Unyielding quest for justice

At 12.15 a.m. on 3 December 1984, workers at a pesticide plant in Bhopal met in the control room for their customary tea break. After some time, one of the workers noticed that pressure was beginning to build up in tank number E610, which contained a chemical called methyl isocyanate (MIC). Soon, a 'torrent of heated gas' started being released into the air. Between 12.30 a.m. and 2 a.m., the entire contents of that tank were emptied out into the atmosphere. The effect on the population was catastrophic. Some 375 were reported dead and 20,000 had to be treated at various hospitals. The death toll later went up to 3,828, making this the 'world's worst industrial disaster'. Some 18,922 people suffered permanent injuries, while 1,73,382 were temporarily injured.

That night, thousands of people left their homes and thronged the streets of Bhopal, 'running, gasping for breath, unable to see' because their eyes were stinging. At the time, Deepchand Yadav, mayor of the municipal corporation of Bhopal, was sleeping at home, with his wife, his one-year-old son, and other family members. He woke up 'coughing violently'. Both his eyes were burning 'as if they [had] been exposed to chilli powder'. There was a burning sensation in his chest. He went outside and saw that people were running on the streets, in a state of shock. He saw 'dead infants being [breastfed] by dead mothers'. He took his family to a nearby village where they waited for six hours until the gas had cleared from Bhopal. His brother's pregnant wife, a healthy woman who had previously given birth to a daughter and son, suffered a miscarriage—aside-effect of exposure to the gas. He and other victims, those who had survived the gas leak, suffered from symptoms like burning and watery eyes, a burning sensation in the chest, loss of memory and exhaustion. In the coming days, thousands fled Bhopal despite assurances from the government that it was now safe to return.

The chemical plant at which the disaster occurred belonged to a company called Union Carbide India Ltd., a subsidiary of an American company, Union Carbide Corporation. In the years leading up to the tragedy, a series of accidents had taken place at the plant in Bhopal in which its workers had been either killed or injured. The chairman of the American company, W.M. Anderson, was soon arrested on his arrival in India, but was released on bail shortly thereafter. He left for the US, never to face trial in an Indian court again.

Ambulance-chasing American lawyers descended on Bhopal and soon, dozens of law suits were filed across the US seeking billions of dollars in damages against Union Carbide Corporation in class action law suits. Most of the suits were consolidated and sent to Judge John F. Keenan, a district judge in the southern district of New York who had been appointed to his post by President Ronald Reagan around two years earlier. In the meantime, the President of India issued an ordinance giving the Indian government the exclusive right to sue on behalf of the victims of the Bhopal Gas Tragedy. The government then filed its own suit before Judge Keenan, claiming compensation in an unspecified amount for the victims of Bhopal from Union Carbide Corporation. At the time, there were already some 65 suits concerning the tragedy pending in that court.

The proceedings in the New York case started in April 1985. Union Carbide contended that the suit ought to be filed in India, not in the US. Expert witnesses then submitted evidence before Judge Keenan on the condition of the judicial system in India, in order to help Keenan decide whether India was an adequate forum for this dispute. On behalf of the victims, Marc Galanter, a professor of law at the University of Wisconsin, told Judge Keenan that the Indian legal profession did not 'presently possess the pool of skills, the fund of experience, or the organizational capacity' to 'effectively and efficiently' pursue 'massive and complex litigation'. On the other hand, on behalf of Union Carbide, Nani Palkhivala submitted an affidavit to Judge Keenan in which he said that Galanter's claim that the Indian bar was 'ill-equipped to deal with the Bhopal cases [was] a slanderous reflection on the legal profession in India'. He suggested that the Indian government's suit in New York was a 'thinly disguised' attempt at getting American foreign aid. He said that the Bhopal victims had claimed, in their suits, more compensation than the $9.5 billion that the US had given in aid to India over the past 35 years.

Keenan tried to get the parties to settle the suit. The Attorney General of India at the time, K. Parasaran, was also of the opinion that the government ought to negotiate a 'substantial and decent amount' from Union Carbide. In the settlement talks, Union Carbide offered a figure of $400 million. The government's American attorneys suggested that a settlement might be struck at $500 million. Eventually, no settlement materialized and Judge Keenan decided the case in favour of Union Carbide, saying that the suit ought to be filed in India.

In two articles written for the Times of India thereafter, Sorabjee, who was then a private lawyer in Delhi, praised Keenan's decision to send the case to India. Sorabjee clearly felt offended by what Galanter had written in his affidavit. 'Never has our legal system been more savagely mauled, more vilely maligned before a foreign court', he wrote. 'The most shocking part', he added, was that 'the Union of India supported these slanderous arguments, and in the process condemned the Bench and the Bar of its own country in a foreign court.' In New York, the government of India had contended that India would not be an 'adequate' forum for the case. '[W]hat was the ultimate purpose of this exercise in self-denigration? More American dollars from Union Carbide?' he asked. He felt that Keenan's decision offered India 'the opportunity to vindicate the suffering of its own people within the framework of its own legal system'.

The Indian government then filed a suit against Union Carbide, once again for an unspecified sum of money, in the district court of Bhopal. The government was very hesitant to quantify the exact claim of damages. As Attorney General K. Parasaran explained in a confidential note to the government, if the amount claimed was too small by American standards, then Union Carbide might have offered to deposit the sum in court, and people would have said that the amount claimed by the government was small either because the government was trying to favour the company or because the government was incompetent. On the other hand, if the government claimed too large a figure, that would serve as a precedent for suits to thereafter be filed against Indian public sector corporations for 'fabulous' amounts. The government finally quantified its claim at $3.1 billion. The district court then directed Union Carbide to preserve its unencumbered assets worth $3 billion until the case was finally decided by the court. Sorabjee's former chamber colleague and rival, Fali Nariman, appeared for Union Carbide before the district judge.

In the meantime, the Wall Street Journal reported that the Indian government and Union Carbide were close to settling the dispute between $500 million and $600 million. Many protested, saying that this was too small an amount. One commentator in the Times of India, for instance, wrote that a settlement of $600 million would mean that every Bhopal victim would get only around Rs 15,000.

The district judge in Bhopal, Judge Deo, delivered an interim order directing Union Carbide to pay a sum of Rs 350 crores for Bhopal victims as interim compensation. In the Madhya Pradesh High Court, Nariman argued that this interim order amounted to 'a judgment and decree without trial'. The district judge, he said, had been swayed by his emotions and was no longer impartial. The High Court reduced the figure to Rs 250 crores. The matter travelled to the Supreme Court.

Then, all of sudden, on 14 February 1989, when the Supreme Court was hearing the case regarding the interim compensation which had been awarded in the Bhopal case, the court convinced both sides to settle the dispute at $470 million (Rs 715 crores). It was the 20th day of the hearing of the case in the Supreme Court and there was hardly anyone in the Chief Justice's courtroom, apart from the Union Carbide and government lawyers, a few other lawyers and some security guards. When the court reassembled after the lunch break at 2.15 p.m., Chief Justice R.S. Pathak asked both Nariman and Parasaran whether their clients would be willing to settle the case. After some deliberations, both agreed.

(Excerpted with permission from Abhinav Chandrachud's Soli Sorabjee; published by Penguin Random House)