6 Jun 2020 11:45 AM GMT
The imposition of nationwide lockdown by the Government of India to contain the contagious COVID 19 pandemic has unashamedly blown off the lid from the constitutional charade of a 'Welfare State'. The utter callousness and indifference of policy makers to woes of the poor and vulnerable sections of society has made Social Justice illusory during the past two months. The cessation of...
The imposition of nationwide lockdown by the Government of India to contain the contagious COVID 19 pandemic has unashamedly blown off the lid from the constitutional charade of a 'Welfare State'. The utter callousness and indifference of policy makers to woes of the poor and vulnerable sections of society has made Social Justice illusory during the past two months. The cessation of economic activity meant that the daily wagers were bereft of income to sustain themselves. No legal steps were taken to mitigate income loss except for a moral exhortation to direct that the workers be continued to be paid wages. Hunger was excruciating millions of migrants in urban cities of India as they were not entitled to benefits of Public Distribution System in urban areas under the Food Security Act, 2013 as despite the linking aadhar with ration card there was lack of a nationwide ration card or interstate portable ration cards. No wonder the consequent distress, empty pockets and hungry stomachs caused lakhs of these people with children and aged parents in arms to take ardours journey to return to their native villages on foot. After the exposure of fissures in the interstate movement of people and the selective discriminatory approach of State Governments in rescuing their stranded people, the dilly-dallying and the pressure of civil society, the Central Government finally decided to run its monopolized trains to put stop to the great Indian migrant exodus.
The commencement of trains although on the payment of fare and request from States was supposed to ease the suffering of migrants but for the conduct of Indian Railways. Infamous for its tenacity to delay, it's not surprising that the Indian Railways run Sharmik trains are operating behind schedule. But what is surprising is the fact that there is relatively negligible traffic on tracks and while the speed of goods trains has increased during the lockdown, the Shramik Special Trains are being lost on tracks or intentionally diverted thereby increasing the travel time manifold. Many trains are taking 5 to 6 days to reach their destination in what should have been covered in maximum 2 days time. Further, no proper provision for food or water is made for the travellers and when the passengers complain they are lathi charged. The only console is that after much delay the trains finally arrive on their destinations although some ill fated passengers have died due to starvation and thrust either during the journey or soon on arrival at the station. As per reports by Railway Protection Force 80 persons have died on board in Shramik Trains. While the utilitarian's will argue that the number is too less and therefore unimportant, it is sacrosanct here to be reminded that people who died were presumably citizens of India and the death of each one of them is violation of "Right to life" guaranteed under Article 21 of the Indian Constitution. Even if they were not citizens of India, the State was still bound under Art 21 to protect their life as the panoply of Art 21 extends over all persons irrespective of citizenship status. The Supreme Court in the case of Chairman Railway Board v Chandrima Das has held that "even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to "Life" in this country. Thus, they also have the right to live, so long as they are here, with human dignity." So as a constitutional tort, the Railways are liable to pay compensation to the kith and kin of deceased under Public Law. Also under Section 124 A of the Railways Act, 1989 the railways must provide compensation for any "untoward incident". This is however, notwithstanding the fact that the conduct of railways in the current scenario is also criminal.
It is submitted that negligence of Railways in so far as making inadequate arrangements for food and water which resulted in death of hapless migrants is gross and makes it liable for causing death by negligence under Section 304A IPC. To prove negligence whether arising from an act of commission or omission it must be first proved that the defendant owed a duty of care to prevent damage or injury to the property or the person of the victim and secondly that there was breach of duty of care. Thirdly to succeed in criminal prosecution for negligence it must additionally be proved that the negligence in question was 'gross'. In Jacob Mathew v State of Punjabthe Supreme Court defined the contours of criminal negligence and stated that "for negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree." However what is 'gross' would depend upon the fact situation in each case and cannot, therefore, be defined with certitude. Given the lockdown and the attenuating circumstances in which these special trains were run, the railways had knowledge about the hardships going to be faced by passengers' enroute and therefore there was special duty of Railways to provide food and water. Even during the normal times, the railways have had pantry cars for long distance trains. However, the failure to do so in these special circumstances constitutes the breach of this duty of care that makes it criminally liable for negligence.
It is important to understand that under our Penal Code forbids and punishes not only acts that constitute offence but various omissions if they are illegal. While upholding the criminal liability of occupiers for causing death by negligence in the Uphaar Cinema fire tragedy case, the Supreme Court in Sushil Ansal v State Through CBI held that "that the rash or negligent act of the accused ought to be the direct, immediate and proximate cause of the death." Therein it was held that the cause of death of the patrons in cinema hall owned by the accused was not the smoke caused by fire due to short circuit in DVB transformer but the inability of the victims to move out of the smoke filled area. Similarly here it is not hunger of the passengers that is causa causans of their death but their inability to get food for sustenance. Since they were confined to trains it was incumbent on the railway administration to have made provisions for adequate food and water. In the landmark case of Om Prakash v State of Punjab , the accused husband confined his wife to a room and denied her food for days together. She used to be given gram husk mixed in water after five or six days. The Supreme Court upheld the conviction of the husband for attempt to murder as he deliberately starved his wife that consequently led to the deterioration of her health. Drawing an analogy of this case to the conduct of railways with respect to non provision of food for days together and delay of four to five days in reaching the destination, it appears that railways behaved no better than the accused husband. The migrants who boarded the trains were are at the helm of railways, they had no option but to confine themselves and sit in the trains thirty and starved even when the shramik trains halted for more than hours as no announcement or information was provided to the incumbents about the duration of stop so that they could have made alternate arrangements by themselves. It is also pertinent to mention that the trains stopped midway on the tracks surrounded by open fields and not necessarily on the stations. From where were the hapless migrants supposed to arrange foods to keep their body and soul together?
Though late but the Supreme Court of India has finally awakened to the plight of migrants and taken suo motu cogniznace In Re : Problems And Miseries Of Migrant Labourers on 26th May, 2020 and issued directions including that originating State shall provide water and meal at the commencement of journey and during the journey, the railways shall provide meal and water to the migrant workers. It is hoped that direction of Supreme Court will be obeyed and provide some succour. At the same time, it is required that a stern message needs to government for violation of basic human dignity of migrants. It is hoped that the Supreme Court will eventually constitute an independent fact finding committee to look into the violations of human rights of migrant and take criminal action against those responsible for this inhuman treatment under relevant provisions of Penal Code.
 The General Circular No. 15 /2020 of Ministry of Corporate Affairs dated 10th April, 2020 categorically recognises that there no legal duty but only a moral obligation of the employers to pay salary/ wages to employees and workers including contract workers during the lockdown period as they have no alternative source of employment or livelihood during this period. See Point 5 of General Ciruclar No 15/2020 of MCA, GOI available at < http://www.mca.gov.in/Ministry/pdf/Notification_10042020.pdf>.
 (2000) 2 SCC 465.
 (2005) 6 SCC 1.
 (2014) 6 SCC 173.
 AIR 1961 SC 1782.