The Hindu : Opinion / Leader Page Articles : <I>Ex gratia</i> justice

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Friday, Jul 23, 2004

Opinion

Opinion - Leader Page Articles

Ex gratia justice

By Rajeev Dhavan

Our legal system individuates claims. Mass disasters become a collection of individual cases. India needs a `mass tort' law.

NINETY-THREE CHILDREN have died so far as a result of the fire in a Kumbakonam school on Friday, July 16, 2004. The nation has been numbed. It was a tragedy beyond measure. The survivors are being treated in hospitals. Soon the tragedy will be treated as a disaster to join the many disasters that lie on the shelves of our dwindling memory. We tend to view disasters like impressionistic paintings rather than visualising what happened frame by frame. The tragedy becomes a blur and the disaster an event. This discolours both our sensitivity and responsibility towards such disasters. In time, disasters simply become unfortunate `things' that happen without focussing on what happened, who was responsible and how we should set things right. In the interim, ex gratia payments are made. By the time a Commission of Inquiry reports, the nation's conscience is confronted by another tragedy.

India needs to evolve a law and policy to deal with disasters even if it is more convenient to deal with them through a policy of ex gratia justice. After the Bhopal disaster of 1984, some attempts have been made to confront disasters with moral and remedial rigour. The Indian legal system has no special mechanism to deal with a `mass tort.' If each case is fought, it would take years. The Indian Government decided to represent the Bhopal victims against Union Carbide. This was later justified by the Supreme Court as part of the Government's parens patriae duty. The Government became a parent.

On February 14, 1989, the Government's compromise with Union Carbide was greeted with shock and alarm. Eventually, the offer was revised. In 1991, the Public Liability Insurance Act, 1991 mandated insurance in cases where hazardous substances were involved. For years, the victims remained trapped in a maze of distributive legality. Twenty years after the disaster, on July 20, 2004, the Supreme Court ordered that Rs. 1505.46 crores be distributed to the victims. Who knows who will get what and when? Issues of criminal liability lie stagnant. Vital information about the disaster is still not available.

Beyond ex gratia responses, India has not evolved efficient and compassionate ways to deal with `mass torts'. Our legal system individuates claims. Mass disasters become a collection of individual cases. But new mechanisms to meet `mass disaster' claims have been evolved in England in the Thalidomide Case and in America in several cases including the Agent Orange, Dalkon Shield and other tragedies. Eventually, such cases rarely go to trial. They are settled with swift mechanisms to distribute compensation. It is not enough simply to pursue a policy of making insurance compulsory. Indian law has made minimal advances on `no fault' liability in motor vehicle cases. Generally, insurance companies fight claims tooth and nail with unforgivable tenacity.

India needs a `mass tort' law to deal with mass tort disaster claims. Even if such claims are eventually negotiated, there is the need for a forum in which such bargaining can be made quickly in the shadow of the law while providing for immediate interim payments while this is going on. Indeed, it is the issue of interim payments that sent the Bhopal case to the Supreme Court.

But even though the Legislature has been silent, the Judiciary has tried to deal with mass tort cases innovatively. In the Oleum Gas Case (1987), Justice P.N. Bhagwati indirectly paved the way for resolving the Bhopal case by stating that the owner and occupier are absolutely liable for disasters emanating from their premises. Such a concept of absolute liability meant that there was a strong — virtually unanswerable — presumption that such owners were both responsible for the tragedy and liable to pay compensation. Ironically, in the Bhopal Case (1991) some judges felt that this was an overstatement — thus weakening the legal and moral bargaining position of the victims.

In 1996, in the Indian Council for Enviro-Legal Action Case concerning hazardous wastes, Justice Jeevan Reddy tried to restore what Justice Bhagwati had said whilst relying on an Australian fire disaster case in preference to the more conservative English approach.There the matter lay, until the Delhi High Court in the Uphaar Case (2002) tried to advance the law further.

Meanwhile, other developments took place. In 1989, an awful fire broke out in Jamshedpur in a celebration in a tent organised by TISCO for celebrating the 150th birth anniversary of Sir Jamsedji Tata. Sixty persons died, 113 were injured. The matter came to the Supreme Court. The Tatas admitted liability. A mechanism was evolved to ask the former Chief Justice of India, Y.V. Chandrachud, to assess the damage and determine the sum payable. Eventually, these sums were paid through a judgment of the Supreme Court on August 16, 2001. To get this result, it took 12 years; through an accelerated procedure! But despite this, the Tata Case paved the way for a new approach. Instead of going through a tortuous civil trial, the court permitted the case to be decided through a writ petition which is much quicker, more effective and relatively more immediate remedy.

In 2001, the Supreme Court was confronted with a tragedy in the Grewal Case where students from Punjab died on a school trip. In the absence of a `mass tort' procedure, what was to be done? A civil case would drag on. The Supreme Court blessed the more effective procedure followed by the High Court and increased the compensation. The whole process took six years. A new innovative procedure was emerging.

On June 13, 1997 a fire in the Uphaar theatre in Delhi took the lives of 50 persons while 103 sustained injuries. Justice S.N. Variava refused to go back to the old remedy of a civil suit and decided that a writ petition was appropriate to devise a fast track procedure. On April 24, 2003, the Delhi High Court through Justices S.K. Mahajan and Mukund Mudgal delivered a significant judgment requiring not just the owner but also the statutory authorities to pay compensation at levels much higher than those in the Tata or the Punjab schoolboys case.

Disputes on the allocation of liability have been carried to the Supreme Court. All the sums have not been paid. The cinema hall cannot be sold off because it is required in the continuing criminal trial.

The combined effect of the earlier Oleum Gas and Indian Enviro Cases read with the new procedure in the Tata, Schoolboys and Uphaar Cases is that disaster cases — especially the fire disasters — can be dealt with quickly to hold those responsible liable and accountable without raising too many obstructive niceties about their involvement. When a fire occurs in a premise, the owner may not be personally involved. But he cannot evade responsibility. Such an approach cuts through the Gordian Knot of labyrinthine procedures to work towards a solution. Some of those liable to pay the money fight to the bitter end without opting to settle for a more humane result, which would eventually enhance their own standing as just people.

Ideally, mass disaster cases should be settled. This will not happen on its own. The answer may not lie in simply imposing exacting compulsory insurance on such premises. Such insurance may not be enough. If imposed on rural and urban schools, it cannot be easily inbuilt into scanty budgets. No doubt, this will have serious implications for the Government's `education for all' policy supported by Finance Minister P. Chidambaram's new 2 per cent education cess on income tax. But a safety-less education system jeopardises the educational enterprise. Apart from insurance, it is clear from the Uphaar and the Kumbakonam cases that the regulatory system has failed. In the Kumbakonam case, the statutory authorities failed to observe even an oversight. Errant officers need to be punished, not just momentarily suspended.

In the end, court proceedings ensure that the irresponsible are brought to book. Without this, society cares but has no duty to care. The guilty are not brought to book — placing a premium on gross negligence causing death. Such cases need fast track procedures. In the Best Bakery Case, the fast track criminal procedure failed. In civil cases, India needs a mass disaster law. It is for the Madras High Court to respond to the school fire tragedy in Kumbakonam to provide both immediate and long-term responses. India has to respond to tragedies and not just relegate their past into a memory-less future. It needs a comprehensive mass disaster law and policy now.

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