The Hindu : The Uphaar case

Online edition of India's National Newspaper
Friday, May 02, 2003

Opinion

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The Uphaar case

By Rajeev Dhavan

What Uphaar has done is to create a new measure of damages in public law which will impact on many situations.

EVERY NOW and then, judgments appear on the landscape of Indian law which enhance its value to point in the right direction on matters of public significance. The Delhi High Court's judgment in the Uphaar case is one of them. On Friday, June 13, 1997, the Hindi film, `Border', was released at the Uphaar theatre owned by the Ansals in the posh locality of Green Park, Delhi. Bored by the summer and intrigued by the film, people thronged to view it. It was "house-full" all the way. Little did some of the innocent people who went to see the movie know that death and injury by fire awaited them.

When the theatre was constructed in 1972-73, the Delhi Vidyut (Electricity) Board (DVB) had installed a sub-station in the ground floor of the cinema, next to the car park. The transformer in the sub-station was not essentially meant to provide for the theatre; but to the Green Park colony, generally. What on earth was an electricity sub-station for the entire area doing on the ground floor of a cinema? And, that too next to a car park?

The Ansals claimed that they agreed to the installation in the car park under threat because otherwise, they would not have got their connection. Undoubtedly, DVB remained in total and exclusive control after the installation. In the 1980s, the sub-station caught fire. It was not removed. Instead in 1989, its capacity was augmented from 750 KVA to 1000 KVA without following the prescribed procedures. From 1989 onwards, the DVB's transformer was not maintained properly. It soon became an unsafe wreck maintained by careless screwdriver technology — with few of the auxiliary safety measures working.

On the morning of the fateful day, there was a fire in the transformer at 7 a.m. A connection broke loose to create a spark. Hastily repaired and contrary to prescriptions, it was hammered rather than crimped in place. A few hours later, tragedy struck. The theatre was burned down. People lost their lives. Fifty-nine persons died and 103 were injured — all of them were seated in the balcony. Those who escaped numbered 750. And the Ansals lost their property.

The tragedy of such immense magnitude was attributed not just to the DVB, which clearly caused the fire, but also to the Ansals who allegedly violated safety norms to aggravate the damage and danger. Pointed attention was drawn to an allegedly over-crowded car park, an authorised wall which prevented the escape of smoke and a balcony which was re-designed in 1980 to re-position a safety door to impede emergency exit. In these matters, the Ansals had permission from the municipal authorities which sanctioned these and other changes. The judges have resisted the finding that there was collusion between the Ansals and the municipal authorities; but felt that the municipal authorities had wrongly granted permission contrary to the rules; and, were, therefore, liable for the tragedy.

Although I argued the case for the Ansals who had made the plea that hugely disputed questions of law cannot be resolved through a writ petition (in line with the Supreme Court's decision in the Oleum Gas case of 1987), this landmark judgment sets a possible pattern for the future. Disasters take place in India all the time. There is no redress. Mass disaster cases are not litigated to the final end anywhere in the world. Even the Bhopal case was settled for a miserable sum. The absence of redress has made municipal authorities and others grossly careless — even at the expense of peoples' lives. Now, they can be pulled up.

The Uphaar judgment is significant for several reasons. First, it makes the quick remedy of a writ petition available for disaster cases. This is something that even Justice Bhagwati's judgment in the Oleum Gas case did not do. Despite a brave effort by an Allahabad judge to use the writ process in the Uttarakhand Atrocities case, the Supreme Court frowned on such judicial bravery. But, in the Uphaar case, the judges felt that a conclusion could be reached on the basis of official reports without going into disputed questions of fact requiring massive volumes of evidence. It is not vouchsafed that all disaster cases will be decided in this way. Some may not be. But, a path has been opened up for the future, which, even if treaded with caution, creates a fissure in the otherwise usual slovenly indifference of the legal process to mass tragedy.

But, the second significance of the Uphaar case lies in its indicting public and municipal authorities for their failure to discharge their duty. Here, too, there may be disparities. The Fire and Ambulance services were let off even though there was ample evidence to suggest that the Fire Services were not fully equipped or ready at the critical time. The rescue and water arrangements were inadequate. The DVB had to be found guilty because it was clear that it had caused the fire that burnt down the theatre resulting in loss of lives, injuries to people and damage to property. The rescue services which contributed to the loss of life should not have been let off. Even so, the significance of the judgment in holding the municipal authorities responsible for their palpable negligence in faulting and flaunting the law remains. The three municipal authorities were made responsible for 15 per cent of the damages each.

The Ansals — and, I do not speak as their counsel — may have a legitimate grouse as to why they were lumbered with 55 per cent of the liability when the DVB caused the fire and the municipality cleared their licences in a transparent manner without a finding on collusion against the Ansals. They may equally feel that the Rs. 2.5 crores' further exemplary penalty was disproportionate to the unjust enrichment alleged to have been made out of a few balcony seats. There was a phase in this case, when the arguments drifted to protecting the municipal authorities and targeting only the Ansals. But, the judges rose to the occasion even if with some leniency towards the municipal authorities.

Third, the judgment formulated a concept of strict liability where disasters are caused traceable to breaches of statutory duty. This means that the failure to fulfil public duties resulting in death speaks for itself without the court going into detailed questions of whether the authorities were actually negligent. The Indian law on this is a bit wayward. Justice Bhagwati talked of absolute liability in these cases in 1987. This was doubted in the second Bhopal case, but restored in the Indian-Enviro case by Justice Jeewan Reddy in 1996. While many applicative details remain to be worked out, the Uphaar judgment strives to settle an unsettled area of Indian law.

Fourth, the Uphaar case recalculates the worth of an Indian life. Although the Uphaar judgment seeks to use calculations usually made in individual death cases and on the assumption that those in the balcony must be computed as having middle-class backgrounds, the sums of Rs. 1 lakh for injury and Rs. 20 lakhs for death is far in excess of awards of Rs.10 lakhs in wilful killings or disappearance cases.

What Uphaar has done is to create a new measure of damages in public law which will impact on many situations. Now, the test of damages in negligence cases in public law is higher than in wilful killing cases. Even the National Human Rights Commission will have to order new lenses. Although the judgment is elliptical on various aspects of law, its letting off some public services and its division of liability to be lenient towards public bodies, it remains a breakthrough to be welcomed. The ultimate remedy is to have special fast track courts for disaster cases. For the victims of Uphaar, it has been a difficult struggle. A new route for redress has been found. New law has been laid down. The frontiers of public accountability have been expanded.

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