The Uphaar Cinema judgment where the Honourable Supreme Court of India has cut down the quantum of compensation has highlighted the need for legislating a comprehensive law for fixing state’s tortious liability under a public law remedy. Read more to get the complete picture
In October 2011 the Hon’ble Supreme Court of India delivered its judgment in MCD vs. Association of victims of Uphaar tragedy whereby it reduced the amount of compensation for the 59 people who died while they were watching a movie at south Delhi’s Uphaar cinema hall in 1997.
The apex court cut down compensation for those above 20 years from Rs 18 lakh to Rs 10 lakh while for those under 20 years, the amount has been reduced from Rs 15 lakh to Rs 7.5 lakh. Cinema hall owners i.e. the Ansals were asked to pay 85 percent of the compensation money to the families of the victims, while the Delhi Vidyut Board (DVB) was asked to pay 15 percent of the amount. And Municipal Corporation of Delhi and the licensing authority i.e. Delhi Police were absolved of their liability in the case as their omissions were not found to be proximate cause of the incident.
The judgment was received by different people differently. For the immediate kith and kin of the Uphaar Victims it was a cause of disappointment. For literati it was an occasion for routine television discussions. And the rest of the country either remaining too busy in their fight for survival remaining either indifferent or cynical and the large part of the people who are entrusted with the safety of the society continue to remain apathetic.
The irony of the situation is that out of our constitutional “we the people”, the people in whose name and for whom the laws are sought to be made are either insignificantly educated to appreciate the true import of such laws or are too insignificant in the scheme of things or are simply cynical about their fate. Then the people who can legislate are too busy with their own games. The people who areentrusted with the administration of such laws are just not bothered about their responsibilities most of the time their focus is on either saving their “jobs” or making moolah and whenever they are charged with dereliction of duty they take all the defences in the book and by one way or the other they are.
The notion of ‘public law remedy’, in my view, is an important evolving aspect of the ever expanding constitutional concept of social welfare State. In this remedy, whenever there is a mass disaster, the index for awarding the amount of compensation is essentially ‘societycentric’ and not ‘individual-specific.’ Consequently, in our calculation the commonality of shared factors characterized by the quality of certainty like age and death naturally gain primacy. Since such factors are fewer rather than many, this approach invariably results in averaging the amount of compensation somewhat on the lower side. However, such a discount is offset by considerations of larger social concern, which prompt the court to raise the quantum of compensation by awarding the amount that should prove punitive and deterrent. On the contrary, in case of invoking ‘private law remedy’ the matter of central concern is to restore the sufferer or aggrieved person to his or her original position as far as possible. Restitution through the contrivance of monetary compensation, thus, gains predominance.
However, both the notions of ‘public law remedy’ and ‘private law remedy’ are not entirely mutually exclusive. In the modern developing industrial societies, wherein increasing thrust is on sustainable development, the two notions are likely to converge in due course of time. For instance, the Supreme Court in Municipal Corporation of Delhi, Delhi v. Association of Victims of Uphar Tragedy & Others, imposed damages on the owners of Uphar cinema theatre to the tune of 25 lakh of rupees mainly on two counts (paragraph 43). “The first is because the wrongdoing is outrageous in utter disregard of the safety of the patrons of the theatre. “The second is the gravity of the breach requiring a deterrent to prevent similar further breaches.” The Division Bench of the Delhi High Court earlier awarded 2.5 crore of rupees and the Supreme Court in appeal reduced this amount to twenty-five lakhs. Bearing in mind certain discrepancies pointed out by the apex court, which resulted in drastically lowering the amount of compensation, it needs to be borne in mind that in case if there still remains a wide gap between the amount of compensation payable and the amount that can be paid by the person who is held liable to pay as per his capacity and resources, for meeting the ends of justice it is the obligation the State to step in and abridge the yawning gap. Else, our own commitment to usher in social welfare state would not only diminish, but get tarnished!
Never ending clamour for newer laws: It appears that clamour for newer laws has become our national hobby that every tragedy or any problem of socioeconomic importance is met with a demand for a new law and with our political class driven by vote bank compulsions lap it up and our arm chair intellectuals seeing a photo opportunity appear before televisions and discuss the pros and cons of such a law and the next day it is either forgotten and if not forgotten and if they are really lucky then they gather momentum and come to be tabled in parliament, but constituents of parliament either remaining busy in scoring brownie points against the political opponents therefore not being able to transact any legislative business as the one upmanship never seem ending.
Need for coherent and consolidated rule of law: Every passing day is witnessed by demand for this law or that law in the name of meeting the need for increasing complexity of socio-economic political relations in the country. The question which emerges is that with still a large part of our citizenry remaining illiterate, and out of the literate ones majority remaining only functionally literate, and whatever little remains out ofthe two preceding categories of the “people of India” is too insignificant to make much of a difference. Then in such a scenario with almost all the laws in the country being enacted in a language which still, for a majority of our population, remains foreign; further, enactment of too many laws in the name of better governance of the country seems only to add to the confusion instead of bringing any coherence.
As it can be seen that whatever basic laws which are required for better governance of the country are in place provided they are coherently and sincerely administered. As is evident from the Uphaar case it can be seen that cinematograph act sufficiently provided for whatever security protection were required like provisions for entry exit of the cinegoers in the cinema hall. But if those entry exit points are blocked by raising constructions to provide for additional seats to make more profits, and if existing fire regulations are flouted, routine inspections which have already been provided for in the existing laws if are not carried out on time and in true sense of the term then it is not the problem of laws but is a problem of coherent and consistent administration of laws. Had all existing laws been implemented in their true letter and spirit then the tragedy simply could not have occurred.
Our legal system for common man sounds like a legal quagmire as there have been too many enactments and then rules also being notified for the same coupled with policies being notified on different aspects of law having force of law and this is just not ending up but with each passing day we are having more and more laws. This all simply confounds a common man and the purpose of stating all this does not mean that this author is against legislation of newer laws. The problem is that too many laws add to the confusion not onlyof the general public but also of the legal practitioner. Thereby it is a clear case of consolidation of existing laws so as to do away with any confusion whatsoever as to the available legal regime.
Why do you think the doctrine of strict liability would not be applicable in MCD Vs. Association of the Victims of “Uphaar Tragedy” as has been reasoned by Hon’ble Supreme Court in the case?
“Uphaar Tragedy” was the result of negligence and misfeasance of Cinema owners. In this case strict liability Principle will not apply, since it was at the most a case of breach of statutory duty. in regard to performance of Statutory functions and duties courts do not award damages unless there is malice. In the present case the act of the Licensing authority had no direct impact on the accident. There was a lack of safety measures, but that will not give rise to monetary liability. Strict liability and no fault liability necessarily requires bad faith which was absent in the present case on the part of the Licensing Authority. This principle will not apply in the cases where there is breach of legal duty and damages are caused without any intention. In the present case also, it does not appear that it was a case of failure of duty, but the concept of duty cannot be put in ‘strait jacket’ ( JaiLaxmi Works Limited Vs. State of Gujarat reported in 1994(4) SCC 1)
Kindly distinguish between private and public law remedy in case of torts. Why should the two be distinguished?
The liability is divided in two parts; namely liability under public law and liability under private law. If it is established that there has been an infringement of fundamental rights of citizens, the court can grant relief of damages in writ jurisdiction also. On the contrary, in the case of private law, the aggrieved parties can agitate under ordinary civil law. In the case of public law, liability, the courts look into the interest of public as a whole, so as to ensure that the public bodies do not act unlawfully and perform their duties properly. In the case of breach of duty, where the loss is suffered due to acts of the State instrumentality the ordinary civil court cannot pass any order under private law. Sovereign immunity is also not available where the commercial or privateactivities of the State are involved. Where a constitutional right is infringed, the damages can be claimed under public law from High Court. But where only damage is caused due to breach of duty on the part of an individual, torturous liability arises there being the duty toward the persons generally, on the breach of which, claims for pecuniary compensation arises. Such claims can be filed in ordinary courts. The distinction between the private and public law is that in case of public law, the fundamental rights guaranteed under constitution are infringed, which has a serious consequence and High Court can directly consider the grievance. On the contrary, in the case of private law remedy, only individual rights are infringed for which the grievance can be raised in ordinary civil court.
In the case of determining damages for constitutional tort, the measure towards damages may be of two types namely pecuniary damages which would put a party in same position as if he had not suffered the damage. A person can also claim non- pecuniary damages based on sentiments and emotions. The method of calculating the non-pecuniary damages is difficult to quantify. But the pecuniary damages can be quantified by calculating the losses in terms of money as losses of earning etc.
Why do you think that the parliament has not been able to enact a law on the issue, despite same having been urged by law commission in 1956 then by the National Commission on the Review the Working of the Constitution in 2001 and the various constitutional benches on the same?
Though a consolidated law has not been enacted on tortious liability, but several enactments have come in the field under which damages can be claimed, such as Motor Vehicles Act, Fatal Accidents Act, etc. Excepting in certain specific field, it is difficult to make a general law in the matter of codifying the law on the tortuous liability.
Kindly distinguish between palliative/ tentative, exemplary and punitive damages?
The damages are of several types, such as exemplary, punitive, contemptuous, nominative, tentative, etc. the tentative damages are awarded at the stage of pendency of proceedings for damages as an interim measure. In the case of exemplary damages, the court takes in to account the moral conduct of the defendant and the wrongdoer is punished for misbehavior. Such damages are awarded due to court’s outrageous attack on an individual’s security or at wanton misconduct on the part of the defendant. In the case of contemptuous damages, the award is only derisory indicating that the court formed a very low opinion regarding the claim. In the case of nominal damages, the court passes as award when the plaintiff does not suffer actual damages, whose legal right is infringed.
In our constitutional scheme of things judiciary has been assigned the task of interpreting laws and dispensing justice and higher judiciary, within its limited role, has done a fine job and has at times gone beyond its mandate to bring justice to the people and in turn has been accused of judicial overreach. It is a classic case that while other two branches of government i.e. the legislature and executive are found wanting in discharging their duties and when judiciary, the third branch of the government dares to take cudgels and tries to bring some solace to the people of India it is asked to remain within its bounds. So much so that it has done away with the classical distinction between sovereign and non sovereign function of the state.
The need for legislating a comprehensive law for fixing state’s tortious liability under a public law remedy has been again highlighted by the Hon’ble Supreme Court in the Uphaar Case. If we trace the History of the demand for such a law, then it can be seen that the Law commission in its report in 1956 had pitched in for such an enactment and made a strong recommendation for such a law. But the successive governments worried more about bettering their electoral outcomes by way of enacting popular laws never bothered to take note of the need for such a law as the majority seldom is a victim of tragedies like uphaar. It is the silentminority which keeps suffering because of such legislative negligence. Further Consultation Paper on “Liability of the State in Tort” National Commission to Review the Working of the Constitution again made a case for such law and all that effort it seems has gone down the drain.
The answer seems to be in affirmative in this context as the statutory authorities/municipal authorities more often than not are found to be either nonfeasant or misfeasant or worst still malfeasant in discharge of their public duties being witnessed in one or the other cases be it railway accidents, fire incidents, building collapses where a lot of lives are lost or any other tragedy of this sort ascribable largely to the dereliction of duty on behalf of the authorities entrusted with the same. And to do away with present state of legal affairs it is suggested that a consolidation of existing laws and overlapping municipal jurisdictions beingclearly demarcated besides the tasks being assigned to the people having competence in the related field. As it can be seen that in the Uphaar case the Licensing Authority took a defence that it did not have the competence to grant such licenses still such duty was assigned to it which reflects sorry state of affairs regarding the way safety and security of the citizens is dealt with such mechanical manner.
So in the end it can be said that clamour for new laws is a fine thing but if the legislation of laws starts getting influenced by the vote bank considerations then the emerging legal regime would just not only be lopsided but also do much injustice. As it can be seen that the parliamentarians and other intellectuals of national stature have not minced even a single word as to the legislation of such a law which would lay out a mechanism for determining damages in a constitutional torts. Besides it is also important that the parliament should take stock of the existing laws so as to consolidate them so that any jurisdictional confusions if any do not remain so that no instrumentality of the state can escape liability for its torts. Till this is done the state of too much law and too little justice would continue.
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