The dust had not even begun to settle on the tragic scene of the CST overbridge collapse in Mumbai when the blame-game began. The Railways blamed the Brihanmumbai Municipal Corporation (BMC). The BMC blamed the Railways. BJP leader Sanju Verma blamed the pedestrians.
The refusal to take responsibility for the situation has become so farcical that Maharashtra Chief Minister Devendra Fadnavis has had to order the municipal commissioner to take primary responsibility for the collapse of the overbridge, which had been audited just six months ago.
The confusion over responsibility is not just a matter of optics. Not only does this look bad at a time of tragedy, it also has significant practical consequences for the victims’ and their families’ claims of compensation.
If the responsibility for such incidents is unclear, nobody knows who to take to court, and if multiple parties are taken to court, they squabble over who should be held liable, dragging the case on for even longer.
Case in point: the Uphaar Cinema fire tragedy, where the Municipal Corporation of Delhi (MCD), Delhi Vidyut Board and the cinema kept fighting over responsibility for 14 years till the Supreme Court made a final decision.
However, squabbling over responsibility is just one symptom of a greater problem: India’s lack of a law on tortious liability of the State. Here’s why this latest tragedy underscores the need for such a law
Why do we Need a Law on Tortious Liability of the State?
Torts are civil cases, where a person claims that they have been harmed by someone else, in violation of a non-contractual duty. In simple terms, whenever you hear of someone “suing” another person, that’s a tort case.
Tort cases aren’t just about the wrongdoer performing a harmful act, they can also deal with a failure to act. One of the most important claims under tort law is that of negligence : where a person fails to exercise the duty of care required of them by law.
The CST overbridge collapse is a good example of this. Nobody specifically went and broke the bridge or damaged it, but that doesn’t mean nobody is responsible for what happened. Roads, overbridges and other similar infrastructure have to be maintained by government authorities, who have to make sure there are no safety risks. If they fail to perform this duty properly, for instance by not conducting proper safety checks, they have been negligent, and should pay damages to the victims and their families.
But does Indian law allow us to sue government authorities? Can municipal corporations (who are considered part of the government) be held liable for negligence? And how is compensation supposed to be determined in cases like this? These are crucial questions for a country like India where the government runs and maintains important services, and people rely on the government to ensure their safety.
You would think the answers to these questions should be straightforward, but unfortunately that’s not the case. The absence of a specific statute on tortious liability of the State means that the legal position on these issues comes from common law: ie, decisions of the courts.
The problem is that over the years, there have been conflicting judgments on whether the government is immune from claims like negligence, what the levels of compensation need to be, and who is to be held responsible in the first place. Which means that whenever disaster strikes, accountability and enforcement take a backseat.
Why is There so Much Confusion?
The root of this problem, as with so many others, lies in India’s colonial past. English common law, which was applicable to tortious claims in India, used to include the concept of “sovereign immunity”: that the government, as representative of the Crown, could not be held liable for actions of its agents because the Crown could do no wrong.
Over the years, this position was thankfully diluted, and in 1869, the Bombay High Court delivered a judgment in the P&O Steam Navigation case, where it held that the government could be held liable for tortious acts (in that case, negligence) of public servants in situations where an ordinary employer would have been made liable. However, the court differentiated between sovereign and non-sovereign functions; tortious liability of the state could only arise in relation to non-sovereign functions.
This decision and the distinction it made remained important even after Independence because the Constitution failed to expressly deal with the question of the state’s tortious liability. Article 300 of the Constitution does recognise that the Central and State governments can be sued, but it qualifies this to say that they can be sued in the same way as their pre-Constitution equivalents.
This left the legal position in a bit of limbo since there were judgments by other high courts across the country that didn’t recognise the Bombay High Court’s sovereign-non-sovereign function test. So who had got it right? Could the state be held liable for wrongdoing by government employees performing so-called sovereign functions, like wrongful confinement by the police? In what cases should the government not be held liable?
That a law was needed urgently on this was reflected by the fact that it was the very first issue looked into by the Law Commission of India. Its first report in 1956 was on ‘Liability of the State in Tort’, in which it recognised that there was uncertainty over the law.
To clarify things, it suggested getting rid of the distinction between sovereign and non-sovereign functions, and instead listing out exceptions in which the state couldn’t be held liable.
Unfortunately, the Law Commission’s recommendations weren’t implemented, and even when they were introduced as Bills in 1967 and 1969, they were allowed to lapse.
Meanwhile, the Supreme Court passed a judgment in 1965 which approved of the sovereign versus non-sovereign function distinction. Cue further confusion, as courts either adopted the standard, or bypassed the issue in inventive ways.
Over the years, the Supreme Court, realising that state immunity for so-called sovereign functions was being misused by governments and public servants, created a new concept of ‘constitutional torts’. Basically, if a person filed a writ petition alleging violation of a fundamental right by the government, not only would the court order the appropriate relief (like habeas corpus in cases of wrongful detention) but also award the petitioner compensation.
This could have led to a happy compromise, but in truth this has led to even further confusion, since whether to allow compensation and how much compensation to award has come down to the subjective views of the judges.
As a result, Justice YV Chandrachud was willing to give compensation to a petitioner in 1983 who’d been kept in jail for 14 years after being acquitted. But former CJI Dipak Misra refused to hear a request for compensation for wrongful arrest by men eventually acquitted by the Supreme Court for alleged involvement in the Akshardham terror attack.
More recent decisions of the Supreme Court have tried to cut through the clutter by allowing the state to be held liable for tortious acts – some by rejecting the sovereign function distinction, some by ignoring it. But the legacy of the old judgments has meant that the government authorities have argued against being held responsible using old decisions on sovereign immunity, leading to delays in cases which are almost as bad for the victims and their families, even when they ultimately win.
The confusion and delays have also led to governments and local authorities becoming complacent since they know they are not really going to be held accountable for anything.
What Should the Law on Tortious Liability Cover?
Let’s return to the CST overbridge collapse to understand the contours of the law required.
First, there needs to be clarity over who is responsible for an incident like this. Should it be the BMC or the Railways, or should the Maharashtra Government be held responsible instead? The victims and their families shouldn’t have to fight with different authorities for years before they have a chance to get justice. There need to be guidelines on who should be held responsible and there should only be a limited scope for arguments between different entities on this.
Second, it needs to be clear that the state is liable for torts regardless of the sovereign function distinction. As long as a government employee or agent commits wrongdoing while acting within the scope of employment, the government should be liable. If the government has hired an independent contractor, they can be held vicariously liable like a private person.
This would preclude the BMC, Railways or Maharashtra government from trying to reduce the extent of their liability in this case by saying the repair works were done by a contractor, or the audit was outsourced to an external expert.
Third, the law needs to clearly set out certain exceptions from state liability, after reviewing best practices from external jurisdictions. The Law Commission’s own recommendations, despite being drafted in 1956, are quite good, and are similar to the exceptions in the UK.
Some of these include acts done by armed forces in times of war (there is a similar exception in the Consumer Protection Act), the exercise of judicial functions by judges (similar to the protections in the Judges (Protection) Act), political actions like foreign affairs – unless of course a statutory duty relating to these is violated.
This would prevent government and government authorities from wasting time in court making arguments that state liability didn’t apply to the situation thanks to ambiguous wording in some obscure judgment.
Fourth, the confusion on ‘constitutional torts’ needs to be cleared up to ensure that damages are awarded for violations of human rights. The UK’s Human Rights Act 1998 is a useful pointer in this regard. This isn’t directly applicable to the CST overbridge case, but given the extended nature of the right to life under Article 21 of the Constitution to include rights to clean air and water, etc, this could be relevant in other disasters.
Fifth, there needs to be some guidelines on how compensation should be determined, and timelines for paying it, subject to the issues described above.
The unfortunate truth is that neither Parliament nor the State Assemblies are likely to draft laws on this issue, since it could lead to difficulties for them in the future. This means the law will have to be the result of civil society pressure (see for instance comments by advocate Menaka Guruswamy, one of the leaders of the fight against Section 377), and maybe consultations by organisations like Vidhi Centre for Legal Policy which have a strong relationship with the government and have previously recommended a law on this.
Another possible route will be to file a petition in the Supreme Court asking for a follow-up on the apex court’s own decision in the 2014 Vadodara Municipal Corporation case, in which they had recommended that the Law Commission look into the matter again. However, care will need to be taken to ensure that the judiciary’s involvement does not lead to further confusion on these issues.
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