ALOK PRASANNA writes from Bangalore (part two of a series on the Bhopal gas tragedy): Remember the stand taken by the Indian Government before the New York district court regarding the inefficiency and incompetence of Indian Courts and legal system?Remember all those esteemed professors of law and legal mavens filing lengthy affidavits detailing the faults and flaws of the Indian legal system and judiciary?

Guess what, it was all true. There was no way in hell that the victims of Bhopal would have seen a single rupee of compensation had the case gone to trial in India.

The reasons are manifold, ranging from the inadequacy of the law to the incompetence of the lawyers.

For a start, there was no statute mandating that UCIL (or UCC for that matter) was required to pay compensation to victims. The only relief would be dependent on a fuzzy body of “tort law” or English-judge-made-law regarding negligence, more suited to 17th and 18th century England than 20th century India.

Indeed, many in England had called for reform and specific statutes imposing liability on companies because of the inadequacy of tort law, but no such effort had been seriously made in India before the 1980s. Under tort law, in order to make a valid claim for compensation, it would have been necessary to prove that UCIL and UCC acted negligently, and show the exact nature and extent of damage to receive adequate compensation.

Practical problems would pose more obstacles in this effort. The “evidence” of negligence by workers is usually easy enough to prove. They had a duty to do x-y-z and since they didn’t do so, the gas leaked and so on, but it was a huge problem to show that failure to do x-y-z was the result of what the management of UCIL and UCC wanted, i.e. to maintain profit margins. While UCIL could have been made liable for the fault of its workers under Indian law, UCC proved a bigger problem.

The corporate veil covering UCIL would prove to be an iron curtain that protected UCC. Nothing in Indian law made UCC directly liable, and if the law was changed just for the facts of this case, American courts would refuse to enforce the award on the ground that UCC had been denied due protection of laws. As UCC had very few assets in India itself, enforcement of the award would have to be done with the help of American authorities, in accordance with provisions of American law.

Even if it was somehow shown that UCC was responsible under existing Indian law, making an award that would meet the needs of the victims would have been simply impossible. It was estimated that in order to fully process the claims of all the victims and take evidence in a Court, it would require every single district judge in India working for a few years before the evidence was fully taken. Simply handing out an arbitrary figure without taking the evidence into account would also be unenforceable in American Courts.

So, do victims of mass disasters have no remedy or relief? Not really. Lawyers in the US and elsewhere had been developing this field of “mass torts” for some years and had mastered the skill of getting relief for their victims quickly without engaging in protracted litigation. Those who have read “The King of Torts” and other John Grisham books would have some idea of how this works and what are the advantages and pitfalls of this technique. Indian lawyers had no clue what was going on.

Indian lawyers stood exposed in the Bhopal tragedy. With little or no specialization in the various fields of law, the bewildering complexity of the problem and multi-disciplinary approach it needed completely befuddled Indian lawyers. Long used to adversarial, lengthy proceedings before courts, the legal fraternity had no answer to the kind of problems the Bhopal tragedy failed. While judges did try to solve the problem with a proactive approach towards interim relief and a bit of legal creativity, they were about as effective as Band Aids on a compound fracture.

All of the above would have ensured that had the case gone to trial in India, there would be no chance of relief for the victims, at least not in the lifetime of the survivors or the immediate kith and kin of the deceased.

All of this is past history you may think. After all it has been more than two decades since and at least knee jerk reactions would have amounted to some sort of a reform in the system, right? I mean if Bhopal had happened now it would be different right?

Wrong.

It is a standard question in the first year tort law exam, and every year, for the last decade, the answer is the same.
UCC will not be made liable.

Warren Anderson will not be prosecuted in India, or even extradited to India.

Compensation for victims will take ages.

Half the money will be spent on middlemen who would all take their “share”.

The government, most likely, will bungle, again.

Some changes have been made, in that it is easier to get compensation from say, UCIL, or ensure that the government provides immediate monetary relief to affected victims if the tragedy were repeated. There are also more safety requirements that, to some extent, could ensure that the chances of a large scale tragedy like Bhopal would are reduced. However, with lax enforcement, understaffing and corruption among the enforcing authorities, a disaster like Bhopal is waiting to happen.

It is easy to see Bhopal as a fight between third world victims and MNCs and believe that somehow keeping out MNCs will make us all safer. That is only a small part of the truth. Bhopal is what happens when a moth eaten, inefficient and incompetent legal system (lawyers, judges and law makers included) combines with a corrupt and bungling administration to endanger lives of citizens and deny the rightful claims of victims.

The truth is, we are all living in Bhopal.

Read the first part here: How the Rajiv government screwed up on Bhopal