[Columns] The Kerala Floods: Accountability in the Aftermath

Haris Beeran

The State of Kerala is still reeling from its worst natural calamity in nearly 100 years. In the wake of the political slugfest currently going on in the State as to the cause of the flood, it is time to re-focus our attention on the most important issue i.e. the plight of the victims.

The Disaster Management Act, 2005 includes within the ambit of the definition “disaster” any catastrophe, mishap, or grave occurrence caused by man himself, either by negligence or by accident.

A pertinent question at this juncture is how much of the loss of life, human suffering or damage and destruction of property has arisen due to the failure of the State/authorities who shoulder the responsibility of protecting the citizens from calamities such as this?

Assuming that the flood was a result of excessive rain, should the State have ensured adequate early warning so as to save the lives and property of its citizens? Was this done?

Attempts have been made to shift the blame towards global warming. If this really is the case, then the State of Kerala needs to be doubly prepared, because a repeat of the calamity is almost certain.

Flood Management

The scourge of flood is not new to our country. According to the report of the working group on Flood Management Program (December 2006) for the XI five year plan (2007-2012), on average, every year, 7.55 million hectares of land are adversely affected by floods, 1560 lives are lost and the damage caused to crops, houses and public utilities is estimated at Rs. 1,805 crore.

Considering the regularity at which floods occur, one would imagine that the powers that be would be more proactive in implementing preventive/mitigative measures to soften the blow.

According to the Report of the Comptroller and Auditor General of India (CAG) on the Schemes for Flood Control and Flood Forecasting compiled in 2017:

• Against the target for the XII plan for installation of 219 telemetry stations, 310 base stations, and 100 flood forecasting stations, only 56 telemetry stations have been installed as of August 2016. Kerala does not have a single flood forecasting station
• Out of the 375 telemetry stations, 222 of them were non-functional after installation and thus real-time data is not available for corresponding periods
• Out of 4,862 large dams, emergency action plan/disaster management plans of only 349 (7%) large dams have been prepared (March 2016). Further, only 231 (5%) large dams have evolved operating procedures/manuals. The State of Kerala has no operation and maintenance manual or emergency action plan despite having 61 dams.

The report makes it clear that there is a sheer lack of will to correct our past mistakes.

Citizens be (Dam)ned

MM Mani (Power Minister for the State of Kerala), on August 15 this year, urged the public not to panic since the Idukki d=Dam was more than capable of holding water if the gates of the Mullaperiyar Dam were opened. The burden of such erroneous information was borne by the victims of the flood.

The Central Water Commission (CWC), which is the apex body in the early flood warning system in the country, has issued a Standard Operating Procedure (SOP) for Flood Forecasting, which is distributed to all concerned. Once the data collected by the CWC points towards an impending flood, the flood forecast data is uploaded on the website and even shared with the local administration.

Undoubtedly, the local administrations in the affected Districts were well aware of the excess rainfall which could potentially lead to a flood. Did they not then look out for the flood forecast warning from the CWC? And if they did received it, should they have not immediately commenced preparation to mitigate the disaster as provided in the SOP? Did the CWC failed in its duty of issuing a warning?

Such wanton acts of dereliction of duty, questionable decision making, and negligence ought to be struck down at its root, with every bureaucrat and concerned minister being brought to book.

It is absolutely necessary for the State of Kerala to constitute a fact-finding committee which would include experts in the field. The mandate of the committee would be to assess the calamity so as to hone in on what exactly went wrong.

The time has also come to wrest from the KSEB their power over the decision to release water from the dams, especially since their primary interest is commercial/financial. Therefore, it would be safe to assume that their decisions in the matter may not always be objective.

Recourse/Accountability

Some important questions that beg answers;

Why were the guidelines/SOP of the CWC not implemented/utilized?

Why was there no strict compliance with the mandate under the Disaster Management Act, 2005?

Why were the emergency procedures with respect to the emergency release of water from dams not followed?

Should the commercial objectives of the KSEB take precedence over the life and property of the common citizen?

Why were the early warning signs not monitored at the level of the Chief Minister at the pre-operational stage of the flood?

It serves absolutely no purpose in harping on the great work being done in relief and rehabilitation. The primary concern of the State should have been prevention so that their citizens were not forced to endure the full force of the disaster.

Article 21 of the Constitution of India casts a heavy duty on the government to preserve and protect human life. Even if the duties of the government prior to/during/after the occurrence of a calamity such as this are not clearly spelt out, one may look only as far as Article 21, which acts as a repository of all human rights which are essential for a person or a citizen.

In the Bhopal Gas Leak Disaster, the Supreme Court, invoking Article 21 of the Constitution of India, and taking into consideration the enormity of human suffering caused by the negligence of persons and the need to provide urgent, immediate and substantial relief to the victims, directed the Union Carbide Corporation to pay a sum of US Dollars 470 million to be disbursed to the victims.

In the face of the evidence indicating a clear breach of duty in the management of the dams, or assuming floods due to excessive rainfall, the question remains, do the victims have recourse?

In 1954, the State of Saurashtra (which is now a part of the State of Gujarat) made a plan for reclamation of a vast area of land from the saltish water of the sea by erecting a ‘reclamation bundh’. An individual who owned a factory in the area, even prior to the construction of the bundh, petitioned the local authorities to either abandon the construction or to build it in such a way that it did not face his factory.

The local authorities ignored his pleas and as luck would have it, in the very first monsoon post construction of the bundh, the diverted water seeped into the individual’s factory and caused sizeable damage.

The Supreme Court in 1994 in the case of Jay Laxmi Salt Works (P) Ltd V. State of Gujarat, whilst awarding damages in favor of the individual, held thus:

“Where the state undertakes common law duty its actions may give rise to common law tort. Negligence in the performance of duty is only a step to determine if the action of Government resulting in loss or injury to common man should not go uncompensated. If construction of a bundh is a common law or public duty, then any loss or damage arising out of it gives rise to tortious liability not in the conservative sense but certainly in the modern and developing sense. A common man, a man in the street cannot be left high and dry because the wrongdoer is the State. The basic element of tort is duty. And that comes into play fully when there is a common law duty. Since the construction of a bundh was a common law duty, any injury suffered by a common man was public tort liable to be compensated.“

In the light of this judgment, the clear recourse for the victims of the Kerala floods would be to institute a suit seeking damages for the losses incurred. The victims of this man-made calamity must be recompensed for having to withstand this ordeal.

The facts disclose a clear case of dereliction of duty verging on criminal negligence on the part of the concerned bureaucrats from the KSEB, the CWC, the revenue officials as well as the members of the various committees responsible for preventing/mitigating such a disaster.

Affirmative action is the need of the hour. The judiciary must shift gears into overdrive when a victim approaches the Court. Adequate compensation is a Constitutional right under Article 21 for every victim.

This is the least a victim should be comforted with. Every loss, whether of life or property, needs to be evaluated properly and compensated adequately since the State, being the trustee of its citizens, was expected to follow the laws. The persons responsible must be held accountable and must face their day in Court.

Haris Beeran is an advocate at the Supreme Court of India.