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Manufactured Silence

Political Economy and Management of the 1984 Bhopal Disaster

Adam B Lerner (abl33@cam.ac.uk) is a PhD candidate at St John’s College, University of Cambridge.

Scholarship on the 1984 Bhopal gas tragedy tends to treat the Indian judiciary as the site where political, social and legal forces converged to betray survivors seeking redress. But before this judicial failure, Prime Minister Rajiv Gandhi had already politicised the disaster to protect his economic modernisation programme. Recognising the threat the Bhopal tragedy posed to the ideology behind this agenda, Rajiv Gandhi and his advisers pursued multiple strategies to suppress the gas leak’s resonance in larger political debates. This laid the groundwork for the courts’ later miscarriage of justice and helped shape the disaster’s subsequent place in Indian economic history.

The author would like to extend his sincerest gratitude to Shailaja Fennell, Satinath Sarangi, Rachna Dhingra, Devendra Panchal, Upendra Baxi, Joya Chatterji, and Satbir Bedi for their helpful comments and support in writing this article. Research for this article was supported by St John’s College, University of Cambridge, via the Tutors’ Praeter Fund and the Leathersellers’ Company Grant. Additional support was provided by the Sambhavna Trust Library and Documentation Centre in Bhopal.

Scholarly work on the Bhopal disaster almost always ­begins by calling it the worst industrial accident in ­human history. This statement is terribly insufficient, as it glosses over the significant neglect that led to the leak of the methyl isocyanate (MIC) gas, and diminishes the extent to which its roots were embedded in decades of Indian political and economic history. Further, as Upendra Baxi notes, writing about such an enormous catastrophe often devolves into a form of epistemic violence when it fails to understand the multiple, highly individualised forms of trauma which emerge from ­catastrophe or to acknowledge survivors’ significant agency in shaping its aftermath (2010: 23).

What is undisputed is that, on the night of 2–3 December 1984, a cloud of MIC gas drifted from the multinational corporation Union Carbide Corporation’s (UCC) pesticide plant in northern Bhopal southwards, into the adjacent bastis and eventually across much of the Old City (Lapierre and Moro 2003: part III). The number killed that night ­remains largely unknown; a municipal waste truck driver ­recalled, to the International Campaign for Justice in Bhopal, that, in the days following the disaster, he and his colleagues either cremated or dumped dozens of truckloads each with approximately hundred corpses from around the city into the nearby Narmada river. Relying on similar accounts and other data, the non-governmental organisation (NGO) conservatively estimates a death toll, in the week following the disaster, of 8,000. Amnesty International (2004), likewise, has estimated that between 7,000 and 10,000 died in the leak’s immediate aftermath, with at least 15,000 more peri­shing due to lingering effects and the city’s continued contamination. While both estimates are plausible, in many ways the “numbers game” only serves to obfuscate a key facet of the ongoing disaster. This poor documentation was in many ways deliberate and has led not only to inadequate compensation and rehabilitation, but also the disaster’s murky place in Indian public consciousness.

Themistocles D’Silva (2006) has demonstrated that UCC’s ­Indian subsidiary Union Carbide India Limited (UCIL) operated very much under the auspices of India’s central government. In 1956, as UCC sought to expand its Indian operations to plastics and other chemicals, the Government of India (GoI) insisted it partially divest from its subsidiary and thus the company sold 40% of its equity to central government-run institutions. In the 1960s, as the government launched “Green Revolution” policies encouraging increased foodgrain production, it began to rely on UCIL for its parent company’s pesticide Sevin, an ­alternative to the more commonly-used pesticide, DDT. The government estimated that domestic demand for Sevin would reach 5,900 million tonnes (mt) annually by 1974 with increased agricultural production and thus, in December 1960, granted UCIL a licence to import the pesticide from its parent company in the United States (US). In 1966, due to the foreign exchange issues inherent in such a massive import scheme, the government granted UCIL a licence to manufacture 5,000 mt of Sevin per year in India. UCIL began producing the pesticide in 1967 at a plant in Trombay, Maharashtra, but moved production to Bhopal in 1969, where it was granted numerous tax breaks due to the region’s classification as economically underdeveloped.

As the GoI’s Foreign Exchange Regulation Act (FERA) regime tightened in the early 1970s, foreign companies began to leave India—their number dwindled from 540 in 1973 to 315 in 1980 with Indian subsidiaries declining from 188 to 118 (Martinussen 1988: 158). The government, though, permitted UCC an exception to rules that barred any foreign company owning more than 40% of its subsidiary, because it imported advanced technology and ­exported a sufficient portion of its production. In 1977–78, UCC did reduce its stake in UCIL to 50.9%, selling an even larger stake to other government-controlled entities.

In the intervening years, the Indian government further approved UCIL’s plans to shift production to the more efficient (but more dangerous) process that involved producing and storing large quantities of MIC, which UCC employed at its plant in West Virginia. But the plant in India did not incorporate all the automated safety features UCC employed at home, opting instead for more labour-intensive safety measures, which were susceptible to human error (D’Silva 2006). Storage of such large quantities of MIC in a populous urban area alarmed many residents—one expert compared the stock to “an atomic bomb” adjacent to the city (Lapierre and Moro 2003: 65). But UCIL retained its licence and sanction from both the state and central governments, even after toxic fumes killed a plant employee in 1981. And unable to find ­sufficient demand in India for its high production capacity, UCIL began to cut costs further around that time.

1 Political Economy and the Fallout

Though it would be an overstatement to suggest that the GoI was somehow directly responsible for the leak, to date academic literature has largely neglected its partial ownership of UCIL and the political, economic and moral implications of this entanglement. Further, and perhaps more importantly, the literature almost entirely neglects the extent to which political economy both shaped UCIL’s operations in India and its response to the leak. This absence reflects the ­siloed and relatively underdeveloped literature on the disaster’s politics. Thus far, two notable streams of scholarship have dealt with the disaster’s politics in varying capacities. First, sociological scholarship has analysed local political activism among survivors in the face of injustice (see, for example, Baxi 2000; Fortun 2001; Mukherjee 2010; Zavestoski 2009). Second, legal scholarship has reflected on how political considerations ­derailed the ­Indian judiciary and led to the injustice of the 1989 settlement (see, for example, Baxi 2010; Baxi and Indian Law Institute 1986; Cassels 1993; Galanter 1985, 1986). While both streams are valuable, neither has dealt sufficiently with the political economy of disaster management and how this shaped circumstances on the ground and in the courtroom.

The works that have commented on Bhopal’s relevance in national politics (for example, Gonsalves 2010; Rajagopal 1987; Rajan 2002; Rosencranz et al 1994) have tended to reflect far more on its resonance in broader political economic debates, rather than how political economic considerations actually shaped its fallout. This addition would not only help integrate the disaster into the period’s economic history, but would also provide a basis for connecting these literatures. Further, it would help remedy a notable flaw in much of the literature on post-Bhopal litigation: the lack of adequate explanation for why the GoI ultimately settled for such a meagre sum. Baxi (2016) has argued that in the year or two following the disaster, the government’s legal strategy first demonstrated a commitment to Bhopal survivors, but that it later abandoned this commitment and caved in to an unjust settlement. In this article, though, I will demonstrate that any temporary signs of the government’s commitment to justice should be viewed as suspect, as its handling of the disaster’s immediate fallout demonstrated clearly that it was reluctant to pursue a legal strategy that detracted from efforts to minimise the disaster’s political resonance.

Upon rising to power, Rajiv Gandhi and his new generation of Congress leaders aspired to pursue an ambitious modernisation programme, consisting of both economic liberalisation and technocratic centralisation of power. But despite winning a tremendous parliamentary majority, their mandate for major reform remained fragile. The Bhopal disaster represented a true political threat to those aims, as it served as a horrific ­example of the risks inherent in their economic vision. Thus, the government initially sought to contain the leak’s scope in the public imagination, funnelling potential proliferations into the bureaucracy, where they could be suppressed, and underplaying the disaster’s resonance publicly by treating it as anomalous or accidental. By the time survivors had the space to organise, and the legal battle over compensation began ­after the passage of the 1985 Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (henceforth, Bhopal Act) the government had already secured ultimate control over the disaster’s fallout. In these first four months, as the city of Bhopal was still reeling, the GoI laid the groundwork for the multiple, proliferating injustices that followed.

2 Rajiv Gandhi’s Modernisation Programme

Considering Wittgenstein’s maxim that “modernity can be shown but not easily be talked about,” as well as the divergent meanings ascribed to the term even in the limited context of independent India’s developmental history, Rajiv Gandhi’s ­invocation of tropes of modernity in reference to his political and economic programmes warrants further investigation (quote paraphrased in Gupta 2000: 85). Noting that Gandhi’s tremendous initial popularity upon taking office in October had some roots in the sympathy following his mother’s ­assassination, Harold Gould (1986: 633) adds that his tremendous victory in the December 1984 elections was “more than just an emotional outburst.” Rajiv Gandhi portrayed himself as a “no-nonsense chief executive,” surrounded by quintessentially modern, technocratic advisers. All were relatively new to the system and thus, in theory, uncorrupted (hence supporters’ nickname for Rajiv Gandhi, “Mr Clean”). Whereas Nehru had invoked the language of modernity, both in his state-led industrialisation efforts and in his advocacy of a democratic nation state based on compromise between India’s diverse constituencies,1 Rajiv Gandhi’s initial rhetoric of modernity—embodied by his pledge to take “India into the 21st century”—revolved around the pursuit of efficiency in governance and economic progress (Patel 1987). Though he inherited from his mother an already highly-centralised state apparatus that had begun liberalising reforms, Gandhi further centralised decision-making during his initial months in office and declared his ­intentions to go well beyond the limited liberalising measures of the previous years (Gould 1986; Kohli 2000, 2006). Notably, in November 1984, during his first major address after his mother’s assassination, Gandhi neglected to mention the raging anti-Sikh violence her assassination by Sikh bodyguards had caused, but instead emphasised that his government would underline “innovation, transformation and modernisation to meet the demands of the 21st century” (Times of India News Service 1984a).

Significant debate persists over how successful Gandhi ultimately was in achieving economic progress based on liberalising reforms,2 and Atul Kohli has demonstrated that political circumstances forced Gandhi to abandon much of his most ambitious proposals after only a year or so in office (Kohli 2000, 2006). But in December 1984, as MIC gas leaked out of UCIL’s tanks in Bhopal and contaminated the city around it, Gandhi was still riding a tremendous and multifaceted wave of support for a “modernisation” programme that, in his and many elite analysts’ opinion, extended to the dismantling of significant controls on the economy (Patel 1987). The tension between efforts to lessen government control over the economy and allow more imports and foreign capital, while simultaneously centralising decision-making in what J Bradford DeLong (2003) has called “close to an elected dictatorship” should be abundantly clear. I G Patel (1987: 211) has described this sort of tension as a “typically … Indian … refusal to choose between desirable things”—a desire to reap the economic benefits of competition without necessarily subjecting established interests (including governmental ones) to the loss of power inherent in this dynamism. Thus, it should come as no surprise that Gandhi’s economic liberalisation programme dissolved into a “pro-business” strategy, promoting the power of incumbent market heavyweights, rather than pro-market, pro-competition, or even pro-growth (Kohli 2006).

The Bhopal disaster, which came during the most ambitious early phase of Gandhi’s economic reform programme, laid bare this tension precisely. An entrenched market player with ties to local and national political figures and an advanced, proprietary chemical technology vital to a past modernisation effort, exhibited undisputable negligence that led to disaster. The event demonstrated clearly the risks inherent in unaccountable, large foreign businesses making decisions without public actors forcing them to consider human costs. Veena Das (2004: 142) has noted that, because of the disaster’s scope, the public immediately interpreted it as a “collective disaster” that “directly involved the scientific, legal and administrative structures of modern society” and therefore implicated the ­vision Gandhi was endeavouring to pursue. In this context, he and his allies immediately understood that their job was not to reduce public risk, which would almost certainly have the effect of deterring investment, but to acclimate the public to the risks of private sector-led modernisation and centralised, elite-led government.3 Das (2004: 137) has written that the Bhopal disaster, as a challenge to this vision, required Gandhi and his allies to construct a “theodicy, comparable to that of a religion, which protect[ed] the legitimacy of the state in the face of suffering and evil.” As I will demonstrate, this theodicy—which defended not only the state’s legitimacy, but also Gandhi’s tenuous, multifaceted vision of modernisation—proved vital in preventing populist, anti-liberalisation outrage over the disaster. Ultimately, the government constructed a narrative about Bhopal as an anomalous accident, downplaying its extent in the public’s eyes for political gain while seizing control of its ramifications for the bureaucracy.

3 Information Management and the General Elections

In comparing first-hand accounts of the desperation that followed the 2–3 December gas leak and the GoI’s cautious response, a palpable dissonance emerges. T R Chouhan (Chouhan et al 1994: 40), a former MIC plant operator for UCIL in Bhopal, recalls in a memoir waking up to white gas flooding his house and the sounds of stampedes escaping the cloud. But even hours after he had reached safety, Chouhan recalls a pervading confusion, with information on what had happened available only via rumour. “[G]overnment officials and Union Carbide were already ­behaving as though they were more interested in covering up the disaster than saving lives,” he concludes, pointing to the lack of information and the fact that local officials did not evacuate many residents who could have escaped the cloud’s drift. In the days following the leak, he adds, UCIL officials mendaciously insisted that MIC “was like tear gas, caused only temporary injury and could be treated with oxygen, antacids and by flushing the eyes out with water,” despite the plant manual’s clarity on its lethality. For days afterwards, no ­government officials challenged them, despite MIC’s obvious result: human and animal corpses strewn across Bhopal.

A leading activist, quoted by Chouhan (in Chouhan et al 1994: 9, 39–41), described a “manufactured silence” on the part of UCIL and government officials—a statement which, in retrospect, doubles as a metaphor for the leak’s macabre effects. Legal scholar Jamie Cassels (1993: 119–21) has similarly referred to the GoI’s “bureaucratisation of justice” in disaster management—an effort to funnel public outrage that could reflect poorly on larger government conduct and ideology into a government-controlled legal process intent on suppressing and ­silencing it. This strategy, which became clear in the days following the leak, served two purposes: first, it allowed government leaders to filter information before it reached the public, and second, it immunised the GoI and its state subsidiary from blame by making them intermediaries between victims and justice. Ultimately, this approach allowed the government to dismiss the disaster as anomalous and prevent its resonance in economic policymaking.

Anees Chishti (1986), a freelance journalist reporting on the disaster, kept a diary of the fallout that reveals not only the extent of the government-constructed information firewall, but also the central government’s efforts to seize control of disaster management from the Congress-led state government in Madhya Pradesh. Immediately following the chaos, survivors began directing their outrage at the state’s Congress party and its Chief Minister, Arjun Singh, who reputedly had close ties with UCIL.4 UCIL had donated large sums to the chief minister’s family foundation and many Bhopalis heard reports that Singh had a suite reserved at the company’s lavish guest house for weekend sojourns (Rajagopal 1987: 139). Rajiv Gandhi, who flew to Bhopal on 4 December for a 90-minute tour of the affected areas, seemed acutely aware that negative perceptions of the state Congress party and its leader would reflect poorly on the Congress party at the national level before that month’s Lok Sabha elections. After the tour, at a press conference at Bhopal airport, Gandhi refused to comment on any possible state government liability, cited a fallacious death toll of “a little over five hundred,” and falsely assured reporters that the city’s medical facilities had sufficient supplies to treat the enormous number of victims. Before returning to campaigning, Gandhi said his upcoming two-day campaign tour of Madhya Pradesh would remain unchanged (Chishti 1986: 31–32).

In the days following Rajiv Gandhi’s departure, Singh lied to reporters about prior investigations of safety lapses, refused to say whether he would shutter the plant and ­neglected to mention that, in a ploy to garner electoral support, his government had issued pattas to residents of adjacent bastis in dangerous proximity of the gas. The central government’s Minister of Chemicals and Fertilisers Vasant Sathe likewise falsely told the media that the central government would not have approved the plant’s construction had any settlements been nearby at the time—a risible statement considering the plant was less than two kilometres from the city’s historic centre. After days of witnessing politicians baselessly assure citizens that the air and their food supply was safe for them, Chishti wrote that Arjun Singh’s evasive answers were “disgusting” and ultimately referred to press relations as a “Theatre of the Absurd” (1986: 40, 42). At no point in Chishti’s recounting of the disaster’s immediate wake, however, does the GoI’s ownership stake in UCIL appear, an absence representative of other journalistic accounts I have consulted.

While some of these government officials’ misinformation and evasion can certainly be attributed to the chaos of the ­moment, another substantial portion must certainly be attributed to a managed campaign based on economic ideology. Considering the upcoming national elections, approximately three weeks away, in which Rajiv Gandhi hoped to secure a commanding majority and, in his eyes, mandate for reform, these efforts proved especially vital. Then the Finance Minister Pranab Mukherjee, in his 2016 memoirs, wrote that in the days following the disaster, he returned to Delhi for a meeting of the Cabinet Committee on Political Affairs, which included the Prime Minister, Chief Minister Arjun Singh, and Vasant Sathe. In the meeting, Sathe expressed his support for nationalising UCIL, a strategy that would prevent UCIL from spreading further misinformation and would likely prove popular with outraged Bhopalis. But Mukherjee (2016: 86–87) dissented, saying:

Union Carbide is a big multinational. Nationalising it would be compared with the nationalisation of Coca-Cola and seen as a big mistake. Nationalisation will discourage future investments in India. As finance minister, I have tried to woo foreign investors, NRIs, etc. This will be a huge setback … The Congress will win this election hands down. Why vitiate the process? This will give a great handle to the ­opposition.

As per this account, the Prime Minister was instantly persuaded and this viewpoint shaped the government’s policy moving forward.

4 Political Economic Considerations

Mukherjee’s statement is striking not solely because it represents a clear admission of allowing political economic considerations to shape the government’s response. His passive voice—employed in describing nationalisation as a “big mistake”—as well as the reference to the “nationalisation” of ­Coca-Cola reveal a great deal about whom he saw as the chief constituencies to which the government must appeal.5 Those appraising nationalisations and deeming them “mistakes” likely would not have been the general public. Under Indira Gandhi, the nationalisation of India’s entire banking industry—a sector which had not created nearly the palpable suffering that UCIL’s plant did—became a populist rallying-cry that helped her secure a commanding majority in the 1971 general elections (Torri 1975). Instead, implicit in Mukherjee’s quote is that the foreign investors he needed to “woo” would be those most likely to deem nationalisation of UCIL a “big mistake.” The extent to which a few top government ministers made such a sweeping decision without consulting the rest of their party or any representatives of those affected sheds tremendous insight into their modernisation programme—a judicious combination of centralisation of decision-making and economic liberalisation.

And, sure enough, the government’s Congress leadership was able to suppress outrage over the disaster from even ­remotely affecting the national elections. A S Abraham (1984) wrote that month in the Times of India that, with the disaster, opposition parties had missed a “splendid opportunity … to put the ruling party on the dock” and the Congress in its stronghold of Madhya Pradesh over a national campaign based on platitudes and sympathy for Indira Gandhi’s assassination, rather than substantive issues. Despite the fact that national opposition leaders such as Charan Singh and Chandra Shekhar demanded the arrest of Congress leaders in Delhi and ­Bhopal, according to political reporter Inder Malhotra (1984) and long-time Bhopal-based activist Satinath Sarangi, Bhopalis and the larger public remained unconvinced that Rajiv Gandhi or his government were at fault. Though one survivors’ group did initiate a symbolic boycott of local Lok Sabha elections, which had been postponed until early 1985, this did not prevent the local Congress Member of Parliament (MP) from being re-elected and adding to Rajiv Gandhi’s already historic majority.6 The Congress party ended up winning 404 of 514 available seats—a landslide that virtually guaranteed Rajiv Gandhi a full five years of one-party rule (Manor 1985). By any stretch of imagination, this Congress-led effort to prevent public outrage in Bhopal’s immediate wake from affecting the national election or sparking a debate over economic policy proved a tremendous success.

5 The People vs Warren Anderson

Less than a week after the disaster, on 7 December 1984, Warren Anderson, the chief executive officer (CEO) of UCC, travelled from the US to Bhopal. Upon landing, Madhya Pradesh state police officers arrested him and two top company officials for their role in the disaster. The three were detained at UCIL’s guest house, but Anderson was mysteriously released six hours later and flown back to Delhi in a government aircraft. After a brief stop in the capital, he returned to the US before public outrage over his release could mount, never to set foot on Indian soil again. In the years before his death in 2014, multiple Indian courts requested his extradition from the US and labelled him a fugitive (Hanna et al 2005; Martin 2014; Times of India News Service 1984b, 1984c).

Much of the academic literature analysing this saga has ­debated the legal and ethical merits of holding a CEO criminally liable for a subsidiary’s accident (see, for example, ­Anderson 1993; Ladd 1991). Mass media coverage, by contrast, has tended to harp on developments in Anderson’s case and his absconding from justice as concrete examples of the lingering injustice that continues to motivate survivors’ groups. Though activists to this day burn effigies of Anderson on the Bhopal’s streets, the Times of India’s editorial board expressed ­another commonly-held opinion that the brief arrest was an “inexcusable bungle” (Abraham 1984), since the state had no indication of ­mens rea, or a “guilty mind” in the negligence which led to the plant’s dangerous state. I have neither the space nor expertise to opine on the merits of these debates here. But regardless, in reconstructing the circumstances of Anderson’s arrest and ­release, it becomes clear that the central government in many ways interpreted the Madhya Pradesh state government’s ­actions through the lens of their economic consequences, as any targeting of Anderson individually could scare away foreign investors afraid of being scapegoated by the Indian government in the event of an accident. Thus, the central government seized control of Anderson’s case and helped him leave India to prevent any spillover into the political economic arena.

The best approximation possible of what happened following Anderson’s landing in Bhopal comes from comparing the accounts of the various actors involved. Arjun Singh writes in his memoir (Singh and Chopra 2012: 177) that hearing of ­Anderson’s planned visit provoked a sense of “outrage” in him and that he personally directed his state police to arrest the CEO upon landing. Afterwards, Singh left Bhopal to join Rajiv Gandhi on the campaign trail, where, he writes, he told Gandhi about the arrest and that Rajiv Gandhi had “no comment”.Later, during his campaign tour with the Prime Minister, Singh writes that he received a message from Brahma Swaroop, Chief Secretary of Madhya Pradesh, who had received orders from the then Home Minister P V Narasimha Rao to release Anderson on bail and take him back to Delhi on “a state plane.” Singh explicitly notes that he did not receive any direct orders from Rajiv Gandhi, but he insinuates that Rao’s orders came from the highest levels of government (Singh and Chopra 2012: 179). Previously top-secret Central Intelligence Agency (CIA) documents obtained via request under the Freedom of Information Act (FOIA) have corroborated this account of government leadership—including perhaps the Prime Minister himself—ordering Anderson’s ­release. American agents contended that Singh scapegoated Anderson simply to score “political points” (CIA 1984). The opinion expressed by the Americans is debatable, as the government’s order for Anderson’s release before a court could rule on the case’s merits was also clearly political. Gandhi was planning to reset relations with the US government at the time (Badhwar and Trehan 2013) and to pursue an economic agenda whose success depended on foreign investors and companies investing in India without fear. Arresting Anderson, a powerful CEO of a large global company, and holding him in an Indian jail would almost certainly have disrupted these plans.

Further, the GoI’s efforts to work with Anderson and UCC well before criminal investigations revealed his company’s complicity in the disaster reflects its desire to keep the case from setting precedents that would scare away other foreign investors. According to newspaper reports from the time, before returning home, Anderson discreetly met with Foreign Secretary M K Rasgotra in Delhi to discuss preliminary compensation and the need for a verification of the death toll (“State Seeks Legal View on Compensations” 1984). Right to information requests initiated by Bhopal survivors’ groups have further indicated that Anderson was already negotiating a settlement with the Ministry of Chemicals and Fertilisers, through his company’s Vice President Rolf Towe, by February of the following year, before the Indian government had even seized control of all litigation regarding the disaster via the Bhopal Act.7 Whether these criminal allegations were substantive or not, the government’s efforts to reach a settlement on behalf of survivors with a fugitive from the ­Indian justice system, speaks volumes of the government’s centralised, pro-business plans.

6 Politics of the 1985 Bhopal Act

During the months after the national election, Rajiv Gandhi rarely discussed the Bhopal disaster publicly or its possible economic consequences, despite daily reports on it that peppered Indian media. When Gandhi first did mention the ­Bhopal disaster in a speech in the Lok Sabha on 22 January 1985, the importance he gave it paled in comparison with his ­emphasis on the “future” and pushing the nation’s industry “to keep up with industry in the rest of the world.” He mentioned the tragedy only in the limited context of environmental concerns, saying,

We have plans for cleaning up the air and the water in our country. We have had the recent tragic accident in Bhopal where many people died and many more were injured or are maimed … we are looking at how we can stop any factories polluting our rivers and our air.

He then moved to discussing a clean-up of the River Ganga, an issue with arguably more communal resonance than environmental (Gandhi 1987, Vol I: 15, 19, 20). This context, as well as the description “accident,” clearly diminishes Bhopal’s resonance as a metonym for broader issues that could threaten Gandhi’s centralisation of power or plans for economic ­liberalisation.

But the clearest efforts to achieve these goals were found in the March 1985 passage of the Bhopal Act, which deserves analysis not just on its legal merits and practical outcomes, but also as a reflection of government ideology. The act invoked the legal doctrine of ­parens patriae—by which the sovereign assumes legal responsibility for citizens unable to protect themselves—to grant the government the exclusive right to file all claims emerging from the Bhopal disaster. In doing so, it nullified the numerous, and oftentimes conflicting suits already filed in India and the US by survivors and the Madhya Pradesh government, and centralised power over the disaster’s legal fallout in the hands of the Prime Minister and his inner circle. Further, it included a compensation disbursement scheme so that the GoI could manage any funds obtained via its suit. Though, the law instructed government officials to have “due regard” for any “matters” which victims could bring up through their own, privately-purchased legal counsel, it did not elaborate where survivors should direct their concerns or how exactly the government would incorporate these victims’ complaints. Further, the law did not specify a mechanism through which they could air grievances with the rigid bureaucratic system established by the associated disbursement scheme (“Bhopal Gas Leak Disaster [Processing of Claims] Act, 1985” 1986). This blatant disregard for the survivors’ legal rights, as well as the rhetoric employed by Congress politicians in advocating its passage, were clear indicators of the government’s agenda in disaster management.

To be sure, the Bhopal Act did not appear out of thin air. The impetus for the bill was the legal chaos created by the hordes of American lawyers, who arrived in Bhopal in the days following the disaster and coerced clients into signing documents they did not understand, to grant them power of attorney (Wells 2014). By February 1985, numerous American attorneys had filed multibillion dollar suits against UCC on the behalf of survivors. An American federal judicial panel joined 145 of these and assigned them to the Southern District of New York (Muralidhar 2004). In India, rumours of these Americans’ plans to keep up to 70% of any final compensation they won on victims’ behalf sparked widespread outrage (Times of India News Service 1984d). Arjun Singh responded by announcing that his state government planned to waive all legal fees for victims seeking compensation in Indian courts and establish multiple “legal aid and guidance” camps to help victims pursue their own claims in India (Galanter 1985; “Gas Victims to Get Legal Aid” 1984). These multiple, overlapping legal avenues created what Jamie Cassels (1993: 117) describes as a reign of “confusion,” in which victims had no idea where to turn for compensation. But still, despite the confusion, a consensus emerged that whoever pursued the claims against UCC should do so in the US, both because of India’s woefully underdeveloped tort system and the US judicial system’s history of awarding large sums to victims of industrial disasters (Galanter 1985). Since most Bhopalis had little ability to pursue the case in the US or clear the legal confusion themselves, there was a widespread call for some sort of government intervention, as Satinath Sarangi recalls. For these reasons, to date Upendra Baxi (2010) still defends the act’s legal merits, though he has heavily criticised the way the GoI later ­utilised it.8

7 Bhopal Act as ‘Betrayal’

But even though many survivors supported the act in March 1985, Sarangi recognises that, in retrospect, this was a mistake. “People thought they could exercise some control over one’s own government,” unlike over foreign lawyers. But this turned out to be untrue and he and other activists have come to view the act as a “betrayal”—an example of the government unjustly seizing power for political reasons.9 Legal scholar Aparna Viswanathan (1992) has likewise argued that the government’s invocation of parens patriae represents a significant overreach. In English common law, Viswanathan adds, parens patriae is a last resort, reserved for cases in which victims are deemed unable to represent themselves (non sui juris) due to mental incapacity or because they are minors without legal guardians. Further, three additional criteria must be met for parens patriae to be invoked: there must be no alternative to the sovereign’s representation; the sovereign must have a responsibility to protect the victim; and the sovereign may not have a conflicting personal or proprietary interest in the matter. She notes that the GoI did not meet three of these four conditions, as many victims were fully capable of seeking legal redress, Indian law provided the alternative of a public interest litigation, and the government did have a conflicting pro­prietary interest, since in 1984 public companies owned 22% of UCIL. Likewise, Jamie Cassels (1993: 118–22) has written that, even though the government had good ­reason to believe that Bhopal victims did not have the resources to pursue their case in US courts, American law barred ­parens patriae in cases in which individuals were legally entitled to make individual claims on their own behalf.10 The ­Indian gov­ernment’s recourse to such a sweeping and unprecedented ­legal measure to resolve issues that could have been dealt with in a more restrained manner reflects their larger centralising ambitions.

And if the structure of the Bhopal Act leaves any doubt that the government was partially motivated by concerns about its modernisation programme, the rhetoric top Congress leaders used to defend the bill should dispel it. Take, for example, the Rajya Sabha debate on the issue on 18 March 1985. Early in the session, before even addressing the bill, a member of the Communist Party of India (CPI) probed the body’s Congress majo­rity about the circumstances surrounding Anderson’s release, but received no response from any Congress member—a clear indication of the sensitive politics of disaster management. But as conversation shifted to the Bhopal Act, the ruling Congress party justified its invocation of parens patriae using a dubious, ideologically-driven logic. The Minister of Chemicals and Fertilisers Veerendra Patil, representing the government’s position, argued that because “most of the victims of the disaster are and were poor people, it becomes the duty of both the state and central governments to see that those who have suffered in this disaster are properly rehabilitated and the families of those who have died are properly compensated” (GoI 1985). Later, he referred to foreign lawyers that signed up survivors as clients, even though they “could not read, and they might not be knowing what [the documents they signed] contained” as an indication of the victims’ legal incompetence. This argument, of course, was completely ­spurious; if extended to its logical conclusion, it would undermine the country’s entire judicial system, as a vast number of Indians were poor and illiterate and a majority had no true legal education. Further, as an opposition representative pointed out, the Indian government could not possibly be expected to file an adequate suit on survivors’ behalf that month as it did not yet have any reliable scientific data on the number of gas-affected and the extent of the damage (PTI 1985a). Despite these complaints, the bill was passed by the Congress majority, and the government took the case to the US (PTI 1985b).

While the government hoped to portray the Bhopal Act as the only viable option, this was simply not the case. Philip Knightly, for instance, argued that despite the sleazy tactics by American lawyers, survivors ought to retain their services as they offered the best means of securing a multibillion dollar sum. An explanation of the true roots of the disaster “will not come from any government-inspired inquiry in India or any locally lodged lawsuit,” Knightly wrote, likely referring to ­Indian courts’ limited ability to collect necessary materials. “[Justice] will come only from the class action launched in the US by the much-maligned American compensation lawyers” (Knightly 1985). Likewise, Marc Galanter, who has praised the Bhopal Act for linking India’s weak judicial system with the much stronger one in the US, notes the existence of alternatives.

One might imagine other possibilities for providing linkage to a strong remedy system, including multinational law firms, networks of lawyers along the lines of correspon­ding banks, international placement and matchmaking services, or such devices as trade union insistence on favourable choice of law provision. (Galanter 1986: 303–04)

The complaints about the Bhopal Act’s sweeping mandate, along with the multiple alternatives to its passage (each with varying merits or feasibility), further an impression that the GoI advocated the law partially to further its control over Bhopal litigation. The law’s outcome proved extremely ­advantageous for the government leadership, especially considering its anxiety over the disaster’s legacy challenging the modernisation agenda. First, by representing all of Bhopal’s victims, the government would not only be able to arouse sympathy from survivors by portraying itself as their champion, but also would be able to shape the plaint to keep its ramifications from threatening its modernisation agenda. Second, the law prevented any survivors from pursuing suits against the central government or the Congress-run state government, thereby preventing politically detrimental lawsuits that would expose the state party’s entanglement with UCIL or the central government’s role in facilitating the plant’s creation. Even though it clearly usurped the democratic rights of Indian citizens with specious justification, the government deemed it a worthy price to pay to suppress numerous opportunities for populist-infused revolt to challenge its agenda.

8 Conclusions

The GoI’s actions between December 1984 and March 1985 did not represent isolated bungles or even a temporary policy change. Even as politics forced Rajiv Gandhi and his allies to scale back their ambitious economic modernisation agenda (Kohli 2006), the government’s approach to the management of the Bhopal disaster continued. US courts orde­red the GoI to file its suit against UCC in Indian courts and, as the case progressed, survivors continued to await adequate compensation and rehabilitation. In 1989, much to the chagrin of survivors’ groups, the government agreed to settle—what had originally been filed as a multibillion dollar plaint—for a $470 million suit, a paltry sum considering legal precedent and the hundreds of thousands that were affected. And though, in the wake of the settlement, survivors’ groups launched valiant protests and filed multiple suits challenging the validity of the 1985 Bhopal Act and the litigation process it spawned, the Supreme Court upheld the settlement in 1991.

This settlement constituted a major violation of due process and a miscarriage of justice for numerous reasons, only a few of which I have space to enumerate. First, the government unjustly barred victims from participating in any aspect of settlement negotiations. This exclusion, which has since been ­upheld multiple times in American and Indian courts, was ­facilitated by the 1985 Bhopal Act’s vague, non-binding language on victims’ incorporation in the legal process. Second, the Supreme Court grossly underestimated the total number of victims in its calculations, including only 2,000 fatalities and 2,000 victims with “severe” injuries. Both figures contradicted existing scientific reports as well as basic logic for those involved (Baxi 2010: 24–25, 34). Third, in 1989, very little was known about the long-term effects of MIC poisoning and the expenses it would entail. Without this information, setting a fair, fixed compensation package was impossible. Finally, the court did not secure a true admission of fault from UCC or UCIL, thus entirely refusing to address the larger issue of the company’s exploitation of a developing nation’s lax regulatory power (“Planning for a National Commission on Bhopal Gas Disaster” 1991; Union Carbide Corporation v Union of India 1989).

The politics which infused the disaster response began in December 1984 and continued thereafter, setting the stage for a politicised courtroom battle and its unjust outcome. Emphasising the political economic motivations behind the government’s disaster management is important not solely because it illuminates the Bhopal disaster’s place in India’s political economic history, but also because it opens out new avenues for scholarship to explore political economy’s influence on the ­legal saga and to connect Upendra Baxi’s tremendous insight on how proceedings in Indian courts led to such a substantial miscarriage of justice with a larger understanding of the ­period’s politics. This is a vital endeavour. For too long, Bhopal has been virtually forgotten in the public imagination and left out of debates about economic development. The Bhopal ­disaster was deeply embedded in India’s economic history and its survivors deserve their story to be incorporated in relevant policy debates so that such a travesty never occurs again.

Notes

1 For more on this, see, for example, Bilgrami (1998); Khilnani (1997).

2 J Bradford DeLong (2003) has suggested that Rajiv Gandhi was able to accelerate economic growth both by passing modest reforms, but, perhaps most importantly, by ushering in a significant intellectual transition that fundamentally altered elite attitudes towards economic liberalisation and created economic optimism. Panagariya (2004) has criticised DeLong’s work for overstating what amounted to unsustainable growth based on fiscal excess.

3 On this point I am grateful to Upendra Baxi, with whom I corresponded throughout 2016 to discuss several issues relating to the Bhopal disaster.

4 Satinath Sarangi, personal communication, 30 March 2016.

5 It is worth noting that this argument is not only biased, but deceptive. The government never actually nationalised Coca-Cola. Instead, the company withdrew from India following government requests that it divulge its secret formula (Gopinath and Prasad 2012).

6 Satinath Sarangi, op cit.

7 Correspondence from B B Singh, Secretary, Ministry of Chemicals and Fertilisers, to K Parasaran (then attorney general of India), Romesh Bhandari (foreign secretary), B S Sekhon (law secretary), and S Varadarajan (secretary and director general, CSIR), dated 28 February 1985. Archived at the Sambhavna Trust Library and Documentation Centre, Bhopal.

8 Upendra Baxi, serving as an advocate on behalf of survivors’ groups, actually played a role in crafting the legislation and the government’s initial legal strategy. This does not necessarily impugn his thoughts on its validity, but is worth noting when considering his opinion.

9 Satinath Sarangi, op cit.

10 American courts never ruled on the validity of the 1985 Act’s invocation of parens patriae, since the case was sent back to India on the grounds of forum nons conveniens (inconvenient forum).

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Updated On : 9th Aug, 2017

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