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Friday, February 09, 2001


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Big bad things

By Rajeev Dhavan

BIG BAD things occur all the time, whether caused by faulty design (like Bhopal or Chernobyl), or sabotage (like Kanishka air crash) or negligence (like railway and bus accidents in India). Some disasters like Agent Orange in America flow from evil designs. Some like the Thalidomide, Dalkon Shield, tobacco and invidious pollution cases in the U.S. and elsewere grow out of commercial greed. All these affect large sections of the population. War is often used as an excuse to inflict mass disaster. Famines, floods, hurricanes and tornados take their inevitable toll. The earthquake in Gujarat reminds us to look at the law relating to big bad things.

Research shows that the effect of mass disasters is long lasting and inter-generational. What is true of mass disasters is also true of mass projects. In the Banwasi Ashram case, it took the Supreme Court several years to restore land to displaced families. Without land, housing, education and health facilities, the future of two entire generations of 7000 families was completely wiped out. This is also true of Narmada. Man-made mass disasters are worse. To disease, pain and displacement is added the terror of making a claim against the perpetrators. All such claims - as in Bhopal - are contested. Mass disaster cases are too complicated for the legal system to handle. Each one is settled, on terms that are usually unfair and badly implemented. Even today Bhopal victims go from lawyers to Claims Commissioners to prove their case. Natural disasters are in a still worse category. The law treats them as `acts of God'. No one is responsible. No one can be held legally liable. Whatever is done is an act of mercy or charity. Or, as the law would put it, ex- gratia.

The law relating to each of these is diverse. In mass projects, the law now requires compensation and rehabilitation. The Supreme Court's judgment in the Narmada case does not do justice to the law. Without a resource base, at least two generations of children will forfeit their future. In a man-made disaster, the law uses an individualistic Common Law of negligence, nuisance, breach of contract or statutory or other obligation to correct a collective wrong. The law of remoteness of damage ensures that many `effects' are not compensable. The law relating to damages is niggardly and concentrates on quantifiable `loss' and not on reconstructing lives. Natural disasters flow on the ex-gratia principle.

An individualistic law is inadequate for collective disaster. At the level of prevention, the law creates a generous option for the rich. Insurance is available for virtually every kind of disaster - including hurricanes, disease and death. But even this option flounders at the level of enforcement. Novels have been and can be written on how insurance companies resist claims. The Life Insurance Corporation has harassed enough widows to make a major point out of minor cases. For the poor, the Public Liability Insurance Act 1991 on hazardous substances which entails compulsory insurance, an Environment Relief Fund and no rehabilitative provisions is trapped in legal quagmires. No less ineffective are preventive regulatory laws, as has been proved by the Bhopal case. Mr. Jagmohan's response to the earthquake in Gujarat is one of better building laws. Where such laws are violated, there can be a claim for negligence or breach of statutory duty. In the Oleum gas case, the Supreme Court suggested legal aid and relaxed procedures to make a claim. In the Uphaar case, the Delhi High Court has devised a `quick fix' procedure which is the subject of an appeal in the Supreme Court. In the Bhopal case, the Government enacted a special Bhopal Claims Act in 1985. The procedures under the Act enlarged the disaster. The law on prevention is either a rich man's law or is inadequately regulated and, it inevitably eludes enforcement.

The law on liability and the claim process is antiquated and ineffective. After the Gujarat earthquake, the Chief Justice of India, Dr. A. S. Anand, thoughtfully wrote to the Gujarat Legal Aid Board: ``Countless widows, orphans, crippled and others rendered destitute overnight as a result of the disaster might now face difficulties in resolving their legal problems relating to guardianship, protection of properties, obtaining successor certificates, operation of bank accounts and other valuable securities and properties''. This first legal step is necessary. The English Law society immediately set up teams to assist in the legal processes to deal with ferry victims. In Bhopal, a number of American lawyers awesomely filled the gap in legal services. The Government took over all the claims of the victims in parens patriae under the Bhopal Act as a parent of the victims. But it has not been a good parent. In the Banwasi Ashram case, Mr. Justice Kuldip Singh devised special legal aid committees to deal with claims. The Chief Justice's letter in the Gujarat case is a positive initiative which should be made a permanent feature in the disaster-prone country where lawyers act for fees in the individual case. But neither the Bhopal solution (of the Government taking over claims) nor leaving the answer to the private market economy of lawyers is a remedy. Public services must fill the gap.

But, even if legal services are provided, the substantive law which is tailored to suit the individual case is woefully inadequate. Individual obligation has to be proved. Damages have to be shown as having occurred and should not suffer from remoteness. Even after liability is admitted - as in Bhopal - making claims is irksome and soul destroying. In natural disaster cases, where ex-gratia payments are to be made, after the initial provision of food, shelter and blankets, claimants spend years even getting ex-gratia payments. They are treated as liars and cheats rather than as victims.

Procedurally, the law is in a mess. Inadequate legal support is only the beginning. The law decrees a merit and means test. This creates an entanglement. Then, there is court fee. While the Civil Procedure Code permits waiver for paupers, proving that one is a pauper creates a case within a case. The Bhopal procedure of the Government taking over claims in all disaster cases is not possible and it will be an invitation to a bureaucratic nightmare. The procedures for collective claims (under Order I Rule 8) or a possible public interest claim through the Advocate- Generals are cumbersome, reactive rather than proactive and lack finesse. When a collective claim is made, liability and damages are individuated. The result is a ghastly nightmare - a nightmare in itself. All mass disaster cases are settled. But there is no quick and effective procedure for settlement. The indictment of the Bhopal settlement was that it was conspiratorially secretive.

The law relating to natural disasters is based on liability or insurance. Apart from fire services, there is no law to render assistance in a disaster. All other programmes are created by the executive and not enforceable as such. The 1972 statute on National Service is skewed and unused. The duties of the Government in a disaster should be statutorily defined. Even if this is not done, the courts - perhaps in the pending Delhi case on disasters - should lay down that Article 21 of the Constitution read with the parens patriae doctrine used in the Bhopal case creates a positive obligation on the State to provide assistance, support and rehabilitative measures for the victims as an enforceable right.

Our law relating to disasters is in a big a mess. The courts, the Law Commission, the Human Rights Commission, the Government and the lawyers need to create an effective law and procedures for the hapless victims. An effective law for big bad things is much needed to provide a framework for the future.

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