Monday, 10 October 2016

Dengue and Negligence. Sheer negligence!

Ye to isko macchar ki tarah masal kar rakh dega!That was one of the analogies used during childhood when we used to watch W.W.E. matches and there would be a comparatively small fighter facing a giant. The mosquito was considered a very weak creature. But slowly and slowly it has acquired the strength of a monster. Keeping with the times, it has updated its ammunition.  These days whenever a mosquito bites me, it worries me that i might get dengue, chikanguniya or malaria, the former being the page three celebrity these days. These facts called for an investigation.

Statistics regarding the number of people affected by dengue vary. According to the National Vector Borne Disease Control Programme , till October 2nd this year , 51731 cases of dengue have been reported while these have been 93 instances of death while last year 220 people died because of the disease. It mentions that till 2nd October 2016, there have been four deaths due to dengue in Delhi   whereas a Press Trust of India report on NDTV states that till 29th of September this year, 21 people have fallen prey to the disease. However, this might be due to the fact that patients from other states travel to Delhi for treatment. Another news article on NDTV, states the number of deaths in Lucknow, to be a staggering 148 till October 1st , 2016.  Other parts of the country have not been spared from the menace either.  Odisha (6963 cases), West Bengal(6933), Kerala (5988), Karnataka (4556) and Maharashtra (4033) are the worst affected states(see here). Don't gasp, take this. According to a study by the government's National Institute of Health and Family Welfare(N.I.H.F.W.), New Delhi, India could have had ''an annual average of 5,778,406 clinically diagnosed dengue cases, or 282 times the reported number per year" between 2006-2012. The study reported that the "National Vector Borne Disease Control Programme captures only 0.35 percent of the annual number of clinically diagnosed dengue cases in India".(see here)

The National Capital Territory of Delhi, being the centre of media and political attention and tussle, was the focus of debates and legal actions over the issue . The state of affairs has come to such a pass that the Delhi High Court had to direct both the Centre as well as the State Government not to deny treatment to  Dengue or Chikunguniya patients. The attitude of the authorities has even irked the Supreme Court, who has asked the incumbents to perform their duties in this regard, thinking of the interests of the people of  Delhi. Sadly, other parts of the country haven't got their due media attention, which is basically confined to the mega and the metropolitan cities, and we know that in the absence of media limelight, any action , be it an opening ceremony of a store or mere submission of a memorandum hardly takes place, let alone steps for prevention and control of an epidemic for which almost every politician and party of the country would want to hog the limelight as a milestone achievement.

  1. preventing mosquitoes from accessing egg-laying habitats by environmental management and modification; 
  2. disposing of solid waste properly and removing artificial man-made habitats;covering, emptying and cleaning of domestic water storage containers on a weekly basis; 
  3. applying appropriate insecticides to water storage outdoor containers; 
  4. using of personal household protection such as window screens, long-sleeved clothes, insecticide treated materials, coils and vaporizers;  
  5. improving community participation and mobilization for sustained vector control; 
  6. applying insecticides as space spraying during outbreaks as one of the emergency vector-control measures;  
  7. active monitoring and surveillance of vectors should be carried out to determine effectiveness of control interventions.
These methods/strategies for combating the menace of dengue call for participation of both, the Government as well as the public. But i would limit my discussion from the perspective of Government action because it has the power to ensure compliance or punish in the case of disobedience.

The methods stated by the WHO, mainly include prevention of breeding grounds for mosquitoes, proper disposal of solid waste management and spraying of insecticides/fogging. These are functions to be performed by the local administration basically through their municipal bodies which in turn are monitored by the higher ups in the executive and the elected representatives siting in various ministries. The question here arises that if a disease is taking away lives year after year and certain arrangements are to be made beforehand to prevent its spread but no concrete steps are taken, instead sheer negligence on the part of the authorities turns it into an epidemic, then who is responsible for the loss of lives? If for the loss of life of one person, an accused is tried and if convicted, is send to jail, then why for the loss of thousands for lives , many of which could have been saved, the authorities involved are able to continue as if nothing has happened?

Accepted that its a tough task to administer, that there are bound to be failures even with the best of efforts, and if punished for not being able to administer well, people would not want to join such services or leadership roles. But the flip side of the coin is that nobody can be allowed to be left unaccountable. It is not the case when the executive or the legislature has tried and failed in its efforts, it is the case when there is a blatant disregard for the lives of the common citizens, when the common man is left to deal with the problem or to die and when efforts are made only for namesake , for political paparazzi or for political mudslinging.

All this is not something extralegal idea. Among our laws, Section 304A of the Indian Penal Code is of relevance here. It states the following :

"Whoever causes the death of any person  by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both."

The essential requirements to the section are that there must be death of the person in question, the accused must have caused such death, that such act of the accused was rash or negligent and that it did not amount to culpable homicide.

Negligence, as defined in the section, is a breach of duty imposed by law. It may be civil or criminal negligence  depending upon the nature and gravity of negligence. Criminal negligence is gross and culpable, neglect, or failure to exercise reasonable and proper care and precaution to  guard against injury, either to the public generally, or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the duty of the person to have adopted.( Text Book on the Indian Penal Code by K. D. Gaur , Fourth Edition, pg. 499-500)

 If steps would have been taken for preventing mosquitoes from accessing egg-laying habitats, if there would have been proper solid waste management, if fogging would have taken place frequently and at appropriate times, if common public would have been fined for not performing their role in this regard, deaths on such a large scale might not have taken place. Spread of dengue, year after year, when it could be contained, is a failure to exercise reasonable and proper care and precaution to  guard against injury to the public generally and to every affected individual in particular. The large scale deaths, recurring every year, qualify it as a criminal negligence.

By vicarious liability, which means that the master is responsible for the acts of his servant, if the higher ups in executive or legislature, who have the power and the responsibility to monitor the performance of such acts and also to direct, if needed, the action to be taken by the sub-ordinates, have instead stopped them from performing their duties, by overt acts or otherwise, for one reason or the other such as for political gains etc, they should also be held responsible for the deaths and tried under the ambit of section 304 A of the I.P.C.. 

Until and unless, those wielding power and responsibility to take care of others are held accountable for non-performance of the duties concerned and are punished in the cases of sheer negligence, it will be very difficult to make them perform and till then the common man on the street will continue to suffer unabated! 

    Monday, 3 October 2016

    The case that shook a state

    While surfing the internet, i came across an article about the rape and subsequent death of a 23 year  young woman in Kerala in which the Supreme Court has overturned  the punishment for murder confirmed by the the Kerala High Court upon an appeal from a Fast Track Court. It made me sift through various newspaper reports and finally through the Supreme Court judgment itself. What i concluded from my knowledge of law is,respectfully stating, not in consonance with the judgement of the Apex Court.

    The incident took place on  1st February 2011 while the victim/deceased was returning home and was at that time, in the ladies compartment of the train, all alone. The case of the prosecution was that the  accused, finding the victim alone in the ladies compartment of the train, trespassed into the compartment and tried to rape her but when the victim resisted, he assaulted her by repeatedly hitting her head on the walls of the compartment(Injury no.1) and upon her screaming, he threw her out of the moving train, himself jumped off it ,lifted the victim to another place by the side of the track and sexually assaulted her.

     One of the witnesses have deposed that as he were to stop the train by pulling the chain, a middle aged man stopped him saying that the girl has jumped off the train and made good her escape. This is where doubt seeps into the mind of the Court as to whether the victim was thrown off the train or she jumped off the train herself.

    The medical report mentions various injuries on body of the victim. It has been mentioned that the banging of head of the victim by the accused, on the walls of the compartment although capable of
    creating dazeness to head and rendering incapable to respond, may not be of the nature of exclusive cause of death. It has also been mentioned that the victim need not become total unconscious but can do nothing.

    Pointing to the cause of death of the victim, the following has been stated

    The decedent had died due to blunt injuries sustained to head as a result of blunt impact and
    fall and their complications including aspiration of blood into air passages (during unprotected unconscious state following head trauma) resulting in anoxic brain damage. She also showed injuries as a result of assault and forceful sexual intercourse. She had features of multiple organ disfunction at the time of death."

     In the above context, a few things must be noticed. The accused might have not hit the victim with the intention of killing her and the statement of one of the witnesses created doubt in the mind of the Court as to whether the victim herself jumped out of the train ? The prosecution couldn't clear the doubt. But,  the medical report says that the injury due to repeated hitting of the victim's head on the walls of the compartment,  "is sufficient to render her dazed and insensitive. It is capable of creating dazeness to head and rendering incapable to respond..." It goes on to say that although these wounds might have not been an exclusive cause of death  "....what I understand is that after hitting the head on a flat and hard substance several times and rendering insensitive dropped." A question arises that if the victim was unable to make a judgement then how can she be said to jump off on her own from the train 'to escape'? It is akin to hitting someone on head while he/she is standing near the edge of the cliff while knowing that this might cause his/her death due to fall.

     I am quoting here a certain part of the post mortem report as available in the Supreme Court judgement   :

    "...In post mortem request it is pushed down from running train. So though it was a running train it had only negligible speed. In inflicting this injury the speed of the train had only a negligible role. The speed ignorable. Since she was rendered insensitive as a result of injury No.1 in the absence of natural reflex the face had to bear the full force of the descent, it is seen. In case she was not dazed and had alert reflexes and fallen in such a condition she would have moved hands forward and the hands would have showed the force of the fall to some extent."

     Now this doesn't proves that the accused knew that the victim would jump off/fall off from the train but it also makes clear the fact that the victim did not take a conscious decision to jump off from the train and escape. Even if the victim fell off from the train, it was due to the insensitivity induced and the absence of normal reflexes because of the acts of the accused and therefore it cannot be taken as a defence.

    Till now the accused cannot be held responsible for the death of the victim. However, what i propose here is that, the acts of the accused inside the train and those carried out when he got off from it cannot be severed. 

    The doctor who conducted the post-mortem has told the Court that the death was due to a combination of the injuries inflicted upon the victim inside the train and the injuries resulting from the fall of the victim from the train and the complications arising therefrom including aspiration of blood into the air passages resulting in anoxic brain damage  which occurred due to the fact that the deceased was kept in a supine position for the purpose of sexual assault. It has been opined later on in the judgement that unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of
    the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessary follow.

    It is also important to consider para 17 of the judgment before we proceed further. Here the Hon'ble Court observed as follows :

    "Keeping of the deceased in a supine position for commission of sexual assault has been deposed to by P.W. 64 as having a bearing on the cause of death of the deceased. However, to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of  medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. Therefore, in the totality of the facts
    discussed above, the accused cannot be held liable for injury no.2. Similarly, in keeping the deceased in a supine position, intention to cause death or knowledge that such act may cause death, cannot be attributed to the accused. We are, accordingly, of the view that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable therefor."

    (P.W. 64 was the doctor who conducted the post mortem.)

    I have earlier argued that even if the victim jumped off from the train, her act cannot be a conscious one ,but as a result of the injuries inflicted by the accused himself. The post mortem report clearly mentions that there was absence of natural reflex on the part of the victim due to the injury no. 1 (inflicted upon her by the accused upon the victim, inside the train). This thread of actions on the part of the accused carries further when he, even after finding the victim in a critical state, sexually assaults her. The Court opined that the requisite knowledge cannot be attributed to the accused because, as mentioned by P.W. 64 himself, such knowledge and information is, in fact, parted with in the course of training of  medical and para-medical staff. Here, clause 4 to section 300 of the Indian Penal Code, 1860 comes into play. According to it, if a person committing the act knows that it is so imminently dangerous that it must , in all probability, cause death or such bodily injury likely to cause death , and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The word 'knows' and the phrase 'in all probability' are the keys to the section.

    The level of knowledge attributed here is personal knowledge. The level of probability that of most probable result. However when we attribute knowledge to a person if we consider that a person must be professionally trained to know about the outcome of an event, then it would be very difficult in any case to say that the person knew that a certain result would follow. In the present case, when the victim fell down from a moving train and as can be deduced from the post mortem report, that she was critically injured, a common man would have the knowledge that the victim can die if left unattended. Instead, the accused sexually assaulted the already critically injured victim and then robbed her off her valuables. What can be deduced from the facts is that the accused had complete disregard of the life of the victim.

    The acts of the accused formed a complete chain of events. At first the victim was assaulted inside the train, even if she jumped out from the train , it cannot be attributed to her as a consciously taken decision but due to being rendered insensitive because of the act of the accused. Here if the accused would have stopped, he would have distanced himself from the act of falling of the victim from the train. However, the accused jumped out of the train and sexually assaulted the victim even after the victim was critically injured due to his very act. This lead to the death of the victim, with the accused having complete knowledge that it is almost certain the victim would die. It would not be correct to say that since the victim died after a long time, hence it shows that the accused wouldn't know that she would most probably die. In many cases, advance medical facilities help the victim to survive for a few days or longer. It cannot lessen the level of knowledge attributable to a person. In fact, chances are higher that a person involved in healthcare might know better that the victim may survive while a layman will think the opposite and therefore sexually assaulting the victim in such circumstances can be seen as the last part of the act of murder which started inside the train.

    Friday, 30 September 2016

    The Dustbin Diaries

    Recently, i have seen a lot of ads regarding a 12- hour cleanliness drive named Cleanathon which shall be conducted on the 2nd of October this year. A little search on the net revealed that it is an NDTV initiative and started in 2014 itself as an annual event to raise funds for creating awareness on the issue. While such events are appreciable and further the cause of the Swacch Bharat Abhiyaan, which is a very laudable campaign by the Government, there are certain aspects about sanitation in Indian context which are needed to be understood.

    Cleanliness is an inherent virtue of any civilized society. We cannot agree less over the fact that once we step out of our homes, we don't he give a damn about what hygiene and sanitation. Most of our India roads are sprinkled with red-colour using natural colors such as pan and pan masala, by our very creative artists and they are in billions. Sometimes they even try to paint us when they spit while driving or sitting in a vehicle. Sadly, we don't recognise such creative talents for their contribution to arts.

    We have great stories that we should be good towards our neighbours. And we are. We recognise this by presenting them with garbage and litter everyday right at their gates. Afterall a gift is a gift and no one can deny it!

    Many a times, no, actually mostly, the highly educated ones too tend not to use the dustbins and instead litter the streets because even putting the waste stuff in the dustbins 5 metres away from them would make them seem uncool.

    Our municipalities are not far away from contributing. Our cities are basically divided into islands of posh colonies of 'the rich and the powerful' and others. The latter is where you would see big mounds of garbage every few kms , being dumped in open. Maybe its a way to keep the economy running. If more people fall ill, more doctors , more medicines, more mosquito repellents and so on will be needed. The next Bharat Ratna or the Nobel should go to such municipalities for their contribution to the Indian economy.

    The question arises what should we do for acknowledging such great deeds? There are laws to levy fines on people who litter. ( Lets not read the positively sounding word 'fine' in a negative connotation.) The quantum of fines should be increased. Our municipalities should realise that they can make earn a lot of money by levying such fines and can use the money to buy equipment. If its possible, the fines should be tracked via Aadhaar so that the quantum is increased with every such act by a person.

    On the part of the people, the way out is to get together and start questioning by applying their constitutional rights that when we are paying taxes then why we are not getting a clean and healthy environment which is an essential part of the Right to Life. Civil society and NGOs have a very important role to play in such matters.

    Among all this, what we have to develop is a feeling that cleanliness is a prerequisite for any progressive society. How can any one be happy if he has to deal with stench and the sites of hills of garbage as ventures through the city? How can one risk polythene packed with garbage bring thrown on him/her in the streets? How one bravely drives behind any vehicle with the threat of being pan-stained by someone else spitting pan? Lets put such people and such acts to shame! Lets create awareness