Bhopal Gas Tragedy: Forty Years of Struggle for Justice—Part 3

Soon after the disaster, several concerned lawyers arrived in Bhopal to provide legal assistance to the gas victims. Many ‘ambulance chasers’ also swooped down on the city in that guise, motivated by greed rather than compassion.

Following the filing of many lawsuits against the Union Carbide Corporation (UCC) by victims of the disaster through private US attorneys in different districts/states of the US, the US judicial panel on multi-district litigation passed an order on February 6, 1985 transferring all US federal district court cases relating to the Bhopal disaster to the southern district court of New York.

Soon afterwards, on the plea that the ambulance chasers would misrepresent the interest of the victims, at the instance of the government of India, the President of India on February 20, 1985 promulgated the Bhopal Gas Leak Disaster (Processing of Claims) Ordinance.

The Ordinance empowered the Union of India to represent the victims in all cases relating to claims for compensation. The Bhopal Ordinance was adopted as an Act of Parliament on March 29, 1985.

Of course, there were apprehensions that the government of India may misuse the provisions of the Act and may not represent the interests of all gas victims in the best possible way. Therefore, a number of writ petitions were subsequently filed before the Supreme Court questioning the constitutional validity of the Bhopal Act.

Many ‘ambulance chasers’ also swooped down on Bhopal, motivated by greed rather than compassion.

Litigation in the US

By virtue of the Bhopal Act, the Union of India, on April 8, 1985, filed a complaint against the UCC before the southern district court of New York, US. The complaint, inter alia, stated that:

“5. ….The [Bhopal] Act has been promulgated for the purpose of insuring that claims (as defined by the Act) arising out of and caused by the BHOPAL GAS LEAK DISASTER (hereinafter referred to as the BHOPAL DISASTER) are dealt with speedily, effectively, and equitably, and confers upon the government of the Union of India certain powers and duties, including the exclusive right to represent and act in place of (whether within or outside India) every person (as defined in the Act) who has made, or is entitled to make, such a claim…

“The Act further provides that the government shall have due regard to any matters which such persons may urge with respect to his claim and shall, if such person so desires, permit at the expense of such person, a legal practitioner of his choice to be associated in the conduct of any suit or other proceedings relating to his claim.

“6. Because of the massive unprecedented magnitude of the BHOPAL DISASTER (as hereinafter detailed), the Union of India brings this action as parens patriae by virtue of its interest and duty to secure the health and well being, both physical and economic, of all victims of the disaster (including future generations of victims), almost all of whom are physically and/or financially or otherwise incapable of individually litigating their claims against the defendant, a monolithic, multinational corporation. The Union of India further acts as parens patriae by virtue of its interests and duty to protect, preserve and restore the earth, air, waters and economy of the Republic…

“7. The Union of India brings this action as parens patriae for all persons to recover for them damages for any and all claims, present and future, arising from the BHOPAL DISASTER”. [Upendra Baxi & Thomas Paul (ed.), “Mass Disasters & Multinational Liability: The Bhopal Case”, p.2]

The Bhopal Gas Leak Disaster (Processing of Claims) Ordinance (later Act) empowered the Union of India to represent the victims in all cases relating to claims for compensation.

The basic grounds on which the complaint was filed were as follows:

“10. At all times material, defendant Union Carbide designed, constructed, owned, operated, managed and controlled a chemical plant in the city of Bhopal, in the State of Madhya Pradesh, one of the states constituting the Union of India, through its subsidiary Union Carbide India Limited.

“11. At all times material, defendant Union Carbide manufactured, processed, handled and stored at its Bhopal plant methyl isocyanate (hereinafter MIC), a chemical used in the manufacture of agricultural pesticides produced and marketed by Union Carbide.”

“12. At all times material, defendant Union Carbide knew that MIC is an extraordinarily reactive, toxic, volatile, flammable and ultrahazardous chemical; that MIC is one of the most dangerous substances known to man.”

“18. On December 2–3, 1984, there was a massive escape of lethal MIC gas from the Bhopal plant into the atmosphere, raining death and destruction upon the innocent and helpless persons in the city of Bhopal and the adjacent countryside, and causing widespread pollution to its environs in the worst industrial disaster [hu]mankind has ever known.” [Baxi & Paul (ed.), pp. 3-4]

Based on the above grounds, the Union of India levelled charges against the UCC on seven counts, which are summarised below:

a) Multinational enterprise liability: “A multinational corporation has a primary, absolute and non-delegable duty to the persons and country in which it has in any manner caused to be undertaken any ultrahazardous or inherently dangerous activity.

“This includes a duty to provide that all ultrahazardous or inherently dangerous activities be conducted with the highest standards of safety and to provide all necessary information and warnings regarding the activity involved.

“Defendant multinational Union Carbide breached this primary, absolute and non-delegable duty through its undertaking of an ultrahazardous and inherently dangerous activity causing unacceptable risks at its plant in Bhopal, and the resultant escape of lethal MIC from that plant.

“Defendant Union Carbide further failed to provide that its Bhopal plant met the highest standards of safety and failed to inform the Union of India and its people of the dangers therein.”

A number of writ petitions were subsequently filed before the Supreme Court questioning the constitutional validity of the Bhopal Act.

b) Absolute liability: “Defendant Union Carbide allowed the lethal MIC to escape from its Bhopal plant on December 2–3, 1984, exposing innocent and helpless people in the city of Bhopal, the adjacent countryside and its environs to the deadly effects of MIC, thereby contaminating and polluting an extensive area. Defendant Union Carbide is absolutely liable for any and all damages caused or contributed to by the escape of the lethal MIC from its Bhopal plant…”

c) Strict liability: “Defendant Union Carbide was under a duty to design, construct, maintain and operate its Bhopal plant in such a manner as to prevent the escape of lethal MIC from the plant and to protect persons from unreasonably dangerous and defective conditions and to warn persons of the dangers and risks associated with the plant and its manufacturing processes.

“Defendant Union Carbide breached this duty and the massive escape of lethal MIC occurred as the result of unreasonably dangerous and defective plant conditions which involved MIC production and storage procedures and facilities, instrumentation, safety systems, warning systems, operation and maintenance procedures... 

“In creating and maintaining unreasonably dangerous and defective conditions, defendant Union Carbide is strictly liable for any and all damages caused or contributed to by the escape of MIC from its Bhopal plant…”

d) Negligence: “The Bhopal plant was in the defendant's exclusive control and the massive escape of lethal MIC could not have occurred but for the negligence of defendant Union Carbide. Defendant Union Carbide is liable for any and all damages caused or contributed by the escape of MIC from its Bhopal plant due to its negligence…”

e) Breach of warranty: “Defendant Union Carbide expressly and impliedly warranted that the design, construction, operation and maintenance of its Bhopal plant were undertaken with the best available information and skill in order to insure safety.

“These warranties were untrue in that the Bhopal plant was, in fact, defective and unsafe and the technical services and information provided by defendant Union Carbide and the resulting plant operating practices were defective in numerous respects… Defendant Union Carbide is liable for any and all damages caused or contributed to by the escape of MIC from its Bhopal plant due to its breach of warranties…”

f) Misrepresentation: “Defendant Union Carbide falsely represented to the plaintiff that its Bhopal plant was designed with the best available information and skill and that the operation of its Bhopal plant would be maintained with current and up-to-date knowledge. Defendant Union Carbide knew that these representations were false, or asserted these representations without knowledge of their truth or falsity, and intended that the plaintiff act thereon.

At all times material, defendant Union Carbide knew that MIC is an extraordinarily reactive, toxic, volatile, flammable and ultrahazardous chemical; that MIC is one of the most dangerous substances known to man.

“The plaintiff reasonably and justifiably relied upon these representations to its detriment. Defendant Union Carbide is liable for any and all damages caused or contributed to by the escape of MIC from its Bhopal plant due to its misrepresentation…”

g) Punitive Damages: “Defendant Union Carbide’s conduct in failing to design, construct, maintain and operate a safe plant exposed the people and property in Bhopal, the adjacent countryside and its environs to a massive disaster which the defendant knew could occur.

“Such conduct on the part of defendant Union Carbide, in light of its knowledge of the lethal properties of MIC was unlawful, wilful, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the rights and safety of the citizens of the Union of India.

“Defendant Union Carbide’s conduct as described herein clearly establishes the plaintiff’s right to an award of punitive damages to deter this wrongful conduct from ever again recurring.” [Baxi & Paul (ed.), pp.4-8]

The Union of India further pleaded that: 

“As a direct and proximate result of the conduct of defendant Union Carbide, numerous thousands of persons in Bhopal, the adjacent countryside and its environs suffered agonising, lingering and excruciating deaths, serious and permanent injuries … pain, suffering and emotional distress of immense proportion.

“The survivors, who experienced an unimaginable and unforgettable catastrophe…have suffered and will continue to suffer severe emotional distress. Further injuries to such persons, and to generations yet unborn, are reasonably certain to occur…

“As a further direct and proximate result of the conduct of defendant Union Carbide, there was extensive damage to personal and business properties resulting in disruption of industrial, commercial and governmental activities throughout the City of Bhopal, the adjacent countryside and its environs, with consequential losses of personal and business income and governmental revenue throughout the Union of India, as well as the impairment of future earning capacity of numerous thousands of persons.” [Baxi & Paul (ed.), pp.8-9]

On the basis of the above pleadings, plaintiff Union of India sought compensatory and punitive damages from defendant Union Carbide and the awarding of such other relief as the court may have deemed just and equitable.

The purpose of quoting extensively from the text of the Union of India’s complaint before the US district court was also to enable the reader to take note of its emphatic and forthright language.

(It would be interesting to compare the same with the meek and submissive language of the terms of settlement that the Union of India signed with the UCC on February 15, 1989, consequential to the directions and Orders passed by the Supreme Court of India.)

Inconvenient forum

It may be recalled that 145 cases (from more than 13 US jurisdictions) involving approximately 200,000 individual plaintiffs had been consolidated before the southern district court of New York.

On April 16, 1985, at the first pre-trial conference before the New York southern district court, Judge Keenan directed that a three-member plaintiffs’ executive committee be formed to frame and develop issues on the cases and prepare expeditiously for trial or settlement negotiations.

On July 30, 1985, the said committee submitted a format for the resolution of these cases in a discovery plan. The plan envisioned an expedited schedule of discovery leading to a September 1, 1986 trial of liability, including punitive damages, and ten representative damages cases. [Baxi & Paul (ed.), p.97]

Defendant Union Carbide further failed to provide that its Bhopal plant met the highest standards of safety and failed to inform the Union of India and its people of the dangers therein.

The UCC, however, found an ingenious way to oppose the move. In its reply, which was filed before the district court on July 31, 1985, the UCC pleaded for dismissing the cases filed against it on the grounds of forum non conveniens, essentially meaning that the complaints should not be heard in the US since it was not the appropriate or convenient forum.

On the one hand, the UCC tried to argue that: “Indeed, the practical impossibility for American courts and juries, imbued with US cultural values, living standards and expectations, to determine damages for people living in the slums or ‘hutments’ surrounding the UCIL plant in Bhopal, India, by itself confirms that the Indian forum is overwhelmingly the most appropriate.” [Baxi & Paul (ed.), para, 4, pp.30]

On the other hand, it argued that: “It would surely be unfair to apply ingrained American approaches to liability or damages to US corporations owning stock in foreign companies which are not applicable to all companies operating in that foreign jurisdiction.” [Baxi & Paul (ed.), para, 2, p.31]

In other words, as far as the determination of damages for victims was concerned, the UCC wanted an inferior set of standards to be applied to victims in Third World countries unlike those applicable to victims in the US!

As far as the determination of liability was concerned, the UCC wanted the same set of standards to be applied to multinational companies as was applicable to local companies in the Third World, where safety standards were ill-defined or non-existent!

No wonder, the UCC found the courts in India a very convenient forum!

On December 6, 1985, the plaintiffs’ executive committee filed a memorandum in opposition to UCC’s motion of forum non conveniens, to dismiss the consolidated complaints.  Their argument was that forum non conveniens was actually a doctrine intended to serve the ends of justice.

Therefore, according to them, “Justice also mandates the resolution of this litigation in the United States because the material qualitative evidentiary facts at the heart of the liability issues can be discovered only in this country, where the seeds of the Bhopal tragedy lie.”

They further added that: “Although the ultimate horrors of the Bhopal gas leak unfolded in India, the disaster is an American tragedy.” [Baxi & Paul (ed.), paras 2-3, p.61]

In other words, as far as the determination of damages for victims was concerned, the UCC wanted an inferior set of standards to be applied to victims in Third World countries unlike those applicable to victims in the US!

Subsequently, some legal experts too filed affidavits both for and against UCC’s memorandum on the issue of forum non conveniens. On one hand, Prof. Marc Galanter, professor of law and South Asian studies at the University of Wisconsin (US), filed an affidavit on December 5, 1985 to oppose UCC’s motion. On the other hand, J.B. Dadachanji and Nani Palkhivala, leading corporate lawyers from India, filed affidavits, dated December 14 and 18, 1985 respectively, in support of UCC’s motion.

In the process, Palkhivala, in particular, demeaned himself with his slanderous insinuation that the decision of the Union of India and others to file complaints in the US amounted to “forum shopping” as a means “of virtually getting American aid thinly disguised as ‘damages’.” [Baxi & Paul (May 1986), para 2, p.229]

In fact, quite contrary to Palkhivala’s contention, it would be evident from his own words that it was the UCC that was “forum shopping”! According to Palkhivala: “[I]f the Bhopal cases are tried in India, the quantum of damages to be awarded to claimants would be under the same law which is applicable to all other cases of similar tort, irrespective of the nationality or residence of the corporation sued.” [Baxi & Paul (May 1986), para 1, p.229]

Therefore, it is amply clear that Palkhivala had waxed eloquent about India being the most appropriate forum to try the Bhopal cases precisely because he was confident that under the existing circumstance, it was ideally suited to serve the best interests of the UCC!

Meanwhile, the decision of the Union of India to file the complaint in the US generated a lot of controversy in India. Within the Indian legal community itself, opposition to the move arose from two completely divergent sources.

Leading public interest lawyers such as Indira Jaising of the Lawyers Collective (who were then ardently supporting the cause of the victims before the Justice N.K. Singh Commission of Inquiry that was inquiring into the causes of the Bhopal disaster) were of the opinion that the proceedings should have been filed in Indian courts and that it was unbecoming of a sovereign State to seek damages against a multinational company in the US.

From a completely different perspective, leading corporate lawyers such as Nani Palkhivala (who concealed the fact that he had filed an affidavit in support of UCC’s motion to dismiss the proceedings before the US court) also tried to argue that the Indian courts were best suited to handle the Bhopal litigation.

Other legal experts such as Professor Upendra Baxi [then director (Research), Indian Law Institute, New Delhi], who too actively supported the cause of the Bhopal victims, were of the opinion that Indian law had not so far been able to develop the tort doctrine, which would be adequate to do justice to the Bhopal gas victims.

The decision of the Union of India to file the complaint in the US generated a lot of controversy in India.

In his view, the US forum was the only one adequately equipped to handle mass torts. While Prof. Baxi forcefully argued against the disingenuous arguments put forward by Palkhivala, it is possible that he may have overlooked the fact that the Bhopal case also gave the Indian judiciary an opportunity to develop the tort doctrine.

The concept of absolute multinational enterprise liability could have been developed in such a way that it would not only have benefited the Bhopal victims but would have in the long run protected the interests of all Third World countries and peoples as well.

In hindsight, it may appear that perhaps Jaising had reposed excessive faith in the Indian judicial system and that probably Prof. Baxi was right in his assessment of the inadequacy of the system to render justice to the Bhopal victims.

Nevertheless, it cannot be denied that if in India there is political will on the part of the executive, strength of character on the part of the legislature, professional commitment on the part of the judiciary, and expression of solidarity by concerned people, it is still possible to ensure that justice is not denied to the Bhopal victims.