Bhopal May Join List : 10 Million Cases Await India Justice

Tees Hazaree, the decrepit, overcrowded central courthouse in New Delhi, is a Dickensian nightmare of justice, Indian style.

Chained and shackled prisoners trudge through the hallways in the custody of betel-chewing police officers. Hundreds of touts comb the city for clients and, for small fees, bring them to attorneys in makeshift offices--usually only a desk and a signboard in the open air on the edge of the courthouse.

The tiny courtrooms are constantly being divided and subdivided to make room for more tribunals.

17th Century Name

Tees Hazaree--in Urdu, the words mean “thirty thousand” and refer to the 30,000 troops that a nobleman kept in the building in the 17th Century--may soon attract an unaccustomed measure of world attention. If a New York federal judge’s ruling holds up on appeal, billions of dollars in damage claims arising out of the Bhopal chemical disaster will be litigated here.

However, it may be a long time before any of these cases are won or lost because the Indian legal system is one of the world’s least efficient. People around the courthouse say, perhaps only half in jest, that Tees Hazaree is not only the name of the courthouse but the number of rupees needed to hire a lawyer and the number of days he needs to get the case through the courts--30,000.

There is a backlog of 10 million cases in the Indian courts; about 40,000 are pending before the Supreme Court alone. The average civil case is in litigation for more than 11 years.

One Family’s Tribulations

A typical example is that of Ashok Kumar Sharma. Sharma, an engineering draftsman, was run down and killed by a city bus in 1971, leaving a widow and an infant son. Deprived of his income of 600 rupees a month (about $50), his family sued the municipal bus corporation for damages.

Final arguments in the case have just been scheduled before Judge H. P. Sharma in the Motor Vehicle Claims Tribunal at Tees Hazaree.

It was because long delays are so common here that the Indian government sought to have U.S. courts try the many lawsuits that have arisen out of the poison-gas leakage, in December, 1984, at the pesticide plant in Bhopal operated by Union Carbide India Ltd., a subsidiary of Union Carbide Corp. The parent company owns a 50.9% interest in the Indian firm.

More Than 2,000 Dead

More than 2,000 people, most of them impoverished slum dwellers living near the plant, died after clouds of methyl isocyanate gas poured out of the plant and into their homes. Perhaps 200,000 others were injured.

More than 1,200 lawsuits were filed against the Union Carbide Corp. in Indian courts and 145 more in the United States. The suits sought billions of dollars in damages.

According to Ardeshir Palkhivala, a Bombay attorney and legal adviser to Union Carbide, the claims amount to more than all the aid that the United States has sent to India--$9.5 billion.

By an act of Parliament, the Indian government was designated the sole representative of the Bhopal victims. New Delhi promptly filed suit in the court of U.S. District Judge John F. Keenan in New York, setting forth the argument that the Indian legal system is incapable of dealing with the complex litigation, mainly because of delays endemic to the system.

Appeal from New Delhi

“Justice for the Bhopal victims can only be secured in the United States,” the Indian government said in a memorandum to the court.

Accordingly, the Indian government suit and the 144 other lawsuits against Union Carbide filed in U.S. courts by individual victims were consolidated before Keenan. The Indian government and the other plaintiffs, most of whom disputed the government’s authority to represent them, argued that the Bhopal case should be heard in the United States even though the disaster occurred in India and all the victims lived there.

Indian attorneys said in a petition that in India’s courts, “even routine and simple proceedings turn into such protracted odysseys that it is not unusual for litigation to long survive the litigants themselves.”

Criminal Negligence Charge

Union Carbide argued that the Bhopal cases should be tried in India. The company’s preference for the Indian courts was regarded as odd because its chairman, Warren M. Anderson, has been charged with criminal negligence in India. Anderson was taken into custody when he attempted to visit the Bhopal plant a few days after the gas leak. He was quickly released, but the charge is still pending, and conviction could bring up to life imprisonment.

In petitions and affidavits, Union Carbide has defended the Indian legal system, arguing that it is a fully developed system based, like that of the United States, on the traditions of English common law.

Union Carbide said that to condemn Indian justice is to betray a colonialist attitude, and added: “It is gratuitous denigration to call the Indian system deficient or inadequate.”

The firm’s attorneys urged Keenan to dismiss the cases filed against Union Carbide in the United States and to recommend that they be returned to India.

‘Adequate Forum’ Question

The issue, under international law, is whether India, as the most convenient of the possible geographic settings, provides an “adequate forum” for the litigation. Several similar cases have been filed in U.S. courts, dealing for the most part with accidents involving American aircraft abroad or American oil production abroad.

American courts prefer that such cases be tried, if possible, in the country where the accident occurs. In one instance, in 1984, an American judge ruled that the proper place for a lawsuit involving an American firm was in the African republic of Guinea, even though lawyers described it as a “Marxist-Communist state with a one-party system ruled over by a dictator.”

Attorneys for Union Carbide, citing this case, argued that “if the judicial systems in these troubled and totalitarian regimes are not inadequate, the court system in India is plainly more than adequate.”

On May 12, Keenan agreed with Union Carbide. He ruled that India is a more than adequate forum for the Bhopal litigation.

‘Proven Capacity’

“The Union of India is a world power in 1986, and its courts have the proven capacity to mete out fair and equal justice,” Keenan said. “To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged.”

Keeping the case in the United States, he said, “would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation.”

In effect, Keenan challenged India’s legal system to rise to the occasion.

His ruling may appear, on the surface, to be a victory for Union Carbide because the litigation is to be sent back to India as the company asked. But Keenan imposed conditions that make the move much less attractive for the company.

‘Minimum Due Process’

He said he will dismiss the cases in the U.S. court but only with the provision that Union Carbide agree to abide by any ruling against it in India, so long as “minimum due process” is observed. And he said that Union Carbide must submit to American-style pretrial discovery motions, a process of gathering information that does not exist in Indian courts.

Keenan also said the company must honor all standards of the Indian legal system, including the possible impaneling of special courts to hear the case, a practice not allowed in the United States.

In effect, the ruling corrected some of the weaknesses of the Indian system while keeping its virtues intact.

Indian government officials, who were at first dismayed by the judge’s order, saw quickly that it provides a way to bypass the usual delays.

Hope for Streamlining

A special court may be set up, perhaps under a Supreme Court justice or justices. Streamlined procedures may be established to deal with the mid-trial appeals that normally clog the courts here and lead to extended delays.

The result could be a legal proceeding isolated from the usual chaos of the Tees Hazaree courthouse.

Virgil Ciublo, an American attorney with almost 10 years’ experience with the Indian courts, commented, “You now have a situation where India itself is on trial, and they are going to try their best to look great to the rest of the world.”

Not all Indian legal experts agree that the decision is a good one. Upendra Baxi, a professor of law at Delhi University, said, “My view is that we should appeal and appeal and appeal.”

Disagrees With Ruling

Baxi contends that the special conditions Keenan attached to the case “make his compliments about the maturity of our legal system ring a little hollow.” Baxi is one of the legal activists here who wanted an American trial in order to underscore the role of multinational corporations in Third World countries.

“This is not merely a Third World problem,” he said. “It is a global problem, a problem of survival for all human beings.”

Also upset by Keenan’s decision were the dozens of American attorneys who filed the lawsuits against Union Carbide in the United States. After the accident, a considerable number of American attorneys turned up in Bhopal and set about signing up clients. The Indian press called them “international ambulance chasers.”

In the United States, these attorneys had challenged the Indian government’s claim to be the sole representative of the Bhopal victims.

$350-Million Settlement

The issue of representation came to a head in March, when the attorneys announced through a spokesman that they had reached a settlement with Union Carbide for the sum of $350 million, although the claims they filed came to more than $100 billion. Union Carbide confirmed the settlement.

The Indian government quickly denounced the agreement, arguing that there could be no settlement without its participation.

Keenan made clear his feelings about the ethics of the American lawyers involved--a group that included such well-known figures as Melvin Belli of San Francisco. Keenan said in a footnote to his order, “Those members of the American bar who traveled the 8,200 miles to Bhopal . . . did little to better the American image in the Third World--or anywhere else.”

Americans Left in Cold

In sending the matter back to India, Keenan effectively leaves the American lawyers out in the cold. They cannot practice in India. The Indian government’s claim to represent the victims, established by Parliament, cannot be debated.

Last Thursday, Keenan refused a request by the lawyers to rule on the adequacy of the $350-million settlement they proposed. And Union Carbide, meanwhile, was given two weeks to appeal the conditions that the judge specified.

“They (the corporation) are in a difficult position,” an attorney here commented. “They are the ones who asked that the case be moved to India.”

Lower Damages in India

Despite Keenan’s conditions, Union Carbide will have a major advantage if the cases are heard in India. Damages awarded by Indian courts have historically been much lower than those awarded by U.S. courts.

At Tees Hazaree, judgments in cases involving death by negligence seldom exceed $5,000 for each victim. A court clerk said last week that the largest judgment he has seen in his seven years of experience was $20,000.

From the beginning, Union Carbide attorneys have argued that one of the main reasons India wanted the American forum was to win larger damages. American juries would be more likely to produce multimillion-dollar judgments than juries in India, where the standard of living is much lower and incomes are a fraction of those in the United States.

Union Carbide’s View

Palkhivala, Union Carbide’s legal adviser, said: “The ends of justice often require the truth to be faced squarely and stated bluntly. Indian courts are inadequate only in the sense that they are an inadequate instrument for procuring the fabulous damages which American juries are prone to award.”

Still, other Indian legal experts note that under Indian law, there is a possibility of punitive damages against Union Carbide that could be considered independently of the victims’ claims.

In general, Indian officials said they are pleased with the decision to have the matter decided in India, especially under the conditions spelled out by Keenan.

The Madras-based newspaper The Hindu quoted an official as saying: “By taking into account the totality of the decision, it is apparent that the government has substantially gained from the ruling of the U.S. court. There is reason to believe that justice will now become available for the Bhopal victims.”