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Manufactured Silence
Political Economy and Management of the 1984 Bhopal Disaster

Adam B Lerner

S
Scholarship on the 1984 Bhopal gas tragedy tends to cholarly work on the Bhopal disaster almost always
treat the Indian judiciary as the site where political, social begins by calling it the worst industrial accident in
human history. This statement is terribly insufficient, as
and legal forces converged to betray survivors seeking
it glosses over the significant neglect that led to the leak of the
redress. But before this judicial failure, Prime Minister methyl isocyanate (MIC) gas, and diminishes the extent to
Rajiv Gandhi had already politicised the disaster to which its roots were embedded in decades of Indian political
protect his economic modernisation programme. and economic history. Further, as Upendra Baxi notes, writing
about such an enormous catastrophe often devolves into a
Recognising the threat the Bhopal tragedy posed to the
form of epistemic violence when it fails to understand the mul-
ideology behind this agenda, Rajiv Gandhi and his tiple, highly individualised forms of trauma which emerge
advisers pursued multiple strategies to suppress the gas from catastrophe or to acknowledge survivors significant
leaks resonance in larger political debates. This laid the agency in shaping its aftermath (2010: 23).
What is undisputed is that, on the night of 23 December
groundwork for the courts later miscarriage of justice
1984, a cloud of MIC gas drifted from the multinational corpo-
and helped shape the disasters subsequent place in ration Union Carbide Corporations (UCC) pesticide plant in
Indian economic history. 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 organ-
isation (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 leaks immediate aftermath, with at least 15,000 more
perishing due to lingering effects and the citys continued con-
tamination. 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 disasters murky place in Indian
public consciousness.
Themistocles DSilva (2006) has demonstrated that UCCs
The author would like to extend his sincerest gratitude to Shailaja Indian subsidiary Union Carbide India Limited (UCIL) operated
Fennell, Satinath Sarangi, Rachna Dhingra, Devendra Panchal, Upendra
Baxi, Joya Chatterji, and Satbir Bedi for their helpful comments and
very much under the auspices of Indias central government. In
support in writing this article. Research for this article was supported 1956, as UCC sought to expand its Indian operations to plastics
by St Johns College, University of Cambridge, via the Tutors Praeter and other chemicals, the Government of India (GoI) insisted it
Fund and the Leathersellers Company Grant. Additional support was partially divest from its subsidiary and thus the company sold
provided by the Sambhavna Trust Library and Documentation Centre 40% of its equity to central government-run institutions. In
in Bhopal.
the 1960s, as the government launched Green Revolution
Adam B Lerner (abl33@cam.ac.uk) is a PhD candidate at St Johns policies encouraging increased foodgrain production, it began
College, University of Cambridge.
to rely on UCIL for its parent companys pesticide Sevin, an
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alternative to the more commonly-used pesticide, DDT. The Indian judiciary and led to the injustice of the 1989 settlement
government estimated that domestic demand for Sevin would (see, for example, Baxi 2010; Baxi and Indian Law Institute
reach 5,900 million tonnes (mt) annually by 1974 with in- 1986; Cassels 1993; Galanter 1985, 1986). While both streams
creased agricultural production and thus, in December 1960, are valuable, neither has dealt sufficiently with the political
granted UCIL a licence to import the pesticide from its parent economy of disaster management and how this shaped cir-
company in the United States (US). In 1966, due to the foreign cumstances on the ground and in the courtroom.
exchange issues inherent in such a massive import scheme, the The works that have commented on Bhopals relevance in
government granted UCIL a licence to manufacture 5,000 mt national politics (for example, Gonsalves 2010; Rajagopal 1987;
of Sevin per year in India. UCIL began producing the pesticide Rajan 2002; Rosencranz et al 1994) have tended to reflect far
in 1967 at a plant in Trombay, Maharashtra, but moved pro- more on its resonance in broader political economic debates,
duction to Bhopal in 1969, where it was granted numerous tax rather than how political economic considerations actually
breaks due to the regions classification as economically under- shaped its fallout. This addition would not only help integrate
developed. the disaster into the periods economic history, but would also
As the GoIs Foreign Exchange Regulation Act (FERA) regime provide a basis for connecting these literatures. Further, it
tightened in the early 1970s, foreign companies began to leave would help remedy a notable flaw in much of the literature on
Indiatheir number dwindled from 540 in 1973 to 315 in 1980 post-Bhopal litigation: the lack of adequate explanation for
with Indian subsidiaries declining from 188 to 118 (Martinus- why the GoI ultimately settled for such a meagre sum. Baxi
sen 1988: 158). The government, though, permitted UCC an ex- (2016) has argued that in the year or two following the disas-
ception to rules that barred any foreign company owning more ter, the governments legal strategy first demonstrated a com-
than 40% of its subsidiary, because it imported advanced tech- mitment to Bhopal survivors, but that it later abandoned this
nology and exported a sufficient portion of its production. In commitment and caved in to an unjust settlement. In this arti-
197778, UCC did reduce its stake in UCIL to 50.9%, selling an cle, though, I will demonstrate that any temporary signs of the
even larger stake to other government-controlled entities. governments commitment to justice should be viewed as sus-
In the intervening years, the Indian government further ap- pect, as its handling of the disasters immediate fallout demon-
proved UCILs plans to shift production to the more efficient strated clearly that it was reluctant to pursue a legal strategy
(but more dangerous) process that involved producing and that detracted from efforts to minimise the disasters political
storing large quantities of MIC, which UCC employed at its resonance.
plant in West Virginia. But the plant in India did not incorpo- Upon rising to power, Rajiv Gandhi and his new generation
rate all the automated safety features UCC employed at home, of Congress leaders aspired to pursue an ambitious modernisa-
opting instead for more labour-intensive safety measures, tion programme, consisting of both economic liberalisation
which were susceptible to human error (DSilva 2006). Stor- and technocratic centralisation of power. But despite winning
age of such large quantities of MIC in a populous urban area a tremendous parliamentary majority, their mandate for major
alarmed many residentsone expert compared the stock to reform remained fragile. The Bhopal disaster represented a
an atomic bomb adjacent to the city (Lapierre and Moro true political threat to those aims, as it served as a horrific
2003: 65). But UCIL retained its licence and sanction from both example of the risks inherent in their economic vision. Thus,
the state and central governments, even after toxic fumes the government initially sought to contain the leaks scope in
killed a plant employee in 1981. And unable to find sufficient the public imagination, funnelling potential proliferations into
demand in India for its high production capacity, UCIL began the bureaucracy, where they could be suppressed, and under-
to cut costs further around that time. playing the disasters resonance publicly by treating it as
anomalous or accidental. By the time survivors had the space
1 Political Economy and the Fallout to organise, and the legal battle over compensation began
Though it would be an overstatement to suggest that the GoI after the passage of the 1985 Bhopal Gas Leak Disaster (Pro-
was somehow directly responsible for the leak, to date aca- cessing of Claims) Act, 1985 (henceforth, Bhopal Act) the gov-
demic literature has largely neglected its partial ownership of ernment had already secured ultimate control over the disas-
UCIL and the political, economic and moral implications of this ters fallout. In these first four months, as the city of Bhopal
entanglement. Further, and perhaps more importantly, the lit- was still reeling, the GoI laid the groundwork for the multiple,
erature almost entirely neglects the extent to which political proliferating injustices that followed.
economy both shaped UCILs operations in India and its re-
sponse to the leak. This absence reflects the siloed and rela- 2 Rajiv Gandhis Modernisation Programme
tively underdeveloped literature on the disasters politics. Thus Considering Wittgensteins maxim that modernity can be
far, two notable streams of scholarship have dealt with the dis- shown but not easily be talked about, as well as the divergent
asters politics in varying capacities. First, sociological scholar- meanings ascribed to the term even in the limited context of
ship has analysed local political activism among survivors in independent Indias developmental history, Rajiv Gandhis
the face of injustice (see, for example, Baxi 2000; Fortun 2001; invocation of tropes of modernity in reference to his political
Mukherjee 2010; Zavestoski 2009). Second, legal scholarship and economic programmes warrants further investigation
has reflected on how political considerations derailed the (quote paraphrased in Gupta 2000: 85). Noting that Gandhis
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tremendous initial popularity upon taking office in October ties to local and national political figures and an advanced,
had some roots in the sympathy following his mothers proprietary chemical technology vital to a past modernisation
assassination, Harold Gould (1986: 633) adds that his tremen- effort, exhibited undisputable negligence that led to disaster.
dous victory in the December 1984 elections was more than The event demonstrated clearly the risks inherent in unac-
just an emotional outburst. Rajiv Gandhi portrayed himself as countable, large foreign businesses making decisions without
a no-nonsense chief executive, surrounded by quintessen- public actors forcing them to consider human costs. Veena Das
tially modern, technocratic advisers. All were relatively new to (2004: 142) has noted that, because of the disasters scope, the
the system and thus, in theory, uncorrupted (hence support- public immediately interpreted it as a collective disaster that
ers nickname for Rajiv Gandhi, Mr Clean). Whereas Nehru directly involved the scientific, legal and administrative
had invoked the language of modernity, both in his state-led structures of modern society and therefore implicated the
industrialisation efforts and in his advocacy of a democratic vision Gandhi was endeavouring to pursue. In this context, he
nation state based on compromise between Indias diverse and his allies immediately understood that their job was not to
constituencies,1 Rajiv Gandhis initial rhetoric of modernity reduce public risk, which would almost certainly have the ef-
embodied by his pledge to take India into the 21st century fect of deterring investment, but to acclimate the public to the
revolved around the pursuit of efficiency in governance and risks of private sector-led modernisation and centralised, elite-
economic progress (Patel 1987). Though he inherited from his led government.3 Das (2004: 137) has written that the Bhopal
mother an already highly-centralised state apparatus that had disaster, as a challenge to this vision, required Gandhi and his
begun liberalising reforms, Gandhi further centralised decision- allies to construct a theodicy, comparable to that of a religion,
making during his initial months in office and declared his which protect[ed] the legitimacy of the state in the face of suf-
intentions to go well beyond the limited liberalising measures fering and evil. As I will demonstrate, this theodicywhich
of the previous years (Gould 1986; Kohli 2000, 2006). Notably, defended not only the states legitimacy, but also Gandhis ten-
in November 1984, during his first major address after his uous, multifaceted vision of modernisationproved vital in
mothers assassination, Gandhi neglected to mention the rag- preventing populist, anti-liberalisation outrage over the disas-
ing anti-Sikh violence her assassination by Sikh bodyguards ter. Ultimately, the government constructed a narrative about
had caused, but instead emphasised that his government Bhopal as an anomalous accident, downplaying its extent in
would underline innovation, transformation and modernisa- the publics eyes for political gain while seizing control of its
tion to meet the demands of the 21st century (Times of India ramifications for the bureaucracy.
News Service 1984a).
Significant debate persists over how successful Gandhi ulti- 3 Information Management and the General Elections
mately was in achieving economic progress based on liberalis- In comparing first-hand accounts of the desperation that followed
ing reforms,2 and Atul Kohli has demonstrated that political the 23 December gas leak and the GoIs cautious response, a
circumstances forced Gandhi to abandon much of his most palpable dissonance emerges. T R Chouhan (Chouhan et al
ambitious proposals after only a year or so in office (Kohli 1994: 40), a former MIC plant operator for UCIL in Bhopal,
2000, 2006). But in December 1984, as MIC gas leaked out of recalls in a memoir waking up to white gas flooding his house
UCILs tanks in Bhopal and contaminated the city around it, and the sounds of stampedes escaping the cloud. But even
Gandhi was still riding a tremendous and multifaceted wave hours after he had reached safety, Chouhan recalls a pervad-
of support for a modernisation programme that, in his and ing confusion, with information on what had happened avail-
many elite analysts opinion, extended to the dismantling of able only via rumour. [G]overnment officials and Union
significant controls on the economy (Patel 1987). The tension Carbide were already behaving as though they were more inter-
between efforts to lessen government control over the econo- ested in covering up the disaster than saving lives, he con-
my and allow more imports and foreign capital, while simulta- cludes, pointing to the lack of information and the fact that local
neously centralising decision-making in what J Bradford De- officials did not evacuate many residents who could have es-
Long (2003) has called close to an elected dictatorship caped the clouds drift. In the days following the leak, he adds,
should be abundantly clear. I G Patel (1987: 211) has described UCIL officials mendaciously insisted that MIC was like tear gas,
this sort of tension as a typically Indian refusal to caused only temporary injury and could be treated with oxy-
choose between desirable thingsa desire to reap the eco- gen, antacids and by flushing the eyes out with water, despite
nomic benefits of competition without necessarily subjecting the plant manuals clarity on its lethality. For days afterwards,
established interests (including governmental ones) to the loss no government officials challenged them, despite MICs obvi-
of power inherent in this dynamism. Thus, it should come as ous result: human and animal corpses strewn across Bhopal.
no surprise that Gandhis economic liberalisation programme A leading activist, quoted by Chouhan (in Chouhan et al
dissolved into a pro-business strategy, promoting the power 1994: 9, 3941), described a manufactured silence on the part
of incumbent market heavyweights, rather than pro-market, of UCIL and government officialsa statement which, in retro-
pro-competition, or even pro-growth (Kohli 2006). spect, doubles as a metaphor for the leaks macabre effects. Legal
The Bhopal disaster, which came during the most ambitious scholar Jamie Cassels (1993: 11921) has similarly referred to
early phase of Gandhis economic reform programme, laid the GoIs bureaucratisation of justice in disaster manage-
bare this tension precisely. An entrenched market player with mentan effort to funnel public outrage that could reflect
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poorly on larger government conduct and ideology into a gov- managed campaign based on economic ideology. Considering
ernment-controlled legal process intent on suppressing and the upcoming national elections, approximately three weeks
silencing it. This strategy, which became clear in the days fol- away, in which Rajiv Gandhi hoped to secure a commanding
lowing the leak, served two purposes: first, it allowed govern- majority and, in his eyes, mandate for reform, these efforts
ment leaders to filter information before it reached the public, proved especially vital. Then the Finance Minister Pranab
and second, it immunised the GoI and its state subsidiary from Mukherjee, in his 2016 memoirs, wrote that in the days follow-
blame by making them intermediaries between victims and ing the disaster, he returned to Delhi for a meeting of the Cabi-
justice. Ultimately, this approach allowed the government to net Committee on Political Affairs, which included the Prime
dismiss the disaster as anomalous and prevent its resonance in Minister, Chief Minister Arjun Singh, and Vasant Sathe. In the
economic policymaking. meeting, Sathe expressed his support for nationalising UCIL, a
Anees Chishti (1986), a freelance journalist reporting on the strategy that would prevent UCIL from spreading further mis-
disaster, kept a diary of the fallout that reveals not only the information and would likely prove popular with outraged
extent of the government-constructed information firewall, Bhopalis. But Mukherjee (2016: 8687) dissented, saying:
but also the central governments efforts to seize control of dis- Union Carbide is a big multinational. Nationalising it would be com-
aster management from the Congress-led state government in pared with the nationalisation of Coca-Cola and seen as a big mis-
Madhya Pradesh. Immediately following the chaos, survivors take. Nationalisation will discourage future investments in India. As
finance minister, I have tried to woo foreign investors, NRIs, etc. This
began directing their outrage at the states Congress party and will be a huge setback The Congress will win this election hands
its Chief Minister, Arjun Singh, who reputedly had close ties down. Why vitiate the process? This will give a great handle to the
with UCIL.4 UCIL had donated large sums to the chief minis- opposition.
ters family foundation and many Bhopalis heard reports that As per this account, the Prime Minister was instantly per-
Singh had a suite reserved at the companys lavish guest house suaded and this viewpoint shaped the governments policy
for weekend sojourns (Rajagopal 1987: 139). Rajiv Gandhi, moving forward.
who flew to Bhopal on 4 December for a 90-minute tour of the
affected areas, seemed acutely aware that negative percep- 4 Political Economic Considerations
tions of the state Congress party and its leader would reflect Mukherjees statement is striking not solely because it repre-
poorly on the Congress party at the national level before that sents a clear admission of allowing political economic consid-
months Lok Sabha elections. After the tour, at a press conference erations to shape the governments response. His passive
at Bhopal airport, Gandhi refused to comment on any possible voiceemployed in describing nationalisation as a big mis-
state government liability, cited a fallacious death toll of a lit- takeas well as the reference to the nationalisation of
tle over five hundred, and falsely assured reporters that the Coca-Cola reveal a great deal about whom he saw as the chief
citys medical facilities had sufficient supplies to treat the enor- constituencies to which the government must appeal.5 Those
mous number of victims. Before returning to campaigning, appraising nationalisations and deeming them mistakes
Gandhi said his upcoming two-day campaign tour of Madhya likely would not have been the general public. Under Indira
Pradesh would remain unchanged (Chishti 1986: 3132). Gandhi, the nationalisation of Indias entire banking indus-
In the days following Rajiv Gandhis departure, Singh lied to trya sector which had not created nearly the palpable suffer-
reporters about prior investigations of safety lapses, refused ing that UCILs plant didbecame a populist rallying-cry that
to say whether he would shutter the plant and neglected to helped her secure a commanding majority in the 1971 general
mention that, in a ploy to garner electoral support, his govern- elections (Torri 1975). Instead, implicit in Mukherjees quote is
ment had issued pattas to residents of adjacent bastis in dan- that the foreign investors he needed to woo would be those
gerous proximity of the gas. The central governments Minis- most likely to deem nationalisation of UCIL a big mistake.
ter of Chemicals and Fertilisers Vasant Sathe likewise falsely The extent to which a few top government ministers made
told the media that the central government would not have such a sweeping decision without consulting the rest of their
approved the plants construction had any settlements been party or any representatives of those affected sheds tremen-
nearby at the timea risible statement considering the plant dous insight into their modernisation programmea judi-
was less than two kilometres from the citys historic centre. cious combination of centralisation of decision-making and
After days of witnessing politicians baselessly assure citizens economic liberalisation.
that the air and their food supply was safe for them, Chishti And, sure enough, the governments Congress leadership
wrote that Arjun Singhs evasive answers were disgusting was able to suppress outrage over the disaster from even
and ultimately referred to press relations as a Theatre of the remotely affecting the national elections. A S Abraham (1984)
Absurd (1986: 40, 42). At no point in Chishtis recounting of wrote that month in the Times of India that, with the disaster,
the disasters immediate wake, however, does the GoIs owner- opposition parties had missed a splendid opportunity to put
ship stake in UCIL appear, an absence representative of other the ruling party on the dock and the Congress in its stronghold
journalistic accounts I have consulted. of Madhya Pradesh over a national campaign based on plati-
While some of these government officials misinformation and tudes and sympathy for Indira Gandhis assassination, rather
evasion can certainly be attributed to the chaos of the moment, than substantive issues. Despite the fact that national opposition
another substantial portion must certainly be attributed to a leaders such as Charan Singh and Chandra Shekhar demanded
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the arrest of Congress leaders in Delhi and Bhopal, according accounts of the various actors involved. Arjun Singh writes in
to political reporter Inder Malhotra (1984) and long-time Bhopal- his memoir (Singh and Chopra 2012: 177) that hearing of
based activist Satinath Sarangi, Bhopalis and the larger public Andersons planned visit provoked a sense of outrage in him
remained unconvinced that Rajiv Gandhi or his government and that he personally directed his state police to arrest the
were at fault. Though one survivors group did initiate a sym- CEO upon landing. Afterwards, Singh left Bhopal to join Rajiv
bolic boycott of local Lok Sabha elections, which had been Gandhi on the campaign trail, where, he writes, he told Gan-
postponed until early 1985, this did not prevent the local Con- dhi about the arrest and that Rajiv Gandhi had no comment.
gress Member of Parliament (MP) from being re-elected and Later, during his campaign tour with the Prime Minister, Sin-
adding to Rajiv Gandhis already historic majority.6 The Congress gh writes that he received a message from Brahma Swaroop,
party ended up winning 404 of 514 available seatsa land- Chief Secretary of Madhya Pradesh, who had received orders
slide that virtually guaranteed Rajiv Gandhi a full five years of from the then Home Minister P V Narasimha Rao to release
one-party rule (Manor 1985). By any stretch of imagination, Anderson on bail and take him back to Delhi on a state plane.
this Congress-led effort to prevent public outrage in Bhopals Singh explicitly notes that he did not receive any direct orders
immediate wake from affecting the national election or sparking from Rajiv Gandhi, but he insinuates that Raos orders came
a debate over economic policy proved a tremendous success. from the highest levels of government (Singh and Chopra
2012: 179). Previously top-secret Central Intelligence Agency
5 The People vs Warren Anderson (CIA) documents obtained via request under the Freedom of
Less than a week after the disaster, on 7 December 1984, Warren Information Act (FOIA) have corroborated this account of gov-
Anderson, the chief executive officer (CEO) of UCC, travelled ernment leadershipincluding perhaps the Prime Minister
from the US to Bhopal. Upon landing, Madhya Pradesh state himselfordering Andersons release. American agents con-
police officers arrested him and two top company officials for tended that Singh scapegoated Anderson simply to score po-
their role in the disaster. The three were detained at UCILs litical points (CIA 1984). The opinion expressed by the Ameri-
guest house, but Anderson was mysteriously released six hours cans is debatable, as the governments order for Andersons re-
later and flown back to Delhi in a government aircraft. After a lease before a court could rule on the cases merits was also
brief stop in the capital, he returned to the US before public clearly political. Gandhi was planning to reset relations with
outrage over his release could mount, never to set foot on Indian the US government at the time (Badhwar and Trehan 2013)
soil again. In the years before his death in 2014, multiple Indian and to pursue an economic agenda whose success depended
courts requested his extradition from the US and labelled him on foreign investors and companies investing in India without
a fugitive (Hanna et al 2005; Martin 2014; Times of India News fear. Arresting Anderson, a powerful CEO of a large global
Service 1984b, 1984c). company, and holding him in an Indian jail would almost cer-
Much of the academic literature analysing this saga has tainly have disrupted these plans.
debated the legal and ethical merits of holding a CEO crimi- Further, the GoIs efforts to work with Anderson and UCC
nally liable for a subsidiarys accident (see, for example, well before criminal investigations revealed his companys
Anderson 1993; Ladd 1991). Mass media coverage, by contrast, complicity in the disaster reflects its desire to keep the case
has tended to harp on developments in Andersons case and from setting precedents that would scare away other foreign
his absconding from justice as concrete examples of the linger- investors. According to newspaper reports from the time, be-
ing injustice that continues to motivate survivors groups. fore returning home, Anderson discreetly met with Foreign
Though activists to this day burn effigies of Anderson on the Secretary M K Rasgotra in Delhi to discuss preliminary com-
Bhopals streets, the Times of Indias editorial board expressed pensation and the need for a verification of the death toll
another commonly-held opinion that the brief arrest was an (State Seeks Legal View on Compensations 1984). Right to
inexcusable bungle (Abraham 1984), since the state had no information requests initiated by Bhopal survivors groups have
indication of mens rea, or a guilty mind in the negligence further indicated that Anderson was already negotiating a settle-
which led to the plants dangerous state. I have neither the ment with the Ministry of Chemicals and Fertilisers, through his
space nor expertise to opine on the merits of these debates companys Vice President Rolf Towe, by February of the following
here. But regardless, in reconstructing the circumstances of year, before the Indian government had even seized control
Andersons arrest and release, it becomes clear that the central of all litigation regarding the disaster via the Bhopal Act.7
government in many ways interpreted the Madhya Pradesh Whether these criminal allegations were substantive or not, the
state governments actions through the lens of their economic governments efforts to reach a settlement on behalf of survivors
consequences, as any targeting of Anderson individually could with a fugitive from the Indian justice system, speaks volumes
scare away foreign investors afraid of being scapegoated by of the governments centralised, pro-business plans.
the Indian government in the event of an accident. Thus, the
central government seized control of Andersons case and 6 Politics of the 1985 Bhopal Act
helped him leave India to prevent any spillover into the politi- During the months after the national election, Rajiv Gandhi
cal economic arena. rarely discussed the Bhopal disaster publicly or its possible
The best approximation possible of what happened follow- economic consequences, despite daily reports on it that peppered
ing Andersons landing in Bhopal comes from comparing the Indian media. When Gandhi first did mention the Bhopal disaster
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in a speech in the Lok Sabha on 22 January 1985, the impor- that his state government planned to waive all legal fees for
tance he gave it paled in comparison with his emphasis on the victims seeking compensation in Indian courts and establish
future and pushing the nations industry to keep up with multiple legal aid and guidance camps to help victims pur-
industry in the rest of the world. He mentioned the tragedy sue their own claims in India (Galanter 1985; Gas Victims to
only in the limited context of environmental concerns, saying, Get Legal Aid 1984). These multiple, overlapping legal ave-
We have plans for cleaning up the air and the water in our country. We nues created what Jamie Cassels (1993: 117) describes as a
have had the recent tragic accident in Bhopal where many people died reign of confusion, in which victims had no idea where to
and many more were injured or are maimed we are looking at how turn for compensation. But still, despite the confusion, a con-
we can stop any factories polluting our rivers and our air.
sensus emerged that whoever pursued the claims against UCC
He then moved to discussing a clean-up of the River Ganga, should do so in the US, both because of Indias woefully under-
an issue with arguably more communal resonance than envi- developed tort system and the US judicial systems history of
ronmental (Gandhi 1987, Vol I: 15, 19, 20). This context, as awarding large sums to victims of industrial disasters (Galanter
well as the description accident, clearly diminishes Bhopals 1985). Since most Bhopalis had little ability to pursue the case
resonance as a metonym for broader issues that could threat- in the US or clear the legal confusion themselves, there was a
en Gandhis centralisation of power or plans for economic widespread call for some sort of government intervention, as
liberalisation. Satinath Sarangi recalls. For these reasons, to date Upendra
But the clearest efforts to achieve these goals were found in Baxi (2010) still defends the acts legal merits, though he has
the March 1985 passage of the Bhopal Act, which deserves heavily criticised the way the GoI later utilised it.8
analysis not just on its legal merits and practical outcomes, but
also as a reflection of government ideology. The act invoked 7 Bhopal Act as Betrayal
the legal doctrine of parens patriaeby which the sovereign But even though many survivors supported the act in March
assumes legal responsibility for citizens unable to protect 1985, Sarangi recognises that, in retrospect, this was a mis-
themselvesto grant the government the exclusive right to take. People thought they could exercise some control over
file all claims emerging from the Bhopal disaster. In doing so, ones own government, unlike over foreign lawyers. But this
it nullified the numerous, and oftentimes conflicting suits al- turned out to be untrue and he and other activists have come
ready filed in India and the US by survivors and the Madhya to view the act as a betrayalan example of the government
Pradesh government, and centralised power over the disasters unjustly seizing power for political reasons.9 Legal scholar
legal fallout in the hands of the Prime Minister and his inner Aparna Viswanathan (1992) has likewise argued that the gov-
circle. Further, it included a compensation disbursement ernments invocation of parens patriae represents a significant
scheme so that the GoI could manage any funds obtained via overreach. In English common law, Viswanathan adds, parens
its suit. Though, the law instructed government officials to patriae is a last resort, reserved for cases in which victims are
have due regard for any matters which victims could bring deemed unable to represent themselves (non sui juris) due to
up through their own, privately-purchased legal counsel, it did mental incapacity or because they are minors without legal
not elaborate where survivors should direct their concerns or guardians. Further, three additional criteria must be met for
how exactly the government would incorporate these victims parens patriae to be invoked: there must be no alternative to
complaints. Further, the law did not specify a mechanism the sovereigns representation; the sovereign must have a re-
through which they could air grievances with the rigid bu- sponsibility to protect the victim; and the sovereign may not
reaucratic system established by the associated disbursement have a conflicting personal or proprietary interest in the mat-
scheme (Bhopal Gas Leak Disaster [Processing of Claims] ter. She notes that the GoI did not meet three of these four
Act, 1985 1986). This blatant disregard for the survivors legal conditions, as many victims were fully capable of seeking legal
rights, as well as the rhetoric employed by Congress politicians redress, Indian law provided the alternative of a public interest
in advocating its passage, were clear indicators of the govern- litigation, and the government did have a conflicting pro-
ments agenda in disaster management. prietary interest, since in 1984 public companies owned 22%
To be sure, the Bhopal Act did not appear out of thin air. The of UCIL. Likewise, Jamie Cassels (1993: 11822) has written
impetus for the bill was the legal chaos created by the hordes that, even though the government had good reason to believe
of American lawyers, who arrived in Bhopal in the days fol- that Bhopal victims did not have the resources to pursue their
lowing the disaster and coerced clients into signing documents case in US courts, American law barred parens patriae in
they did not understand, to grant them power of attorney cases in which individuals were legally entitled to make
(Wells 2014). By February 1985, numerous American attorneys individual claims on their own behalf.10 The Indian gov-
had filed multibillion dollar suits against UCC on the behalf of ernments recourse to such a sweeping and unprecedented
survivors. An American federal judicial panel joined 145 of legal measure to resolve issues that could have been dealt
these and assigned them to the Southern District of New York with in a more restrained manner reflects their larger central-
(Muralidhar 2004). In India, rumours of these Americans ising ambitions.
plans to keep up to 70% of any final compensation they won on And if the structure of the Bhopal Act leaves any doubt that
victims behalf sparked widespread outrage (Times of India the government was partially motivated by concerns about its
News Service 1984d). Arjun Singh responded by announcing modernisation programme, the rhetoric top Congress leaders
62 JULY 29, 2017 vol liI no 30 EPW Economic & Political Weekly
SPECIAL ARTICLE

used to defend the bill should dispel it. Take, for example, the advantageous for the government leadership, especially consid-
Rajya Sabha debate on the issue on 18 March 1985. Early in the ering its anxiety over the disasters legacy challenging the
session, before even addressing the bill, a member of the Com- modernisation agenda. First, by representing all of Bhopals
munist Party of India (CPI) probed the bodys Congress majo- victims, the government would not only be able to arouse sym-
rity about the circumstances surrounding Andersons release, pathy from survivors by portraying itself as their champion,
but received no response from any Congress membera clear but also would be able to shape the plaint to keep its ramifica-
indication of the sensitive politics of disaster management. But tions from threatening its modernisation agenda. Second, the
as conversation shifted to the Bhopal Act, the ruling Congress law prevented any survivors from pursuing suits against the
party justified its invocation of parens patriae using a dubious, central government or the Congress-run state government,
ideologically-driven logic. The Minister of Chemicals and Fer- thereby preventing politically detrimental lawsuits that would
tilisers Veerendra Patil, representing the governments posi- expose the state partys entanglement with UCIL or the central
tion, argued that because most of the victims of the disaster governments role in facilitating the plants creation. Even
are and were poor people, it becomes the duty of both the state though it clearly usurped the democratic rights of Indian citi-
and central governments to see that those who have suffered zens with specious justification, the government deemed it a
in this disaster are properly rehabilitated and the families of worthy price to pay to suppress numerous opportunities for
those who have died are properly compensated (GoI 1985). populist-infused revolt to challenge its agenda.
Later, he referred to foreign lawyers that signed up survivors
as clients, even though they could not read, and they might 8 Conclusions
not be knowing what [the documents they signed] contained The GoIs actions between December 1984 and March 1985 did
as an indication of the victims legal incompetence. This argu- not represent isolated bungles or even a temporary policy
ment, of course, was completely spurious; if extended to its change. Even as politics forced Rajiv Gandhi and his allies to
logical conclusion, it would undermine the countrys entire ju- scale back their ambitious economic modernisation agenda
dicial system, as a vast number of Indians were poor and illit- (Kohli 2006), the governments approach to the management
erate and a majority had no true legal education. Further, as of the Bhopal disaster continued. US courts ordered the GoI to
an opposition representative pointed out, the Indian govern- file its suit against UCC in Indian courts and, as the case pro-
ment could not possibly be expected to file an adequate suit on gressed, survivors continued to await adequate compensation
survivors behalf that month as it did not yet have any reliable and rehabilitation. In 1989, much to the chagrin of survivors
scientific data on the number of gas-affected and the extent of groups, the government agreed to settlewhat had originally
the damage (PTI 1985a). Despite these complaints, the bill was been filed as a multibillion dollar plaintfor a $470 million
passed by the Congress majority, and the government took the suit, a paltry sum considering legal precedent and the hun-
case to the US (PTI 1985b). dreds of thousands that were affected. And though, in the
While the government hoped to portray the Bhopal Act as wake of the settlement, survivors groups launched valiant
the only viable option, this was simply not the case. Philip protests and filed multiple suits challenging the validity of the
Knightly, for instance, argued that despite the sleazy tactics by 1985 Bhopal Act and the litigation process it spawned, the Su-
American lawyers, survivors ought to retain their services as preme Court upheld the settlement in 1991.
they offered the best means of securing a multibillion dollar This settlement constituted a major violation of due process
sum. An explanation of the true roots of the disaster will not and a miscarriage of justice for numerous reasons, only a few
come from any government-inspired inquiry in India or any of which I have space to enumerate. First, the government un-
locally lodged lawsuit, Knightly wrote, likely referring to justly barred victims from participating in any aspect of settle-
Indian courts limited ability to collect necessary materials. ment negotiations. This exclusion, which has since been upheld
[Justice] will come only from the class action launched in the multiple times in American and Indian courts, was facilitated
US by the much-maligned American compensation lawyers by the 1985 Bhopal Acts vague, non-binding language on vic-
(Knightly 1985). Likewise, Marc Galanter, who has praised the tims incorporation in the legal process. Second, the Supreme
Bhopal Act for linking Indias weak judicial system with the Court grossly underestimated the total number of victims in
much stronger one in the US, notes the existence of alterna- its calculations, including only 2,000 fatalities and 2,000 vic-
tives. tims with severe injuries. Both figures contradicted existing
One might imagine other possibilities for providing linkage to a strong scientific reports as well as basic logic for those involved (Baxi
remedy system, including multinational law firms, networks of law- 2010: 2425, 34). Third, in 1989, very little was known about
yers along the lines of corresponding banks, international placement the long-term effects of MIC poisoning and the expenses it
and matchmaking services, or such devices as trade union insistence would entail. Without this information, setting a fair, fixed
on favourable choice of law provision. (Galanter 1986: 30304)
compensation package was impossible. Finally, the court did
The complaints about the Bhopal Acts sweeping mandate, not secure a true admission of fault from UCC or UCIL, thus en-
along with the multiple alternatives to its passage (each with tirely refusing to address the larger issue of the companys ex-
varying merits or feasibility), further an impression that the ploitation of a developing nations lax regulatory power (Plan-
GoI advocated the law partially to further its control over ning for a National Commission on Bhopal Gas Disaster 1991;
Bhopal litigation. The laws outcome proved extremely Union Carbide Corporation v Union of India 1989).
Economic & Political Weekly EPW JULY 29, 2017 vol liI no 30 63
SPECIAL ARTICLE

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

Notes Baxi, U (2000): Human Rights: Suffering between DSilva, Themistocles (2006): The Black Box of
1 For more on this, see, for example, Bilgrami Movements and Markets, Global Social Move- Bhopal: A Closer Look at the Worlds Deadliest
(1998); Khilnani (1997). ments, Robin Cohen and Shirin M Rai (eds), Industrial Disa ster, Victoria, BC: Trafford.
London: Athlone, pp 3345. Fortun, K (2001): Advocacy After Bhopal: Environ-
2 J Bradford DeLong (2003) has suggested that
Rajiv Gandhi was able to accelerate economic (2010): Writing about Impunity and Environ- mentalism, Disaster, New Global Orders, Chicago:
growth both by passing modest reforms, but, ment: The Silver Jubilee of the Bhopal Catas- University of Chicago Press.
perhaps most importantly, by ushering in a sig- trophe, Journal of Human Rights and the Envi- Galanter, M (1985): Legal Torpor: Why So Little
nificant intellectual transition that fundamen- ronment, Vol 1, No 1, pp 2344. Has Happened in India After the Bhopal Tra-
tally altered elite attitudes towards economic (2016): Human Rights Responsibility of gedy, Texas International Law Journal, Vol 20,
liberalisation and created economic optimism. Multinational Corporations, Political Ecology pp 27394.
Panagariya (2004) has criticised DeLongs work of Injustice: Learning from Bhopal Thirty (1986): When Legal Worlds Collide: Reflec-
for overstating what amounted to unsustaina- Plus?, Business and Human Rights Journal, tions on Bhopal, the Good Lawyer, and the
ble growth based on fiscal excess. Vol 1, No 1, pp 2140, https://doi.org/10.1017/ American Law School, Journal of Legal Educa-
3 On this point I am grateful to Upendra Baxi, bhj.2015.7.
tion, Vol 36, No 3, pp 292310.
with whom I corresponded throughout 2016 to Baxi, U and A Dhanda (1990): Valiant Victims and
Gandhi, R (1987): Selected Speeches and Writings,
discuss several issues relating to the Bhopal Lethal Litigation: The Bhopal Case, Mumbai:
New Delhi: Publications Division, Ministry of
disaster. N M Tripathi.
Information and Broadcasting, Government
4 Satinath Sarangi, personal communication, Baxi, U and Indian Law Institute (1986): Inconven- of India.
30 March 2016. ient Forum and Convenient Catastrophe: The
Gas Victims to Get Legal Aid (1984): Madhya
5 It is worth noting that this argument is not only Bhopal Case, Mumbai: N M Tripathi.
Pradesh Chronicle, 12 December.
biased, but deceptive. The government never Bhopal Gas Leak Disaster (Processing of Claims)
Act, 1985 (1986): International Legal Materi- GoI (1985): I. Statutory Resolution Seeking Disap-
actually nationalised Coca-Cola. Instead, the proval of Bhopal Gas Leak Disaster Processing
company withdrew from India following gov- als, Vol 25, No 4, pp 88488.
for Claims Ordinance 1985 (No 1 of 1985),
ernment requests that it divulge its secret for- Bilgrami, A (1998): Nehruvian Modernity and Its
Delhi: National Informatics Centre, Govern-
mula (Gopinath and Prasad 2012). Contradictions, Economic & Political Weekly,
ment of India, http://rsdebate.nic.in/handle/
6 Satinath Sarangi, op cit. Vol 33, No 32, pp 216872.
123456789/ 345707.
7 Correspondence from B B Singh, Secretary, Cassels, J (1993): The Uncertain Promise of Law:
Lessons from Bhopal, Toronto: University of Gonsalves, C (2010): The Bhopal Catastrophe:
Ministry of Chemicals and Fertilisers, to K Par-
Toronto Press. Politics, Conspiracy and Betrayal, Economic &
asaran (then attorney general of India), Romesh
Political Weekly, Vol 45, Nos 2627, pp 6875.
Bhandari (foreign secretary), B S Sekhon (law Chishti, A (1986): Dateline Bhopal, New Delhi: Con-
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director general, CSIR), dated 28 February cal Framework for Understanding MNE Opera-
Chouhan, T R, I Jaising and C A Alvares (1994):
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and Documentation Centre, Bhopal. Out on the Worlds Worst Industrial Disaster, Organization, Vol 20, No 2, pp 21232, https://
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D Rodrik (ed), Princeton: Princeton University Inexcusable Bungle (1984): Editorial, Times of
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