Law and Corporate Malfeasance in Neoliberal India

Introduction

“You can’t really do more than that, can you? $500 is plenty good for an Indian.”

At midnight on 3 December 1984, a dense, white fog of chemicals from the American multinational Union Carbide Corporation’s (UCC) pesticide factory stole over the slumbering city of Bhopal, India, leading to what many researchers have described as the worst industrial catastrophe ¹ in modern times (Everest, 1985; Fortun, 2001; Jasanoff, 1994; Nixon, 2011). The explosion at the Bhopal plant released approximately 45 tons of methyl isocyanide (MIC) gas, in addition to many other byproduct chemicals, killing thousands and injuring hundreds of thousands. The escaped gas dispersed over approximately 40 square kilometers and affected people living as far as eight kilometers downwind. The impoverished people who lived in the shadow of this hazardous factory were the most affected (Deb, 2019; Rajagopal, 1987; Sinha, 2007). At least 25,000 deaths resulted from the health complications linked to the 1984 Bhopal catastrophe.

If the initial catastrophe in Bhopal shook the world due to its spectacle of death and destruction, its long-neglected ongoing adverse consequences demonstrate how powerful actors of global and local capital, as scholars argue, further marginalize the already marginalized populations (Baviskar, 1995; Bunker, 1988; Fernandes, 2008; Gadgil and Guha, 1993; Gellert, 2010). Even today, children are born with mental and physical disabilities, and women and girls endure numerous reproductive health complications (Dhara and Kriebel, 2012; Eckerman, 2005; Hanna, 2014; Sathyamala, 1996; Vijayan, 2010). However, there exists no credible official account of the total number of victims of the catastrophe. Additionally, official biomedical assessments of the health consequences have been underfunded, limited, and thus not scientifically conclusive. (Das, 1995; Deb, 2019; Hanna, 2014). Moreover, there have been no efforts to clean up the abandoned, toxic site. As a result, the contamination of the soil and groundwater continues (Chander, 2001; CSE, 2009; Greenpeace, 2009, 1999). The absence of scientific evidence on the short-term and long-term consequences indicates the ways in which state managers and corporations from the beginning strived, and succeeded, to suppress the legitimacy of victims’ claims of an unending crisis in Bhopal.

After the catastrophe, UCC, capitalizing on their knowledge monopoly, refused to provide information on the deleterious effects of MIC, which could have reduced the number of deaths and long-term health consequences. The Indian and American states could have changed the legacy of the catastrophe if they had just handled it properly. But corporations, particularly in the wake of the Bhopal catastrophe, as both Marxist and Polaniyan scholars would argue, function with the support of the state (Barrow, 1993; Block and Sommers, 2014; Burawoy, 1983; Fine and Saad-Filho, 2017; Harvey, 2005). For instance, the Indian government’s paternalistic takeover of the catastrophe, as I discuss later, guaranteed UCC not only a backstage pass but outlandish impunity as well.

UCC has never been convicted of a crime in Bhopal and legally disappeared from the scene after its merger with the Dow Chemical Company in 2001. To this day, UCC maintains its narrative of sabotage by a “disgruntled employee” behind the catastrophe, while Dow has repeatedly denied all responsibility for the actions of UCC before the merger. In June 2010, 26 years after the disaster, a Bhopali court convicted eight Indian employees of Union Carbide India Limited (UCIL) and sentenced them each to 2 years in jail. ² The convicted were granted immediate bail, and, as of yet, they remain free. Such was the lone legal punishment for the crimes of killing thousands, injuring hundreds of thousands, and damaging the environment. This paper focuses on the factors that allow such a lack of legal accountability in the wake of corporate crimes, analyzing how capitalism enables powerful actors to shape the legal path in their own favor and to the detriment of the marginalized. Most research on Bhopal litigation focuses on the proximate causes of the legal aspects of the catastrophe. Highlighting the political economy of India, I underscore how the involved corporation and its subsidiary, with the help of both the Indian and US state managers, succeeded in eluding punishments for culpable homicide, a charge brought against UCC by the Bhopal court in 1987.

The question is this: What role does the law play in this process of marginalization? Critical sociolegal scholars who highlight the political economic aspects of the law demonstrate how legal institutions fail to ensure justice for the downtrodden people across the world (Mattei and Nader, 2008; Mignolo, 2011; Sundar, 2011). Classical Marxist legal scholars, such as Pashukanis (1978), argue that law, like other institutions of capitalism, serves the interests of the capitalist class. Relatedly, law legitimates undemocratic class relations (Bittle, 2015; Hirst, 1979; Mandel, 1986) and is effective in defending capitalism (Cowling, 2008) due to its professed degree of neutrality. Moreover, the law enables profit-generating corporations to harm people and the environment (Collins, 1984; Tombs and Whyte, 2015). Drawing on the scholarship on how law and capitalism are mutually constitutive, I underscore the ways in which the neoliberalization of the world economy, especially in the global South, has further enabled powerful actors of capitalist firms to achieve the unequal application of the law. To put this into perspective, a brief highlight of India’s political economic trajectory is required.

In 1991, under pressure from WB and IMF, India formally embraced neoliberalism (Levien, 2018; Omvedt, 1994; Patnaik, 2003; Ray and Katzenstein, 2005). In the Nehruvian developmental period (1947–66), state protectionism, centralized planning, state monitoring and intervention, and a large public sector characterized India’s economy. State officials strictly regulated India’s economy and prevented foreign investment. The developmental state encouraged domestic capital, and Indian corporations, such as Tata group, received preferential access to state projects. Although formally begun in 1991, the process of market liberalization in India started in 1967 when the developmental state was weakened. More pronounced efforts are seen to encourage private investment and the deregulation of the market in the 1980s. The Bhopal catastrophe took place during this period of shrinking developmental state, and the social, health, and environmental consequences of the catastrophe started unfolding when India formally began its neoliberal odyssey.

While the developmental state generated room for big domestic capital and caused suffering for marginalized people (Desai, 2015; Patnaik, 1991), the state’s embrace of neoliberal priorities sharply undermines its ability to stand above and for society (Patnaik, 2007). The neoliberal Indian state—characterized by increasing privatization, financialization, deregulation of the market, and large foreign investment—remained capitalist to the core, but is different from the development state because the latter maintained a relative autonomy from global capitalists and promoted public investment. Over the past two decades, India has become more neoliberal with an increasing presence of foreign corporations and financial investors alongside a massive expansion of foreign investment. The neoliberal state actors enmeshed with the global finance and large businesses have no interest in addressing issues that would jeopardize India’s foreign investment climate. There is a similar shift in the function of the law: serving the interests of local capital under the developmental state to maintaining a strong foreign investment climate under neoliberalism. Under the neoliberal disposition, the law has been rewritten to undermine public good, promote foreign interests, and legitimize environmental harms. This neoliberal plunge, I argue, played an integral role in creating and suppressing the ongoing crises in Bhopal.

Drawing on 60 interviews with Bhopal gas and water sufferers (Gas Peddit) and activists, field observations, archives, and official and independent reports, I address how the law has reflected the interests of the neoliberal actors of global and local capital. In doing so, I also emphasize how, in a multilayered subsidiary corporation, such as UCC, the parent company (which owns the majority), is protected by what scholars call the veil of a “liability firewall” (Prechel, 2000; Prechel and Zheng, 2012). Finally, I illustrate that the law has been incapable of addressing long-term biosocial and environmental harms continuing to affect poor and minority populations in Bhopal. More broadly, I argue that the law under neoliberal capitalism is not legitimated by appeals to the public good. Instead, the rule of law has become the instrument of the neoliberal state and the corporations it benefits. The following sections emphasize the legal trajectory of the Bhopal catastrophe and how a state-corporation nexus in neoliberal India was able to use the law to understate as well as delegitimate the death and devastation in Bhopal.

Legal Representation and the Corporate Veil

The Bhopal catastrophe that occasioned an unprecedented scale of socioenvironmental devastation illustrates the multiple faults and failures of the Indian state, in its complicity with corporate power and priority of maintaining a healthy investment climate. The legal loopholes that manifested immediately following the disaster lie at the core of what would unfold over the ensuing decades.

On 7 December 1984, 4 days after the explosion, Warren Anderson, the former CEO of UCC, arrived in Bhopal with an “assurance of safe passage” (Edwards, 2014) from India’s foreign secretary. ³ Much to Anderson’s surprise, the Bhopali police arrested him, and a criminal charge of culpable homicide was filed against him. This nonbailable charge incurs a sentence of 10 years to life in prison; however, within 6 hours of the arrest, Anderson was released on bail. It was later discovered that a personal intervention by President Ronald Reagan led the then Indian Prime Minister, Rajiv Gandhi, to order his release (Deb, 2019; Edwards, 2014). Anderson was summoned to appear before the Bhopali court several times. Anderson ignored the bond he signed, guaranteeing he would present himself to court whenever directed, but he was never forced to return to India nor did he face any punishments. India’s abandonment of its citizens, the Gas Peddit, comes as no surprise to Lalita Bai, a Bhopal survivor who lost her husband and three children to the disaster.

Congress [Congress Party] and BJP [Bharatiya Janata Party—the party in power now] do not seem to have any remarkable differences when it comes to punishing foreign corporations for their crimes. Both parties have been in power since 1984. They did not act to save us; rather, they saved Anderson. Now they are saving Dow. (Interview, 8 December 2018)

The potential danger of retaliation by UCC and other multinational corporations, as the former Foreign Secretary Rasgotra implied (The Hindu, 2010), influenced India’s decision to release Anderson. Such acts by the Indian state, stemming from a fear of reproach and from a desire to maintain India’s attractive foreign investment climate (Chandra, 2010; Nielsen and Nilsen, 2015; Patel, 2015) leads India to persist in failing the victims of the worst corporate crime in Bhopal.

The Anderson drama was still taking its course when American lawyers arrived in Bhopal as early as 7 December 1984, to recruit individual plaintiffs for class-action lawsuits in the USA (Cassels, 1993). Marc Galantar (1994), hired as an expert witness on behalf of the Government of India, calls this invasion of “profit-seeking” lawyers in Bhopal “the great ambulance chases.” Sadly, the mass involvement of American lawyers did not help Bhopal survivors; on the contrary, it served only to clear a path for the Indian government, entangled with the UCC, to regulate the litigation process. The government of India was concerned that American lawyers would exploit the disaster victims. Yet, importantly, the Indian government’s primary liability concern was that American lawyers might include India’s public administration in their suits, since the government had a 22% share in the Bhopal plant. Nevertheless, the Indian government knew that unless it passed a law regulating the litigation process, it would be difficult for the lawyers to represent the victims in an American court. They realized as well that US courts were the most effective forum for the proceedings, given the scale of devastation and fantastic lethargy of India’s justice system.

Legal Accounting for Suffering

The Indian state’s paternalistic takeover of Gas Peddit has resulted in more harm than good for the victims. The Indian government’s control of the Bhopal catastrophe, to serve the interest of the foreign corporation, was part of India’s political economic transition—India’s dwindling development state was coming to an end, while neoliberal economic reform was looming in India’s horizon. For this reason, the 1989 settlement, which impulsively accepted an ex gratia package, dismissed all criminal charges against UCC and other foreign accused. Mentioning the urgency of compensation, Chief Justice of India, Pathak, argued that the settlement is a “preeminent fit,” and all criminal proceedings related to the disaster declared quashed (see Union Carbide Corporation v Union of India 1988).

A range of factors is noteworthy here. First, the settlement was finalized without hearing the perspective of any survivors or advocacy groups. In fact, by securing and providing very “limited and conditional interim relief, it [the Act] left the victims as stakeholders in the litigation, at the same time denying them an effective say about their future” (Cassels, 1993: 122). Second, although the Indian government and the judiciary only later realized that they had grossly underestimated the scale of devastation in Bhopal, they did not act to rectify this mistake. Third, the settlement, which continues to haunt the legal process for Bhopal, transformed a complex range of hazardous exposures into a legal category “managed, policed, and populated by the state” (Hanna, 2014: 226). The legalistic stance has simplified the multidimensional gas exposures, thus forcing the medical and scientific inquiry to be as simple as possible (Deb, 2019; Hanna, 2014). The suffering in Bhopal has been reduced to a legal cost-benefit analysis.

It was later discovered that the categorization of the gas-exposed used in the settlement was suggested by UCC and modeled on the Indian Railway Act, ignoring the difference between train accidents and lethal MIC exposures. It split the gas-affected into five categories, ranging from “no injuries” to “utmost severe cases.” More than 50% of Gas Peddit never received any medical examination for the categorization process; they were put into the lowest category of compensation, “minor injury” (BGIA, 1991; Cassels, 1993).

Shri Amarprosad Chakrabarty, a member of the Indian parliament, raised his concern that the Bhopal Act did not adequately “address the issue of compensation” (Rajya Sabha, 1985: 251). Sabina Bai, a Bhopal victim receiving treatment from the Sambhavna Trust Clinic, a community clinic built to offer treatment to gas and water victims, told me:

I am a Gas Peddit as well, but since I could not register in time and as I did not keep any records for proof, I was not eligible to receive compensation. Still, do you think I should receive compensation for being a water victim? The same corporation that came to kill us left us with contaminated water, and we have been drinking this for decades. Where is the law and compensation for me? (Interview, 8 December 2018)

The registration process undertaken for the legal remedy is inadequate. Several long-term consequences were unknown at that time, and numerous acute and immediate injuries disappeared before they could be recorded. The categorization and registration process took more than 5 years, which, of course, was preceded by the 1989 settlement. The Indian government made the settlement without knowing the extent of injury and devastation. Additionally, 93% of the gas-affected were identified as having only “minor injury,” the lowest in the categorization process with compensation of only (Indian) Rupees 25,000 (US$795). Ninety-one percent of the gas-affected of JP Nagar, the area hit hardest by the catastrophe, received the lowest amount of compensation (Figure 1). The 1989 settlement influenced the official biomedical and environmental research, which undermines the short-term and long-term devastation in Bhopal.

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Figure 1.

Breakdown of compensation in the worst-affected JP Nagar. Source: Sambhavna Trust.

Although independent research shows prolonged devastation in Bhopal, UCC used the settlement to repudiate all the proof of health and environmental destruction that continues to haunt Bhopal. Indian state’s so-called protective takeover, and its efforts afterward to justify it, buried the knowledge of the tragedy and its lingering consequences. For instance, the settlement mentioned that the death toll was only 3000 and there were only 52,000 injuries. The death toll in Bhopal, based on all reliable calculations, is at least 25,000, and there are, even by official account, at least 575,000 gas-affected individuals. This settlement omitted the suffering of thousands of Gas Peddit and shielded UCC from any future legal challenges.

The 1989 settlement shocked the gas-sufferers, involved advocacy organizations, as well as those who were sympathetic to the victims (Viswanathan and Sethi, 1989; Walters, 2009). Quite naturally, then, a harsh outcry followed. After a judicial review petition in 1991, the Supreme Court upheld the settlement without any trials. The categorization of the gas-exposed, influenced by the litigation procedure, sustained. It has become, among many other things, a source of major ongoing travesty and injustice in Bhopal.

The study by the Indian Council of Medical Research (ICMR), the official state research organization, could have been used to challenge the 1989 settlement, but ICMR neither published the complete results of its study nor offered any “systematic conclusion” about the biological harm caused by the disaster. Although this official research was exceptionally inadequate in its methods (Das, 1995; Hanna, 2014), it demonstrated ongoing adverse health consequences of the catastrophe (ICMR, 2010). Yet, it has made no practical impact on the categorization process to date.

To the Gas Peddit, as victim Sukhla Bai says, the Indian government “deliberately” underestimated the damage caused by the catastrophe because the government “cares less about its citizens or the rule of law; instead, it is more eager to protect American corporations” (Interview, 22 July 2019). In the first few days, the doctors who were in charge of conducting autopsies signed approximately 10,000 death certificates. The 1989 settlement has no reflection of such records. Activist Rachna Dhingra adds, “such travesty of justice became more evident over the past years.” The Indian state’s response to the biosocial and environmental suffering of the Gas Peddit worsened with India’s neoliberal reform in the 1990s.

Legal Escape for UCC

While the state actors of India commenced the process of legal impunity for UCC during India’s shrinking developmental period, the marginalization of the affected Bhopalis has been aggravated with the neoliberal reckoning of a healthy investment climate. This section discusses the role of neoliberal state actors and corporations in the legal proceedings of Bhopal. The Central Bureau of Investigation (CBI), the premier Indian investigating agency, filed a charge sheet to the Chief Judicial Magistrate of Bhopal in 1987. The charge of culpable homicide was placed against 12 accused, including Anderson. The charge sheet mentions:

UCC was nominating its own Directors to the Board of Directors of the UCIL and was exercising strict financial, administrative and technical control on the Union Carbide India Limited. Thus all major decisions were taken under the orders of the Union Carbide Corporation of America. The evidence collected during the investigation proves that UCC was in total control of all the activities of UCIL. (Edwards, 2014: 64)

After issuing several summonses against UCC and Anderson, UCC’s Director of Communication, Berzok, replied: “Union Carbide will not appear [responding to a summon] because, as a United States corporation, it is not subject to India’s jurisdiction” (The NY Times, 1988). In 1989, after a round of failed summons, the Magistrate declared Anderson and UCC fugitives, issuing a further arrest warrant. Against the backdrop of this legal impasse, UCC convinced the Indian government to have a “full and final” settlement.

With growing pressures from survivor activists, the Magistrate issued another arrest warrant against Anderson in April 1992 and requested the CBI for an extradition proceeding. For a couple of years, the Indian parliament postponed the extradition process. It is important to note that although business and trade between India and the USA has become stronger since the 1970s—and America has gradually become India’s biggest foreign investor and technology exchange partner—with the rise of India’s increasing market liberalization in 1991, the issue of extradition became less prominent to the Indian government. For instance, foreign investment in India increased from approximately US$130m in 1992 to more than US$5b in 1995. A former CBI official, BR Lall (2011), who headed the investigations of the Bhopal tragedy from 1994 to 1995, stated that he “was categorically told [by the Foreign Ministry] not to press for Anderson’s extradition” (NDTV, 2010).

As India continues to witness a massive expansion of foreign investment, the CBI, in 2002, suddenly asked the magistrate to shift the charge against Anderson from culpable homicide to criminal negligence, an offense that does not require extradition. Survivors arranged a hunger strike to reject the CBI’s request. ⁴ In 2003, 19 years after the tragedy, the Indian government finally requested that the US government extradite Anderson. More than a year passed before the US Department of State replied that the government of India’s request could not be executed as it did not meet the requirements of the Extradition Treaty. There is growing evidence to suggest that US officials and large business entities conspired to pressure the Indian and US governments to extinguish the extradition issue (Edwards, 2014). UCC’s vice president at the time, Joseph Goeghan, went further still and admonished the serious consequences of this extradition. To him, the issue of extradition would seriously jeopardize “U.S. business leaders” confidence.” He continues:

Extradition in [a] case like this would place in jeopardy any officer of an American corporation with significant interests in foreign enterprises anywhere in the world in the event of some future disaster. The chilling effect on American investment abroad cannot be overstated. (see, Edwards, 2014: 71–72)

UCC since 2001 had disappeared under another chemical giant, Dow. Overdue as it was, the issue of contamination has also entered the legal battle. In 2004, Alok Pratap Singh, a Bhopali resident and activist, filed a case in the Madhya Pradesh high court, demanding Dow be held responsible for ongoing pollution in Bhopal. Dow responded by lobbying, with the aid of industrialist Ratan Tata and former finance minister, P Chidambaram, in an attempt to pressure the Indian government to withdraw its support for the lawsuit. As of yet, Dow has refused to respond to several summonses issued by the Bhopal court to explain the legal standing of UCC. Activist Balakrishnan says:

[Union] Carbide can hide anywhere it wants. But since Dow owns Carbide, it owns its previous responsibility too. Dow’s refusal to accept responsibility does not make it legally right. It could refuse to comply because it has power, which it can use to influence powerful actors in India in its favor. (Interview, 19 July 2018)

Corporations, as Balakrishnan said above, function with the support of the state and law. Only eight Indian employees were given sentences. Legal proceedings of Bhopal have not, to this day, been met with any substantial progress. Instead, the actors in power, as scholars show, use the environmental disaster as an opportunity to further their profit goals (Deb, 2018; Klien, 2007; Pellow 2007). For example, the Bhopal survivors were used without their proper consent as clinical subjects in for-profit drug trials between 2003 and 2009, leading to deaths of at least 14 Gas Peddit people (Lakhani, 2011). The institutions of the law in neoliberal India are incapable of safeguarding the weakest elements of Bhopal society, the gas-afflicted.

The Indian state continues to work for creating and maintaining a contemporarily acceptable, commercially desirable foreign investment climate to increase its economic growth. The Bhopal catastrophe—that killed 25,000, injured hundreds of thousands, and left devastating socioenvironmental consequences for future generations—would remain a traumatic event in India’s economic growth story. And the US government’s contribution to the social and environmental destruction in Bhopal, caused by one of its many multinational giants, continues to play a leading role. ⁵ Moreover, when the Indian government was given an opportunity in 2011 to redress its past mistakes, it continued its callous disregard for the gas-sufferer, all the same.

Curative Petition: A Hope or Another Catastrophe Awaiting?

After the disputable 2010 verdict by Bhopal court in which only eight Indian employees were sentenced to 2 years in jail, survivors and activists pressured the Group of Ministers on Bhopal, which was created to reassess the catastrophe, to order the Indian government to file a Curative Petition. In 2011, on the 26th anniversary of the tragedy, the Indian government filed a Curative Petition asking for additional compensation of US$1.75b, as mortality and adverse consequences have increased since the settlement. The provision of the Curative Petition was created by the Indian Supreme Court to challenge the previously dismissed review petition, which failed to address the question of injustice. The Supreme Court came up with the new notion of Curative Petition in the 2002 case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. This petition is now a legal tool to examine if an initial review petition is flawed and failed to provide natural justice to the aggrieved person. The Supreme Court of India kept the issue of further petition open in its 1991 review of the settlement, stating: “If the settlement-fund is found to be insufficient, the deficiency is to be made good by the Union of India” (Misra et al., 1991: 81).

The Curative Petition referred to the initial settlement in which the Justices stated that if the total number of deaths and injuries became larger or “the basic assumption underlying the [1989] settlement [became] wholly unrelated to the realities” (UOI, 2010), the notion of justness “would seriously be impaired.” Given that the 1989 settlement grossly underestimated the number of deaths and injuries, and the official numbers of deaths and injuries have increased thereafter, the compensation amount legally must be adjusted. A North American Bhopal activist, Rosana, says:

One of the demands of survivors is that Carbide must clean up the site because it contaminated their backyard. The principle that guides us [activists] is the “polluter must pay” principle. That’s their [UCC’s] garbage. This is a commonsense knowledge: you pollute, you pay for it. Ongoing problems in Bhopal should be included in legal accounting. (Interview, 10 May 2019)

Additionally, survivor activists, in their present focus, do well to criticize the official number of deaths and injuries in the petition. The Curative Petition attributed only 5,295 deaths to the leak, a figure ridiculously lower than findings from any official or independent study. ICMR mentioned approximately 10,000 deaths until 1993 (this was when, curiously, ICMR ceased conducting epidemiological studies). Given the disaster’s interminable aftermath (BGIA, 2018; Broughton, 2005), the death figure is approximately 25,000 until today, based on ICMR’s (2010) statistical prediction. MIC, even according to UCC’s 1974 infamous documents discovered later, is highly hazardous and capable of causing residual damage even if the exposed are given immediate treatment. The Bhopal MIC-affected were left unguarded following the disaster, and victims have never truly received proper treatment. Amnesty International (2004) holds the figure of fatalities well over 20,000 in the first two decades, and research shows that five to six gas-affected die every day in Bhopal. ⁶

The Indian Supreme Court is expected to hear the Curative Petition soon. While the gas sufferers and their sympathizers await the hearing with eagerness, they are duly suspicious of anything remarkable in their favor; “their state,” activist Sarangi says, colluded with the “killer” corporation and has betrayed and abandoned them over and over again. Gas and water victim, Sanzida Bai, adds: “We keep hearing about India’s advancement with the help of powerful foreign companies, but we feel more abandoned than before.” UCC, in its effort to delegitimate the petition, upholding the 1989 settlement as “fair, final and irrevocable,” made a flippant reply. They asked in a press release that the government not reopen the case, because the government’s action, as UCC writes, would “serve only to undermine the global perception of India as a nation committed to the rule of law and the integrity of legally-binding agreement” and if reopened, it would damage the “certainty in ongoing investment in India by the international community.” ⁷

A familiar, neoliberal plea: Investment Climate. Who are those economists, as survivor activist Halima Bee indirectly asked me, who say that the market is self-regulating, and hence, should be free? A corporation that no longer officially exists knows that corporations regulate the market. Even the victims know: a shepherd letting wolves graze on the fold that he might share in the spoil, a system so feckless or sinister that it grants corporations a backstage pass to invade, destroy, and then slip away unscathed. ⁸ As neoliberalism in India entwines with right-wing policies, the survivors are now rightly worried that any possibility of attaining final justice for the Gas Peddit is remote at best.

The possibility of redressing the legal catastrophes in Bhopal with the revival of right-wing politics in India has become more uncertain than ever. To activists, the Modi government has “outdone the Congress in terms of protecting the interests of the US multinationals and denying the rights to justice and a life of dignity to the survivors of the world’s worst industrial disaster.” ⁹ In February 2018, survivor organizations asked the Modi government to direct the Bureau of Investigation to form a prohibitive writ, halting the split of UCC’s assets. To clarify, Dow is now completing its merger with DuPont to form DowDuPont Incorporated. This merger—to complete a three-way split of its business—would split UCC as well. But the Prime Minister’s office has not taken any preventive steps thus far.

The neoliberal Indian administration continues to render the prolonged, adverse consequences in Bhopal invisible. Official research reflects the ideology of the neoliberal Indian state, indicating how knowledge production is entwined with power and politics (Fasenfest 2010; Foucault 1980). Neoliberal actors, similarly, render the institutions of the law loyal to their interests. Justice Keenan basing his argument regarding the higher living standard of populations in the USA than those that of India essentially showed that the law is unequal, and it is not immune from racialized capitalism. Dow Public Affairs Specialist Kathy Hunt’s statement (epigraph quote) about the cheap human life value in India is a simple reiteration of what Justice Keenan implied in his verdict. UCC, an American industrial giant of the 20th century and a once-Fortune-500 company, and Anderson, the former CEO of UCC, remain a fugitive to date. Moreover, as the Indian neoliberalism now succumbs to rightwing politics, especially after the 2019 national election in which the Hindutva politics secured a landslide victory, the aggravated suffering befell the gas-affected.

Conclusion

December 2019 marks the 35th anniversary of the Bhopal catastrophe. Bhopal, however, is far from resolved, as aftershocks wear on. The Bhopal catastrophe took place during a period when India’s Nehruvian developmental state was eroding, and a state-corporation nexus in neoliberal India has suppressed the long-term crises in Bhopal. The neoliberal Indian state, actively promoting foreign investments, not only misled the public about the ongoing socioenvironmental harms but also helped shape the legal path against Gas Peddit in Bhopal. This paper, therefore, holds important implications for scholars theorizing the political economy of law in the neoliberal global South. The law, as I have demonstrated, works under the shadow of neoliberal actors of local and global capital in handing corporate malfeasance.

I have sought to demonstrate how the neoliberalization of the Indian economy further enabled the powerful actors of capitalist firms to shape the legal path in their own favor and to the detriment of the gas-afflicted. The law, as predicted by Marxist sociolegal scholars, has proved unable to safeguard the weakest members of Bhopal society from the initial catastrophe. Neoliberalism, as I have illustrated, further facilitated the capitalist actors to achieve the unequal application of the law with the support of both the Indian and US state managers. Part of the transition phase from the developmental to the neoliberal state was the Indian government’s paternalistic takeover of claims and compensation—in the service of the corporation via a quick and highly inadequate settlement. The government’s takeover with its so-called good intention to save the victims of the catastrophe from legal misuse produced much suffering to Gas Peddit in Bhopal. One of the worst consequences of the 1989 settlement is the facile quantification of large-scale, complex, individualized exposures for legal purposes.

The outcome of the Curative Petition will be announced any day now, but the fate of the sufferers hangs in the balance. Gas Peddit are aware, as gas survivor Guddo Bee says, that “the law did not and would not counter the abuse of victims” from domestic and international power. The whole saga of suffering, now tormenting on a third-generation, is essentially impossible to have a legal remedy. However, Gas Peddit for strategic reasons rely on the rule of law to ease their ongoing suffering. Thus, the Bhopal survivor activists continue to demand their government to revise the death toll of the catastrophe as a first step to ensuring justice. While the gas sufferers are left waiting to receive a legal remedy and restitution for the death and destruction that is nothing but visible, how to compensate the victims of the prolonged socioenvironmental destruction in Bhopal is absent in the prevailing legal framework.

The crux of the matter in this paper is how a shift from the developmental state, which encouraged public investment and was managed by and for domestic capitalists, to the neoliberal regime, which is characterized by a healthy investment climate for foreign capital, furthered the marginalization of the gas-afflicted in Bhopal. Relatedly, the pursuit of legal solutions under neoliberalism is incapable of addressing the prolonged consequences affecting poor and minority Bhopalis. Future research is required to examine how the actions of the survivors and activists have prevented the resolution in Bhopal from being forgotten, making them, ironically, rely on their state. Finally, further research highlighting the role of the law in handling corporate malfeasance under neoliberalism will offer a valuable understanding of not only how neoliberal forces prolong the devastation that affects marginalized locales, but also the ways in which the law plays an integral role in this process of marginalization.