that each individual not only assesses the damages to himself objec- tively and places his opinion in the realm of fair expecta- tion, but would also have to do so in respect of others. The learned Attorney General advanced various reasons why it is difficult now or impossible to have the concurrence of all.

72. The learned Attorney General urged that neither the Central Govt. nor the State Govt. of Madhya Pradesh is liable for the claim of the victims. He asserted that, on the facts of the present case, there is and can be no li- ability on their part as joint tort-feasors. For the welfare of the community several socio-economic activities will have to be permitted by the Govt. Many of these activities may have to be regulated by licensing provisions contained in Statutes made either by Parliament or by State Legislatures. Any injury caused to a person, to his life or liberty in the conduct of a licensed authority so as to make the said licensing authority or the Govt. liable to damages would not be in conformity with jurisprudential principle. If in such circumstances it was urged on behalf of the Govt., the public exchequer is made liable, it will cause great public injury and may result in drainage of the treasury. It would terrorise the welfare state from acting for development of the people, and will affect the sovereign governmental activities which are beneficial to the community not being adequately licensed and would thereby lead to public injury. In any event, it was urged on behalf of the Govt., that such licensing authorities even assuming without admitting could be held to be liable as joint tort feasors, it could be so held only on adequate allegations of negligence with full particulars and details of the alleged act or omission of the licensing authority alleged and its direct nexus to the injury caused to the victims. It had to be proved by cogent and adequate evidence. On some conjecture or surmise without any foundation on facts, Govt's right to represent the victims cannot be challenged. It was asserted that even if the Govt. is considered to be liable as a joint tort feasor, it will be entitled to claim sovereign immunity on the law as it now stands.