Bhopal and the Crime of Union Carbide

 

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Pakistan: A Select Political Chronology, 1947-2008

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A review article by Vinay Lal on Jamie Cassells, The Uncertain Promise of Law: Lessons from Bhopal (Toronto: University of Toronto Press, 1994), originally published as "Sovereign Immunity: Law in an Unequal World" in Social and Legal Studies 5, no. 3 (1996):431-36. Also published, with variations, as "Reliving a Nightmare", The Book Review (June 1996):29-31, and in New Quest, no. 121 (Jan.-Feb. 1997):53-60.

Around midnight on Sunday, 2 December 1984, while most of India slept, a large number of the residents of Bhopal, a town in the central Indian state of Madhya Pradesh with a population of nearly a million, were put to death as methyl isocyanate (MIC), a toxic gas used in the preparation of pesticides, which had escaped from one of the tanks of a nearby Union Carbide plant, crept over them. The exact number of people affected by this 'accident' remains unknown, but three years later the death toll stood, on official count, at 3,500, though other estimates of people killed outright, or as a consequence of the gas leak, run to as high as 10,000; perhaps as many as 40,000 people were permanently disabled, maimed, or rendered subject to numerous grave illnesses, and another 200,000-300,000 found themselves with minor injuries, without jobs, or impoverished by the death of the only bread-winner in the family. The Indian government has itself acknowledged that 521,262 persons, well over half of the population of Bhopal, were "exposed" to the lethal gas. Moving with stealth, the night intruder pounced upon a hapless people, and took the life out of an ancient community.

The disaster at Bhopal, which has everywhere become a synonym for industrial catastrophes and the hazards of 'development', has spawned an enormous literature in which accounts, such as the work presently under review, of the complex if not nightmarish litigation that ensued occupies a particular niche. Cassels, a professor of law at the University of Victoria, recounts us for the tortuous path of litigation that eventually led, on 14 February 1989, to a settlement between the Government of India and Union Carbide brokered by the Supreme Court, an agreement that appeared to give the message "that human life in India is cheap" (p. 25). As he points out, news of the gas leak had barely made its way into print before lawyers swung into action. Union Carbide, no doubt anticipating litigation, forbid its employees from speaking to the press, and at once retained prominent Indian attorneys, including Nani Palkhivala, the former Indian ambassador to the U.S. On December 7th, the well-known American lawyer, Melvin Belli, characterizing himself as "a good capitalist", filed a $15-billion class action suit in an American court on behalf of some victims, and two days later John Coale, a Washington attorney, became the first American lawyer to arrive in India. He got himself hired as the city's lawyer after meeting with the mayor Bhopal, and immediately recruited local labor in order to gain clients. Emanating from a country where white men were routinely paid handsome sums of money for the scalps of Indians (the "other" Indians), American lawyers assiduously began to engage in bounty-hunting. The "profit motive" had "brought to the doorsteps of the impoverished people of India some of the finest legal talent in America", acknowledged one American observer (p. 115), as though to suggest that the people of Bhopal, largely illiterate and poverty-stricken, should have felt honored indeed blessed at the descent upon their city of a pack of wolves.

One of the consequences of this feverish legal activity was the reification of litigation: all of the parties to the 'event' were pushed to adopting a legalistic attitude, and it was supposed that a traditional litigative process would furnish the "solution to the disaster" (p. 119). Needless to say, the lawyers were scarcely concerned with the ethical implications of such a disaster, and the interests of the victims became incidental to the litigative strategies of Union Carbide, the Government of Indian, and the Government of Madhya Pradesh. There was an "obsession with secrecy", and information that could have been used to assist efforts to provide medical relief, ascertain the exact properties of MIC (about which little was known), and determine the cause of the outbreak, was suppressed or "'privatized' to satisfy the need of litigators, rather than being used for the benefit of the victims" (p. 115). Throughout, Union Carbide attempted to divest itself of any responsibility for the gas leak. When the preposterous charge that the accident was caused by Sikh extremists purportedly calling themselves "Black June" could not be substantiated, Union Carbide introduced another variant of the sabotage theory, this time claiming that a "disgruntled employee" had engineered the leak (pp. 8-11). The principal strategy adopted by Union Carbide was to shift the onus to its Indian subsidiary, Union Carbide India Limited (UCIL). Though Union Carbide owned 50.9% of UCIL, making it the principal share-holder, it was argued that UCIL's Bhopal plant "at the time of the accident was operated and managed exclusively by Indian citizens" (p. 43, 183); and the company further claimed that it had no involvement in the construction and operation of the Bhopal plant, or in its day-to-day management (p. 165). Union Carbide sought to depict the relationship between itself and its Indian subsidiary as a remote and distant one: thus was perpetuated the fiction that a corporation being a "separate legal identity distinct from its shareholders and owners", UCIL had a "separate corporate personality" from Union Carbide, and UCIL alone was responsible for the disaster (pp. 175-77). As Cassels notes, this attempt to draw a "corporate veil" is particularly evident in industries involving hazardous processes and materials. Operations are "fragmented and segregated into smaller, thinly capitalized corporations", and when questions of liability arise in cases of accidents, the "assets and insurance of the local company are insufficient to compensate the victims, while the assets of the parent are shielded from any claim" (p. 178). Union Carbide was to go so far as to deny that it had any operations outside the U.S., and claimed that "there is no concept known to law as a 'multinational corporation'" (p. 181).

Union Carbide's lies have been exposed in numerous works, and Cassels himself adverts to numerous inconsistencies and lacunas in Union Carbide's story. Even a few details help to illuminate the perfidious nature of the narrative manufactured by Carbide. A former UCIL employee in charge of the Indian operations stated that he had warned Union Carbide officials of the danger of storing very large quantities of MIC in enormous 15,000-gallon tanks, and had recommended storage in smaller tanks, but he was "overriden by the parent corporation" (p. 14, 167). The tank from which the gas escaped was filled to 75-87 per cent capacity, though Union Carbide's operation manuals state that such tanks should be never more than half full to allow room for expansion; and the gas itself was stored at the wrong temperature (p. 19). Or consider the following: when Union Carbide's U.S. headquarters was urgently approached after the leak to reveal the chemical contents of the gas so that the most appropriate medical treatment could be offered to victims, Indian doctors were told that the gas is "harmless" (p. 17). While Union Carbide denied that its Bhopal plant had been been built to less rigorous standards than its plant in Institute, West Virginia, it also adamantly claimed that such an accident could not have happened at its facility in the U.S., thereby implying that Indian workers were entirely to blame. This claim stands "thoroughly rebuted by the fact that, even at its superior operation in Institute, there had been a series of gas leaks", and indeed one leak, which injured 100 workers, occurred in Institute more than eight months after the Bhopal disaster, and indeed after the plant's safety features had been vastly improved. In January 1985, an internal Union Carbide report dated September 1984, three months before the Bhopal disaster, was brought to light: it warned that "a runaway reaction could occur in the MIC unit storage tanks" at Institute, and that "the planned response would not be timely or effective enough to prevent catastrophic failure of the tanks" (Jones 1988:36). Again, in April, 1986, Union Carbide was fined $1.4 million dollars for violating safety standards (p. 18). Given Union Carbide's notorious record, it is no surprise that Union Carbide should also have been implicated in America's worst industrial disaster, namely the death of 700 men from acute silicosis while working on Union Carbide's Hawk's Nest Tunnel in the 1930s (p. 94).

Much of what Cassels narrates has been documented in other works as well, and therefore one must turn to his work principally for his account of the astonishing turn taken by the legal battles. In March 1985, at a time when tens of thousands claims were already before the courts, the Government enacted the Bhopal Gas Leak Disaster Act as a way of ensuring that the claims arising out of the disaster would be met speedily and equitably: the act made the government the sole representative of the victims in legal proceedings in and out of India. This irrevocably committed the Government of India to litigation, and in Cassels' view, ensured the "bureaucratization of justice" (p. 119). Union Carbide, ever the champion of human rights, objected to the Act on the grounds that it denied the individual's right to due process of law; and several Indian lawyers also protested that the Act deprived individuals of the opportunity to pursue compensation (pp. 118-19). As tort law in India was less developed, and American courts were known to award more substantial damages, including punitive damages, the Indian government sought to make Union Carbide liable for the consequences of the disaster under the private law of its home country, the United States. Thus the decision was taken to seek compensation in American courts, and it was in the court of Judge John F. Keenan in New York that the case was first heard. UCIL's assets, a mere $50 million, were in any case vastly insufficient to meet the multibillion-dollar claim put forth by the Government of India.

While Union Carbide ridiculed India's attempt to have U.S. courts "solve the world's problems", the Indian government asserted in court that Union Carbide controlled the Indian operation "from cradle to grave": the Indian Government's claim "relied upon absolute liability, strict liability, negligence, breach of warranty, and misrepresentation" (p. 127). Union Carbide filed a preliminary motion to dismiss the actions on the ground that U.S. courts were an improper forum for the action, and sought to have the case sent back to Indian courts. Making light of the opinion, widely shared among Indian legal experts, that an overburdened Indian legal system would not be able to provide timely and adequate redress to the victims, Union Carbide's lawyer, Nani Palkhivala, described it as "gratuitous denigration to call the Indian legal system deficient or inadequate." He described the Indian Government's "charges" against the Indian legal system as "slanderous"; arguing that the Indian legal system was capable of dealing with such a complex case, Palkhivala noted that "if the Bhopal litigation represents an opportunity for the further development of tort law in India, that chance should not be denied to India merely because some might say that the American legal system is ahead in development" (p. 129).

In having found an eminent Indian lawyer to serve its interests, Union Carbide had gained the upper hand. Soon Judge Keenan was to play the role of the ever obedient servant. On 12 May 1986, Keenan dismissed the action of the Indian government from his court on the ground of forum non conveniens. Though the U.S. Supreme Court had ruled that a plaintiff's "choice of forum should rarely be disturbed", Keenan argued that this did not apply when the plaintiff was a foreign resident (p. 130). Keenan felt that American courts were already too congested, though he did not take note of the fact that in the Indian Supreme Court alone, over 40,000 cases are pending, and that even ordinary tort cases take over a decade to be decided; nor did he think that American taxpayers were to be burdened for undertaking the expenses of a trial when its subject matter was "ephemeral" to their interests (pp. 131-33, 151). Keenan naturally had no objections to American corporations making profits from their dealings overseas, and he appears not to have thought the deaths of a few thousand people at a plant owned by an American corporation to be a matter of interest, not to mention concern, to Americans. Those deaths were undoubtedly "ephemeral" to American interests. More significantly, he had seen no evidence, stated the noble judge, to suggest that "the Indian legal system has not sufficiently emerged from its colonial heritage to display the innovativeness which the Bhopal litigation would demand" (p. 131). Displaying those democratic sentiments which the world has been told are in the blood-stream of every true American, Judge Keenan had the audacity to state that to hold the trial in an American court would be nothing short of subjecting India to "imperialism", and imposing the "standards and values" of an advanced country on a "developing nation." The court would "decline to play such a role", for "to deprive the Indian judiciary this opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged" (p. 134). By suggesting that India's legal system was not sufficiently advanced or complex to deal with the intricacies of the Bhopal case, the Indian Government was in effect inviting America, Britain's successor as the mainstay of "Western Civilization", to recolonize India.

Cassels, in a mistaken attempt to be even-handed and 'objective', says that Keenan's "judgment sounds eminently reasonable", though he finds in it a "number of anomalies that require explanation" (p. 135). Keenan had noted that the Bhopal Act was a demonstration of the capacity of the Indian legal system to innovate, but he failed to mention that the constitutionality of the act was being contested in the Indian Supreme Court, and that such an act would most likely have been found unconstitutional by an American court. Cassels finds its ironic that "the act, which was passed to facilitate the prosecution of the claims in the United States, is itself used as the primary reason for refusing to hear the case there" (p. 135; emphasis in original). While claiming to protect India from imperialism, Keenan appeared to be only too willing to ignore the brute fact of American dominance, and unwilling to accept that U.S.-based multinationals operating abroad could only effectively be regulated and policed by the multinational's home jurisdiction. If Keenan was implying that Indian tort law could address complex questions of liability in the Bhopal case, he seems to have ignored the fact that the principal piece of relevant legislation governing the Bhopal gas leak, the Factories Act of 1948, deals not with toxic substances and advanced technologies but with "the mechanical problems of physical injuries" (p. 24). There has been, as Cassels remarks, "very little tort litigation in India", and it may be conceded that "'disasters large and small in India typically have no legal consequences'" (p. 61, 25). Cassell's attempts to be fair, and his constant hedging -- thus we are told, despite his criticism of Union Carbide, that there is no reason to think that MNC's are "unqualifiedly bad for the developing world," their participation being "inevitable" and even "desirable", and elsewhere we are reminded that "host countries of the developing world" are not "entirely powerless in the face of multinational economic clout" (pp. 41-42) -- obscures the fact that Keenan's judgement was, in Upendra Baxi's words, to acutely expose "the hollowness of American liberal jurisprudence" (Baxi: 1986:10).

The case having been returned to India, there was to be another three years of litigation before the Indian Supreme Court, moved by the plight of the victims and the pressing need to provide them with immediate relief, ordered Union Carbide to pay $470 million in damages and ruled that the agreement would be in final settlement of all claims, thereby discharging Union Carbide from all further liability. Cassels tracks with skill the passage of the litigation through various Indian courts, their attempts to determine liability, and the steps taken by some Indian judges to unmask the 'corporate veil'. In December 1986, the then Chief Justice, P.N. Bhagwati, stating that India could no longer be subject to the "crutches of a foreign legal order", proceeded "to evolve a new principle of liability which English Courts have not done": any enterprise engaged in hazardous or inherently dangerous activities owes an "absolute and non-delegable duty to the community" (p. 185). However, this ruling came in a different case, and it remained for Judge Mahadeo Deo of the Bhopal District Court to apply the implications of Bhagwati's ruling to the Bhopal case. The gas victims had been the victims of an "unprecedented tragedy", and it appeared farcical to expect them to "survive till the time all the tangible data with meticulous exactitude is collected and adjusted in fine forensic style for working out the final amount of compensation with precision." Noting, in the words of an English judge, that "if we never do anything which has not been done before, we shall not get anywhere", Judge Deo ordered Union Carbide to pay immediately $270 million in interim compensation. True, this was a departure from conventional tort law, but the law had to "grow to meet the problems raised by such changes . . . including the hazards of industrialization", and Bhagwati's ruling had opened up the possibility of interim compensation. Deo shrewdly added that as Union Carbide had relied upon the Shriram case to press its argument that the legal Indian system was sufficiently advanced that the Bhopal case need not be tried in the U.S., the company was also bound to accept Bhagwati's judgment that in certain cases the liability would be "absolute and non-delegable" (p. 199).

Not surprisingly, Union Carbide at once characterized the court's judgment as "wholly perverse", as indicative of the unreliability and arbitrariness of the Indian legal system, and the decision was appealed before the Madhya Pradesh High Court, where Justice S.K. Seth was to give his judgment after some months (pp. 200-1). Seth agreed with Union Carbide that the lower court had stepped beyond its jurisdiction, as Judge Deo's order was not simply procedural but affected the substantive rights of the parties. Judge Deo had ordered interim compensation under the authority of the Code of Civil Procedure, and was not entitled to do so; however, Justice Seth, taking Judge Deo's ruling much further, opined that as a matter of substantive law, Union Carbide could be rendered liable for immediate compensation. While there was no provision in Indian tort law for awarding such interim compensation, it was appropriate -- given India's colonial legacy -- to continue to import into Indian common law such provisions of English law as allowed the grant of interim compensation in a situation where one party would eventually be held liable. As Justice Seth observed, "If the new rules of English law replacing or modifying the common law are more in consonance with justice, equity and good conscience it would be open to us to reject the outmoded rules of common law and apply the new rules" (pp. 203-4). The victims did have a prima facie against either Union Carbide or its Indian subsidiary, UCIL; and then Justice Seth proceeded to lift the 'corporate veil', for if Union Carbide had distanced itself "from the Indian company in certain respects, it was entirely its choice and such policy could not absolve it from its liability" (p. 207). As Union Carbide, consequently, was bound to be found liable, it stood to reason that it could also be ordered to pay interim compensation. Thus Justice Seth upheld, though on different grounds, Judge Deo's decision. To Union Carbide, who had relentlessly argued for the adequacy and innovativeness, of the Indian legal system, in order than U.S courts be deemed inconvenient forums for hearing the case, Justice Seth's judgment was now a demonstration of the "lawlessness" of the Indian legal system, and it is by appeal that the case came to the Indian Supreme Court (p. 213).

Union Carbide has, on its own admission, spent well over $50 million on legal fees so far, a sum that is larger than the money expended by the company on compensating the victims. The modern world is barbaric in its own fashion. Cassels describes the disaster at Bhopal as a "result of the failure of interdependent systems of information, technology, and law" (p. 11), and as his own narrative and the plight of the victims even today suggests, there was certainly more than one disaster, more than one barbarism. Those who were snatched away by the poisonous gas on the night of 2 December 1994 have appeared to some of the survivors, whose lives have been rendered wretched, owing to the gross callousness of Union Carbide and official authorities in India, as comparatively blessed. While Union Carbide, the Governments of India and Madhya Pradesh, and the courts continued to wrangle over questions of liability and compensation, the tally of the dead continued to rise. Bhopal illustrates, if nothing else, the "uncertain promise of law".

Cassels points to the shortcomings of tort law everywhere, its "individualistic and mechanical" characteristics, and its inability to deal with problems raised by complex technologies, toxic substances, and hazardous wastes. This was amply demonstrated by the long, drawn-out negotiations over Agent Orange, a herbicide used during the Vietnam War, where the case involved multitudes of experts in "biochemistry, toxicology, epidemiology, internal medicine, statistics, oncology, occupational medicine, genetics, immunoloy, neurology and plant physiology", and yet never came to trial (Schuck 1987:140). Where courts have shown daring, refusing to be bound by notions of procedural justice, they have frequently been overturned. Thus in Allen v. U.S., where the plaintiffs had claimed that exposure to radiation during nuclear testing had caused cancer, the court ruled that "where a strong factual connection exists between defendant's conduct and the plaintiffs's injury, but selection of actual cause in fact from among several causes is problematical, those difficulties of proof are shifted to the tortfeasor, the wrongdoer, in order to do substantial justice between the parties"; on appeal, the decision was reversed on the basis of sovereign immunity (p. 89).

The Bhopal case, from the geopolitical standpoint, is really about 'sovereign immunity', and in the New World Order as in the Old World Order this immunity appears to be reserved for a few select actors. Bhopal certainly ought not to be viewed as a singular phenomenon, an isolated 'accident', and it must also be located within the global political economy of industrial 'development'. Multinational corporations have become a law unto themselves, and there is no effective policing of these international bandits who roam around with impunity. If in nineteenth-century India an entire government department could be established by the colonial rulers to deal with the allegedly hereditary problems of 'thuggee and dacoity', might we think of some international mechanism to help contain the modern-day problem of dacoity by trans-national corporations? The possibilities of so doing remain slim if not negligible, given the massive disequilibrium of power between nations and within nations, and the commitment -- armed and unarmed -- of the West to distributive injustice. While the nation-states of the post-industrial West are zealous in guarding their frontiers, and have once again witnessed a new surge of the zenophobia which appears to be the eternal condition of the 'developed' West, multinational corporations, uncannily similar to those mercantilic enterprises of an earlier era which inaugurated the age of colonialism, are merrily pursuing, as though in mock homage to post-modern notions of transnational goods, dissolving borders, and multiple identities, profit across all borders. It is only one's own borders that need to be defended; all other borders exist to be trespassed, trampled, and dismembered: Bhopal is a testimony to the psychic instability of the West. Western discourses have been predicated on the notion of the transcendent subject, and it is no surprise that in the Bhopal tragedy, the law, which remains the supreme icon of transcendence, should have largely colluded with the ambitions and designs of those powers that have been writing history as the history of capital.

REFERENCES:

Baxi, Upendra (1986). Inconvenient Forum and Convenient Catastrophe: The Bhopal Case. Bombay: N.M. Tripath Pvt. Ltd, for the Indian Law Institute.

Jones, Tara (1988). Corporate Killing: Bhopals Will Happen. London: Free Association Books.

Schuck, Peter H (1987). Agent Orange on Trial: Mass Toxic Disasters in the Courts. Enlarged ed., Cambridge, Mass.: Harvard University Press.