Monday, June 14, 2010

Culpable negligence

Swaminathan Aiyer argues that the Indian Railways has caused more deaths than the Bhopal disaster and yet the public has not displayed the same degree of concern:

Consider Mumbai’s suburban rail services. Activist Chetan Kothari used the Right to Information Act to get data on people killed in Mumbai by the Central and Western Railway, which run through the city. Answer: 20,706 people have been killed in the last five years. This is six times as high as Bhopal’s 3,787 immediate fatalities and higher than even the long-term fatalities estimated at 15,000-20,000.

.. Union Carbide was lambasted for not using the best technology available to avert risks and deaths. But do we castigate the railways for not investing in the best safety technologies, and creating barriers to stop people from crossing the tracks? Union Carbide was slated for negligence in a shutdown plant. But the railways continue to be negligent year after year in a running organization that runs down people.

Many of us howled for justice after Bhopal. Many demanded the arrest of Union Carbide chief Anderson. Those convicted last week included Keshub Mahindra, the non-executive chairman with a largely ceremonial position. How many of us have demanded even the dismissal, let alone conviction, of the railway staff, Railway Board members or railway minister for the continuing holocaust in Mumbai? The non-executive head of the railways is, formally, the President of India. Has anybody demanded that Pratibha Patil be prosecuted for continuing railway deaths?

The Bhopal incident is certainly one of the worst and most tragic the world has seen. But, I also feel sorry for the plant engineers or managers at the Bhopal plant, who were convicted after a trial that ran for 25 years. What happened at Bhopal was an accident and not an act of terror with an intention to kill. But, the law says that negligence that leads to death is an offence. It believes that ‘punishment’ will act as a deterrent and reinforce the message that when safety of public is at stake one is obliged to be extremely vigilant.

But why scream for the head of Anderson alone? As any person who has undergone a basic course in Quality management will tell you, every accident can be traced back to human error. The Mangalore air crash was not an act of God, but caused due to negligence somewhere in the process. Did we ask for the arrest of the Chairman of Air India? The crane collapse at the Metro Railway site was a preventable accident. Did any Chairman get arrested for negligence? Each time we can demonstrate and prove that someone was guilty of an act of commission or omission.

As Aiyar concludes:

NGOs and the media suffer from a terrible double standard. They will pounce on negligence by a multinational, and rightly so. But they act as though the public sector has a licence to kill. That is disgraceful.


hari said...

There is a real difference from a legal point of view between an industrial accident involving hazardous chemicals and normal road or rail or air accidents.

In the case of Industrial accidents where poisonous substances are released, the liability is absolute whether negligence is involved or not.

There is a famous case law to this effect. This principle was made popular by Justice P.N.Bhagawati in the Oleum gas leak case.

Ramesh said...

you were there at the time of the tragedy so it makes me wonder how you can say all this??? there is always a probability of negligence in whatever you do, yet the chance is greatly enhanced if someone or some people willfully ignore all the signs which was the case in Bhopal, would you allow drunk pilots to fly?

the laws always go after the highest person because then only the higher people will ensure that safety and other procedures are followed which will reduce this chance of a disaster ..

Raj said...

Hari, I agree that what you point out is the settled position in law, and that negligence in a chemical plant invites punishment. But, as Aiyer argues, a mechanical or electrical failure (plane or train))is as much due to negligence. So, why the double standards?

Ramesh, I was around when Bhopal happened and I do sympathise with the victims. If, as you say, the law should go after the top guys, why did they not go after the Chairman of AI when Mangalore crash happened? Is only a chemical disaster punishable? ( Full disclosure: I am a chemical engineer)

Sankar said...

Then why did 09/11 make such a big impact. After all the number of people who died (about 2000 if my memory serves me right) is probably less than the number of people who annually lose their lives in road accidents and homicides in the US. Hence I assume there are many factors some of which probably are death rate, frequency of occurence of the particular form, level of perceived culpability of persons responsible and collateral damage, emotions, media, politics, economics etc. etc.... I do agree that targetting Warren Anderson esp. after 25 years is ridiculous, more to do with politics than good sense. It is important (though I am quite sure extremely difficult) to arrive at a compromise for a financial settlement to the victims. We armchair critics cannot even fathom/imagine the enormity of the difficulties on both sides - UC, now DOW and the victims). Hence, when there are so many difficulties, recourse has to be taken to the law of the land(however imperfect and however much it reeks of double standards in one's perceptions) for direction and Raj you are an engineer and not a lawyer.

hari said...

The reason has to do with the principle of absolute liability.

Of course, this applies when the general public are at danger due to hazardous and noxious chemicals or other substances escaping from factories or industrial units.

The following considerations, I believe necessitate the difference:

1. Chemical hazards usually pollute entire localities and has potential for future damage also.

2. Affected parties include entire areas of people, not just those in the immediate vicinity.

3. Air and water pollution caused by chemical plants are very difficult to reverse and can cause continuing effects in nature.

4. The people who set up such units are taking this risk knowing fully the nature of their operations. It is a continuous threat and danger.

While in transport services, there is no inherent danger in travelling except the hazard of accidents.

5. Polluter pays principle requires that the person responsible for the pollution, whether willingly or otherwise, whether in negligence or not, is fully and absolutely liable for whatever damage is caused by his/her operations or accidents.

Raj said...

Sankar, because I am an engineer and not a lawyer, I know that every accident can be traced back to a preventable root cause. So,no safety incident or accident can escape the charge of negligence. Hundreds of deaths have happened due to faulty/leaking LPG cylinders and the Chairman of Indian Oil has never been arrested for negligence.

Hari: You have summarised the points beautifully and I can't find any flaw in your argument. I am in full agreement with the view that the 'polluter must pay'. By all means go after the erring company and the insurers. But, demand for just compensation is not the same as demanding the arrest of a non-executive Chairman and a few plant managers/engineers. "Arrest' imputes criminal motives, whereas compensation is a civil liability.

But I grant you that law can't make such a distinction. When a company is 'prosecuted', the implication is that the directors/officials in charge must go behind bars.

hari said...

As to criminal liability of the top management of such units, I would say these cases are present not just to serve the ends of justice, but to serve the needs of society. And society demands that considering the nature of such industrial disasters, people responsible should pay, whether they are directly involved or merely responsible as management.

To elaborate, as I said before, the very nature and scope of such environmental disasters take it on a level different from ordinary accidents because of

1. continuing nature of pollution and spread of areas affected
2. hard to reverse or irreversible effects on unborn generations
3. semi-permanent to permanent damage to biosphere and basis of life in such areas

I say this, because these cases take litigation out of the realm of ordinary civil and criminal liability and to the realm of social liability where it doesn't matter whether strict criminal or civil liability is proved.

In arguing against this, I believe you are arguing against well established principles of jurisprudence and the entire history of social justice in India since Independence. Judiciary has been highly imaginative and proactive in responding to such crisises and haven't taken a hyper technical legal view which actually results in injustice.

So should Anderson be held criminally liable as well as civilly? I believe so, and I believe such principles need to be codified to further strengthen the case against corporates and MNCs who feel free to violate our precious environment and get away with it at relatively lower cost.

hari said...

Mind you, when I say criminal liability, the result need not be imprisonment and can be huge and hefty fines as well.

So criminal liability is not necessarily a step to imprison such people but to establish the nature of the offence.

Therefore I feel rightly that Anderson must be tried criminally and depending on the nature of his involvement he can be fined to a greater or lesser degree.

Ramesh said...

@Raj: As I mentioned in the paragraph before there is a difference between keeping a blind eye to mistakes around you and an actual mistake. In case of Bhopal there were accidents in the years before, reports all of which were willfully ignored.

Suppose the investigation of an AI crash suggests that the Boeing was showing a lot of problems and that there were recommendation to ground it which was ignored by management the noose will then only be around the chairman's neck and not otherwise ..

Raj said...

Hari, you have put forth the points extremely well and I found your argument quite revealing. Thanks. On one point though, I still differ. The charges of negligence can be levelled against the company and, if proved, suitable punishment may be meted out. But,which official do you prosecute? You have to draw the line somewhere. Union Carbide India was a legal entity by itself, registered under the Companies Act of India, and headed by a MD. The buck had to stop with this MD. Why insist that the Chairman of the global organisation must be arrested and only then justice will be done? If there is a leak from Indian Oil rrefinery would you arrest the Minister for Petroleum and, for good measure, also the PM, they representing the owners?

Ramesh: As I have been saying, every accident can be traced back to a preventable cause, and therefore an instance of negligence.

hari said...

Thanks, Raj. You are very kind. Yes, that is obviously a point to consider.

Legally and morally speaking, there is no objection or barrier to prosecuting the highest official of that company - as I said before, this is clearly an instance of social justice at work and some clear-cut and logical balance must be found between assigning legal responsibility and determining actual culpability.

You might know that according to the Negotiable Instruments Act, in cheque bouncing cases, MDs and chairmen are liable to be prosecuted even if they are not signatories or actually responsible for the transaction. So legally speaking, there is no barrier to assigning responsibility even in criminal cases to "superior authority" though it must obviously be used very cautiously and not like ordinary civil vicarious liability.

Practically speaking a company is its members, and no manager low or high can hide behind corporate personality in such cases.

hari said...

When I state the above, I must add that it is very rare that in criminal cases you get to assign vicarious liability to superior authority except when it is a conspiracy, a case of abetment and instigation and so on.

Generally speaking, you are right in that criminal liability is personal and cannot be assigned on the principle of "respondeat superior". A master cannot answer for his servant's crime, unless it has taken place on the master's instructions, abetment, goading and so on.

However, as I said before, these are exceptional cases and the principle is not adhered to.

Sankar said...

Hey Raj
The first sentence in your reply to me seems to imply that only engineers know that every accident is traceable to a preventable root cause. You are being unjust to lawyers. Also, I feel, that in your passion to damn the Indian bureaucracy/Govt. for their seemingly unjust action in the targetting of Mr Anderson you have missed the fact that all these events/issues are not only about justice; in fact it is said that Law is not about Justice, it is about dispute resolution. Hence in exceptional cases like this where the no. of aggrieved/ 'disputed' parties are innumerable the no.of disputes to be resolved increase exponentially and 'perceived' justice takes a back seat.

Pooh! Phenomenal! You must be a Lawyer; Haribhaskar by any chance?

hari said...

Sankar, no I am Harishankar, law student.

Balajisblog said...


Interesting views..

Not a single person has been meaningfully sentenced in 1984 anti Sikh violence in Delhi, as well as 2001 Gujarat violence. Though I was brought up to respect the law, at a deeper level, 1984, 2001 and now, Bhopal verdict have managed to convince me that "justice" is non existent in our land.

Interesting to note that BP has managed to settle out of court 20 BUSD with the US Govt, for killing some fish and sea gulls.


Raj said...

Balaji, sadly the value of a human life in India is close to zero. 100000 people dying in India is, statistically speaking, a piece of trivia.

Anonymous said...

Unfortunately, a bit of a canard against the Indian Railways. IR moves the equivalent of the world's total population in any given year (20 million per day, 7.5 billion annually), it is the world's single largest employer and provides immeasurable service to Indians. To equate the two seems very, very wrong.

Raj said...

Anon, that can be said of many companies that are accused of negligence. BP is a big employer, helps run millions of cars, thousands of planes, hundreds of ships and moving billions of people...

Anonymous said...

Going after the CEOs and top level executives seems to be directly proportional to media coverage...more the coverage and talked by people increases the chances of blame game on top management..
Railway accidents or Airline disasters are covered for a week or 10 days and Bhopal tragedy is covered for years!