Mass torts and elusive justice

When I went to law school, I was not given to much self-reflection on the subjects taught in the classroom. Law school life was difficult enough without the navel-gazing attached to why certain courses were in the curriculum. But the mass torts course, on the Indian legal response to the Bhopal gas disaster, caught my attention. After the disaster, the Indian government filed a suit in the United States against Union Carbide. As a 17-year-old, my instinct led me to puzzle over a question I am sure many of you might be considering: why a case in the US over a disaster in India?

Further shocks were in store for me. The government was arguing that Indian law, particularly the law on civil wrongs, was not mature enough to handle the disaster. In the folly of youth, I took this to be very odd behaviour – the Indian government, running its own legal system down in a foreign court. After acquiring grey hair, such as what remains, I understand this was a strategy to gain leverage over Union Carbide in a legal system that could make powerful corporations accountable for harm caused to the public.

I was reminded of my law school years when I read about the Johnson & Johnson (J&J) case decided by the National Consumer Disputes Redressal Commission (NCDRC) in 2024. J&J is a prominent global medical devices company, with its hip implants used widely in hip replacement surgeries in India. Many of the implants allegedly leaked harmful chemicals into bodies, causing patients debilitating pain and discomfort. Here is a parallel to the Bhopal case and the problem with legal redressal, even 40 years after the disaster.

India does not have a legal system that can effectively accommodate class action suits. There are alternatives, and none of these is optimal. The offender can offer to remedy the wrong voluntarily. J&J offered replacement surgery and a compensation of Rs 25 lakh for each affected person. Many victims found this compensation inadequate. The government could take suo motu action. It appointed an expert commission which investigated the matter and decided on a formula of compensation that could go up to Rs 1.2 crore for an affected patient. J&J has resisted this formula.

One could file a public interest litigation (PIL) in the Supreme Court on behalf of the victims. There was one such attempt, but in light of the government’s compensation formula, the Court declined to proceed with the PIL. Finally, one could file a consumer complaint. Since 1986, India has had a Consumer Protection Act under which redressal commissions can provide relief to consumers who have been sold defective products and services. Depending on the compensation pleaded, one can file a claim in either a district, state or national redressal commission.

Lalita Rajpurohit, who underwent a hip implant surgery in 2007, filed a case in the NCDRC in 2013, seeking Rs 107.52 crore as compensation for financial loss and Rs 15 crore for ‘trauma, suffering, and social humiliation’. After a lengthy recitation of the expert committee’s findings, the Commission, in 2024, awarded Rs 35 lakh to the complainant, adding that if J&J had already paid her Rs 25 lakh, that sum could be deducted from the compensation. It held that the evidence regarding loss of income and medical expenses was insufficient.

Clearly, consumer law also has its limitations when it comes to mass torts. An individual claimant might find it difficult to provide evidence of harm, considering the costs involved in gathering supporting documents and lawyer fees. The Consumer Protection Act also allows for the possibility of class action suits, but these are subject to the same delays and costs that litigation is generally subject to in India.

Perhaps the best way forward is to look at preventive measures of two kinds: one is to ensure that the Indian regulator, in this case, the Central Drugs Standard Control Organisation (CDSCO), takes action promptly and has systems to apprise it of any global problems with imported medical devices. According to the expert committee, J&J did not inform the CDSCO at the time of the application for the import licence that it had already discontinued the defective hip implants in Australia. Also, J&J has not maintained an authoritative registry of people who had received the defective implants. India must develop an informational infrastructure that addresses these problems. Given the delays and complexities of litigation in India, it is regulatory agility and information transparency that are more important than seeking post-disaster legal remedies.

The writer is a law professor who thinks that the law is too important to be left to the lawyers.