Bhopal, BP, and the Mahabharata

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Punishment fulfils a deep human need, which explains in part the public clamor in the United States to punish executives of BP for the oil spill in the Gulf of Mexico. It also lies behind the national outrage in India over the seemingly light two-year sentence handed down last month to seven officials of the Indian subsidiary of Union Carbide for the leak of poisonous gas from its factory in Bhopal in 1984. The accident killed some 2,250 people and affected 578,000 others, of whom between 15,000 and 25,000 died subsequently and tens of thousands of others remain sick to this day.

The outrage in India springs from both the long delay in justice and the lightness of the sentence for so horrific a disaster. But punishment is a complex issue in the case of industrial accidents. Establishing a higher level of crime in the Bhopal case would have required showing criminal intent or prior knowledge. For a more severe sentence, the prosecutor would have needed to link the gas leak to a tight chain of knowing misdeeds by individuals.

The directors and employees of Union Carbide could not have known that their negligence would lead to a catastrophe of such proportions. They knew they were dealing with a hazardous chemical but had no inkling that either the plant design or their operation was flawed. A 1982 audit report had pointed out one area of vulnerability, but they had rectified it.

The evidentiary link was also missing with respect to Warren Anderson, the former American chairman of the worldwide Union Carbide company, who became the global symbol of the Bhopal tragedy. This explains why India has not succeeded in  extraditing him. Nevertheless, Union Carbide got away by paying a paltry penalty ($470 million) for the worst industrial disaster in history, which is especially galling when you compare this figure to what BP has paid and will end up paying for the oil spill in the Gulf of Mexico. In India, the tiny payment has fanned latent sentiment against multinational corporations and has reinforced a belief that these huge entities operate under a double standard.

The truth, however, is that multinational operations throughout the developing world are run, on the whole, to much higher technical and managerial standards than local companies. Indians are acutely aware, for example, of the appalling safety standards of the government-owned Indian railways. Some have asked in response to popular indignation over the Bhopal case, “When did we last try to jail a railways minister or one of his employees for negligence?”

Despite being under huge populist pressure, the Indian government has brought some balance and sanity to the public discourse on this issue, which had been overtaken by a lynch-mob mentality. The government has rightly recognized that the first and foremost duty is to the victims and survivors of the Bhopal disaster, to whom it has offered another $330 million; it has also provided $76 million to clean up the toxic site. If only the government had shown this determination 25 years ago, much suffering could have been averted. The U.S.-based Dow Chemical, which now owns Union Carbide’s Indian division, should agree to share in the financial burden as an act of magnanimity, although it has no legal responsibility.

The lesson from Bhopal and from BP’s oil spill is that we need tort remedies to address the risk of future disasters. The legal system should not allow private individuals to keep the gains from dangerous activity and pass off the losses to the public. Liability should be fixed in advance on companies that run such operations. Solid insurance underwriting is likely to do a better job in pricing these risks than any program of direct government oversight. The rash decision of the Obama administration to shut down deep-water drilling for six months is precisely the wrong sort of reaction.

As a matter of human psychology and character, no one should be surprised by the desire to get even. A judge’s sentence fulfils a primordial desire for revenge. Some think that this urge is neurotic and vindictive and that it damages the core of our being; others believe that retributive emotions like anger and resentment deserve a legitimate place in our social and legal lives. Through the ages, literature, especially religious literature, has wrestled in an especially sophisticated way with these problems.

In the Mahabharata, an ancient Sanskrit epic that is one of Hinduism's primary texts, a fine and fair-minded young man named Aswatthama finds himself in the wrong place at the wrong time. When his father is killed unjustly in war, he goes almost crazy and avenges himself by setting fire to the sleeping armies of his victorious enemies and their allies. That nighttime massacre is a deed so repulsive that it turns the mood of the epic from heroic triumph to dark, stoic resignation.

The magnitude of the catastrophe in the epic is not unlike that in Bhopal or the Gulf of Mexico, where the oil spill has fouled the shores and ruined the lives of many of the people who live there. The difference lies in the issue of intent, and here we should take note. Aswatthama is punished for his heinous, premeditated crime — he is condemned to walk alone on the earth for three thousand years. But such plain culpability is lacking in the industrial disasters now making headlines. Aware that retribution is also an opportunity for the abuse of power, the Mahabharata expresses concern about the quantum of punishment, suggesting that it ought to meet a test of proportionality.

Both India and the U.S. are venturesome and entrepreneurial societies. In the end, no amount of regulation will prevent catastrophes. Humans are prone to err and to dismiss warning signs. What is needed is dharma, or good faith, among both companies and officials in an effort to limit harm. Regulators ought to work cooperatively with companies but not to such a degree as to be “captured” by them. In market democracies, “crony capitalism” is an ever-present danger. Regulators should also remember that excessive costs forced on companies become higher costs for consumers, and that trying to eliminate risk, whether to avenge a catastrophe or for other motives, is likely to stifle both entrepreneurial energy and the prosperity that it generates.

Gurcharan Das is the author of India Unbound: The Social and Economic Revolution from Independence to the Global Information Age. His new book, The Difficulty of Being Good: On the Subtle Art of Dharma, will be published in September by Oxford University Press.