#dnaEdit: Legal lacunae

The Supreme Court’s recommendation to the Law Commission to examine the need for a comprehensive law to fix tort liability on public bodies must not go unnoticed by lawmakers. In the absence of a legislation for claims in public law against violation of fundamental rights and breach of statutory duty, courts have adopted differing standards on awarding damages and holding state agencies responsible for accidents involving road, rail and water transport, fires, gas leaks, and other public utilities. The Supreme Court was hearing an appeal filed by the Municipal Corporation of Vadodara against a National Consumer Disputes Redressal Commission (NCDRC) order directing it to share the liability for damages awarded to victims of a boat tragedy with the contractor operating a boating service. The contractor had overloaded the boat causing it to capsize leading to the death of 22 persons by drowning. The Supreme Court while turning down the Corporation’s appeal ruled that its claims of not being involved in operating or supervising the contractor were unsustainable.

The absence of such a law harks back to antiquated assumptions of the State as a benign and supremely sovereign entity that can do no wrong and functions efficiently and sincerely for the protection and welfare of all citizens.

Though the Fourth Lok Sabha (1967-71) introduced a bill on the government’s tort liability, it lapsed. Even the judicial interventions to compensate the victims of the 1984 Bhopal Gas Tragedy and the 1997 Uphaar fire tragedy only compounded the grievances that the victims harboured against the State. The Bhopal victims had to contend with a paltry settlement of Rs750 crore from Union Carbide. In 2011, the Supreme Court drastically reduced the compensation awarded in the Uphaar tragedy by the Delhi High Court from Rs18 lakh to Rs10 lakh and from Rs15 lakh to Rs.7.5 lakh to the respective families of deceased aged above 20 and below 20. Besides, the punitive damages against the Ansal brothers were slashed from Rs2.5 crore to Rs25 lakh. The Supreme Court disputed the high court’s calculations on earnings loss by the deceased victims, and the calculations on revenue earned from ticket sales from the seats illegally added by the Uphaar management that blocked the exit pathways and caused the tragedy.

Though the Supreme Court’s Uphaar judgment came in for flak, a separate judgment by Justice KS Radhakrishnan in the same case makes a telling confession. “Due to lack of legislation, the courts dealing with the cases of tortious claims against the State and its officials are not following a uniform pattern while deciding those claims, and this at times leads to undesirable consequences and arbitrary fixation of compensation amount,” Justice Radhakrishnan wrote. At the heart of the concept of tortious liability is not just a desire to compensate for harm done, but also to achieve deterrence against future misconduct. Of course, exceptions are needed to exempt actions committed in good faith, judicial functions, and the exercise of political and constitutional functions. The very first Law Commission report in 1956 dealt with the State’s liability in tort as an important tool in improving governance. In a country where accidents caused by faulty design, construction and maintenance of public officials are commonplace, the fear of tort liability is  hardly surprising. But without accepting legal liability for wrongful acts of its employees and agencies, the State is, in effect, granting itself, and one class of citizens, unwarranted immunity.