The Fire at AMRI

In a recent judgment, the Calcutta High Court scaled down charges against one of the prime accused in the AMRI hospital fire tragedy.¹ Ninety-two patients choked to death in this hospital in the heart of Kolkata, when a massive fire broke out in its basement on the night of 9 December 2011. The postmortem report mentioned asphyxia as the cause of these deaths.

The hospital’s managing director, Mani Kumar Chhetri, and 15 others were prosecuted for alleged offences punishable under Sections 304 Part II/308 (attempt to commit culpable homicide) read with Section 36 (offence caused by an act or omission) of the Indian Penal Code (IPC) and under several sections of the West Bengal Fire Services Act. While theother accused chose to face trial, Chhetri appealed to the Calcutta High Court to discharge him from the case. After hearing the matter, the court scaled down the charges against Chhetri, from culpable homicide not amounting to murder, to rash and negligent act not resulting in murder. But in the process, the judge, Justice Joymalya Bagchi, also pointed out glaring limitations in the IPC when it comes to holding corporate top brass culpable for criminal negligence resulting in mass deaths.

Flouting Fire Safety Guidelines

It has been alleged that the fire broke out because AMRI, a reputed state-of-the-art hospital, had deliberately flouted fire safety guidelines. The hospital management chose to ignore repeated directives issued by the state’s fire safety department. In addition, the hospital put in place an operational strategy called Code Brown, which is a dangerously risky fire-fighting policy. As per Code Brown, the staff attempts to contain a fire in-house, basically with internal resources, before reporting it to any external agency such as the fire brigade or the police department. This policy was followed in spite of the fact that the hospital had no full-time fire officer and had not trained its staff appropriately to deal with a fire crisis situation.

The fire broke out in the basement of the five-storeyed structure. The building was centrally air-conditioned; thus the walls were sealed, with no vents or windows. Toxic smoke from the basement got pumped into the building through the central air-conditioning system. Thick smoke accumulated in the patient wards, causing poor visibility and suffocating those trapped in it. People from the neighbourhood, who had rushed to the site to rescue patients, were prevented from entering the hospital premises by the security staff. Other staff inside the hospital tried to contain the fire themselves as per Code Brown. When they failed to control the fire, the fire brigade was called, but after a considerabledelay.

By the time the fire brigade arrived, many of those trapped inside were dead. One needs to remember that many patients were not mobile, some lay unconscious in the intensive care unit or were under heavy sedation, and some were in wheelchairs. These patients could not attempt escape as the thick black smoke engulfed them.

There were two probable causes for the fire in the basement, neither of which could be confirmed. It may have started due to a malfunctioning air conditioner in an unauthorised pharmacy, or from an external source. There were no fire stoppers, thus the smoke spread rapidly from the electrical shaft which originated in the basement and ran through the floors to the top one. The fire spread rapidly from the medical store, which stocked combustible materials such as cotton, gauge and rubber. The staff at the medical store had informed the hospital staff as soon as they noticed the flames, but their warning went in vain because the fire-fightinginstruments failed. Neither the fire dampeners nor the fire breaks were working and the hospital staff was not adequately trained to conduct theevacuation process.

Hazards of Code Brown

The fire that broke out in AMRI hospital on 9 December 2011 was not a one-off or random incident. Investigations revealed that 12 incidents of fire had occurred there previously. In October the same year, a fire broke out in the AMRI Diabetic Centre. The security staff at that time had promptly informed the fire brigade, and the fire could be controlled due to their quick response. But astoundingly, the staff was suspended by the AMRI management because they had informed the fire brigade, as it was deemed in breach of the Code Brown policy.

Code Brown is adopted by institutions to save their public reputation and retain their paying public. As per this code, only on failing to contain a fire should the staff inform external agencies such as the fire brigade or the police. For, informing these agencies makes news of the fire public information, and such news would deter people from coming for treatment to the private hospital which would translate into a loss of revenue. Thus, Code Brown is a problematic policy because it focuses on protecting corporate interests and compromises public safety, whereas for a hospital, public safety ought to be a non-negotiable principle, because people coming for treatment are physically vulnerable.

AMRI had also deviated from the construction plan sanctioned by the Kolkata Municipal Corporation. Its upper basement, which was meant as a car parkaccording to the sanctioned plan, was converted into offices, storerooms and the pharmacy, in violation of the repeated directives by the fire services department. Yet, year after year, AMRI obtained no objection certificates from the firedepartment, after submitting affidavits assuring compliance with its directives. No direction was issued by the AMRI board to implement the directives. The AMRI’s board of directors were surely in the know of the fire safety lapses, as it was a long-standing situation in thehospital.

In 2007, the AMRI management wanted to acquire accreditation from the National Accreditation Board for Hospital and Healthcare Providers (NABH). Thus, for one year they appointed a full-time consultant specialist, to ensure that the hospital was in compliance with NABH guidelines in all respects, including fire safety. However, once the accreditation was obtained in 2008, it lost interest in maintaining NABH standards. The services of the compliance consultant and incumbent fire officer were terminated. Instead, a part-time fire officer was appointed, who reported only twice a week. Fire training and evacuation drills, an essential NABH mandate, were conducted irregularly. In 2011, AMRI lost NABH accreditation due to lapses in fire safety standards and evacuation training.

It is important to note that all the above irregularities were in the active knowledge of the petitioner Chhetri and took place with his connivance, as he was the managing director. Yet, the court held that he could not be prosecuted for culpable homicide not amounting to murder. It may, however, be pertinent to know that the above accusations have not been admitted by the petitioner and other accused persons in the case, and the allegations are required to be proved beyond reasonable doubt during the course of trial.

Limitations in the Law

The judgment states,

It may be apposite to note that in [the] United Kingdom, a legislation, namely The Corporate Manslaughter and Corporate Homicide Act 2007, has been enacted to hold companies accountable for the failures of senior management resulting in death of persons. However, in the absence of any legislation in India making a company culpable for death by [a] rash and negligent act, the question of making the directors and/or officers of the company vicariously liable for such act cannot arise and their penal liability is to be examined under the various provisions of the Indian Penal Code. In this perspective, the plea of non-joinder of the company as an accused is rendered irrelevant to the validity of the prosecution of the petitioner and other accused persons in the instant case.

The law requires factual proof beyond reasonable doubt or the direct involvement of the management top brass in the particular activity, which is the cause of death, to hold them guilty for culpable homicide. Therefore, there is a crying need for a law which will create vicarious liability on the part of the senior management, in cases of operational failures of companies resulting in deaths.

Cases like this show how easy it is to raise the bogey of middle management blunders to escape the liability of graver charges in instances of mass murders which result from corporate greed. Indian companies are rarely managed on professional lines. Equity owners dictate every step in cutting corners to maximise profit, at the expense of public safety.

The judgment, though poised on legal principles based on precedent, loses sight of the ground realities of company management in family-owned businesses. In such businesses, the mandate of a few at the helm of affairs overrides the interests of any other stakeholder. And public safety is accorded the least significance, when weighed against the motivation to make profits.

Unfortunately, repeated incidents of deaths due to corporate negligence, from the times of the Bhopal gas tragedy to the present, have failed to shake our legislators out of their deep slumber of inaction. They are yet to formulate a law providing for corporate criminal liability in heinous crimes, such as culpable homicide or involuntary manslaughter. Even the Law Commission of India appears to have turned a blind eye; and is yet to propose a substantive legislation in this arena.

In the absence of a specifically defined legislation on corporate liability andgoing only by the norms of common law, it is difficult to hold the chief executive officer of a company or the board of directors of a corporation criminally liable for an act that has resulted in the death of individuals, unless they are caught red-handed in perpetrating the act itself or were directly involved in its commission or omission. In contrast, some other countries, such as the United Kingdom (UK) and Australia, have legislated specially defined law to hold the senior management accountable for criminal negligence, commission or omission which results in the death of a person or persons. According to the UK’s Corporate Manslaughter and Corporate Homicide Act of 2007, the senior management, including the company itself can be found guilty of the offence. In November 2003, Australia passed the Crimes (Industrial Manslaughter) Amendment Bill of 2002, creating the offence of industrial manslaughter. Hence, the Australian law too recognises industrial manslaughter, by attributing criminal liability to corporations in industrial activities.

The AMRI judgment rightfully touches on the issue of corporate penal liability with regard to manslaughter when multiple deaths have occurred due to flawed operational practices. It observes that in the absence of any judicial pronouncement or legislation creating corporate criminal liability for manslaughter, the culpability of the directors constituting the top management is to be factually determined on the basis of the extent of their knowledge and specific role assigned to them in the affairs of the company. Constructive culpable liability under the penal code arising out of common intention or common knowledge of the offenders was relied upon by the judge to rope in the directors in this case.

Subjective Distinction

The penal code, a law framed two centuries ago, does not cater to the principles of vicarious liability, which would make directors legally responsible for the acts of the company. However, affixing responsibility for involuntary manslaughter is grossly inadequate in cases of mass deaths. In the Upahaar cinema case² and in the Bhopal gas tragedy case,³ which are both incidents of mass deaths due to corporate negligence, the Supreme Court endorsed the conviction of the top management for involuntary manslaughter and not culpable homicide.

It is interesting to note the distinction that the courts have made as to the certainty of knowledge of death in the mind of an offender in two different contexts—in the arena of corporate management, and in the case of drunken driving. For corporate management, the court has tended to hold knowledge of the possibility of death as not a certain conclusion. Whereas for drunken driving, like in the cases of Sanjeev Nanda⁴ and Alister Pareira,⁵ the court held that such knowledge is implicit in the mind of a reckless drunken driver, making him liable for culpable homicide. The distinction is subjective in nature and is based on the factual nuances of each case. Subjective distinction creates a sense of uncertainty in the application of penal law, in the domain of death due to a rash and negligent act.

This dichotomy gets further aggravated due to the disparity in the maximum sentence that may be awarded for culpable homicide on the one hand and involuntary manslaughter on the other. In cases of culpable homicide, the court may award a sentence up to life imprisonment. Whereas in involuntary manslaughter, that is, a death or deaths due to a rash or negligent act, the sentence can be only up to two years, even if the reckless act has resulted in the deaths of numerous persons.

The law needs to be amended immediately by raising the levels of punishment in cases of involuntary manslaughter caused by corporate negligence. There have been repeated instances of mass deaths due to corporate negligence, and hence there is enough ground for increasing the maximum punishment in such cases, and creating a stand-alone law to deal with corporate homicide or manslaughter on the lines of the UK legislation.

Nearly six years have gone by since the horrific fire broke out at the AMRI hospital. But the case is far from concluded; in fact the trail is still at a rather early stage. Reducing the grave charges framed against the accused at this intermediate stage of the trail denies effective access to justice to the victims, by protracting an already long-drawn trial if such charges require to be brought back on board in view of incriminating evidence in the future. Perhaps, it was better for the judge to have erred on behalf of the victims, given the gravity of the tragedy.

Notes

1 Mani Kumar Chhetri v State of West Bengal (2016): CRR, p 1918.

2 Sushil Ansal v State through CBI (2002): DRJ, 63, p 585.

3 Keshub Mahindra v State of Madhya Pradesh (1996): SCC, SC, 6, p 129.

4 New Delhi v Sanjeev Nanda (2012): SCC, SC, 8, p 450.

5 Alister Anthony Pareira v State of Maharashtra (2012): SCC, SC, 2, p 648.