CS told to frame safety policy for hazardous sites across J&K
Says Art 21 breach empowers courts to grant relief
Mohinder Verma
JAMMU, Mar 25: In a sharp rebuke of administrative negligence, the High Court of Jammu & Kashmir and Ladakh has held the authorities squarely liable for the drowning of three minor children in Udhampur, declaring the incident a “clear failure of public duty” and a breach of the right to life under Article 21. Moreover, the High Court has directed the Chief Secretary of the Union Territory to formulate a comprehensive policy ensuring proper fencing, installation of warning signboards and adequate safeguards around all hazardous installations to prevent such tragedies in future.
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The bench of Justice Wasim Sadiq Nargal was dealing with petition titled “Arjun Kumar Sharma Versus State of J&K and Others” seeking compensation for the unfortunate death of petitioner’s three minor children who allegedly drowned in the forebay tank of the Chenani Hydel Project situated in village Pakhlai in district Udhampur on June 9, 2008.
It was alleged that due to the negligence and failure of the authorities of the Chenani Hydel Project to provide necessary safety measures, the petitioner’s three minor children accidentally slipped into the tank and drowned.
However, the respondents opposed the petition on the ground that no negligence can be attributed to them and that the incident occurred due to lack of supervision on the part of the parents of the deceased children. It was further contended that the writ petition is not maintainable as it involves disputed questions of fact which ought to be adjudicated in appropriate civil proceedings.
After hearing Advocate Ankush Manhas for the petitioner and Additional Advocate General Raman Sharma for the respondents, Justice Wasim Sadiq Nargal observed, “it is settled law that where the negligence or inaction of State authorities results in the deprivation of life, the constitutional courts are not powerless to grant relief merely because a civil remedy may also be available”.
“The jurisdiction of this court under Article 226 of the Constitution is wide enough to provide an effective remedy where the fundamental right to life guaranteed under Article 21 stands violated”, Justice Nargal said, adding “the availability of an alternative remedy in the form of a civil suit cannot operate as a bar in a case where the violation of the fundamental right to life is prima facie established”.
The High Court further said, “in the present case the reservoir, despite being inherently dangerous, was protected only by a two-feet parapet wall making it easily accessible. Such minimal protection, from any yardstick, is wholly insufficient and reflects lack of due care on the part of the respondents”, adding “the respondents cannot escape liability by shifting blame onto the grieving patents”.
“When a dangerous structure is maintained in an area where the presence of children is reasonably foreseeable, a higher degree of care is expected from the authorities responsible for its maintenance. Any lapse in adopting adequate safeguards in such circumstances cannot be justified by attributing negligence to the children themselves”, the High Court made it clear.
Stating that State and its instrumentalities bear strict responsibility where their actions or omissions lead to the violation of the right to life, the High Court said, “the tragic death of the petitioner’s children is therefore not merely an unfortunate accident but a consequence of the failure of the authorities to discharge their duty of care”, adding “once, such negligence resulting in loss of life is established, the liability of the State to compensate the victim becomes inevitable. Even though the children may not have begun earning, their lives possess immense value and their untimely death results in profound emotional and social loss to their parents”.
While directing the respondents to pay compensation of Rs 2 lakh for each deceased child to the petitioner within a period of eight weeks, Justice Nargal said, “human life is invaluable and the loss of young children, who represent not only the present but the very hope and future of a family, leaves behind a void that can never be filled”.
“The award of compensation in such cases, therefore, is not intended to place a monetary value on human life, but is a means to provide some measure of solace to the bereaved family and to acknowledge the wrong done by the State due to its failure to discharge its duty of care. It also serves as a reminder to public authorities of their constitutional obligation to safeguard the lives of citizens”, the High Court added.
“This court cannot shut its eyes to the larger ground reality that such incidents are not isolated, but reflect a recurring pattern of neglect in matters concerning public safety. Instances of persons, including children, losing their lives after falling into uncovered manholes, open drains, unsecured water bodies, or suffering electrocution due to exposed and poorly maintained high-tension wires, are, unfortunately common”, Justice Nargal observed.
He added: “These recurring tragedies point towards systemic deficiencies and maintenance of public infrastructure and a failure to adopt timely preventive measures. Such an approach, where corrective steps are undertaken only after the occurrence of damage, is wholly inconsistent with the constitutional mandate and the obligations cast upon the State under the Directive Principles of State Policy to ensure the welfare, safety and well-being of its citizens”.
Stating that the responsibility of the State in the present case must also be viewed in the broader constitutional framework which not only guarantees fundamental rights but also casts corresponding obligations upon the State to secure and protect those rights, the High Court said, “this obligation finds clear reflection in the Directive Principles of State Policy, particularly Article 38, which mandates the State to secure a social order promoting the welfare of the people, and Article 39(e) and (f), which require the State to ensure that the health and strength of individuals are not put to risk and that children are protected against neglect and exploitation”.
Further, Article 47 of the Constitution of India casts a duty upon the State to improve public health and raise the standard of living of its people.
Accordingly, the High Court directed the Chief Secretary of the Union Territory to take cognizance of the issue and formulate a comprehensive policy ensuring proper fencing, installation of warning signboards and adoption of adequate safety measures around reservoirs, water bodies and other hazardous installations.
“Such measures are imperative to safeguard human life and to ensure that tragedies of the present nature are not repeated in future”, the High Court added.
Further, the High Court has directed the respondents to take immediate and effective steps to ensure proper fencing, installation of warning signboards and adequate safeguarding of the forebay tank, as well as all similar hazardous installations, so as to prevent recurrence of such tragic incidents in future.
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