Hindu Editorial Analysis 8th May 2018

WHERE THE LAW NEEDS TO CHANGE TRACK -

ON RAILWAYS ACT :-

Issue :-

• In late April, a bus with schoolchildren collided with a train at an unmanned railway level crossing, near Kushinagar in Uttar Pradesh. Thirteen of them died & This is not the first time that an incident of this nature has occurred.

Questions arises from these types of incidents :-

• Is there any mandate for manning all level crossings?
• In an incident like this, where the bus driver was reportedly negligent, is the railway administration liable even if the train engine driver cannot be faulted?

Legal issues :-

According to Laws :-

• A claim for damages for negligence of the defendant falls in the arena of a civil wrong called a tort action.
• In relation to claims for railway accidents, the Railways Act provides for fixed compensation on predetermined scales.
  It also provides a forum for passengers to make claims in the form of Railway Claims Tribunals situated in different parts of India.
  There is a limitation that only a passenger on a train can make a claim before the Tribunal. 
• Passengers of a bus or motor vehicle who may have been harmed after a collision with a train can only approach the Motor Accidents Claims Tribunal. However, this tribunal can entertain the claim against the Railways also as a joint tort feasor if the negligence of the Railways is established.
• The Railways Act 1989 (through Section 124) provides compensation on strict liability basis. This means that “when an accident occurs in the course of working a railway” (a collision between trains, or when one is a train carrying passengers, or derailment, or any other accident with a train or any part of a train carrying passengers), then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, an injured passenger or one who has suffered a loss can lawfully maintain an action and recover damages.

In May 1979, at Akaparampa in Kerala :-

• 40 passengers and the driver of a passenger bus that had been hired were killed when the vehicle was hit by a train at an unmanned level crossing.
• Cases were filed before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation against the owner and insurance company of the bus as well as the Indian Railways.
• The Tribunal awarded compensation against the owner. The liability of the insurance company was restricted to a measly ₹500 per victim on the basis of restriction of liability contained in the terms of the policy.
• In appeals taken to the High Court, the Railways too was made liable for negligence in not making provisions for a gate and personnel to mind the gate. Aggrieved, the Railways went to the Supreme Court.

Now, The legal issues addressed by the Supreme Court in a 1997 Supreme Court judgement (Union of India v. United India Insurance), are instructive for what the Railways was required to do

In the course of the Judgement :-

1) The Supreme Court borrowed the neighbourhood principle articulated in Donoghue v. Stevenson (1932).

• It said that the duty of care for the Railways extends not only to those who use the Railways’ services but also to people who are “neighbours” — namely, users of vehicles on roads that intersect with tracks.
• Consequently, there is a common law liability for the railway administration for an accident at an unmanned crossing, even in the absence of specific provisions in the Railways Act, where the Central government can direct the administration to lay manned crossings.
• Therefore, An action at common law can be filed for nonfeasance because the Railways was involved in what are recognised as dangerous operations and hence is bound to take care of road users.

2) It took up the issue of whether there could be any breach or a common law duty on the part of the Railways if it does not take notice of the increase in the volume of rail and motor traffic at the unmanned crossing, and if it does not take adequate steps such as putting up gates with a watchman to prevent accidents at such a point.

• It said that there existed a precedent from England that was examined by the House of Lords — that the Railways should take all precautions that will reduce danger to the minimum.
• It approved the estimate made in Lloyds Bank Ltd. v. Railway Executive (1952) that if 75 to 100 vehicles crossed the level crossing per day, the Railways owed a duty of care at common law to provide for a gate with a watchman.

3) The running of trains by the Railways, as pointed out in Commissioner for Railways v. Mc Dermott (1966), has been recognised as inherently perilous and creates a general expectation that safety measures have been taken by the railway administration.

What needs to be done now ?

• The railway administration should have continuous audit of tracks, when new roads come on either side, traffic must be calibrated, adequate infrastructure built & safety measures put in place.
• The government needs to amend the Railways Act to provide for compensation on a proactive basis without driving victims or their families to file applications in Tribunals. The ex gratia payments will then be substituted by rights-based compensation regimes that will sensitise the Railways to administer their operations with greater focus on public safety.
• It is also essential to include within Section 124 of the Railways Act a provision for a claim from a “neighbour to a passenger” in the manner that the Supreme Court recognises, namely, a road user of a motor vehicle.

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THE PROBLEMS WITH DNA REGISTRY :-

Issue :-

• The outrage over rape attacks has reinforced the belief that India needs a Sex offenders’ database or a DNA database of those accused and charged with rape.
• India has developed a draft Bill for such a DNA database and the Andhra Pradesh government even announced that it has signed up with a private agency for collecting DNA from all its citizens.

Concerns :-

• Based on experience in other countries, building such a database is not easy, does not always offer justice, and is an ethical landmine of sorts, say many experts who have been studying the use of DNA databases for forensics.  For instance, Peter Neufeld, co-founder of the Innocence Project, which uses DNA to exonerate people on death row, has said that we need to make “forensic science more about science and less about law enforcement so it becomes an impartial assessor of evidence rather than a branch of law enforcement.”
• DNA identification technologies have advanced so much that even minor genetic differences, such as those among family members, may be used to distinguish individuals and identify a person from his or her unique DNA.
• Planting of DNA in a crime scene, misinterpretation of tests, and errors in analyses have all taken place in cases where DNA has been used to implicate a suspect, resulting in the miscarriage of justice.

What needs to be done regarding Sex offenders database or DNA Database ?

1. It is absolutely essential that the people from whom DNA is taken give their informed consent, taking DNA surreptitiously should be prohibited.
2. A court order should be required for obtaining DNA without informed consent and the DNA should only be compared with the crime scene DNA for the suspect.
3. Those who are cleared for a crime should not have their DNA information stored & DNA gathered from offenders should be destroyed after identification so that such information is not used for profiling in future.
4. A court order should be necessary to access medical records for genetic data.