Transnational Legal Processes

Edited by

Michael Likosky
Wolfson College, University of Oxford

With a Foreword by

A Vaughari Lowe
Chichele Professor of Public International
AU Souls College, University of Oxford

Law and Fellow,

Butterworths
LexisNexis^"'
:20o 2^

Chapter 9

Law's elusive promise: learning from Bhopal

M GALANTER'

It is now m o r e than 15 years since the massive leak of methyl isocyanate [MIC] at
U n i o n Carbide's plant in Bhopal that killed m o r e than 8,000 people^ a n d
devastated the lives of tens of thousands. U n i o n Carbide and the g o v e m m e n t of
India r e a c h e d a s e t d e m e n t in February 1989, bringing an e n d to t he major
litigauon. As of early 1998, n i n e years after U n i o n Carbide paid $470m to the
g o v e r n m e n t of I n d i a , which h a d a p p o i n t e d itself the victims' exclusive
representative, less t h a n half of the sum (including the accumulated interest)
h a d b e e n paid to the victims.'' T h e claims process is formalistic, niggardly a n d
corrupt. S o m e g e n u i n e victims have g o n e without payment for failure to m e e t
the Claims Tribunal's d o c u m e n t a t i o n requirements, while less worthy claimants
have manipulated the process to secure payment. T h e majority of victims received
minimal payments: m o r e than 9 0 % were paid less than Rs 25,000 (from which
nearly Rs 10,000 was d e d u c t e d for t h e interim monetary relief paid by the
govemmentfrom 1990) .'^ ByJanuary 1998, 15,171 death claims were adjudicated.
Of these, 3,760 were rejected as inadequately d o c u m e n t e d a n d 6,327 were dealt
with as injury cases. Of the 5,084 t h a t were found entitied to c o m p e n s a t i o n for
d e a t h (scheduled to range from Rs 100,000 to Rs 500,000), 9 8 % received the
m i n i m u m avrard of Rs 100,000.^^ T h e payment phase of the Bhopal gas leak affair
is a worthy m a t c h for the atrocious negligence of the injury phase a n d the
disappointing u n d e r p e r f o r m a n c e of the legal phase.
1
2

4
5

J o h n and Rylla Bosshard Professor of Law and Professor of South Asian Studies, University
of Wisconsin-Madison. E-mail: MSGalant@facstaff.wisc.edu.
Estimates of the death toll vary. Over 2,000 persons died immediately. Estimates of total
deaths have climbed over the years. T h e welfare commissioner in Bhopal listed 8.017
deaths as 'exposure related': Pearce (1998) at 1. A report in the Sunday Times counts at
least 12,000: Grey (1998).
'Bhopal Gas Tragedy Victims' Woes Continue' (1998) die Statesman, 25 February. Almost
all of the payments were made during the latter part of the period since the setdement.
In 1994, only 1% of the pending claims had been decided and only 1% of the settlement
m o n e y d i s t r i b u t e d. 'Bhopa l Survivors' Ailments Go U n t r e a t e d , Panel F i n d s ' (1994)
Cleveland Plain Dealer at 6C. A higher estimate of claims resolved (about 4%) is eiven by
Rettie (1994) at 12.
&
/
(1998) T h e S t a t e s m a n . In t h e early 1990s, t h e e x c h a n g e value of Rs 25,000 was
approximately $750.
'India NGOs complain about tardy progress in Bhopal gas victims' rehabilitation' (1998)
Business Line [available in Nexis News library].

172

Laiv's elusive promise: leaming from. Bhopal

173

An extensive literature has a p p e a r e d to unravel the lessons of the disaster.*

Jamie Cassels' The UncertainPromiseofLaw: Lessonsfrom Bhopalis the first fuU-blown
work of legal scholarship o n B h o p a l . ' It is an achievement of massive scope,
bringing together a wealth of hard-won information a n d a clear exposition oif
legal theory. It is a wonderfully rich account of the legal aftermath of the Bhopal
disaster or perhaps o n e should say the legal phase of the Bhopal disaster, a
phase which is still unfolding.^ It is the legal phase, which has attracted far less
sustained analysis than the injury phase, that is the subject of Cassels' book. H e
provides a t h o r o u g h and imaginative examination of the tangle of legal issues,
informed by a sympathetic a c c o u n t of r e c e n t developments in the Indian legal
system, especially the judicial activism a n d public interest litigation that flourished
spectacularly in the 1980s a n d have now r e c e d e d b u t n o t withered completely.^
Cassels' account j o i ns a new genr e of books by scholars of civil justice - the
elaborated scholarly accoun t of a large case that uses it as a vehicle to address
wider institutional and social problems. It is a genre long familiar in constitutional
history^" a n d in criminal law." But until recently it has n o t b e e n p r o m i n e n t in
scholarship about private law, where the story may involve an aggregation or
congregation of related claims in trial courts r a t h e r than a single big case at the
S u p r e m e Court.'^ T h e r e have b e e n some extended accounts of major civil cases
byjournalists a n d lawyer-participants,'^ b u t these were far o u t n u m b e r e d by the
vast 'war story' literature on criminal law. Peter Schuck's Agent Orange on Trial,^*
published in 1986, has b e e n j o i n e d by a growing collection of analytic scholarly
accounts,'^ as well as by outstanding contributions byjournalists, most notably
J o n a t h a n H a r r ' s A Civil Action (1995).' ^ Cassels e x p a n d s this new g e n r e
significandy by presenting its first transnational entry.
Being transnational is the key to the Bhopal story. Imagine that this had been
a purely US event: suppose the gas had leaked at U n i o n Carbide's MIC operation

6 Eg Morehouse and Subramaniam (1986); Hararika (1987); Srivastava (1987); Jasanoff (1994).
7 Cassels (1993).
8 In addition to the dormant criminal case in India, a new civil case under the Alien Tort Claims
Act 1789 was filed in New York in November 1999. 'Bhopal Ghosts (Sll) Haunt Union
Carbide' (2000) Fortune at 44-46; Appleson (1999) (available at wiww.bhopal.ord/reuters.html).
In November 2001, the US Court of Appeals upheld the District Court's dismissal of the Alien
Tort Claims Act claims and remanded plaintfFs common law environmental claims for further
action by the District Court: Bano v Union Carbide Carp 2001 US App LEXIS 24488.
9 Baar (1990) at 140-150; Baxi (1999); Baxi (1985); Bhagwati (1985) at 561-577; Cassels
(1989) at 495; Cunningham (1987) at 494-523; Dhavan (1994) at 302-338; Menon (1985)
at 444; Peiris (1991) at 66-91; Sadie (1998) at 399-441, 603-640; Susman (1994) at 58-103.
10 Eg Kutler (1990); Vose (1959); Kluger (1975).
11 Eg Kasserman (1986); Higdon (1975).
12 On the concept of a congregation of cases, see Galanter (1990) at 1201; Sanders (1992)
at 301.
13 Brodeur (1985); Charfoos (1981); Stem's (1976) much-taught The Buffalo Creek Disaster, a
wonderful book and one whose lack of analysis, omissions (much of the Buffalo Creek litigation
story is left out) and self-glorification tell us a lot about the limitations of the war stories genre.
Shorter critical accounts of well-known cases may be found in Noonan (1976); Danzig (1978).
14 Schuck (1986).
15 Eg Sobol (1991); Bacigal (1990); Bollier (1991); Sanders (1998).
16 See also, Mintz (1985); Werth (1998). During this period we also see the rise of fictional
accounts of civil cases in novels (eg J o h n Grisham's The Runaway Jury (1997); The Rainmaker
(1996) a n d in the movies Class Action (Michael Apted, 1991); Philadelphia (Jonathan
D e m m e , 1993); The Rainmaker (Paramount , 1997); The Sweet Hereafter (Atom Egoyan,
1997); and Erin Bronkovich (1999).

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Transnational Legal Processes

at Institute, West Virginia, instead of at its u n d e r n o u r i s h e d twin in Bhopal. We

can readily envision the i m m e n s e mass tort case, th e judicial improvisation of
devices to handle it, very likely a settiement for a substantial amount, and possibly
even the resulting reorganisation of Union Carbide through bankruptcy. It would
have been big a n d unwieldy a n d would possibly have strained the capacities of
the courts, b u t it would have delivered significant compensatio n a n d broadcast
p o w e r f u l p r e v e n t i v e signal s to m a n y a u d i e n c e s . In s p i t e of t h e m a n y
imponderables , including problems of causation a n d the presentiy u n k n o w n
e x t e n t of injuries, the limited single-event format would have presente d a good
candidate for m o r e or less satisfactory^ resolution by the US' high accountabilityhigh remedy-high cost system of private law.
Imagine, now, diat it was an entirely Indian event, witii a domestic Indian company
in tiie role of Union Carbide. O n tiie basis of all previous experience, notwitiistanding
the vasdy greater scale of tiiis disaster, it is very unlikely that tort law would have been
invoked at all. There would have been an ex gratia payment of compensation (quite
meagre by Westem standards) by the company or the g o v e m m e nt or botii- surely a
commission of inquiry, and very likely a criminal prosecution. Buildings collapse
mines cave m, hundreds are kiUed by poisonous liquor- there is a constant stream of
these mini-Bhopals' in I n d i a " - and the law, courts and lawyers are not involved in
establishing accountabity or securing compensation.' Ther e is n o reason to tiiink
that an all-Indian Bhopal disaster would have departed from this pattem. (Or, that it
would have escaped more than momentarily from die obscurity that surrounded the
explosion of a liquefied natural gas storage facility in Mexico City just two weeks
earher in which m o r e than 300 people were killed. '^ )
In the case of Bhopal, it was tiieUSidentity of the malefactor that coupled the
disaster a n d the legal system as they would n o t have b e e n c o n n e c t e d otherwise.
Cassels says expectations 'began to fix u p o n the promises of law' because o f ' t h e
cultural d o m i n a n c e of law' in India.^ This chapte r submits that the origin of
these expectations was m o r e specific. T h e perceptio n of invasive violation a n d
pollution by a foreign i n t r u d e r g e n e r a t ed a sense of share d injury a n d outrage.
At the same time the US connection b r o u g h t with it the image of a US tort system
laden witii both sting and largesse. It was tiiis image, given dramatic e m b o d i m e n t
by the arrival m India of the US plaintiffs' lawyers just days after the explosion,^'

17 A single, not untypical, example will have to suffice: in December 1995, more than 500
people, mostly children, were killed in a fire that swept through a temporary structure
h o u s m g a school ceremony. Accounts stressed the inadequacy of safety measures and
emergency services. T h e state government a n n o u n c e d that it would provide ex erada
payments of Rs. 100.000 [approximately $2,900] to the families of the dead and half that
to those seriously injured. Burns (1995a at 3; 1995b at A9); Bora (1996)
18 For an analysis of the failure to seek legal remedy in an incident in which over 300 were
killed after drinkmg poisonous liquor, see Manor (1993) chapter 7. O n e notable exception
to tins pattern is the response to the J u n e 1997 fire at the Uphaar Cinema in New Delhi
/'Q'^VI*'^
persons, many from affluent families, were killed. Halarnkar and Chakravarty
(IJ97) 30. A group of families launched a co-ordinated campaign of litigation against the
cinema owners and negligent regulators.
19 Cassels (1993) p 26. A series of subsequent explosion at the same and other Pemex plants
may be found through www.emergency.com.
20 Cassels (1993) p 55.
21 -India may sue Union Carbide in U.S. Courts' (1994) the Hindu. The arrival of US lawyers
m Bhopal was first reported on 9 December: 'State to seek damages from Carbide' (1984)
T^^l^.^v"^^^^^""^"- ^c'^ording to o n e account, J o h n Coale arrived on 7 December: Adler
(1985) at 128.

Law's elusive promise: leaming from. Bhopal

175

that projected the 'uncertain promise of law'. But even before the US lawyers
arrived, Indian officials were discussing the possibility of recovery in the US
and at US levels of compensation.^^ It is submitted here that the promise of law
was only weakly connected to Indian legal culture but was primarily a reflection
of US law as filtered through Indian media and sensibilities. Indeed, the reach
for an American remedy was the reverse side of deep pessimism about a remedy
in India, coupled with untroubled confidence in the US' legal system and
anticipation of enormous recoveries. A few weeks after the gas leak, the Chief
Justice of India observed: 'These cases must be pursued in the US. It is the only
hope these unfortunate people have.'^^ The export of the legal action to the
US provoked hardly a murmur of dissent.
The pessimism about a remedy in India reflected a system of tort law and
civil justice that observers of the Indian scene regarded as undeveloped,
debilitated or moribund.^''
India appeared to have tort law modelled on that of England, but this was
deceptive. The history of tort in India is quite distinctive. The British brought
the common law to India in the eighteenth century; in the quarter-century
following the 1857 revolt, the legal system was rationalised and systematised. A
unified hierarchy of courts was established in each region. A series of codes,
based on English law and applicable throughout British India, were adopted.^''
By 1882 there was virtually complete codification of all fields of criminal,
commercial and procedural law; tort was the only major field of law left
uncodified.^*'
Few tort cases are brought. There has been little doctrinal development.
Tort is little used and has remained largely outside the consciousness of the

22 Indian officials were talking about a remedy in the US four days after the leak, before the
American lawyers appeared on the scene: 'India may sue Union Carbide in U.S. Courts'
(1984) The Hindu, 8 December. T h e first US lawyers arrived in Bhopal on 9 December:
'State to seek damages from Carbide' (1984) The Statesman, 10 December, or filed suit in
the US. A suit against Union Carbide for $15bn was filed in Charleston, West Virginia on
8 December and was reported in the Indian press the following day: Eg '$15 billion suit filed
in USA' (1989) The Statesman, 9 December. Three days after the gas leak, V P Sathe, the
Central Minister for Petroleum and Chemicals said that he expected Union Carbide to
provide the same kind of relief that it would have provided if the accident had taken place
in the US: Lewin, (1984). A similar notion was expressed by the Madhya Pradesh Govemment
even earlier: 'Firm Chairman and Experts Denied Entry' (1984) T h e Statesman.
23 Stewart (1985) (quoting Indian lawyers S Kurshid and V M Tarkunde). Thinking about
how Indian legal institutions might be adapted to rise to the occasion surfaced only rarely.
See Bakshi (1985). T h e rudiments of an imaginative scheme by Narasimha Sawmy, an
Indian lawyer practicing in the US are discussed in Adler (1985) at 132.
24 The only notable exceptions are the distinguished Indian lawyers who testified on behalf
of Union Carbide's effort to remove the case from the US' courts.
25 See Galanter (1968) at 65; Acharyya (1914); Stokes (1887).
26 The need for a tort code was urged by Sir Henry Maine, Sir James Stephen and the Fourth Law
Commission, which reported in 1879. An Indian Civil Wrongs Bill, drafted by Sir Frederick
Pollock in 1886, at the instance of the Government of India, was never taken up for legislative
action: Jain (1966). The failure to enact a code was 'inexplicable' according to Acharyya
(1984) p 306. But a decade later the Civil Justice Committee 192425, noting that the matter
'had been under consideration for some years', observed that: 'there is no branch of law which
is more free from blame of contributing to the law's delays. A large part of this work is done in
India, and is better done, by the criminal courts.' Civil Justice Committee 192425 (1925).

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Transnational Legal Processes

I n d i a n lawyers a n d public.^' Delays o Bleak House proportions are routine. T h e

writer conducted a survey of reported tort cases in the ten years before the Bhopal
disaster [1975-84] a n d found some 56 cases in the All-India Reporter, the most
widely used series of commercial law reports. Although these cases did not involve
matters of great complexity, either logistical or technological, they took an average
of 12 years a n d 9 m o n t h s from filing to decision.^''
T h e sources of the amazing longevity are several. First, there are relatively few
courts - about one-tenth as many on a p e r capita basis as in the US.^^ Lawyers a n d
j u d g e s ' work habits of dealing with cases piecemeal a n d lavish provision for
multiple interlocutory appeals (originally designed for colonial supervision of
unreliable locals) equip the d e t e r m i n e d adversary with a b u n d a n t opportunity to
p r o l o n g litigation almost indefinitely.
W h e r e tort cases are b r o u g h t , recovery is far from assured a n d is frequently
u n g e n e r o u s . Of the 56 cases located in this writer's survey, 48 cases seeking
m o n e y damages h a d b e e n resolved. Some 23 of these failed to recover anything.
T h e m e a n recovery of the claimants who won was only Rs 15,159. T h e m e d i a n
recovery was Rs 7,895.^"
Neithe r contingency fees n o r legal aid are p r e s e nt to overcome claimants'
financial barriers to access. India has a n u m e r o u s a n d well-established legal
profession. Lawyers in India are courtroom advocates; their role does not include
investigation a n d fact-development; specialisation is rudimentary; barring some
r e c e n t exceptions, t h e r e are few firms or o t h e r forms of e n d u r i n g professional
collaboration that would support a division of labour and pooling of resources to
s u p p o r t the development of expertise in tort law. T h e setting in which these
lawyers work is devoid of institutional s u p p o r t for specialised knowledge: there
are n o specialist organisations, n o specialised technical publishing, n o continuing
legal education; n o r is there a vigorous scholarly community.
Indian civil p r o c e d u r e does n o t include effective provisions for wide-ranging
discovery t h a t would p e r m i t factual investigation of c o m p l e x p r o b l e m s of
technology or corporate m a n a g e m e n t . T h e r e are n o special procedures for
handling complex litigation involving vast amounts of evidence or large number s
of parties. Bar a n d b e n c h , t h o u g h they contain many brilliant a n d talented

27 This absence of tort consciousness is manifested by the invisibility of torts in standard

works on the Indian legal system. In Alan Gledhill's authoritative survey, there is not a
single mention of tort: Gledhill (1951). M P Jain's widely used Outlines of Indian Legal
History devotes only two paragraphs in its 700 pages to tort law, that is, to the absence of
codified tort law: Jain (1966) p p 649-650, 657-658.
28 In the 22 negligence cases, the most common fact situation was a railroad crossing accident
(7); next was a downed electrical line (3). T h e r e is not a single product liability case
among the 56, nor any case involving any industrial process or chemical mishap. Nor do
these cases involve massive a m o u n t s of evidence, large n u m b e r s of experts o r large
numbers of parties.
29 Galanter 1984; Affidavit, Re Union Carbide Corporation Gas Leak Disaster at Bhopal India in
December (1985) Attachment C.
30 T h e exchange value of the Rupee was approximately 12 to the US dollar in late 1984 and
17 to the US dollar in late 1989. On damages and their determination in India, see Legal
Torpor, at 276. A subsequent survey by Mary Versailles (1991) University of Wisconsin Law
School) of cases reported in the All-India Reporter analysed recoveries for death of an
adult male in motor vehicle accident cases. The mean recovery in cases decided in 1985
was Rs 74,084 and the median was Rs 56,640. Taking inflation into account, the size of
recoveries remained constant from 1976 to 1986.

Law's elusive promise: learning from Bhopal

177

individuals, have a limited fund of experience, skills a n d organisational capacity

to address massive cases involving complex questions of fact.
T h e cumulative effect of these factors, t o g e t h er vrith cultural and political
predispositions, is that t h e re has b e e n little c o n n e c t i o n between tort law a n d
disasters in India. Such a negative is h a r d to d o c u m e n t . T h e writer has never
h e a r d of an instance of any industrial explosion, m i n e cave-in, building collapse,
food adulteration or o t h e r mass injury leading to tort claims. Surveys of all the
tort cases r e p o r t e d by India's leading series of law reports from 1975 to 1984 did
n o t reveal a single case that arose from such an incident.^' What typically happens
in disasters is that the g o v e m m e n t announces that it is making ex gratia payments
of specified a m o u n t to the victims.'^ Attributions of responsibility, if pursued at
all, would b e m a d e by a governmental investigation, or p e r h a p s a criminal
prosecution or a commission of inquiry. In each case, the inquiry into responsibility
is dissociated from the administration of compensation .
T h e a r g u m e n t of Cassels' book is that the Bhopal story casts d o u b t o n the
reliability/trustworthiness of law's promise. His reading of the appropriate scope
of o u r doubts is framed by his criticism of J u d g e Keenan's throwing the case o u t
of the US courts a n d sending it to India o n the g r o u n d that India offered a n
a d e q u a t e alternative forum for the litigation. Cassels concludes that:
'Judge Keenan was tragically wrong [in sending the case back to India] - wrong in his
optimistic faith in both tort law generally, and the capacities of the Indian legal
system, in particular.'-^^
Cassels details with balance and eloquence the problems that beset the Indian
r e s p o n s e . T h e b o o k argues that n o t w i t h s t a n d i n g these specifically I n d i a n
problems, the performance of the Indian legal system in Bhopal is evidence that
J u d g e Keenan was wrong not only about the Indian system, but about the potential
of tort law as such to cope with mass disasters.
For the Bhopal experience to exhibit the outer limits of tort law would require
a showing that Indian tort law was sufficiently dynamic a n d robust to offer a fair
test of its capacities. Cassels d o c u m e n t s the infirmities of Indian tort law a n d

31 Surveys of cases r e p o r t e d in the All-India Reporte r conducte d by Gary Wilson (1986)

University of Wisconsin Law School and by Mary Versailles (1991) University of Wisconsin.
32 For example, when four people were trampled to death in a March 1989 stampede at the
New Delhi railway station, the Railway a n n o u n c e d an ex gratia payment of Rs 5,000
[approximately $320 at then current exchange rates] to the kin of the deceased and of
Rs 1,000 to the injured. A departmenta l inquiry was o r d e r e d and a criminal case was
registered on the basis of the negligent announcement that was thought to have triggered
t h e stampede: 'Toll Rises to Four in Railway Station Stampede* (1989) at 9. O n the
uneven and capricious character of these payments, see Raghavan (1997).
33 Cassels (1993) p 148. Cassels righdy sees Keenan's judgment as a victory for multi-national
corporations (p 205), but it is worth noting that it does contain some seeds of enhanced
multinational accountability. The judgment required Union Carbide, the parent corporation,
to submit to the jurisdiction of the Indian courts and, in effect to have the parent US
corporation and the Indian subsidiary treated as a unit for purposes of liability. It also
attempted to make American-style discovery available to the claimants, a possibility never
availed of by the government of India. The discovery provision was not eliminated by the
Court of Appeals (contra Cassels (1993) p 143), but made reciprocal rather than available
only to the claimants. The decision by J u d g e Keenan and later courts to recognise as
binding the Bhopal Act's provision for exclusive representation of victims by the govemment
of India implies that governments, recognised democratic ones at least, can make themselves
representatives in US courts of victims of mass disasters: B v Union Carbide (1993).

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Transnational Legal Processes

concludes that: 'the law of tort in India is litde more than a myth about how people
would be cared for in a better world.'^^ How can he then argue that India pushed
tort to its usable limits? His a r g u m e n t rests n o t on India's track record with tort or
any othe r area of private law, b u t o n India's record of public interest litigation.
Cassels is convinced that the Indian system is capable of great dynamism because
' u n d e r the b a n n e r of public interest litigation, courts have sought to enhanc e
access to justice, expedite legal processes, a n d breath some substantive life into
the formal processes of law'.^'' It is the heroic exertions of the judges, lawyers and
activists who sustained public interest litigation that is the basis of his argument
that the Indian response to Bhopal exhausted the limits of law. At times he suggests
that public interest litigation manifests an underlying vitality and dynamism of the
Indian legal system. H e portrays an idealised Indian legal system that retains the
'flexible a n d accommodating characteristics of traditional Indian law and society'
and that exhibits 'considerable flexibility a n d diversity when compared to Westem
models, remaining o p e n to fresh ideas, adopting a n d absorbing new elements as
needed'.'"' In this system judges are activist innovators who 'do n o t a d h e re so
closely to p r e c e d e n t as do their English or even U.S. counterparts'.''' They have
'departed considerably from the traditional positivist or legalistic understanding
of law ..."'^ and 'frequendy go beyond the judicial role as it is understood in England
and North America, openly pursuing social justice'.^^ It is submitted here that this
vastiy overstates b o t h the frequency and significance of these judicial excursions
a n d their status as an indicator of the dynamism of the Indian legal system.
At times Cassels shares this scepticism, c o n c e d i ng that such judicial activism
does n o t cut very d e e p :
'But these developments have been primarily of symbolic value. They address specific
rather than structural problems and there is no guarantee that the orders [to enforce
industrial safety] will be complied with."*"
I n d e e d o n e could read his accoun t of th e Bhopal litigation in India as a
d e m o n s t r a t i o n that heroic interventions were incapable of d o i n g the needful
because the p r o b l e m was an institutional problem. T h a t is, the institutional infrastructure of a high accountability system the courts, the lawyers, the experts, the
p r o c e d u r e s - were n o t in place a n d could n o t be constructed at a single b o u n d
even by t he most adventurous jurist. G o o d rules were only o n e missing e l e m e nt
the easiest to supply b u t supplying t h e m in a landscape bare of proficient
institutional m a c h i n e r y can have paradoxical a n d even perverse effects. T h e r e
were several major innovative initiatives in the Indian legal response to Bhopal,
b u t as Cassels d o c u m e n t s , each was a t t e n d e d by an ironic reversal in which it
b e c a m e a liability r a t h e r than an asset for the claimants:
'

34
35
36
37
38
39
40
41

First, there was the passage of Bhopal Act,^' establishing the Government of
India as the exclusive representative of the victims, intended to banish the private
lawyers and to facilitate bringing the case in the United States.

Cassels
Cassels
Cassels
Cassels
Cassels
Cassels
Cassels
Bhopal

(1993) p 153.
(1993) p 153.
(1993) p 216.
(1993) p 216.
(1993) p 217.
(1993) p 217.
(1993) p 25.
Gas Disaster (Processing of Claims) Act 1985.

Law's elusive promise: leaming from Bhopal

179

Second, was the Supreme Court's bold intervention in the Sriram gas leak in
New Delhi just a year after Bhopal."*^

These interventions became the primary bases f o r j u d g e Keenan's estimation of

the innovative potential of the I n d i an system a n d his dismissal of the case from
the US forum.''^ T h e MMia j u d g m e n t arising o u t of the Sriram oleum leak
incident,''"' vrith its doctrine of absolute liability, i n t e n d e d by the Suprem e Court
to create a major asset in fastening accountability on U n i o n Carbide, never came
into play since n o Indian court ever r e a c h e d questions of liability in the Bhopal
case. But it raised (probably unfounded, but) troubling doubts about the eventual
enforceability of th e I n d i an j u d g m e n t in the US. Subsequen t benche s of the
S u p r e m e Court minimised the authority of Mehta, so that its value as a p r e c e d e n t
is marginal at most.*^
T h i r d , were the heroic efforts of a public interest intervenor a n d several
j u d g e s to fashion interim relief e n g e n d e r e d the spectre of additional delays,
setting the stage for the settiement.*''
In spite of the best intentions, n o n e of these innovations helped the victims in
Bhopal or left an e n d u r i n g legacy of improvement. This suggests the limits of
rule i m p r o v e m e n t as a m e d i u m of change. Imagine that an Indian court (or
legislature for that matter) h a d in 1984 fashioned an ideal set of substantive
rules for dealing with mass disasters, but h a d left every o t h e r feature of the system
u n c h a n g e d . Would the g o o d rules have m a d e a difference? Although Cassels is
sensitive to the institutional context, the book is centred o n j u d g e s a n d rules
r a t h e r t h a n institutions a n d the strategic play of actors in them . This chapter
does n o t claim that doctrine is u n i m p o r t a n t, b u t suggests that many other things
are equally essential in p r o d u c i n g good legal results, especially on a low-visibility,
r o u t i n e, daily basis. Rules e m e r g e from institutions that have the ability to cope
with difficult issues, n o t vice versa. To focus o n doctrine in estimating legal
p e r f o r m a n c e is like j u d g i n g restaurants on the imagination a n d p a n a c h e of
their recipes. But there are many o t h er elements required for a successful dining
experience: pots, pans and stoves, tables, cooks, waiters and buyers and ingredients
- all of the elements that translate the recipe into a dish that satisfies actual

42 In December 1985, a gas leak at an oleum plant in Delhi generated panic. At the instance
of a public interest advocate, the Supreme Court intervened and set up an investigation of
the incident. Although the court's jurisdiction in the matter remained problematic, one
year later the court issued a j u d g m e n t purporting to establish a new standard of 'absolute
liability' of large enterprises in industrial disasters: M C Mehta v Union of India (1985).
43 Cassels (1993) p 135.
44 M C Mehta v Union of India (1985). The case is one of many named after this prominent
public interest advocate.
45 In Charan Lal v Union of India (1990) Chief Justice Sabyasachi Mukherji observed that the
notion that damages would be enhanced in the light of defendant's capacity to pay was
'an uncertain promise of law' and found it 'difficult to foresee any reasonable possibility of
acceptance of this yardstick'. In upholding the legitimacy of the Bhopal setdement, the
Supreme Court dismissed Mehta's theories of liability as 'essentially obiter': Union Carbide
V Union of India (1992) at 261.
46 T h e District Court in Bhopal was persuaded to award interim relief, a remedy almost
unknown in tort cases, by Vibhuti J h a of Bhopal, a public interest intervenor. The High
Court of Madhya Pradesh upheld the award on different grounds and employing a different
formula for payment. The Madhya Pradesh judgmen t was on appeal before the Supreme
Court when the case settled.

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Transnational Legal Processes

diners n i g h t after night. Recipes d o n o t create restaurants, b u t flourishing

restaurants rarely suffer from lack of t h e m .
Cassels' assessment of the p e r f o r m a n c e of the Indian legal system curiously
parallels J u d g e Keenan's over-optimistic anticipation of the Indian response.
Cassels concludes that 'in many ways the response of the Indian legal system to
the plight of the Bhopal victims went well beyond what might have been expected
in any o t h e r country' a n d reports himself'impresse d by the dynamism of Indian
law'."" T h u s India displays the full potential of the law as an institution a n d is
eligible to serve as a test case of the ' t h e limitations of law ...'."^ This chapter
submits instead that Indian l a w - at least private civil l a w - is in a pathological or
at least a seriously impaired condition.*^ A system so deficient c a n n o t provide a
useful test of the i n h e r e n t limitations of this species of institutions.
T h e institutional deficiencies of the I n d i a n legal system are n o t specific to
mass torts, but are m u c h m o r e general. T h e basic problem of low use of the courts
a n d lawyers is that they are able to deliver so littie in the way of remedy, protection
a n d vindication. T h e courts provide a useful facility for those who wish to postpone
p a y m e n t of taxes or debts a n d those who wish to forestall eviction or othe r legal
action. Generally, they serve those who benefit from delay a n d n o n i m p l e m e n t a t i o n of legal n o r m s , that is, parties w h o are in already in possession
or satisfied with the status q u o . For those w h o require vindication a n d p r o m p t
i m p l e m e n t a t i o n of remedies a n d protections against d o m i n a n t parties, women
from h u s b a n d s or relatives, labourers from landowntiers, injured from injurers,
the system works only haltingly, partially a n d occasionally.
Given the long delay (and high interest rates at which future vahie must be
discounted) m o u n t i n g expenses a n d m e a g r e d a m a g e awards, the present value
of most suits for m o n e y damages is probably close to zero, if it is n o t negative.
I n d e e d m u c h litigation in India can be described as a 'sunk cost auction'^** in
which the competitors invest ever-higher a m o u n t s in the h o p e of staving off
larger losses. Widespread p o p u l a r intuition of this produces avoidance of the
civil courts a n d the diversion of potential financial damages cases into criminal
cases a n d claims for injunctive relief.^'
For large sectors of society a n d large areas of conduct courts afford no remedies
or protections. In spite of a widespread perception that India is a litigious society,''^
t h e available evidence suggests that rates of use of th e courts are low by

47 Cassels (1993) p xi.

48 Cassels (1993) p xi.
49 A long line of external observers have provided different readings of this pathology:
Cohn (1959); Kidder (1973); Mendelsohn (1981); Moog (1993). In some respects these
critical views echo an earlier literature on the mismatch between British law and Indian
conditions: Tucker and Kaye (1853); Moon (1945).
50 A sunk cost auction is a game, often used as a business school exercise, in which some
good (say, a lakh of rupees) is awarded to the highest bidder, but the person who bids the
s e c o n d - h i g h e s t a m o u n t also must pay t h e a m o u n t he or she bid. T h u s even if the
opponent's last bid exceeds one lakh, there is an incentive to bid just a bit more in order
to reduce one's loss by the value of the prize, but then the opponent is presented with a
similar incentive, ad infinitum. In practice, the game ends when one party runs out of
money or grows indifferent to the possibility of reducing the loss by the prize amount.
51 Low (and realistic) public expectations of the courts are described in Rao (1990) p 196.
52 Since so many of the potential meritorious claims are absent from the courts, it is not
surprising that the claims that are present there include a significant portion that are
'frivolous' in the sense of being brought for purposes of harassment and delay.

Law's elusive prornise: learningfrcm, Bhopal

181

international standards a n d by comparison with the recent past.^^ W h e n there is

sufficient pressure to secure remedies, the solution is typically n o t to reform the
lower courts but to bypass them. In a way, the writjurisdiction is the prototype for
this bypassing strategy, which has b e e n applied to m o t o r vehicle accidents a n d
c o n s u m e r grievances. T h e fora created by these measures are court-like: they
weigh competing proofs and arguments within a framework of authoritative rules.
T h e n o t i on is that they will d o a superior, or at least m o r e efficient, j o b of
adjudication than the regular courts.
BHOPAL AND THE TRANSNATIONAL TRAFFIC IN REMEDIES
Is the lesson of Bhopal that tort is n o t a promising means of risk control in the
third world?"'" O n the basis of his dismal conclusion a b o u t India's response to
Bhopal, Cassels concludes it 'unlikely that private litigation can contribute a
great deal to the reduction of international hazardous risk'.^^
Critical of the partial, uneven a n d tardy p e r f o r m a n c e of tort in delivering
compensation, Cassels' preference is for institutions that are less adversarial and
m o r e g u i d e d by experts.'"' T h e ideal would be a comprehensive program of
public compensation. But h e realises that India could move toward this only in a
partial, symbolic way: 'it would b e naive to suppose t h a t such a regime is
immediately o n the cards in a country like India, despite its verbal c o m m i t m e n t
to democratic socialism a n d the general welfare.'" But h e seems to prefer a
partial and, admittedly, arbitrarily b o u n d e d social c o m p e n s a t i o n system rather
than a general u p g r a d i ng of the tort system o n the g r o u n d that the arbitrariness
of a social compensation system will generate tension that will push the system
toward universal coverage.''^

53 Reliable data are scarce and the state of record-keeping makes collecting them a daunting
task. But there is sufficient to suggest that India is among the lowest in the world in per
capita vise of courts. Before his untimely death, the late Professor Christian Wollschlager,
the trail-blazer of comparative judicial statistics, presented a comparison of the per capita
rate of filing of civil cases in some 35 jurisdictions for the ten-year period 198796. Rates
of filing in courts of first instance per 1,000 persons ranged from 123 in Germany and
111 in Sweden at the high end to 2.6 in Nepal and 1.7 in Ethiopia at the bottom. Since
no national figures are available for India, Professor Wollschlager included in his comparison
figures on Maharashtra, which ranked 32nd of the 35 jurisdictions with an annual per
capita rate of 3.5 filings per 1,000 persons: Wollschlager (1998) p 582. There is no reason
to think that Maharashtra has less litigation than India as a whole, since the data point to
a general correlation of court use with economic development.
An earlier study by Robert Moog, who examined litigation rates in Uttar Pradesh from
1951 to 1976, a stopping point dictated by the fact that the state stopped issuing these
statistics then, found that per capita civil filings in all district level courts in Uttar Pradesh
had fallen dramatically from the early days of independence, when there were 1.63 per
1,000 persons in 1951, to 1976, when there were only was 0.88 per 1,000: Moog (1993)
at 1138. Again, such a fall might reflect the decrease in adults as a portion of the total
population and diversion into tribunals, as well as the effect of land reforms. But again we
find the data contravene the dominant perception of India as increasingly litigious.
54 Or at home? Cf UPL 102.
55 Cassels (1993) p 51.
56 Cassels (1993) p 258.
57 Cassels (1993) p 267.
58 Cassels (1993) p 268.

182

Transnational Legal Processes

His distrust of private law to control risk invites the inevitable question,
' c o m p a r e d to what?' H e w o u l d p r e f e r a r e g i m e of b e n i g n , c a p a b l e, alert
govemmental regulation. Fully aware that in India enforcement of safety regulation
is ' u n d e r s t a f f e d , u n d e r f u n d e d a n d ill e q u i p p e d to r e g u l a t e c o m p l e x
technological processes', h e recognises that regulatory reform entails m o r e than
forrnal legal enactments."'^ T h e problem 'has Httie to d o with applicable standards,
b u t is o n e of compliance a n d e n f o r c e m e n t ' . It requires 'political will backed by
sufficient technical a n d administrative resources'. ^ As the Bhopal story itself
reveals, t h e n e a r - t e r m e m e r g e n c e of s u c h r e g u l a t i o n in I n d i a is highly
improbable."'
Cassels sketches a hopeful scenario of an international regime of collaborative
control between technology-exporting a n d i m p o r t i ng countries, international
organisations, lenders, and non-governmental organisations - to support a regime
of e n h a n c e d safety r e q u i r e m e n t s. As the writer u n d e r s t a n ds his sketch of this,
ultimately the local government would have to enforce these standards. Assuming
that such a multi-faceted effort by all these different kinds of organisations would
be optirnal, would the strengthening of development of tort accountability within
the receiving nations i m p e d e it o r p u sh it along?
Consider a hypothesis that is a plausible alternative b o t h to Cassels' theory
that law is an i n a d e q u a t e tool a n d my notio n that India lacked the institutional
conditions to test the adequacy of tort law. T h a t is the hypothesis of scale, set out
by Durkin and Felstiner,*'^ who argue that while tort may usefully address small or
mid-size disasters, even t he most capable judicial institutions are overwhelmed
by outsized occurrences like asbestos or Bhopal, instances in which even the best
e n d u p improvising quasi-administrative formulaic outcomes. If we take seriously
their 'scale' hypothesis, we m i g h t conclude that even if tort is useless for dealing
with the elephants, it is i n d e e d useful for dealing with the rabbits, lambs a n d
occasional oxen that p o p u l a t e the world of bad happenings.
We are in the midst of a massive globalisation of law - with multinational
corporations and flows of capital has come the development of a transnational
network of legal services providers who have assisted corporate actors in translating
the mobility of capital into mobility of rights. Union Carbide's operations were
serviced by skilled lawyers, articulating their operations to the exigencies of the
various regimes that impinged on them and the various forums open to them. But
tiie Bhopal victims were remote from the forum in which they might best pursue a
remedy. Both the influx of the US plaintiffs' lawyers a n d the g o v e m m e nt of India's
attempt to sue in the US can be seen as failed attempts at arbitrage between India's
low remedy-low accountability system a n d the high remedy-high accountability
system of the US. Even J u d g e Keenan attempted to lend to the victims some of the
power of the US forvim, so long as it could be d o n e without burdening his court. So
while the organise d c o r p o r a t e side has given rise to a vigorous stream of
transnational lav\;yering, the side of victims, workers, and consumers is left stranded
in unappetising puddles. Could there be a second wave of transnationalisation in
which these interests can organise to use law where it will serve them best? Do we
really have reason to think these interests will be better served by governments and
coi-porations without the goad of private law?
59
60
61
62

Cassels
Cassels
Cassels
Durkin

(1993) p 38.
(1993) p 282.
(1993) p 280.
and Felstiner (1994).

Law's elusive promise: leaming from Bhopal

183

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