Tuesday, April 11, 2006


This article is a comment on the Thalidomide case in England (where newly born babies had flippers instead of hands and legs) and Reliance Petrochemicals in India, where two competing rights namely the right to know and the right to a fair trial were involved.
Thalidomide baby from BBC video clip

There is nothing common between the Thalidomide babies case (see Endnote:1) and Reliance Petrochemicals case (Reliance Petrochemicals Vs Indian Express AIR 1989 SC 190) (Reliance Petrochemicals) except that in both cases two fundamental but often conflicting rights namely, Right to Information and Right to fair trial, were in conflict.

Distiller’s Company was best known for selling scotch and gin. It heavily advertised in 1958 and sold a dangerous tranquilliser, thalidomide, without adequately testing its effects on pregnant women. The drug was pulled out from the market in 1961 but, by then, about 450 deformed babies had been born in England, with flippers instead of arms and legs or no limbs at all. The suits for damages were filed before the British Courts. The company offered a minuscule compensation to these deformed babies. The press was afraid to come out with any article due to the fear of the contempt of the Court. But in 1972, Sunday Times of London, in a series of articles, made it clear that the Distiller's Company, had been miserly with the Thalidomide victims. The stories provoked public outrage and forced the Distiller’s to raise its original settlement offer seven folds- but not without some legal acrobatics.

The Sunday Times had published a few articles but before it could publish it’s final and most damning article, an action was instituted before the courts restraining it from publishing the same. The trial court granted the injunction. The Court of Appeal vacated it. The House of Lords restored the order of the trial court. Then the matter was taken to the European Court of Human Rights, which by a majority decision held that banning the Thalidomide article was not necessary (see Endnote-2). The public’s right to information or knowledge was more important and the injunction ought not to have been granted.

But alas, this was not to be in the other case. The Supreme Court did grant an injunction against INDIAN EXPRESS. The court prohibited in from publishing articles on the public issue of Reliance Petrochemical - only to vacate the same on the grounds that the issue was over subscribed. The question whether it affected the fair trial was not gone into. It was left to be decided in contempt proceedings.

The Supreme Court ought not to have granted any injunction in the first place unless the articles, in fact, were within the sphere of contempt of the Court. In such a major issue public interest in having it discussed outweighs any prejudice to a party in litigation. Imagine Union Carbide obtaining an injunction against newspapers that they should not publish about the Bhopal disaster as it is involved in litigation.

Well, Supreme Court after all, is Supreme.

Endnote-1: Sunday Times Vs UK 1979 (2) EHRR 245. This decision of the European court of Human Rights caused the British government to amend the law relating to contempt so as to make it consistent with the European convention of Human Rights. This led to enactment of the Contempt of Court Act 1981 in England. The decision of the House of Lords is reported in 1973 (3) AllER 58 AG Vs Times Newspapers Ltd. Kindly see Constitutional and Administrative law by ECS Wade & AW Bradley 10th ed. for detailed discussion.

Endnote-2: For details please see The Due Process of Law; Lord Denning and Constitutional And Administrative Law; Wade & Bradley.

Endnote-3:Harald Stock, chief executive of the Grünenthal Group,that marketed the drug in the 1950s and early 1960s, apologised for the tragedy on 31.08.2012.It was in a speech, at the unveiling of a thalidomide memorial, a bronze statue of a limbless child in the Rhineland town of Stolberg. (See here and here)

 Bronze memorial Photograph: Jens Schlueter/AP
courtesy The Guardian 

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