Galanter-Laws+Elusive+Promise Compressed
Galanter-Laws+Elusive+Promise Compressed
Galanter-Laws+Elusive+Promise Compressed
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
Butterworths
LexisNexis^"'
:20o 2^
Chapter 9
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: [email protected].
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
173
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).
174
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.
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).
176
177
178
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.
179
Second, was the Supreme Court's bold intervention in the Sriram gas leak in
New Delhi just a year after Bhopal."*^
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.
180
181
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
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).
183
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