The verdict in the Bhopal gas tragedy has caused considerable outrage. It seems to provide little recompense to the victims, and little assurance to the public at large that the legal system is up to protecting us from the risks that make us all vulnerable. Perhaps there will be learning from this case, but I doubt any Indian has any more confidence that the legal system can protect us from catastrophic risk than we did twenty years ago.
The outrage is less over the specific verdict of the lower court, where the judge may have been constrained by the way charges were framed. The outrage is over how a whole system, every single part of it, from the investigating agencies to politicians, from corporate power to the judiciary, managed to efface a monumental human tragedy. And all of this was done using the instrument of law itself; as if law, rather than an instrument of justice, was a vast concoction of technicalities and evasions to evade it. In a macabre way, this episode enacted a version of Stalin’s dictum to the effect that a single death is a tragedy, but the larger the number the more it is a statistic. The “system” did as effective an effacement job as anyone could have.
The implications of this judgment are being pondered for sundry issues, including India’s geo-strategic position in relation to the US. Much of this discussion has focused on the political implications of this for the Civil Nuclear Liability Bill. But for those who think that even such colossal suffering should be assessed through the geo-strategic prism, the important question should be what this says about the credibility of our own institutions to serve our citizens. There is no doubt that the judgment has come again as a reminder of how fragile the authority of the Indian judiciary is. The last few years have made a huge dent in the reputation of the Indian Supreme Court on several dimensions, so much so that a propitious political ground has been created for more political oversight and superintendence of the judiciary. In terms of public reputation and authority the Indian Supreme Court is probably at its weakest in a number of years, with greater clamour for its accountability. The decision has again drawn attention to the fact that for all its thunderous bluster, the Supreme Court has, at crucial moments, let the country down. In a sense it has to constantly reclaim its legitimacy.
The legal twists and turns of the Bhopal case are enormous. Upendra Baxi’s work should be compulsory reading for anyone interested in excavating how the law sent justice for a toss in this case. A lot of the criticism of the Supreme Court in recent times has focused on institutional matters: the reluctance of judges to disclose assets, the lack of self-regulation within the judiciary, its failure to deal with corruption cases, the lack of judicial consistency, the gerrymandering of benches, the undue deference it consistently shows to top lawyers, the politics and lack of transparency of appointments, and so forth. The more serious and consequential critique of the Supreme Court should focus on its substantive failures in matters of law and governance. Bhopal was an illustrative case of how the Supreme Court could go seriously wrong.
In principle, the Supreme Court justified its original settlement orders in the case under the pretext of providing swift compensation for the victims, and on grounds that there was no law governing vicarious liability that was applicable in this case. But both these arguments were, in a sense, travesties. The Supreme Court’s role in reducing the settlement, in reclassifying injuries deserving of compensation, has always remained unfathomable. And the court’s stand on vicarious liability has also cut little ice. It is important to remember that on the basis of available evidence, that the term “accident” in this context is one of those Orwellian words that hides more than it reveals. There was ample evidence presented in Court that Union Carbide knew that the safety standards in the plant were not up to mark; that it deliberately refused to act despite early warnings and a small prior gas leak. In short, the issue was not liability for an “accident”; it was liability for knowingly not acting upon risks that were known to exist.
The Supreme Court gets a lot of the blame for the legal travesty in this case, because it did not display a credible grasp over the principles at stake. It was all the more perplexing in light of the fact that the court has been importing all kinds of doctrines into Indian jurisprudence, as and when it needs to. In fact, a candid assessment of the range of the court’s interventions in terms of rights would have to conclude that the court has the imprimatur of ad-hocness about it. To take one example, the court’s much celebrated environmental jurisprudence has often imported principles like the precautionary principle, in ways that even distort its original meaning; it essentially converts tort claims into cases of precautionary principle.
While much attention will focus on the delay in court proceedings, equal attention needs to be paid to how jurisprudence evolves in the Supreme Court. The Supreme Court has, on the face of it, expanded the domain of rights, often at the risk of great semantic contortion. But these doctrines have often been more in the service of expanding its formal jurisdiction, than it has been on achieving real objectives. There is a line going around about the court’s jurisprudence which is something to the effect, “it articulates strong rights, gives them very weak content, and leaves them unenforced.”
Debates over environmental regulation and protection from risk are so fraught because the courts are not trusted institutions. But it is important to recognise that this is not just because of institutional infirmities in the justice system which leads to delays. It is also because of a lack of serious intellectual leadership with the Supreme Court which has often failed to craft doctrines with sufficient, clarity, precision and scope to inspire confidence.
The Supreme Court is now in a battle for its legitimacy. Most of its wounds, including the handling of Bhopal, are self-inflicted. In fact in the entire debate over regulatory reform in India, very little attention is paid to the fact that institutions often fail, not because of their formal design or powers or lack of insulation from politics. They fail because of lack of internal institutional and intellectual leadership that is up to the task of the challenges the court faces.