Transnational Legal Processes

Edited by

Michael Likosky Wolfson College, University of Oxford

With a Foreword by

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

Butterworths LexisNexis^"'

:20o 2^

Chapter 9

Law's elusive promise: learning from Bhopal

M GALANTER'

It is now more than 15 years since the massive leak of methyl isocyanate [MIC] at Un ion Carbide's plant in Bhopal that killed more than 8,000 people^ and devastated the lives of tens of thousands. Union Carbide and the govemment of India reached a se tdement in February 1989, bringing an end to the major li t igauon. As of early 1998, n ine years after Union Carbide paid $470m to the g o v e r n m e n t of Ind ia , which h a d a p p o i n t e d itself the vict ims' exclusive representative, less than half of the sum (including the accumulated interest) had been paid to the victims.'' T h e claims process is formalistic, niggardly and corrupt . Some genuine victims have gone without payment for failure to meet the Claims Tribunal's documentat ion requirements , while less worthy claimants have manipulated the process to secure payment. The majority of victims received minimal payments: more than 90% were paid less than Rs 25,000 (from which nearly Rs 10,000 was deducted for the inter im monetary relief paid by the govemmentfrom 1990) .'̂ By January 1998, 15,171 death claims were adjudicated. Of these, 3,760 were rejected as inadequately documented and 6,327 were dealt with as injury cases. Of the 5,084 that were found entitied to compensat ion for death (scheduled to range from Rs 100,000 to Rs 500,000), 98% received the minimum avrard of Rs 100,000.^^ T h e payment phase of the Bhopal gas leak affair is a worthy match for the atrocious negligence of the injury phase and the disappointing underper formance of the legal phase.

1 John and Rylla Bosshard Professor of Law and Professor of South Asian Studies, University of Wisconsin-Madison. E-mail: MSGalant@facstaff.wisc.edu.

2 Estimates of the death toll vary. Over 2,000 persons died immediately. Estimates of total deaths have climbed over the years. The 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).

3 '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 money dis t r ibuted. 'Bhopal Survivors' Ailments Go Untreated, Panel Finds ' (1994) Cleveland Plain Dealer at 6C. A higher estimate of claims resolved (about 4%) is eiven by Rettie (1994) at 12. & /

4 (1998) T h e S ta te sman . In the early 1990s, the exchange value of Rs 25,000 was approximately $750.

5 '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 appeared to unravel the lessons of the disaster.* Jamie Cassels' The UncertainPromiseofLaw: Lessons from Bhopalis the first fuU-blown work of legal scholarship on Bhopal . ' It is an achievement of massive scope, br inging together a wealth of hard-won information and a clear exposition oif legal theory. It is a wonderfully rich account of the legal aftermath of the Bhopal disaster — or perhaps one 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. He provides a thorough and imaginative examination of the tangle of legal issues, informed by a sympathetic account of recent developments in the Indian legal system, especially the judicial activism and public interest litigation that flourished spectacularly in the 1980s and have now receded but not withered completely.^

Cassels' account jo ins a new genre of books by scholars of civil justice - the elaborated scholarly account 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^" and in criminal law." But until recently it has no t been prominent in scholarship about private law, where the story may involve an aggregation or congregat ion of related claims in trial courts ra ther than a single big case at the Supreme Court.'^ There have been some extended accounts of major civil cases byjournalists and lawyer-participants,'^ bu t these were far ou tnumbered by the vast 'war story' literature on criminal law. Peter Schuck's Agent Orange on Trial,^* published in 1986, has been j o ined 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 Har r ' s A Civil Action (1995) . '^ Cassels expands this new genre 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 Union 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 (Süll) 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 plaintífFs 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 John Grisham's The Runaway Jury (1997); The Rainmaker (1996) and in the movies Class Action (Michael Apted, 1991); Philadelphia (Jonathan Demme, 1993); The Rainmaker (Paramount , 1997); The Sweet Hereafter (Atom Egoyan, 1997); and Erin Bronkovich (1999).

174 Transnational Legal Processes

at Institute, West Virginia, instead of at its undernour i shed twin in Bhopal. We can readily envision the immense mass tort case, the 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 and unwieldy and would possibly have strained the capacities of the courts, but it would have delivered significant compensat ion and broadcast power fu l p reven t ive s ignals to m a n y a u d i e n c e s . In sp i te of t h e m a n y imponderables , including problems of causation and the presentiy unknown extent of injuries, the limited single-event format would have presented a good candidate for more or less satisfactory^ resolution by the US' high accountability-high 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. On 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 govemment or botii- surely a commission of inquiry, and very likely a criminal prosecution. Buildings collapse mines cave m, hundreds are kiUed by poisonous l iquor- there is a constant stream of these mini-Bhopals' in India" - and the law, courts and lawyers are not involved in establishing accountabüity or securing compensation.'« There is no 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 more than 300 people were killed. '̂ )

In the case of Bhopal, it was tiieUSidentity of the malefactor that coupled the disaster and the legal system as they would not have been connected otherwise. Cassels says expectations 'began to fix upon the promises of law' because o f ' the cultural dominance of law' in India.^» This chapter submits that the origin of these expectations was more specific. T he percept ion of invasive violation and pollution by a foreign in t ruder generated a sense of shared injury and outrage. At the same time the US connection brought with it the image of a US tort system laden witii both sting and largesse. It was tiiis image, given dramatic embodiment 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 housmg a school ceremony. Accounts stressed the inadequacy of safety measures and emergency services. The state government announced 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. One notable exception to tins pattern is the response to the June 1997 fire at the Uphaar Cinema in New Delhi /'ÎQ'^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^ l̂̂ .̂ v"^^^^^""^"- ^c'^ording to one account, John 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. The 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) The 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). The 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 1924—25, 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 1924—25 (1925).

176 Transnational Legal Processes

Indian lawyers and public.^' Delays oí 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] and 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 and 9 months 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 per capita basis as in the US.^^ Lawyers and judges ' work habits of dealing with cases piecemeal and lavish provision for multiple interlocutory appeals (originally designed for colonial supervision of unreliable locals) equip the determined adversary with abundant opportunity to prolong litigation almost indefinitely.

Where tort cases are brought , recovery is far from assured and is frequently ungenerous . Of the 56 cases located in this writer's survey, 48 cases seeking money damages had been resolved. Some 23 of these failed to recover anything. T h e mean recovery of the claimants who won was only Rs 15,159. The median recovery was Rs 7,895.^"

Nei ther contingency fees n o r legal aid are present to overcome claimants' financial barriers to access. India has a numerous and well-established legal profession. Lawyers in India are courtroom advocates; their role does not include investigation and fact-development; specialisation is rudimentary; barring some recent exceptions, there are few firms or o the r forms of endur ing professional collaboration that would support a division of labour and pooling of resources to suppor t the development of expertise in tort law. The setting in which these lawyers work is devoid of institutional support for specialised knowledge: there are no specialist organisations, n o specialised technical publishing, no continuing legal education; nor is there a vigorous scholarly community.

Indian civil procedure does no t include effective provisions for wide-ranging discovery that would permi t factual investigation of complex problems of technology or corporate management . The re are no special procedures for handling complex litigation involving vast amounts of evidence or large numbers of parties. Bar and bench, though they contain many brilliant and 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) pp 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). There 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 amounts of evidence, large numbers of experts or large numbers of parties.

29 Galanter 1984; Affidavit, Re Union Carbide Corporation Gas Leak Disaster at Bhopal India in December (1985) Attachment C.

30 The 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 and organisational capacity to address massive cases involving complex questions of fact.

T h e cumulative effect of these factors, together vrith cultural and political predispositions, is that there has been little connect ion between tort law and disasters in India. Such a negative is hard to document . The writer has never heard of an instance of any industrial explosion, mine cave-in, building collapse, food adulteration or o ther mass injury leading to tort claims. Surveys of all the tort cases repor ted by India's leading series of law reports from 1975 to 1984 did not reveal a single case that arose from such an incident.^' What typically happens in disasters is that the govemment announces that it is making ex gratia payments of specified amoun t to the victims.'^ Attributions of responsibility, if pursued at all, would be made by a governmental investigation, or perhaps a criminal prosecution or a commission of inquiry. In each case, the inquiry into responsibility is dissociated from the administration of compensat ion.

T h e a rgument of Cassels' book is that the Bhopal story casts doubt on the reliability/trustworthiness of law's promise. His reading of the appropriate scope of our doubts is framed by his criticism of Judge Keenan's throwing the case out of the US courts and sending it to India on the g round that India offered an adequate 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 response . T h e book argues that notwi ths tanding these specifically Indian problems, the performance of the Indian legal system in Bhopal is evidence that Judge 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 and robust to offer a fair test of its capacities. Cassels documents the infirmities of Indian tort law and

31 Surveys of cases repor ted in the All-India Reporter conducted 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 announced 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 departmental inquiry was ordered and a criminal case was registered on the basis of the negligent announcement that was thought to have triggered the s tampede: 'Toll Rises to Four in Railway Station Stampede* (1989) at 9. On 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 Judge 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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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 argument rests not on India's track record with tort or any other area of private law, but on India's record of public interest litigation. Cassels is convinced that the Indian system is capable of great dynamism because 'under the banne r of public interest litigation, courts have sought to enhance access to justice, expedite legal processes, and 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. He portrays an idealised Indian legal system that retains the 'flexible and accommodating characteristics of traditional Indian law and society' and that exhibits 'considerable flexibility and diversity when compared to Westem models, remaining open to fresh ideas, adopting and absorbing new elements as needed'. '"' In this system judges are activist innovators who 'do not adhere so closely to precedent 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 both the frequency and significance of these judicial excursions and their status as an indicator of the dynamism of the Indian legal system.

At times Cassels shares this scepticism, conceding that such judicial activism does not cut very deep:

'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."*"

Indeed one could read his account of the Bhopal litigation in India as a demonstra t ion that heroic interventions were incapable of doing the needful because the problem was an institutional problem. That is, the institutional infra-structure of a high accountability system — the courts, the lawyers, the experts, the procedures - were not in place and could not be constructed at a single bound even by the most adventurous jurist. Good rules were only one missing element — the easiest to supply — but supplying them in a landscape bare of proficient institutional machinery can have paradoxical and even perverse effects. There were several major innovative initiatives in the Indian legal response to Bhopal, bu t as Cassels documents , each was a t tended by an ironic reversal in which it became a liability ra ther than an asset for the claimants:

' • 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.

34 Cassels (1993) p 153. 35 Cassels (1993) p 153. 36 Cassels (1993) p 216. 37 Cassels (1993) p 216. 38 Cassels (1993) p 217. 39 Cassels (1993) p 217. 40 Cassels (1993) p 25. 41 Bhopal 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 for judge Keenan's estimation of the innovative potential of the Indian system and his dismissal of the case from the US forum.''^ The MMia j u d g m e n t arising out of the Sriram oleum leak incident,''"' vrith its doctrine of absolute liability, in tended by the Supreme Court to create a major asset in fastening accountability on Union Carbide, never came into play since no Indian court ever reached questions of liability in the Bhopal case. But it raised (probably unfounded, but) troubling doubts about the eventual enforceability of the Indian j u d g m e n t in the US. Subsequent benches of the Supreme Court minimised the authority of Mehta, so that its value as a precedent is marginal at most.*^

• Third , were the heroic efforts of a public interest intervenor and several judges to fashion interim relief engendered the spectre of additional delays, setting the stage for the settiement.*''

In spite of the best intentions, none of these innovations helped the victims in Bhopal or left an endur ing legacy of improvement . This suggests the limits of rule improvement as a med ium of change. Imagine that an Indian court (or legislature for that matter) had in 1984 fashioned an ideal set of substantive rules for dealing with mass disasters, but had left every other feature of the system unchanged . Would the good rules have made a difference? Although Cassels is sensitive to the institutional context, the book is centred on judges and rules ra ther than institutions and the strategic play of actors in them. This chapter does not claim that doctrine is unimportant , bu t suggests that many other things are equally essential in producing good legal results, especially on a low-visibility, rout ine, daily basis. Rules emerge from institutions that have the ability to cope with difficult issues, not vice versa. To focus on doctrine in estimating legal per formance is like judg ing restaurants on the imagination and panache of their recipes. But there are many other 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 judgment 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 The District Court in Bhopal was persuaded to award interim relief, a remedy almost unknown in tort cases, by Vibhuti Jha 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 judgment was on appeal before the Supreme Court when the case settled.

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diners n ight after night. Recipes do n o t create restaurants, bu t flourishing restaurants rarely suffer from lack of them.

Cassels' assessment of the per formance 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 ther country' and reports himself ' impressed by the dynamism of Indian law'."" Thus India displays the full potential of the law as an institution and is eligible to serve as a test case of the ' the 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 cannot provide a useful test of the inheren t limitations of this species of institutions.

T h e institutional deficiencies of the Indian legal system are not specific to mass torts, but are much more general. T h e basic problem of low use of the courts and lawyers is that they are able to deliver so littie in the way of remedy, protection and vindication. The courts provide a useful facility for those who wish to postpone payment of taxes or debts and those who wish to forestall eviction or other legal a c t i o n . Genera l ly , they serve t hose w h o b e n e f i t f rom delay a n d n o n -implementa t ion of legal norms, that is, parties who are in already in possession or satisfied with the status quo . For those who require vindication and p rompt implementa t ion of remedies and protect ions against dominant parties, women from husbands or relatives, labourers from landowntiers, injured from injurers, the system works only haltingly, partially and occasionally.

Given the long delay (and high interest rates at which future vahie must be discounted) moun t ing expenses and meagre damage awards, the present value of most suits for money damages is probably close to zero, if it is not negative. Indeed m u c h litigation in India can be described as a 'sunk cost auction'^** in which the competi tors invest ever-higher amounts in the hope of staving off larger losses. Widespread popular intuit ion of this produces avoidance of the civil courts and the diversion of potential financial damages cases into criminal cases and claims for injunctive relief.^'

For large sectors of society and large areas of conduct courts afford no remedies or protections. In spite of a widespread perception that India is a litigious society,''^ the available evidence suggests that rates of use of the 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 second-highes t a m o u n t also must pay the a m o u n t he or she bid. Thus 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 and by comparison with the recent past.^^ When there is sufficient pressure to secure remedies, the solution is typically no t to reform the lower courts but to bypass them. In a way, the writ jurisdiction is the prototype for this bypassing strategy, which has been applied to motor vehicle accidents and consumer grievances. The fora created by these measures are court-like: they weigh competing proofs and arguments within a framework of authoritative rules. T h e not ion is that they will do 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 no t a promising means of risk control in the third world?"'" On the basis of his dismal conclusion about India's response to Bhopal, Cassels concludes it 'unlikely that private litigation can contribute a great deal to the reduct ion of international hazardous risk'.^^

Critical of the partial, uneven and tardy performance of tort in delivering compensation, Cassels' preference is for institutions that are less adversarial and more guided by experts.'"' T h e ideal would be a comprehensive program of public compensation. But he realises that India could move toward this only in a partial , symbolic way: 'it would be naive to suppose that such a regime is immediately on the cards in a country like India, despite its verbal commitment to democratic socialism and the general welfare. '" But he seems to prefer a partial and, admittedly, arbitrarily b o u n d ed social compensat ion system rather than a general upgrading of the tort system on the ground that the arbitrariness of a social compensat ion 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 1987—96. 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, ' compared to what? ' H e would prefer a regime of benign , capable, 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', he recognises that regulatory reform entails more than forrnal legal enactments."'^ Th e problem 'has Httie to do with applicable standards, bu t is one of compliance and enforcement ' . It requires 'political will backed by sufficient technical and administrative resources ' .^ As the Bhopal story itself reveals, t he nea r - t e rm e m e r g e n c e of such regu la t ion in Ind ia is highly improbable."'

Cassels sketches a hopeful scenario of an international regime of collaborative control between technology-exporting and import ing countries, international organisations, lenders, and non-governmental organisations - to support a regime of enhanced safety requirements . As the writer unders tands 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 impede it or push it along?

Consider a hypothesis that is a plausible alternative both to Cassels' theory that law is an inadequate tool and my not ion that India lacked the institutional conditions to test the adequacy of tort law. Tha 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 the most capable judicial institutions are overwhelmed by outsized occurrences like asbestos or Bhopal, instances in which even the best end up improvising quasi-administrative formulaic outcomes. If we take seriously their 'scale' hypothesis, we might conclude that even if tort is useless for dealing with the elephants, it is indeed useful for dealing with the rabbits, lambs and occasional oxen that popula te 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 and the govemment 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 and the high remedy-high accountability system of the US. Even Judge Keenan attempted to lend to the victims some of the power of the US forvim, so long as it could be done without burdening his court. So while the organised corpora te side has given rise to a vigorous s tream 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 Cassels (1993) p 38. 60 Cassels (1993) p 282. 61 Cassels (1993) p 280. 62 Durkin and Felstiner (1994).

Law's elusive promise: leaming from Bhopal 183

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