Empathy for migrants lost when liability pushed away?
Recently, 16 migrant workers, worked at an iron and steel factory, were killed after a cargo train ran over them in Aurangabad district. TheChief Public Relations Officer (CPRO) of South Central Railway have said thatthe migrant workers were from Madhya Pradesh and were walking home from Maharashtra's Jalna and after walking for about 36 km, they had stopped to take rest when they fell asleep.They were walking to catch a special train bound for Madhya Pradesh so that they could reach their homes in Sehdol district of the state.
The eyewitness to the incident said that the workers were on their way home to Madhya Pradesh and had slept at railway tracks after exhaustion.The mortal remains of these 16 migrant workerswere sent to Madhya Pradesh on a special train.The survivors have said that they had applied for the passes a week before the mishap, as due to lockdown in the wake of COVID-19, they had become jobless and were running out of money, and hence they were going to their villages.
The Railway Board Executive director opined that a train with huge mass and velocity takes about a kilometer to stop after emergency brakes are applied and it’s difficult to spot anything on the tracks from such a distance. The officials have said that an accidental death case has been lodged, investigation has been started by the police and the Aurangabad Collector has ordered an inquiry into the matter. The railway ministry watchdog has said that they were lying on the tracks as they were under the impression that trains will not run as national lockdown has been imposed and the services has been suspended.
The National Human Rights Commission has issued notices to the Maharashtra chief secretary and the Aurangabad district magistrate in this matter and an inquiry has been set up into the incident by the railway authorities. The Commission has taken Suo- Moto cognizance of the matter and ordered them to submit a detailed report within four weeks.
The Commission, in its statement has said that at the first instance, this is just a train accident as people are not expected to be sleeping on the railway tracks. However, this lockdown has made the lives of the poor laborers miserable. They have been forced to walk on foot since all the transportation facilities has been suspended and lost their lives due to apparent negligence by the district administration. Had they been provided shelter during their tiring journey, the mishap could have been be avoided.
Views of Political leaders
Prime Minister Modi has said that the matter is being closely monitored and all possible assistnace is being provided to them.
Congress leader Digvijay Singh has blamed the Madhya Pradesh Government for negligence and inaction on applications for passes by the workers to go back home. He has said that “Shivrajji, these deaths are the result of jungle raj.”
On the contrary, Madhya Pradesh BJP Vice Presidentblame it on congress, who had announced to pay for the train tickets of migrants. He claimed “The people are leaving their homes to reach the railway stations after this announcement.” He also added that a proper system has been followed by the MP government and that they’re committed to bring back the stranded migrants.
Supreme Court on the matter
A petition was filed in the Supreme Court which urged the court to ask the Center to identify migrant workers walking on the roads, to provide them shelter & food and ensure free transportation. The three judge bench headed by Justice L. Nageswara Rao, refused to entertain the petition, saying “How can we stop it?”, “Let the state decide.” They added that it is impossible for the courts to monitor or stop the movement of migrant workers across the country, and it is for the government to take necessary action.The bench has asked the Solicitor General, if there was any way to stop the migrants from walking on the roads in order to reach home.
The Centre has said that migrant workers across the country were being provided transportation by the government to their destinations, but they have to wait for their turn rather than starting on foot. He also added that the states are providing inter-state transport to migrant workers but if the people start walking on foot instead of waiting for transportation, then nothing can be done. The states have agreed to provide transportation and everyone will get a chance to travel.
The Home Ministry has given guidelines wherein, it has been ordered that states must ensure that migrants are not walking on the roads or the train tracks and must provide them with food, shelter and free transportation.
Earlier, the top court had disposed of the PIL seeking migrant workers’ welfare during the pandemic and consequential lockdown saying that the Centre and states are taking appropriate steps to provide them relief.
Legal provisions and Case laws
In the present case, the decision of the liability is difficult as the current scenario does not follow under any of the provisions of the Railways Act, 1989. The driver cannot be held liable by the principle of vicarious liability, which states that the employer will be held responsible for acts committed by their employee, during the course of employment. So, in this case, the Railways will be held liable for the acts committed by the driver. But this liability has its own terms and conditions.
In the case of Mohammad Quamuddin v. Union of India, it was held that it is difficult to apprehend that the principles of strict liability must apply and irrespective of any negligence on the part of the railway authorities, compensation should be awarded. Since,crossing or trespassing on railway tracks is not only dangerous but also a punishable offence under Section 147 of the Railways Act, 1989. However, Article 226 of the Indian Constitutionestablishes that compensation can be awarded in instances like these.
The principle of Strict liability, was laid by the case of Rylands v. Fletcher, which says that if a person brings on his land and collects and keeps anything which is likely to do harm and such thing escapes and does damage to another, he would be liable to pay damages.This principle will not be applicable where a trespasser muddles with it, by his own negligence, and gets injured in the process.
Section 124A of the Railway Act, provides for payment of compensation on account of any untoward incident, resulting in injury or death of a passenger, irrespective of whether there has been any wrongful act, negligence or default on the part of the Railway Administration.
In the case of Union of India v. Prabhakaran Vijaya Kumar and Others, it was contended that operation of railways is an unnatural and hazardous activity, and therefore falls within the ambit of the rule of strict liability. The Court held that, Section 124AW.P.(C) No. 8528/2008 Page 5 of 20has laid down the principle of strict liability or no fault liability in cases of railway accidents, and railways would be made liable to pay the victims. It does not mean that railways would be liable even if the case does not fall within the scope of section 124A.In these cases, “whether or not there has been any wrongful act, neglect or default on the part of the railway administration”, it is liable to pay compensation to the victim, the quantum of which too is specified under the Act.
In the case of Cherubin Gregory v. The State of Bihar, it was held that an occupier does not owe a duty to care towards a trespasser as the trespasser enters entirely at his own risk. However, the occupier must not set traps such that it injures the trespasser with a bodily harm.
In the case of PravinbhaiIshwarbhaiVaghela v. Union of India, the railways refused to pay compensation to the families of 59 people who died when a train passed through a crowd,who were standing on the rail tracks to watch Ravana effigy during Dussehra, in Amritsar in 2018. It said that the case was of trespassing and hence they were not liable to pay the compensation.
A claim for damages for negligence comes under a civil wrong.The Railways Act provides for fixed compensation on predetermined scales. It also provides a forum called Railway Claims Tribunals, for the passengers, but has limitation. Only a passenger on a train can claim before the Tribunal. And others harmed in the process can only approach the Motor Accidents Claims Tribunal. However, if the negligence of the railways is established, it can be heard as a joint tortfeasor. An action at common law can be filed for nonfeasance because the Railways was involved in dangerous operations and hence is bound to take care of road users.
Section 147 of the Act makes trespassing the tracks, punishable offence. This shows that though the Railways seeks to actively prevent accidents on the tracks, it refrains itself from paying them a compensation as technically, they have committed any negligence on their part. This is the reason why NHRC has served a notice to the states but not the Railways. And the same is a reason, when the States announces compensation to the victims but railways does not.
This incident is shockingly and deeply disturbing as 16 people died, and no one seems to responsibility of the same. Can you blame the migrants who slept on the tracks after getting exhausted from 36km walk, such that they could not even hear the loud noise of the trains or feel the vibration of the tracks, of approaching trains? Were they in their right minds that they risked their lives by sleeping on the trains? Or were they only exhausted from the continuous walking or was there something more? Was it the shock of the loss of their jobs, loss of shelter and the pressure to feed themselves every single day?
The Supreme Court has said, “How can we stop them?” and forgot to ask the center why did it occur? Or how did it start. May be it was the news that the trains will remain suspended due to lockdown, which led them to believe that it is safe to sleep on the tracks. The court has said that it is the State and Center’s duty to ensure their safety, but who shall be made liable when they don’t perform their duty. The petition asked for directions but the Apex court refrained from passing it.
The Solicitor General has said that the migrants are being provided with transportation and that migrants should wait for their turn. How can you expect them to have patience and to trust the government when, they are the ones who showed their backs to them at first. Trust should have been built by the government by providing them food and shelter when they lost their job and home and was lying with no food. The Center said, the migrants should wait for their turns, but haven’t they already waited for almost month and a half, to take a bold step to walk for kilometers with their children in their hands.
The government said they’re suffering pain after hearing this news. May be the pain will lessen when they ask the defense forces to aid thousands of other migrants suffering in the same the way, or if they build that trust again, so that they don’t lose the hope in the government.
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