It was one and a half years ago that a young woman was brutally murdered in broad daylight at the Nungambakkam Railway Station in Chennai. Swathi was waiting for her train to work, when her stalker cut her down with a machete. What shocked the country was how not one single person around came to help her, many even took the next train and went on their way.
What also shocked the country was how, for an hour after the attack, there was not one single railway police personnel on duty to help save Swathi – to call an ambulance, to call the police.
To pull up the Southern Railway for their negligence, Swathi’s parents A Ranganayaki and K Santhanagopalakrishnan have filed a writ petition in the Madras High Court, which was finally accepted on Monday. In the tort, they have demanded a compensation of Rs 3 crore from the Southern Railway.
But Swathi’s family’s fight is not about the money, but about holding the public utility accountable, their lawyer says.
Speaking to TNM, Santhanagopalakrishnan’s counsel Kuberan says that it’s important for aggrieved persons to file for compensation to ensure that public servants do their jobs properly. “Anybody affected or aggrieved can very well maintain a claim like this,” Kuberan says.
Senior counsel NL Rajah agrees, saying, “Where there is a case of government responsibility or where the government has failed to discharge its duties, the High Court gives compensation. It all depends on the facts of the case.”
“People can file for compensation even when someone gets electrocuted in public, or falls into an open manhole,” Rajah adds.
However, he said that going to court does not work everywhere. “In case of inefficiency, one could file a writ petition (where constitutional rights have been infringed). If one files a suit (for civil remedies), it will take at least 10 to 15 years in a High Court,” he adds.
Section 304A in the Indian Penal Code (IPC) criminalises causing death by negligence.
“This is an underused area of law,” Jayna Kothari, a lawyer working in the Karnataka High Court had told TNM earlier. Kothari added that in India there are very few cases of proceedings initiated against public authorities. She feels that such provisions are usually not used by people because they are “long drawn” cases, sometimes stretching up to two or three years.
In 2015, the Supreme Court asked the Law Commission to look into the need for a comprehensive legislation to fix tort liability on government authorities and determine the compensation in cases of accidents or deaths caused due to negligence.
Delay in accepting writ
The writ was filed by Swathi’s parents last year; however, the Madras High court Registry, which is supposed to number the case for the court to hear, refused to number Swathi’s parents’ writ on the grounds that there was ‘alternate remedy’ available.
The Registry was referring to the Railways Tribunal, but the Madras High Court came down heavily on them for ‘acting like the court’ and ‘exercising judicial function’.
“The Registry, by returning the writ petition on the ground of maintainability, virtually acted as the court and exercised judicial function. It has no authority to reject the writ petition on the ground of availability of alternative remedy. It is for the court to decide whether the writ petition should be entertained in a matter in spite of alternative remedy. It is always open to the court to entertain the writ petition notwithstanding the alternative remedy available to the party. We, therefore, hold that it is not within the province of the Registry to return the writ petition on the ground of alternative remedy,” the Division Bench of Justices KK Sasidharan and P Velmurugan observed, according to The Hindu.
The court also noted that while the Railway Claims Tribunal can take up cases where the claim is less than Rs 8 lakh, the claim in this case was Rs 3 crore, which would mean that the petitioners couldn’t approach the Tribunal anyway.
“The Railways Tribunal can entertain claims upto Rs 8 lakh as of today. If it is over and above that, one can either file a civil suit or a writ petition. We have taken the path of filing a writ petition and this is what is reported now. It has taken us more than one year to get it numbered,” Kuberan tells us.
The jurisdiction question
The court also noted that it is always open to the constitutional court to examine the actions of the State in case if they pertain to the public law domain.
“As observed by the Hon'ble Supreme Court in Common Cause, A Regd. Society v. Union of India [(1999) 6 SCC 667], public law claim is entertained to maintain the rule of law and to prevent the State or public bodies from acting in an arbitrary manner or in violation of the rule. It is always open to the constitutional court to examine the actions of the State in case if they pertain to the public law domain,” the court order reads.
Justices Sasidharan and Velmurugan took the example of another case against the railways, in their judgment. “A practising advocate of the Calcutta High Court claimed compensation for a foreign national as she was gang-raped by many including the employees of the Railways in a room at Yatri Niwas attached to the Howrah Station of the Eastern Railway. The order passed by the High Court of Calcutta awarding a sum of Rs 10 lakh as compensation was challenged before the Hon'ble Supreme Court in Chairman, Railway Board and others v. Chandrima Das and others [(2000) 2 SCC 465],” the order says.
In that case, the SC had observed that while initially, writ petitions were not entertained for contractual matters, the law had undergone changes over a period of time, and at the point when the case was being heard, contractual matters would come under the jurisdiction of the High Court in such cases.
“The Supreme Court further observed that public law remedies have also been extended to the realm of tort,” highlighted the Madras High Court order.