Wednesday, May 30, 2018

Where the law needs to change track: on the Railways Act

Where the law needs to change track: on the Railways Act

Where the law needs to change track: on the Railways Act

The recent deaths of schoolchildren at an unmanned rail crossing highlight why the Railways Act must be amended

In late April, a bus with schoolchildren collided with a train at an unmanned railway level crossing, near Kushinagar in Uttar Pradesh. Thirteen of them died. This is not the first time that an incident of this nature has occurred, so some questions need to be asked. Is there any mandate for manning all level crossings? In an incident such as this, where the bus driver was reportedly negligent, is the railway administration liable even if the train engine driver cannot be faulted?

Legal issues

We can look for some answers in a 1997 Supreme Court judgment (Union of India v. United India Insurance). In May 1979, at Akaparampa in Kerala, 40 passengers and the driver of a passenger bus that had been hired were killed when the vehicle was hit by a train at an unmanned level crossing. Cases were filed before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation against the owner and insurance company of the bus as well as the Indian Railways. The Tribunal awarded compensation against the owner. The liability of the insurance company was restricted to a measly ₹500 per victim on the basis of restriction of liability contained in the terms of the policy. In appeals taken to the High Court, the Railways too was made liable for negligence in not making provisions for a gate and personnel to mind the gate. Aggrieved, the Railways went to the Supreme Court. The legal issues addressed by the Supreme Court are instructive for what the Railways was required to do.
A claim for damages for negligence of the defendant falls in the arena of a civil wrong called a tort action. In relation to claims for railway accidents, the Railways Act provides for fixed compensation on predetermined scales. It also provides a forum for passengers to make claims in the form of Railway Claims Tribunals situated in different parts of India. But there is a limitation. Only a passenger on a train can make a claim before the Tribunal. Passengers of a bus or motor vehicle who may have been harmed after a collision with a train can only approach the Motor Accidents Claims Tribunal. However, this tribunal can entertain the claim against the Railways also as a joint tortfeasor if the negligence of the Railways is established.
In the course of the judgment, the Supreme Court borrowed the neighbourhood principle articulated in Donoghue v. Stevenson (1932). It said that the duty of care for the Railways extends not only to those who use the Railways’ services but also to people who are “neighbours” — namely, users of vehicles on roads that intersect with tracks. Consequently, there is a common law liability for the railway administration for an accident at an unmanned crossing, even in the absence of specific provisions in the Railways Act, where the Central government can direct the administration to lay manned crossings. An action at common law can be filed for nonfeasance because the Railways was involved in what are recognised as dangerous operations and hence is bound to take care of road users.
It took up the issue of whether there could be any breach or a common law duty on the part of the Railways if it does not take notice of the increase in the volume of rail and motor traffic at the unmanned crossing, and if it does not take adequate steps such as putting up gates with a watchman to prevent accidents at such a point. It said that there existed a precedent from England that was examined by the House of Lords — that the Railways should take all precautions that will reduce danger to the minimum. It approved the estimate made in Lloyds Bank Ltd. v. Railway Executive (1952) that if 75 to 100 vehicles crossed the level crossing per day, the Railways owed a duty of care at common law to provide for a gate with a watchman. If such a duty can be seen from factual circumstance, the corollary shall be that non-exercise of the power of the government to direct the Railways to lay gates shall be construed as irrational. Alternatively, if the plaintiff had no idea of particularly relying upon the exercise of power by the authority in his favour but is a matter of general reliance, society could by previous experience expect the exercise of such a power and if such an expectation stood belied, then too a conclusion could be drawn that the non-exercise of power by the authority was irrational. The running of trains by the Railways, as pointed out in Commissioner for Railways v. Mc Dermott (1966), has been recognised as inherently perilous and creates a general expectation that safety measures have been taken by the railway administration.

Need for continuous audit

The decision by the Railways to equip all level crossings in India with gates by 2020 does not mean that unmanned gates will be relegated to history. After all, these gates have not come about because the Railways laid tracks across roads and kept these places unguarded. On the other hand, because of the operations of the Railways, where tracks are laid across large tracts of land, there is greater human movement in these areas; in turn, roads are laid across tracks on both sides. The railway administration should have continuous audit of tracks; when new roads come on either side, traffic must be calibrated, adequate infrastructure built, and safety measures put in place. The Railways Act 1989 (through Section 124) provides compensation on strict liability basis. This means that “when an accident occurs in the course of working a railway” (a collision between trains, or when one is a train carrying passengers, or derailment, or any other accident with a train or any part of a train carrying passengers), then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, an injured passenger or one who has suffered a loss can lawfully maintain an action and recover damages.

Have an amended law

On instructions from the principal Bench in Delhi, in every one of the major accidents in India between 2016 and 2017, the families of victims were contacted by the Tribunals where the families resided, and applications for compensation filed. There was quick adjudication for payments. In the incident of a stampede on a foot overbridge at Elphinstone Road station, in Mumbai in 2017, the Bombay Bench of the Railway Claims Tribunal awarded compensation amounts without any contest from the Railways. Hitherto, responses to claims for compensation arising out of accidents have been on an ad hoc basis but it is time the government amends the Railways Act to provide for compensation on a proactive basis without driving victims or their families to file applications in Tribunals. The ex gratia payments will then be substituted by rights-based compensation regimes that will sensitise the Railways to administer their operations with greater focus on public safety. It is also essential to include within Section 124 of the Railways Act a provision for a claim from a “neighbour to a passenger” in the manner that the Supreme Court recognises, namely, a road user of a motor vehicle.

Monday, April 16, 2018

Innocent before guilty 

SC/ST Atrocities judgment, a different perspective

It is not unusual that the decisions of the Supreme Court are counter-majoritarian in that they hold views against what are popular or what could pander to mass sentiments. The recent conflagration is a symptom of how we are slowly allowing populism to judge the quality of judgments and give no heed to the legal underpinnings justifying the conclusions in the judgment. The recent one in Dr. Subhash Kashinath Mahajan v The State of Maharashtra in Crl App No 416 of 2018 dt 20th March 2018 that has sent the country in to a frenzy, even if not popular, is driven through sound legal principles and not very easy to dislodge. It has examined the protection sought by a person claiming to be innocent but against whom proceedings were initiated under the SC/ST (Prevention of Atrocities) Act. The focus was therefore required to examine within the framework of law the manner of how the Atrocities Act could be enforced punishing the persons guilty with the vigour that the Act expounds without at the same time inflicting hardships to innocent persons against whom the complaints are prima facie mala fide and prevent the Act from being "converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons".

Reiterating established legal precedents
The judgment reiterates sound principles of law already laid down: (i) The earlier decision of the Supreme Court in State of MP v Balothia (1995) upholding provisions of SC/St Act, making inapplicable s 438 CrPC that would enable the accused the benefit of anticipatory bill; (ii) Consequently, it said that "the exclusion of s 438 CrPC applies when a prima facie case of the commission of offence under the Atrocities Act is made" (para 60);  (iii)The law should be so enforced that it "should not result in caste hatred." The judgement quotes Dr.B.R.Ambedkar in his famous speech on 25th November 1949, on conclusion of deliberations of the Constitution Assembly underscoring that "castes are anti national and they generate jealousy and antipathy between caste and caste." The judgment therefore exhorts that "the interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society.  They may require check on false implications of innocent citizens on caste lines." (para 47) In doing so, the Court emphatically stated that "we are not diluting the efficacy of section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention". (para 68)

Protecting the innocent as a necessary corollary to provision denying anticipatory bail
After setting out that the perpetrators of atrocities should not be granted anticipatory bail so that they many not terrorise the victims, the Court proceeded to state, "Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime. The facts that gave place to this law itself provides an outstanding illustration of how an innocent person could be browbeaten and blackmailed against doing public duty. A storekeeper in a Government College of Pharmacy was appraised in the Annual Confidential Report to the effect that "his integrity and character was not good." This was the basis for a complaint for offence under SC/St Act against his superior officers in 2006. The Investigating Officer sought for sanction before the Director of Technical Education (Appointing Authority), in 2010 and the latter refused sanction in 2011. The act of refusal was stated in a complaint in 2016 as an act of atrocity under the Act. The Director approached the High Court under s 482 CrPC to quash the complaint and when it was dismissed, he approached the Supreme Court. The case was an outstanding illustration of a mala fide registration of a complaint because, by no stretch of imagination, a sanctioning authority, who is but a gatekeeper, by denying sanction could be stated to have committed an offence under the Atrocities Act. The complaint and the original complainant and its registration by police were patently illegal and a flagrant violation of the Act. Even if the refusal of sanction was wrong or the exercise of such authority was by a  person who was not competent to pass such an order, as contended by the complainant, the remedy was to challenge the order before an appropriate forum and not make it as a ground for a fresh complaint under the Act.

Registration of complaint and arrest, when justified
The Court therefore examined the case law on the subject and stated with reference to earlier decisions that (i) a judicious scrutiny is to be undertaken even before registration of a complaint if the ingredients of an offence exist even on the express averments in the complaint; (ii) Even if a complaint is registered, it is not necessary to order arrest; (iii) If such arrest is undertaken and the accused is a public servant, permission of the appointing authority shall be taken and if he is not a public servant, the permission shall be taken from the SSP, being a check not against registration of a complaint but against arrest without adequate reasons. The Court was "reiterating a well established principle of law that protection of innocent against the abuse of law was part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest." It said that constitutional guarantees of fundamental rights to all its citizens and a fortiori, an innocent person must be protected against blackmail and wreaking of vengeance.

Salient features of Atrocities law untouched by judgment
It is essential to know that the most potent provisions of the SC/ST Act are the exhaustive enumeration of various acts that constitute atrocities under section 3 and the stringent punishment to the perpetrator of the offence.  The Supreme Court has not touched upon the provisions. Equally important are the provisions for causing removal of certain persons likely to  commit any offence and presumption of abetment of the offence if financial trail from  the accused is sourced to any person or of commission of offence when there exists any present dispute with any person who is a part of the group, which remain untouched. Inapplicability of anticipatory bail provisions is but one of key provisions but it is trite law that even the absence of the provision for anticipatory bail does not take away the power to grant interim bail in suitable cases. The SC has enumerated several earlier decisions of the Supreme Court that recognise this power and particularly in the context of non-availability of anticipatory bail provision in the State of UP.

What went wrong?
The Supreme Court as the sentinel of fundamental rights of all its citizens has placed procedural safeguards for innocent persons only and has not disempowered anyway a valuable right to any member of SC/ST to use the rigours of the act against the perpetrator of any atrocity in the matter of registration of complaints and secure conviction. However, the travails of the Dalit brethren to caste based discrimination and atrocities have not stopped. There are countless rapes on dalit women. There are several social practices that assign to the dalits a lowly living. While the empowerment is pronounced in urban areas thanks to reservations in public employment, the lot of dalits in villages have not improved significantly. There are reports of lynching and indignities heaped on dalits every day even for mere suspicions of involvement in minor offences. In such an environment, the timing of the judgment was just not all right. Our courts take a long time to bring culprits  to book against whom complaints are made. Acquittal rates are high not because the complaints are false but because the prosecuting agency is corrupt and inept. Pre-trial arrest is the only satisfaction to the dalit victim that some instant justice is done. The decision of the Supreme Court, even if it could be supported in Courts as legally well founded, will find no takers outside court.

Saturday, April 14, 2018

Stampede deaths at the Railway Premises

The injured victims and representatives of the deceased in Mumbai's Wellington bridge stampede in September 2017 got compensation, subject to a maximum of 8 lacs, as per the scales provided under the Railway Claims Tribunal Act. The Railway Administration got a shot on its arm by praises from the press and the public in its stand not to contest the claims before the Tribunal. The Tribunal at Mumbai did a quick work at it awarding compensation of 8 lacs to next of kin of dead victims and lesser sums to persons injured, all in a day’s sitting. The status of victims as passengers was assumed, particularly in view of the fact that the bridge was exclusive for train commuters connecting the Parle Central Railway platform and West Wellington Railway platform to the flower market nearby. In all this, it was made to appear that the Railways did a charitable act of leaving the decision- making to the Claims Tribunal without at the same time admitting liability.  The assumption is wrong, for, what the Railways did was a recognition of what is understood as strict liability and it could have done nothing less.

The Railways Act makes its administration liable for any accident or untoward incident whether or not there is fault or negligence on the part of the Railways for death or injury suffered by a passenger. The term ‘passenger’ in the Railways Act means a person who enters or exits the railway premises either with a platform ticket or a ticket or pass that gives lawful authority to travel. A railway staff is also included in this term. The ‘accident’ so called arises when a train collides with another or derails causing injury or death. An ‘untoward incident’ that makes the railways liable for injury and death when a there is a violent attack or terrorist act, robbery, rioting, shoot out, arson or a fall from the train. The exceptions are when the death or injury is suicide or an attempt, result of self infliction, his own criminal act, insanity or inebriation or  due to ill health not arising out of injury caused in an untoward incident.

The term, untoward incident, has been interpreted purposively by Courts to aid injured victims or representatives of the deceased claimants who fall from the train while boarding and de-boarding and even when the acts are rash or negligent. In Anil Kumar Gupta v Union of India (2016), persons who  had arrived in New Delhi for attending to open recruitment drive by ITBP and returning home arrived at the railways station and climbed on roof tops of railway coaches but met with serious injuries and death when they were hit by bottom of over bridge below which train was speeding through. The Supreme Court  did not make much of the the fact that the passengers were getting on roof tops in spite of the Station Master and the guard warning them against such a dangerous mode of travel and the loco  pilot showing his initial remonstrations by not chugging off and refusing to roll out. The train started on the insistence of the motley crowd atop the train but the SC found the railways ought to have been aware of inherent danger in allowing train to run with such speed having large number of persons travelling on roof top and awarded compensation to  the victims. Terrorist attacks that were carried out on 26th November 2008 at Mumbai were also at Churchgate railway station and the silver lining in the otherwise macabre incident was quick adjudication by the Claims Tribunal that yielded to award of compensation of amount as prescribed by law which was at that time Rs 4 lacs at the maximum, apart from ex gratia sums released both by the Central and the State governments?

Stampedes ought to be seen as falling within the genre of untoward incidents and have indeed been held to leave a trail of liability under tort law by several High Courts. In  Rakhee Sharma v State of MP (2014) and Sunil Kumar Singh v State of Bihar (2013) the High Courts were making the State liable for compensation to instances of stampede and the resultant deaths and injuries occurring in temple festivals. Even the fire and stampede deaths in Upahar film tragedy, all the courts made the licensing authority also liable for compensation, proportional to the extent of culpability as determined by them, apart from making the theatre owner liable. In Dhabwali fire and stampede tragedy, the local authority was made liable for compensation for its failure to protect the victims even while directing the school authorities who had organised the meeting to pay a larger slice of the compensation amounts. In two instances occurring at Delhi, there have been decisions of the Railways Claims Tribunal (Principal Bench) (Jagat Ray and another v Union of India OA 11/2005 dated 22.2.2008; Rajeswar Prasad and another v Union OA13/2005 dated 22.8.2006) making the Railways liable, rejecting the defence of Railway administration of non-liability. The decisions have held that an inevitable force that one passenger exerts on the other in stamped situations ought to be taken as "violence" that falls within the definition of "untoward incident".

God forbid, If there were to be another stamped at the platform or foot over bridge at the Railway Station , it shall not again become a subject of dispute by the Railway administration and the victims shall be paid compensation as legal obligation of the Railways and not as a  gratuitous response to the supplications from various quarters.          

Monday, December 18, 2017

Structural re-engineering of judicial system – a prospect

A detenu’s plea for hearing his appeal

Underneath the multi-layered solutions proffered to countless ills afflicting judicial system, suggestion for setting up a National Court of appeal with regional benches in Chennai, Mumbai and Kolkatta did some rounds before the idea was temporarily buried with the Attorney General telling the then Chief Justice T.S.Thakur’s court on April 26, 2016 that “We will only be adding to lawyers’ pockets. The Supreme Court should not consider this when its own dockets are full.” Recently, in Sadaulla @Sadab @Nanka, a detenu serving a life sentence, after a conviction of Sessions Court in the State of Jharkand had moved the High Court and Supreme Court successively to obtain bail without success, pending his appeal and later approached the High Court again pointing to the fact that he had served 10 ½ years in person and requesting to set a date for hearing in his appeal.  The High Court ordered that it has no time to hear his appeal and dismissed the application. When the matter reached the Supreme Court yet again, it ordered notice on 27.10.2017 promising to consider what the remedies could be to administered to ensure hearing of criminal appeals within reasonable time. The court noted that the scene of inability of the High Court to hear the appeal was not limited only to Jharkhand High Court and similar was the position prevailing in several High Courts where a large number of criminal appeals were pending.

SC Arrears Committee recommendations

The Supreme Court order makes reference to minutes of the 'stakeholders' meeting called by the Arrears Committee on 8th April 2017 and what it reveals is interesting. It records the fact that pendency of cases which are more than five years old in High Courts is more than 40% and disposals of criminal appeals are less than the corresponding rate of institution. In the High Courts, there are 16.29 lakh cases that are more than 5 years old of which 7.43 lakh cases are more than 10 years old. Underlining the need for re-engineering the structure of administration of justice by which the Supreme Court and the High Courts may discharge their core constitutional functions, it suggested that statutory appeals could be dealt with by an alternative mechanism by courts of appeal, which in the hierarchy will be higher to the district judges but below the High Court. In other words, an intermediary tier between the High Court and the District Court is envisaged that will have a cadre drawn partly by selection from the Higher Judicial Service and partly from the Bar through Centralised recruitment mechanism.

Intermediate appellate court between District Court and High Court

This suggestion has a distinct advantage. In the Constitutional scheme of things, High Courts are not subordinate to Supreme Court, in matters of judicial administration, the way the District courts are to the High Courts. Setting targets for disposals to High Courts could not be done and increasing numbers of High Court judges are never easy matters. With the above suggestion, it may be possible for High Courts to set disposal norms to be achieved for such intermediate appellate Benches and their functions could be closely monitored. Based on performance, integrity and suitability, members of the appellate Benches may be considered for elevation to the High Courts.  Hitherto, 1/3 of judges of the High Court are drawn from the cadre of District judges; now, they will be from the members of the appellate Bench. Dealing with a possible objection that creating another Appellate Forum might not necessarily result in reducing the docket load of the High Courts, the Committee noted that scope of interference in constitutional jurisdiction of the High Courts under Article 226 and 227 is circumscribed and will not be the same as deciding on facts and law. Consequently, the decisions of these appellate Benches cannot be appealed as a matter of course against to the High Courts.

The aborted initiative

The attempt of the Supreme Court to look into its own recommendation on its judicial side has been unfortunately aborted when the Chief Justice withdrew the case before himself and 2 Companion judges and 'recalled'  the order on 8.11.2017 by a placid observation that High Courts shall expeditiously hear appeals where accused persons have already spent 10 years, as though it was exercising a review or intra court appellate jurisdiction. If the Supreme Court will not address the problems of persons in jails whose appeals are not being heard for more than a decade, will the reform come from some quarters who will deal with how to improve the quality of jails so that persons inside have no need to complain, after all?  If that happens, Mallya will have lost one line of argument from his armoury before the Magistrate to thwart his extradition!

Thursday, October 20, 2016

Frames of reference..

K. Kannan on triple talaq laws in India and in several Muslim-majority countries: Frames of reference: The thicket of legal dialogues on the validity of triple talaq conceals the result of churnings that have already taken place in our courts on this subject. The renewed debate has come through a quest

Thursday, October 13, 2016