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BHOPALS TRIALS OF KNOWLEDGE

AND IGNORANCE*

SHEILA JASANOFF**

AN ENDURING DISASTER
On December 2, 2007, twenty-three years after what is still
universally regarded as the worlds worst industrial disaster, Asia News
International, a multimedia news conglomerate, published a story headlined
Bhopal Gas Tragedy Victims Battle the Odds Sans Adequate
Compensation.1 Not long after, the International Campaign for Justice in
Bhopal (ICJB), a coalition of non-governmental organizations and activists
advocating for greater corporate responsibility, reported that fifty survivors
of the disaster had completed the 800 kilometer trek from Bhopal to Delhi;
the aim of these padyatris, or marchers, was to hold Prime Minister
Manmohan Singh to what they said were broken promises of rehabilitation,
environmental clean-up, and clean water in Bhopal.2 Nearly a quarter
century after the tragic events that ravaged an entire city, and decades after
a $470 million financial settlement that was by far the largest of its kind in
India, these episodes offer poignant but puzzling evidence of a tragic
human drama that refuses to end.
Enduring conflicts pose special challenges to the law, whose
institutional purposes preeminently include the settlement of disputes and
the reimposition of order in contexts that have been subjected to abnormal
strain or disruption. Whether disputes arise in the most intimate of social
relations, such as the family, or from widely dispersed and loosely
connected transactions, such as transnational technology transfer as at

* For an earlier version of this article, see Sheila Jasanoff, Bhopals Trials of
Knowledge and Ignorance, 98 ISIS 344 (2007). Permission to expand and adapt that piece
for publication here is gratefully acknowledged.
** Sheila Jasanoff, Pforzheimer Professor of Science and Technology Studies, John F.
Kennedy School of Government, Harvard University.
1. Bhopal Gas Tragedy Victims Battle the Odds Sans Adequate Compensation, ANI,
Dec. 2, 2007, available at http://www.bhopal.net/compensation.
2. Press Release, International Campaign for Justice in Bhopal, Bhopal Survivors
Arrive on Foot to Remind PM of Unkept Promises (Mar. 28, 2008), available at
http://www.bhopal.net/blog_pr/archives/2008/03/bhopal_survivor_13.html.

101
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Bhopal, the laws function is to remedy the problem and to make sure, as
far as possible, that similar breakdowns will not occur againat least not
within that particular type of relationship or from those specific causes.
Law and lawyers were amply represented in attempts to repair the social
fabric destroyed by the Bhopal disaster. It is therefore specially interesting
for legal analysts to ask why, despite the laws intense engagement with
this case, the victims continue to believe that there was no satisfactory
closure. Aided by historical distance, this essay reflects on some of the
answers.

ACCIDENT AND AFTERMATH


For a brief moment in the late twentieth century, Bhopal, the
sprawling, unremarkable capital of central Indias province of Madhya
Pradesh, became a staging ground for the ambiguous and contested
emergence of global neo-liberalism. The histories of states and markets,
medicine and law, social activism and corporate power violently collided in
that quiet provincial city. Though the loudest reverberations from that
encounter have died down, the echoes will last as long as anyone is left
alive to tell Bhopals story. What happened there in the Orwellian year of
1984 says much about the human costs of globalization. It also illustrates
the incapacity of both science and law to restore order when radically
different cultures of knowledge and justice come together in unplanned
confrontation. Just such a clash of cultures occurred in Bhopal, and the
results are important not only for post-colonial historians and students of
legal history, but also for historians and sociologists of scientific
knowledge. For Bhopals tragedy was as much about the capacity of
powerful institutions to selectively highlight and screen out knowledge as it
was about maimed lives and justice delayed or denied. The resulting double
failure, of law and of science, deserves closer analysis.
Minutes after midnight on December 3, 1984, an industrial accident
of unprecedented violence shattered Bhopal.3 A cloud of heavy, deadly
methyl isocyanate (MIC) gas escaped from a Union Carbide pesticide
plant and spread across some of the poorest sectors of the city. Especially
hard hit was the colony of J.P. Nagar, located just across the street from the
plant and inhabited mostly by Muslims and low-caste Hindus. Thousands
of Bhopals poorest citizens died instantly or within days of the accident,
blinded, choked, and suffocated by the acutely toxic fumes. Hundreds of
thousands more were injured, many suffering intense physical and mental
distress years, even decades, after the accident. One such delayed victim
was Sunil Kumar Verma, a 34-year-old activist who lost his father, mother,

3. For a dramatic, journalistic account of the events, see DOMINIQUE LAPIERRE &
JAVIER MORO, FIVE PAST MIDNIGHT IN BHOPAL: THE EPIC STORY OF THE WORLDS
DEADLIEST INDUSTRIAL DISASTER 287-94 (2002).
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and five siblings in the disaster. As an adult, Verma ceaselessly


campaigned for justice for the survivors until he hanged himself on July 26,
2006.4 He had been under treatment for paranoid schizophrenia, but
whether his mental condition was related to the gas exposure will never be
known.
That is not the only unknown that lingers over Bhopal long after a
tragedy that took more lives than did the terrorist attacks of September 11,
2001 in the United States. What, for example, caused the disaster? We
know that water introduced into a storage tank containing highly reactive,
liquid MIC unloosed an explosive reaction, but how the water got into the
tank remains a mystery. At least four explanations have been offered for
what went wrong, ranging from contingent, case-specific, and personal to
systemic, structural, and global. Union Carbide and its corporate successors
insist that it was an act of intentional sabotage by a disgruntled employee.
Students of technology and society call attention to the failure of the Indian
government and the exporting company to take seriously the indispensable
social components of a well-functioning safety system, such as trained
personnel, effective monitoring, and adequate budgetary support.5 Policy
analysts fault the Indian governments lax regulatory standards and refusal
to heed early warning signs of poor management and maintenance at the
plant.6 Finally, the victims and their international supporters blame a post-
colonial economic order that recklessly puts developing country lives at
risk, creating the preconditions for what Indian activists have termed
genocide, or the selective annihilation of people on ethnic grounds.7
Adhering to the sabotage story, Union Carbide Corporation (UCC),
a wholly owned subsidiary of Dow Chemical since 2001, lists this entry on
its website for 1984: In December, a gas leak at a plant in Bhopal, India,
caused by an act of sabotage, results in tragic loss of life.8 A link leads to
a consultants report, prepared for the Arthur D. Little company in
Cambridge, Massachusetts by an analyst of South Asian origin, that rules
out accident and blames the Government of India for preventing an
immediate, all-out investigation.9 Official Indian reports, however, never

4. See K.S. Shaini, Bhopal Activist Dies with Broken Dreams, BBC NEWS, Aug. 17,
2006, http://news.bbc.co.uk/2/hi/south_asia/4795771.stm.
5. See Sheila Jasanoff, Introduction: Learning from Disaster, in LEARNING FROM
DISASTER: RISK MANAGEMENT AFTER BHOPAL 1, 1-21 (Sheila Jasanoff ed., 1994).
6. See B. Bowonder, Jeanne X. Kasperson & Roger E. Kasperson, Industrial Risk
Management in India Since Bhopal, in LEARNING FROM DISASTER: RISK MANAGEMENT
AFTER BHOPAL 66, 67 (Sheila Jasanoff ed., 1994).
7. See, e.g., Editorial, Search for a Scapegoat, TELEGRAPH, Dec. 8, 1984, reprinted in
BHOPAL: INDUSTRIAL GENOCIDE 89-90 (Arena Press 1985).
8. Union Carbide Corp., History, http://www.unioncarbide.com/history/index.htm (last
visited Mar. 21, 2008).
9. ASHOK KALELKAR, ARTHUR D. LITTLE, INC., INVESTIGATION OF LARGE-MAGNITUDE
104 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

accepted the sabotage theory, and Bhopal victims continue to hold Union
Carbide responsible for the gross negligence and lack of maintenance that
they say led to the tragedy. What all sides do agree on is that even the most
basic information was scarce then and unreliable now. The unknowns
include the number of deaths that occurred in the accidents immediate
aftermath,10 the numbers and kinds of longer-term illnesses and injuries
caused by exposure to MIC, the success or failure of rehabilitation efforts,
the efficacy of funds disbursed for relief, and most recently the extent of
damage to Bhopals soil and water quality caused by the plants pre-1984
activities.
Why are the disasters causes and consequences still shrouded in such
uncertainty? The events of that December night did after all lead to
protracted litigation, joining for a time the legal systems of India and the
United States in what might have been a mutual project of discovery and
restitution. The law, we know, can be a powerful engine for uncovering
facts and spurring the production of new knowledge,11 and law in
sometimes unexpected forms came to the victims aid promptly enough.
Immediately after the gas leak, a number of prominent U.S. tort lawyers
descended on Bhopal in what the legal scholar Marc Galanter describes as
the great ambulance chase12: the fabled dash by entrepreneurial lawyers
to line up victims as clients, figuratively on their way to the hospital, in the
hope that the clients misfortunes will not only be compensated but will
line the pockets of those lucky enough to represent them. With the passage
of the 1985 Bhopal Act, however, the Indian government short-circuited
any such hope of private gain; the state itself took over the exclusive
representation of all claims arising from the disaster, under the doctrine of
parens patriae (father to the people).
This action blocked the victims from directly representing themselves

INCIDENTS: BHOPAL AS A CASE STUDY 14-16 (1988),


http://www.bhopal.com/pdfs/casestdy.pdf. To access this report from the History page of the
UCC website, follow http://www.unioncarbide.com/bhopal hyperlink; then follow Media
Resources hyperlink; then follow Investigation of Large-Magnitude Incidents: Bhopal as a
Case Study hyperlink.
10. One set of estimates holds that nearly 20,000 people died and 200,000 were exposed
to the poisonous gas. Roli Varma & Daya R. Varma, The Bhopal Disaster of 1984, 25 BULL.
SCI., TECH. & SOCY 37, 37 (2005). By contrast, the Supreme Court of India, in explaining
its settlement order in the Bhopal litigation, stated, as a rough and ready estimate, this
Court took into consideration the prima facie findings of the High Court and estimated the
number of fatal cases at 3000. Union Carbide Corporation vs. Union of India Etc., A.I.R.
1990 S.C. 273.
11. TAL GOLAN, LAWS OF MEN AND LAWS OF NATURE: THE HISTORY OF SCIENTIFIC
EXPERT TESTIMONY IN ENGLAND AND AMERICA (2004); SHEILA JASANOFF, SCIENCE AT THE
BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA (1995).
12. Marc Galanter, The Transnational Traffic in Legal Remedies, in LEARNING FROM
DISASTER: RISK MANAGEMENT AFTER BHOPAL 133, 147 (Sheila Jasanoff ed., 1994).
2008] BHOPALS TRIALS 105

in court, but it did not end the entanglement between the American and
Indian legal systems. In one of several tragicomic turns, the Government of
India employed Galanter, an expert in American tort law, to make the
argument that Indian courts were institutionally unqualified to deal with
claims of this magnitude and diversity. Galanter surveyed a decade of
Indian tort cases from 1975 to 1984 and concluded that delays of Bleak
House proportions were routine, even for cases of no great complexity, and
that in India (unlike in America) there had been no tie-in between industrial
disasters and progressive developments in tort law.13 Galanters was quite
possibly the first systematic study of a developing nations lack of legal
instruments to deter the careless operation of extremely hazardous,
imported industries. India, in his uncompromising judgment, did not
possess the home-grown legal competence to handle the disastrous
consequences of an eminently non-home-grown technology.
Despite Galanters efforts to shift the legal venue to the United States,
the claims of Bhopals victims never went to trial there or in India. All
claims filed in the U.S. courts were consolidated in the Southern District of
New York, where Judge John F. Keenan dismissed the case in May, 1986
on the ground of forum non conveniens.14 Since the disaster had occurred in
India, and the greatest number of claimants and witnesses were also in
India, the Indian legal system, Keenan concluded, was best positioned to
determine the causes and fix liability for the injuries. Curiously, it fell to
this U.S. federal judge to defend the competence of the Indian courts,
although that defense worked in Carbides favor, since the company was
determined to keep the conflict contained within India. Invoking Indias
colonial past, Keenan sanctimoniously observed, [t]o 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.15 With little
apparent choice but to settle, the Government of India accepted Carbides
offer of $470 million in May, 1989, far less than the $3.3 billion figure the
government had initially sought in the Bhopal district court. That decision
not only put an end to all outstanding claims against Carbide resulting from
the gas leak but also ended further official inquiry into the facts. Formally,
the case was closed. For the survivors, though, it was merely the end of the
beginning, in a saga that brought them neither cognitive closure nor a sense
of justice achieved.

13. Id. at 145-46.


14. In re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December,
1984, 634 F. Supp. 842, 845, 867 (S.D.N.Y. 1986).
15. Id. at 866.
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ASYMMETRIES OF KNOWLEDGE AND POWER


In the survivors accounts, both Carbide and the Indian state were
implicated in equally reprehensible acts of denialof knowledge as well as
legal responsibility. UCC, for example, denied knowing both medical facts
about the toxicity of MIC and management facts about what had been
happening at the plant under the supervision of its partly owned subsidiary,
Union Carbide India, Limited (UCIL). The first denial left victims without
effective antidotes or treatment options, either in the wake of the accident
or later. The second denial undercut their efforts to hold UCC, the parent
company, responsible for UCILs negligence. Much of the history of
Bhopal activism consists of successive attempts to counter these official,
top-down denials with new knowledge, arguments, and forms of political
action generated from below. But none of this wealth of social creativity
altered the terms of a settlement that many regarded as fundamentally
flawed and unjust. In the victims repeated attempts to reframe and reopen
the controversy, we see resurfacing the asymmetries of powerbetween
the state and the corporation on one side and the gas affected people on the
other. Globalization, it appears from the Bhopal example, is anything but
even-handed in its flows and frictions.
In any production system, the manufacturer inevitably knows more
about what is being made than the end user. To correct this imbalance,
most modern regulatory systems place on the producers of hazardous
substances, such as industrial chemicals, the burden of generating and
disclosing information about the characteristics of their products. In the
case of MIC, however, very little was known about the chemicals long-
term effects, or even about its immediate acute effects on human lungs and
eyes, before the gas cloud descended on Bhopal. In effect, a huge,
uncontrolled, field experiment was conducted on unsuspecting human
subjects with a substance that industrial researchers had found too toxic to
test properly in laboratory settings. In retrospect, the decision to store large
amounts of MIC in on-site tanks in Bhopal turned out to be a grotesque
reversal of the precautionary principle: ignorance, far from prompting extra
care, underwrote the export of a production process that was wholly
unsuited to its new social context and that proved, in the end, catastrophic
for tens of thousands. Much of what is known today about MIC was
therefore learned after the fact, from the bodies of those killed or exposed
in December 1984 and, eventually, from the survivors children.16
Gathered under such extreme and stressful conditions, that
information was bound to be suspect in many respects. The Indian state, in
particular, deployed its medical and administrative resources in ways that
undercut the victims claims of illness and, in one noteworthy instance,

16. Varma & Varma, supra note 10, at 42-43.


2008] BHOPALS TRIALS 107

their subjective experiences of healing. Relief workers who arrived on the


scene soon after the disaster reported that only one treatment seemed to
afford exposed persons any comfort. This was the chemical sodium
thiosulfate, an antidote to cyanide poisoning. Government doctors,
however, denied that cyanide gas had been released along with the MIC
and, in an action whose arbitrariness victims groups never forgave,
forcibly put an end to efforts by a peoples clinic to administer the antidote.
The Indian Council of Medical Research (ICMR), among the most trusted
of the governments scientific units, proved incapable of resolving the
controversy. Activists cited ICMR meeting minutes that appeared to give
credence to the cyanide poisoning theory, but that were not acted upon by
medical and other officials who were intent, as activists believed, on
managing the news and covering up the most disturbing aspects of the gas
leak.17
An August 1985 interview conducted with Mira Sadgopal, a doctor
from one of the peoples clinics active in Bhopal, neatly summed up the
differences in perception that fed distrust between the medical
establishment and the victims. On one side was the weight of official
knowledge, backed up by class confidence; on the other, the uneducated,
subjective beliefs of poor laypeople. Establishment physicians, Sadgopal
said, have got utter disregard and utter disrespect for people whom they
dont, wellthey dont like them, these poor people.18 And yet, she
observed, the patients personal reports were all there was to go on in the
absence of formal clinical knowledge:
Now when we are trying to measure exactly how much benefit
people are getting from sodium thiosulphate we have very little
clinical evidence at this point. I mean changes in signs. But
people are talking about quite distinct symptomatic relief for
certain symptoms like headache, muscular pain, sleeplessness,
chest pain, breathlessness, palpitations, blurring of visionthe
responses are not uniform but certainly they are very distinct
evidence of relief of the symptoms, but these results have not
been accepted so far by almost all of the doctors in Bhopal,
19
because they say there is no improvement in signs.
In the tug-of-war between subjective claims and objective knowledge,
objectivity won, and the disputed antidote was withheld from most victims.
The casualties, however, were not only physical wellness but also trust, and

17. Something of the confusion and controversy surrounding the use of sodium
thiosulfate can be found in a report prepared for the Asia-Pacifics Peoples Environment
Network (APPEN). See SAHABAT ALAM MALAYSIA [FRIENDS OF THE EARTH MALAYSIA],
THE BHOPAL TRAGEDYONE YEAR AFTER 4-12 (APPEN 1985).
18. Id. at 44.
19. Id.
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no medical accounting of the disasters immediate toll ever gained


widespread public acceptance.
Knowledge of MICs long-term effects remained similarly contested.
The ICMR inexplicably ended its follow-up studies of Bhopal victims in
1994, a mere ten years after the gas release, when many children of
exposed persons had not yet been born and latent diseases, such as cancer,
likely had not fully manifested themselves.20 A state that had in 1985
declared itself the only qualified representative of the victims legal claims
evidently felt no equivalent custodial responsibility to validate or alleviate
their ongoing medical complaints. Generating knowledge in these
circumstances became a lively focus of community activity, but local self-
help alone could not lead to a national consensus, and none emerged. Not
surprisingly, then, as recently as 2006, survivors were still campaigning for
a National Commission on Bhopal21
with the necessary authority and funds to provide facilities for
health care, medical research, social support, and economic
rehabilitation of the people poisoned by Union Carbide / Dow
Chemical and their children at least for the next 30 years. This
commission must have active participation of non-government
doctors, scientists, and representatives of survivors
22
organisations.
For Bhopal activists, the insufficiency of scientific knowledge
remains inseparable from the inadequacy of justice. Their sense of things
left morally as well as factually unresolved is consistent with much writing
in science and technology studies demonstrating that technical
controversies refuse to close unless associated normative disagreements are
also addressed and resolved; scientific and social order, and disorder, are in
this sense, co-produced.23 More specifically, just as the victims subjective
claims concerning their responses to the airborne toxins foundered against

20. See Charlene Crabb, Revisiting the Bhopal Tragedy: Twenty Years After the Event,
Researchers Are Returning to the Site of the Worlds Worst Chemical Spill to Pick Up
Health Studies that Some Believe Were Set Aside Too Soon, 306 SCI. 1670, 1670-71 (2004),
available at 2004 WLNR 15045184.
21. Such commissions have been set up after other national scale disasters, such as the
mad cow crisis in Britain in the 1990s and following the 9/11 terrorist attacks in the United
States in 2001. For an analysis of styles of knowledge-making revealed in these episodes
and in the Bhopal case, see Sheila Jasanoff, Restoring Reason: Causal Narratives and
Political Culture, in ORGANIZATIONAL ENCOUNTERS WITH RISK 209, 209-32 (Bridget Hutter
& Michael Power eds., 2005).
22. International Campaign for Justice in Bhopal, The Demands of the Bhopal Survivors
to the Indian Government and the International Community,
http://www.bhopal.net/2006demands.html (last visited Apr. 23, 2008).
23. For further elaboration of this point, see STATES OF KNOWLEDGE: THE CO-
PRODUCTION OF SCIENCE AND SOCIAL ORDER (Sheila Jasanoff ed., 2004).
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official medical knowledge, so too did local legal creativity fail to make
headway against established doctrines in the wealthier West. As we have
seen, belying the ease of transferring Carbides technology of production
from West to East, Indias attempts to transfer the legal sanctions for
failure back to the risk-exporting country proved much less easy.
The fact that the accident occurred at a local subsidiary helped to
shield the parent company back in the United States. Indian lawyers
representing the victims argued that multinationals such as Union Carbide,
by virtue of their global purpose, organization, and resources, should be
treated as single, monolithic agents, rather than as a network of discrete,
non-interdependent units. They used this reasoning to advance a novel
theory of multinational enterprise liability whereby liability for a
subsidiarys carelessness could seamlessly be attributed to the parent
company. But UCCs written rejoinder, filed in December 1986 in a
Bhopal district court, rejected this logic as unfounded in existing law: The
defendant submits that there is no concept known to law as multinational
corporation or monolithic multinational.24 A 1990 compilation of
documents in the case by the Indian Law Institute lampooned this
ontological negation25 through which UCC denied its very existence as a
corporate entity operating across national borders. More strikingly, the very
company that had persuaded Judge Keenan that adequate legal remedies
could be found in Indian courts rejected the doctrinal innovations that
might have corrected for asymmetries of power and knowledge between
producers and consumers of transnational risks. Relations of dependency,
so roundly deplored by Judge Keenan, were inscribed twice over. Not only
had India needed to import Carbides innovations in agrochemicals
technology, but now Indian courts had to accept the conceptual structure of
American corporate law as controlling.
A full-blown history of Bhopals legal ramifications does not stop
with the settlement between UCC and the Government of India. Central as
the compensation case was to the lives of disaster victims, some of the
most far-reaching changes in the legal and scientific culture for managing
hazardous chemicals occurred back in the producer countries.26 In 1986, the
U.S. Congress enacted the Emergency Planning and Community Right-to-
Know Act, which requires emitting facilities to report releases of chemicals
outside the plant to a database known as the Toxics Release Inventory
(TRI) managed by the Environmental Protection Agency (EPA). In time,

24. UPENDRA BAXI & AMITA DHANDA, VALIANT VICTIMS AND LETHAL LITIGATION: THE
BHOPAL CASE 61 (1990).
25. Id. at xiv.
26. On some European developments, see Jose van Eijndhoven, Disaster Prevention in
Europe, in LEARNING FROM DISASTER: RISK MANAGEMENT AFTER BHOPAL 113, 120-21, 123,
125, 130 (Sheila Janasoff ed., 1994).
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the data disclosed through that reporting system built pressure for
companies to reduce their overall emissions, and the 1990 Pollution
Prevention Act required companies to report additional information on their
efforts to manage and reduce wastes at the source. On its TRI Program web
page, the EPA at once recognizes and interestingly re-represents the
genealogy of these laws. A text headed What is the Toxics Release
Inventory (TRI) Program begins as follows:
In 1984 a deadly cloud of methyl isocyanate killed thousands of
people in Bhopal, India. Shortly thereafter, there was a serious
chemical release at a sister plant in West Virginia. These
incidents underscored demands by industrial workers and
communities in several states for information on hazardous
materials. Public interest and environmental organizations
around the country accelerated demands for information on toxic
chemicals being released beyond the fence line outside of
27
the facility.
EPAs bureaucratic imagination here reduces to practically nothing
the normative distance between a catastrophic industrial disaster in India
and a routine chemical release in the United States. In EPAs
historiography, both incidents at sister plants equally spurred the
demands for legislation and information provisionat home, in America.
Yet the knock-on effects of Bhopal in sites far removed from the
initial tragedy only highlight what we know from comparative studies of
law and science. Legal and scientific changes both play out against
backdrops conditioned by human expectations about what constitutes
adequate knowledge, what counts as justice, and how the two are
intertwined. These expectations, moreover, are consolidated and
continually reperformed by powerful institutions, creating the stable
elements of political culture that I have elsewhere termed civic
epistemologies: that is, shared understandings about what credible claims
should look like, and how they ought to be articulated, represented, and
defended in public domains.28 If Bhopal gave rise to right-to-know laws in
the United States, it was in part because technical information and trust in
numbers29 occupy a more privileged place in American than in Indian

27. U.S. Environmental Protection Agency, What is the Toxics Release Inventory (TRI)
Program, http://www.epa.gov/tri/triprogram/whatis.htm (last visited Apr. 23, 2008).
28. SHEILA JASANOFF, DESIGNS ON NATURE: SCIENCE AND DEMOCRACY IN EUROPE AND
THE UNITED STATES 247-71 (2005).
29. I use this phrase to refer to American political cultures particular devotion to the
objectivity of numbers, as recounted in works like THEODORE M. PORTER, TRUST IN
NUMBERS: THE PURSUIT OF OBJECTIVITY IN SCIENCE AND PUBLIC LIFE (1995) and SHEILA
JASANOFF, RISK MANAGEMENT AND POLITICAL CULTURE: A COMPARATIVE STUDY OF
SCIENCE IN THE POLICY CONTEXT 25, 26, 30 (1986). For an account that contrasts civic
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civic epistemology, where even today the authenticity of experience may


count for more than the assurances of powerful experts.30 EPAs
description of the TRIs aims, by contrast, reaffirms the long-established,
close connection between faith in the objectivity of information and faith in
the possibility of justice in U.S. political culture: The goal of TRI is to
empower citizens, through information, to hold companies and local
governments accountable in terms of how toxic chemicals are managed.31

A VISIT TO BHOPAL
Much of the story told above will be available to the talented historian
of the late twenty-first century who wishes to look back on Bhopal as a
watershed in the long march of globalization; and minds trained by the
dialogue between science and technology studies and the history of science
will be particularly attentive to the co-productionist aspects of these
developments, that is, to the inseparable ties between social and scientific
order. But are there pieces of the story that no archive can store and that
we, as witnesses and narrators of our own present, have a special obligation
to record? It was in search of answers to that question that I visited Bhopal
with a friend in the summer of 2004, nearly twenty years after the disaster.
I had written about the tragedy intermittently throughout that period,32 and
had interviewed or interacted with most of the leading figures involved in
the early years of litigation, but I had never been to the city itself, and I
wanted to hear from the Bhopal activists how they felt their cause had
fared.
Coincidentally, it was during our August visit that the Indian
government paid out the final installment of the relief fund to the victims,
and newspapers were full of accounts of money misspent on consumer
goods, such as motorcycles. Leaders of two major survivor organizations,
Abdul Jabbar of the Bhopal Gas-Affected Woman Workers Organization
and Satinath Sarangi of the Sambhavna Trust, told a different story.33
Hospitals had been built, they said, but were mismanaged and did not
provide adequate care even for the gas victims, let alone for those afflicted
by chronic pollution near the long-abandoned Carbide plant. Relief funds,
amounting to no more than $1000 per person, fell hopelessly short of
paying for the real costs of lifetimes of chronic illness. In a poisoned city,
the chronicle of unredressed and unacknowledged medical cases had in any

epistemology in America, Britain, and India, see Jasanoff, supra note 21.
30. On this point, see Jasanoff, supra note 21, at 225-30.
31. U.S. Environmental Protection Agency, supra note 27.
32. See particularly Sheila Jasanoff, Introduction: Learning from Disaster, in LEARNING
FROM DISASTER: RISK MANAGEMENT AFTER BHOPAL 1, 1-21 (Sheila Jasanoff ed., 1994).
33. Interviews with Abdul Jabbar & Satinath Sarangi, in Bhopal, India (Aug. 9-11,
2004).
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case swollen to include, by 2004, a generation of children born to gas-


exposed parents.
Jabbar and Sarangi followed different paths in their efforts to secure
the moral closure that legal negotiations between Carbide and the Indian
state had denied to victims. Jabbars family had lived two kilometers from
the plant at the time of the accident, in the line of exposure. He coughed
throughout our meeting and spoke English awkwardly as he told us stories
of early deaths and enduring illness. His activism, too, stayed close to
home. Jabbars strategy is to empower local residentsnot so much with
knowledge as with other skillswhile maintaining constant pressure on the
Indian government in the hope that justice will some day prevail. His center
offers women training in craft skills, such as sewing and embroidery,
teaching them economic and social self-sufficiency. The women had come
a long way, he told us, since the 1980s, when most still wore the
traditional, all-concealing burka of Indian Muslims. They could stand up
for themselves now and had learned to ask for reasons and identification if
police or other officials came to question them. But Jabbars most
passionate wish seemed unlikely ever to be granted: to see Warren
Anderson, former chairman of Union Carbide, jailed for one day, but at
least for one day. Anderson had visited India once, just after the accident,
and was briefly detained but then let go. Subsequently, he was charged
with culpable homicide in an Indian court and declared a fugitive from
justice, but he never returned to India and the Indian government did not
press for his extradition.
Sarangis strategy looks outward, enlisting an international network
of experts and activists, and soliciting attention from the media to keep
pressing on the worlds forgetful conscience. Workers at his clinic have
documented significant growth abnormalities among sons of gas-affected
parents and published their results in JAMA.34 In 2004, Sarangi was
spearheading attempts to hold Dow Chemical legally responsible for
environmental damages resulting from UCCs allegedly negligent
operations at the plant before the gas release. Health claims resulting from
that earlier contamination, Sarangi and his supporters argued, could not
have been extinguished by the 1989 settlement, which covered only the gas
victims. But to pursue those collateral claims before a court-ordered time
limit ran out, Bhopal activists had to persuade the Government of India to
declare, quickly and publicly, that its parens patriae role, as articulated in
the 1985 Bhopal Act, did not extend to injuries caused by pre-disaster

34. Nishant Ranjan, Satinath Sarangi, V.T. Padmanabhan, Steve Holleran, Rajasekhar
Ramakrishnan & Daya R. Varma, Research Letter, Methyl Isocyanate Exposure and Growth
Patterns of Adolescents in Bhopal, 290 JAMA 1856, 1856-57 (2003), available at
http://jama.ama-assn.org/ (search Methyl Isocyanate Exposure, then follow the PDF
link for the article titled, Methyl Isocyanate Exposure and Growth Patterns of Adolescents
in Bhopal).
2008] BHOPALS TRIALS 113

environmental conditions in the city.


Under severe time pressure, the activists could find no more effective
instruments of persuasion than their own bodies. The language of suffering
bodies still possesses in Indian political space an authenticity and a power
to convince that cannot be matched by any number of published scientific
articles. In June 2004, Sarangi, accompanied by two of Bhopals most
famous womenRashida Bee and Shahid Noorand hundreds of
volunteers, began a time-honored Indian ritual of protest. They fasted on
the sidewalk outside the Jantar Mantar, Delhis famous eighteenth-century
outdoor observatory. But for bodies to speak truth to power, they had to be
seen to be wasting, and time was in very short supply. The Bhopalis
decided on a waterless fast, so that the effects would be more speedily
visible, but their goal was to move the state, not to engage in pointless
heroics of self-sacrifice. Their attending physicians saw to it that they did
not risk kidney failure from rapid dehydration in Delhis punishing summer
heat. A well coordinated campaign by phone, fax, and e-mail kept up the
pressure on government officials, who bowed to the fasters demands
within a week.
It cost the state little to give in to the protesters this time, other than
some temporary embarrassment; all the government did was clear a legal
hurdle to letting the collateral action against Dow go forward. For the
Bhopalis, the states move was more consequential because it opened a
new legal front, along with the chance to generate yet further scientific
representations of hurt and injury that might circulate in worlds outside the
axis of Bhopal and New Delhi. Once again, however, the creativity of the
pressure tactics in India ran up against immovable legal barriers in the
United States. Called into the Bhopal conflict once again, Judge Keenan
held, and the Second Circuit Court of Appeals affirmed, that the plaintiffs
had no legal claim to the supposedly contaminated land or groundwater,
that these belonged to the Indian government, and that it was impracticable
in any event for a U.S. court to ask for remediation of land owned in its
own country by a foreign sovereign.35
It is worth stressing that medical science, for Bhopal activists, has not
proved to be an immutable mobile that wholly captures or translates to
distant venues the reality of their suffering.36 Science is but one speaking
voice among many, a tool that some in Bhopal have used with indifferent
success for talking across institutional boundaries and enhancing
credibility. But what mode of representation could possibly express the

35. Bano v. Union Carbide Corp., 198 F. Appx 32 (2d Cir. 2006), affg Bano v. Union
Carbide Corp., 2005 U.S. Dist. LEXIS 22871 (S.D.N.Y. Oct. 5, 2005).
36. For the use of the term immutable mobile to describe scientific representations,
see Bruno Latour, Drawing Things Together, in REPRESENTATION IN SCIENTIFIC PRACTICE
19, 26-35 (Michael Lynch & Steve Woolgar eds., MIT Press 1990) (1988).
114 NEW ENGLAND LAW REVIEW [Vol. 42:nnn

activists unending quest for proper compensation? In what discourse of


persuasion could a settlement be forged, or even imagined, between
radically incompatible ideas of accountability? American public reason,
formally articulated through law, science, or economics? Or Indian public
morality, with its vibrant, symbolic demands for social justice and the
assumption of responsibility by the state for a grievously harmed
community? Or neither of these? In recent years, a work of fiction, Indra
Sinhas novel Animals People,37 may have done more to revive
international interest in Bhopal, and thus to touch the conscience of the
world, than decades of medical or legal action.
Perhaps, after all, the fate of Bhopals sufferers is not to have their
story end but rather for it to remain alive as an eternal question mark
accompanying grand narratives of global technological progress: at what
cost, at whose expense, with what compensation, and under whose
conceptions of justice? On the third and last night of our stay in Bhopal in
2004, we were invited to join a candlelight vigil organized by the
Sambhavna Trust. Together with about fifty marchers, including survivors
and their grown children, we quietly circled a block in the center of the
city, candles in our hands, and stood for pictures for a few minutes before
dispersing into the night. The ritual seemed familiar to the other
participants, though the particular focus evidently changed from one time
to the next. That night, the banners held by members of our group
proclaimed solidarity with the Vietnamese victims of Agent Orange, one of
Dows most notorious chemical products. At the end of the evening, our
candles, now massed on the ground, outlined in flickering light the Trusts
logo: two figures embracing.

37. INDRA SINHA, ANIMALS PEOPLE (2007).