THE HINDU EDITORIAL : MAY 8, 2018
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THE HINDU EDITORIAL : MAY 8, 2018
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Where the law needs to change track: on the Railways Act
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.
b) Where the law needs to change track: on the Railways Act
Shopian in south Kashmir is on edge. On Sunday five militants, including slain Hizbul Mujahideen ‘commander’ Burhan Wani’s aide and a Kashmir University assistant professor, were killed in Badigam village of Shopian district in an encounter. In protests that followed, at least five civilians died and over 130 were injured in clashes with the security forces. Sunday’s violence capped a week of violence in Jammu and Kashmir, with a death toll of at least 24. Early on Sunday morning, a gunfight broke out after a Rashtriya Rifles unit launched a cordon-and-search operation on a specific input. As the firefight between the two sides began and when security forces rushed in more reinforcements, including para-commandos and the Jammu and Kashmir police’s Special Operations Group, civilians began to gather in protest. Dozens took to the streets, throwing stones at the security forces, who retaliated with teargas and pellet guns. The security forces believe it was a strategy to distract them and facilitate the militants’ escape. The protests were not just limited to the operation site, and clashes were reported from at least two other locations in the Valley. Sunday, unfortunately, was not an unusual day in the Valley. It reflected a new normal, which includes daily violence involving the security forces, civilians and militants, all of it mostly ignored by the Indian political establishment. It not only highlighted how Shopian, once a relatively peaceful area, has been transformed, but also how violence in the Valley shifts to different geographies instead of being confined to traditional militant strongholds.
According to official data, after claiming a few thousand lives annually starting 1990, violence in the State began to decline in 2007-08, with 2012 seeing it dip to 117 deaths. However, starting 2013 it has been climbing back up sharply. The killing of Burhan Wani in July 2016 triggered a fresh round of violence and several dozen local youth have taken up guns since then. In 2017, all of 358 people died in the Valley. Episodic spells of stone-pelting, with the intensity and duration varying, have posed a particularly difficult dilemma for the security forces and the civil administration. The challenge is not only to calm the street and stare down militants. It is to do so in a manner that keeps civilians out of harm’s way, so that alienation does not deepen. That the authorities are failing to do so is evident from reports of increased recruitment by militant groups even in once-tranquil areas such as Shopian. Home-grown militancy is a reflection of alienation, and the alarming reports of its revival demand a security strategy as well as a political outreach. In 2010, the political establishment responded to the summer of intense protests by reaching out to the Valley with an all-party delegation. The Centre must consider sending a similar all-party delegation to the State, before summer sets in.
WORDS/ VOCABULARY
1) Collided
Meaning: Hit by accident when moving.
Example: “She collided with someone”
Synonyms: Conflict, Clash
Antonyms: Coalesce
2) Mandate
Meaning: An official order or commission to do something.
Example: “A mandate to seek the release of political prisoners”
Synonyms: Instruction, Directive
3) Negligent
Meaning: Failing to take proper care over something.
Example: “The council had been negligent in its supervision of the children in care”
Synonyms: Careless, Remiss
Antonyms: Careful, Attentive
4) Hired
Meaning: Employ (someone) for wages.
Example: “Management hired and fired labour in line with demand”
Synonyms: Employ, Engage
Antonyms: Dismiss
5) Liability
Meaning: A thing for which someone is responsible, especially an amount of money owed.
Example: “Valuing the company’s liabilities and assets”
Synonyms: Debt, Debit
Antonyms: Asset
6) Appeals
Meaning: Be attractive or interesting.
Example: “The range of topics will appeal to youngsters”
Synonyms: Attract, Interest
7) Aggrieved
Meaning: Feeling resentment at having been unfairly treated.
Example: “They were aggrieved at the outcome”
Synonyms: Resentful, Angry
Antonyms: Pleased
8) Defendant
Meaning: An individual, company, or institution sued or accused in a court of law.
Example: “The defendant tried to claim that it was self-defence”
Synonyms: Accused, Appellant
Antonyms: Plaintiff
9) Tort
Meaning: A wrongful act or an infringement of a right (other than under contract) leading to legal liability.
Example: “Public nuisance is a crime as well as a tort”
10) Claims
Meaning: State or assert that something is the case, typically without providing evidence or proof.
Example: “The Prime Minister claimed that he was concerned about Third World debt”
Synonyms: Assert, Declare
11) Tortfeasor
Meaning: A person who commits a tort.
12) Articulated
Meaning: Having two or more sections connected by a flexible joint.
Example: “An articulated lorry”
Synonyms: Segmented, Attached
Antonyms: Fixed
13) Nonfeasance
Meaning: Failure to perform an act that is required by law.
14) Precedent
Meaning: An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.
Example: “There are substantial precedents for using interactive media in training”
Synonyms: Model, Exemplar
15) Corollary
Meaning: A proposition that follows from (and is often appended to) one already proved.
Example: “The huge increases in unemployment were the corollary of expenditure cuts”
Synonyms: Consequence, Result
Antonyms: Cause, Origin
16) Plaintiff
Meaning: A person who brings a case against another in a court of law.
Example: “The plaintiff commenced an action for damages”
17) Belied
Meaning: (Of an appearance) fail to give a true impression of (something).
Example: “His lively, alert manner belied his years”
Synonyms: Contradict, Disprove
Antonyms: Reveal
18) Perilous
Meaning: Full of danger or risk.
Example: “A perilous journey south”
Synonyms: Dangerous, Hazardous
Antonyms: Safe, Secure
19) Equip
Meaning: Supply with the necessary items for a particular purpose.
Example: “All bedrooms are equipped with a colour TV”
Synonyms: Provide, Furnish
20) Derailment
Meaning: The action of a train or tram leaving its tracks accidentally.
Example: “An investigation into the derailment of a freight train”
21) Adjudication
Meaning: The action or process of adjudicating.
Example: “The matter may have to go to court for adjudication”
Synonyms: Arbitration, Judgement
22) Stampede
Meaning: (Of people) move rapidly in a mass.
Example: “The children stampeded through the kitchen, playing tag or hide-and-seek”
23) Hitherto
Meaning: Until now or until the point in time under discussion.
Example: “Hitherto part of French West Africa, Benin achieved independence in 1960”
Synonyms: Previously, Formerly
24) Ad hoc
Meaning: Created or done for a particular purpose as necessary.
Example: “The discussions were on an ad hoc basis”
Synonyms: Impromptu, Extempore
25) Proactive
Meaning: (Of a person or action) creating or controlling a situation rather than just responding to it after it has happened.
Example: “Employers must take a proactive approach to equal pay”
26) Ex gratia
Meaning: (With reference to payment) done from a sense of moral obligation rather than because of any legal requirement.
Example: “An ex gratia payment”
27) Sensitise
Meaning: Cause (someone or something) to respond to certain stimuli; make sensitive.
Example: “The introductory section aims to sensitize students to the methodology of the course”
28) Militants
Meaning: A militant person.
Example: “Militants became increasingly impatient of parliamentary manoeuvres”
Synonyms: Activist, Extremist
Antonyms: Centrist, Conformist
29) Aide
Meaning: An assistant to an important person, especially a political leader.
Example: “A presidential aide”
Synonyms: Assistant, Helper
30) Capped
Meaning: Provide a fitting climax or conclusion to.
Example: “He capped a memorable season by becoming champion of champions”
Synonyms: Crown, Complete
31) Firefight
Meaning: A battle using guns rather than bombs or other weapons.
32) Reinforcements
Meaning: The action or process of reinforcing or strengthening.
Example: “Older electricity mains required reinforcement to meet increased demand”
Synonyms: Augmentation, Increase
33) Confined
Meaning: Keep or restrict someone or something within certain limits of (space, scope, or time).
Example: “He does not confine his message to high politics”
Synonyms: Enclose, Imprison
Antonyms: Releases
34) Evident
Meaning: Clearly seen or understood; obvious.
Example: “She ate the biscuits with evident enjoyment”
Synonyms: Obvious, Apparent
Antonyms: Unnoticeable
35) Tranquil
Meaning: Free from disturbance; calm.
Example: “Her tranquil gaze”
Synonyms: Peaceful, Restful
Antonyms: Distributed, Busy
36) Home-grown
Meaning: If someone or something is homegrown, he, she, or it belongs to or was developed in your own country.
Example: She’s a homegrown talent.
37) Alienation
Meaning: The state or experience of being alienated.
Example: “A sense of alienation from our environment”
Synonyms: Isolation, Detachment
38) Revival
Meaning: An improvement in the condition, strength, or fortunes of someone or something.
Example: “A revival in the fortunes of the party”
Synonyms: Improvement, Rallying
Antonyms: Downturn
39) Intense
Meaning: Having or showing strong feelings or opinions; extremely earnest or serious.
Example: “An intense young woman, passionate about her art”
Synonyms: Passionate, Ardent
Antonyms: Apathetic
40) Delegation
Meaning: The action or process of delegating or being delegated.
Example: “The delegation of power to the district councils”
Synonyms: Assignment, Committal
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