In Fali S. Nariman's recently released memoirs, Before Memory Fades, he reproduces a fascinating exchange with Professor Upendra Baxi, occasioned by his article in the December 2004 issue of Seminar on the 20th anniversary of Bhopal [Mr Nariman was the lead counsel for Union Carbide Corporation] in the Supreme Court:
In toxic torts, anger against the industrial enterprise believed to be responsible is infectious, evoking strange responses. Affluent sections of society unaffected by the tragedy – who share the rage of the victims – themselves do nothing to alleviate the loss; they have heard people and the press repeatedly say that retribution must come from the wrongdoer: the industrial or chemical company must be compelled to pay. This results in a climate of opinion which favours the view that only victims of natural disasters require public help and support: as to others, the polluter (the perpetrator) should pay.
It was this aspect that was particularly adverted to by the Supreme Court of India in the cases arising out of the Bhopal gas tragedy of December 1984. Whilst giving reasons, on 4 May 1989, as to what prompted the court to accept the overall civil settlement reached in February 1989 between (on the one hand) the Union of India – (by statute, representing all claimants and appearing through its Attorney General) – and (on the other hand) the Union Carbide Corporation with its subsidiary Indian company – Chief Justice Pathak said:
‘It is indeed a matter for national introspection that public response to this great tragedy which affected a large number of poor and helpless persons limited itself to the expression of understandable anger against the industrial enterprise but did not channel itself in any effort to put together a public-supported relief fund so that the victims were not left in distress, till the final decision in the litigation. It is well-known that during the recent drought in Gujarat, the devoted efforts of public spirited persons mitigated, in great measure, the loss of cattle-wealth in the near famine conditions that prevailed.'
Read on at Seminar
To this Professor Baxi responded with an Open Letter to Fali Nariman:
I had to regretfully decline the invitation to contribute to the Seminar issue [544, December 2004] dedicated to the 20th anniversary of the Bhopal catastrophe because of my resolution not to share any public platform with Fali Nariman ever since he assumed the UCC advocacy. I now make an exception because even some movement colleagues have read his contribution here as offering a veiled apology for his advocacy of an unjust cause and an unscrupulous client. No close reading of what he now says remains necessary to dispel this strangely erroneous impression. Instead, what we really get here is an elaborate apologia for the unconscionable settlement that he so assiduously actually promoted.
Read on for this as well as for other responses and then Mr Nariman's reply here
After reproducing all of the above, Mr Nariman gives the last word to Prof Baxi -- the account in his memoirs concludes with a moving personal email from Professor Baxi to Fali Nariman that the former wrote after the above, addressed to 'Dear Fali'. It is a must-read for anyone who is dismayed by how, as Prof Baxi notes*,
"honest differences of opinion in the Indian public culture almost all too often remain mired and caricatured, often cruelly, in terms of personalised politics, a tendency that I have combated all through, perhaps unsuccessfully in my associational public life in India..."
There is one paragraph that I do wish to type out in full:
...I sincerely believe (and you may equally sincerely believe that I remain mistaken) that your active defence of the UCC did a great harm to the protection and promotion of human rights. To say this is not to attack in any way your otherwise impeccable personal and professional credentials. Fali, you may say that the matters end where your professional conscience begins. If more than 2,00,000 Bhopal victims and those acting on their behalf think otherwise, don't they also deserve the dignity of equal respect?
And then, in the conclusion, the most important part:
I can only guess what you actually know in terms of the ringside view of settlement orders. Obviously, we differ profoundly, concerning the architecture of judicial perfidies or performance. I had hoped that your response, twenty years after, would at least have been consistent to your understanding of human rights responsibilities of a human rights lawyering, long since released of professional privilege. Even state archives remain unprotected by a thirty year requirement of official disclosure. I must now await a decade of life, against all available health evidence to the contrary, of how the settlement orders eventually were accomplished. But activist lifetimes even when perishable hopefully have an appeal beyond individual longevity. I hope that future archival retrieval will respond much better to the many issues of contention between us.
What a long way of saying 'Thanks', Fali, ffor your animated rejoinder!
Much love to Bapsi and you,
Dr Upendra Baxi
Mr Nariman of course doesn't respond, but simply prefaces a quote attributed to Oliver Cromwell (in Walpole's Anecdotes of Painting, ch 12) who had commissioned his portrait to be painted by a leading artist of the time as a reason for giving the last word to Prof Baxi:
Mr Lely, I desire you would use all your skill to paint my picture truly like me, and not flatter me at all; but remark all these roughnesses, pimples, warts, and everything as you see me, otherwise I will never pay a farthing for it.
*Interested readers may want to at least look up Page 247-250 in a bookshop or Amazon/Google preview or something.
Also See: Seminar December 2004 issue on Bhopal: Elusive Justice
In all of this, of course, it is useful to go back to what Pratap Bhanu Mehta reminded us in the Indian Express recently:
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.
At least some of Professor Upendra Baxi's work is online and interested readers could check out the PDF files available here