Rama Setu: max. public casualty channel, criminally violates 304 IPC

The Member Secretary, Committee of Eminent Persons on Sethusamundram Shipping Channel Project,The Tamilnadu Dr Ambedkar Law University,Post Graduate & Research Development Block,Poompozhil5, Greenways Road, Chennai,  600028 October 17, 2007. Sub: Prosecution of civil servants u/s 304(A) IPC for selecting maximum casualty alignment without comparative study of casualties in each of six alignments. Dear Sir, I am not against the SSC project but I am against that alignment which entails making a gap or breach in the Ram Sethu as a gap/hole in Ram Sethu will allow tsunami waves in future to hit beaches of our South India with their full force causing loss of lives of much more number of our fellow citizens. At present Ram Sethu offers a natural barrier, a natural protection to coastal people moderating adverse effects of tsunamis which the present alignment would take away. From the information available in public domain, it appears that at least six possible alignments were examined. Kindly let me know if the  Government of India and its Consultants ever estimated the number of likely casualties in each of the six alignments in wake of tsunami of Dec 2004 magnitude. If so please make me available a copy of this comparative study of tsunami caused public casualty in each route.  In my view the present alignment is the maximum public casualty route attracting penal actions under IPC against ‘casual & cavalier’ officials.  My guess is that the SSC Project in the present format has been commissioned without study of likely public casualties due to tsunamis which is a punishable offence under section 304(A) of the Indian Penal Code. Officials who approved the present alignment can be personally & individually prosecuted even after retirement. I am enclosing my paper which may be got examined from angle of personal accountability of civil servants involved in selecting the alignment under the IPC. Please acknowledge. With thanksYours sincerely OP Gupta[Indian Foreign Service: 1971] [rtd]25, Surya Niketan, Delhi 110092aprgupta@yahoo.comCC: [1] Secretary, Ministry of Shipping & Transport, Government of India, New DelhiSETHU SAMUNDRAM SHIP CHANNEL PROJECTUPA Govt adopts the maximum public casualty alignment!OP Gupta IFS (1971) (Rtd) At present, ships between the east coast and the west coast of India have to circumnavigate around SriLanka. The Sethusamundram Ship Channel Project [SSCP] aims at creating a shipping channel between the Gulf of Mannar and the Palk Bay by dredging about 83 kilometres (44.9 nautical miles) long, 300 metres wide at the base, and 12 metres deep channel. The Rs 2400 Crore project was sanctioned by the UPA Government on May 19, 2005; and, was inaugurated in indecent haste by Dr Man Mohan Singh, Prime Minister on July 2, 2005 at Madurai. Basic advantage of this project  will be  reduction in travel distance of more than 350 nautical miles (650 km) for ships plying between the east and the west coast. Strategic advantage will be that Indian ships will travel within the Indian waters but strategic disadvantage will be that the Palk Bay and the Gulf of Mannar which at present are open only to India and Srilanka will become open for all countries. Further lagrer ships like Very Large Crude Containers (VLCCs) will not be able to use this channel, and; other ships in view of higher pilotage, tug & towing charges by SSCL may prefer to cirumnavigate SriLanka as before.It is estimated that about 84.5 million cubic metres [mcm] of sand and silts will be dredged under sea from the project area; about 32.5 mcm sand will be dredged in the Ram Sethu area and 52 mcm in the Palk Bay area.  Para 6.1 of the Environmental Impact Assessment Report [prepared by NEERI] suggests that dredged sand and spoils will be discharged at Pamban and in the Bay of Bengal but contradicting it, the very next para 6.2 of the same EIA says that dredged material will be not be disposed in the sea.If it is so,the EIA is half baked and should not have been relied upon by the PMO in approving the project. Debris in large volumes in sea do affect  direction and force of undercurrents. Non-finalisation of debris sites is clear indication that final studies of undercurrents could not have been undertaken so how could the government finalise the alignment? It shows that project was finalised based on incomplete and infirm data. It is a fatal flaw.In her 25th June 2005 statement, Dr J. Jayalalitha, a former CM, claimed that in March 1998 initial Environmental Impact Study was entrusted to the National Environmental Engineering Research Institute (NEERI), Nagpur, which was made available in August 1998 but the Tamil Nadu Pollution Control Board appointed Expert Committee [Dr M. Ravindran] categorically concluded that the study by NEERI had a number of deficiencies. She further asserted that Union Ministry of Environment and Forests without obtaining the statutory ‘No Objection Certificate’ from the Govt of Tamil Nadu gave environmental clearance to this project. If true, it is another serious flaw.The project of connecting the Palk Bay and the Gulf of Mannar was probably first conceived in 1860 by Commander Alfred Dundas Taylor of the Indian Marines. The Govt of India appointed the Sethusamudram Project Committee in 1955, headed by Dr. A. R. Mudaliar to examinine the desirability of the project.This Committee recommended that the junction between the two seas should be connected by a canal, and, the idea of cutting a passage through the Ram Sethu [Adam’s Bridge] should be abandoned. Since then many committees have looked into this project It is understood that at least six alternative alignments were suggested, the 1961 alignment , the 1968 alignment, the 1996 alignment, the alignment suggested by the Steering Committee, the 1998 alignment and the present alignment approved by the Man Mohan Singh Govt in May 2005. As per principles of good governance and obligations flowing from the Indian Penal Code, the Government can choose only that alignment [when more than one alignments are on the table] which will cause the bare minimum loss of public lives in wake of any disaster. The public and Courts will be  well within their rights to ask whether the alignment selection in May 2005 was subjected to this test, or, not.  It is understood that some suggested alignments do not involve any cutting across the Ram Sethu structure thus pose no additional threat on account of future tsunamies to residents of the Southern coast. Therefore, it is not understood why ignoring the renewed security concerns of public in wake of the December 26, 2004 tsunami experience, the present alignment was selected which cuts across the Ram Sethu. A gap in the Ram Sethu structure will allow a tsunami in the future to hit the Kerala and Southern Tamil Nadu coasts with its full force inflicting  more casualties and more loss of lives than without the gap. The December 2004 tsunami got deflected or moderated by the Ram Sethu working as a natural barrier but still about 25,000 Indians on southern coast lost their lives.Simple common sense indicates that the present alignment will cause much more public casualties in wake of tsunamies. Concerns have also been raised against the approved alignment by environmentalists, seismologists, oceanographics and the local people. In 1997 the Union Ministry of Surface Transport appointed the Tuticorin Port Trust as the nodal agency for the SSCP. In 2002, TPT appointed NEERI as consultant for this project and the provisional executive summary of the ‘Environmental Impact Assessment [EIA] was submitted by the NEERI to TPT in May 2004. Detailed Project Report [DPR] was submitted before November 30, 2004 by the L&T India. Techno-economic report was submitted by the NEERI by July 2004 based on which this project was approved in May 2005. It should be noted that NEERI completed all its reports before the December 2004 Tsunami struck the Southern coast. So the project appears to have been cleared by the UPA government without studying the impact of future tsunami on the SSCP and the very stability of 12 metre high underwater walls of the SS channel. This lapse is scandalous as well as criminal.It should be noted that the tsunami of Dec 2004 has radically altered the bathymetry (sea-depth) of the region. Any responsible government would have got updated these pre-Dec 2004 reports before acting on these so as to keep the number of loss of lives of fellow citizens at the bare minimum in wake of future tsunamis but it seems it was not done reflecting “callous, casual and cavalier” attitude of concerned Union Ministers and civil servants towards lives of fellow citizens attracting various provisions of the Indian Penal Code.On March 8, 2005, Prime Minister’s Office referred 16 objections to the CMD, Tuticorin Port Trust which included security concerns of the world-renowned tsunami expert, Prof. Tad S. Murthy, who was engaged as an expert by the Government of India to set up a tsunami-warning system. Prof. Murthy is firmly of the opinion that this present alignment will destroy Kerala and most of the coastline of southern India. But TPT is reported to have replied to the PMO on 30th June 2005 without consulting experts from NEERI and NIOT on these objections, and, the PMO satisfied with this ‘empty ritual’ went ahead post haste with inauguration on July 2, 2005. Firstly, the PMO ought to have referred the public objections not to TPT, a commercial entity, but to independent experts for sake of transparency. Secondly, it was irregular and unlawful on part of a commercial entity (TPT) to have replied on technical matters to PMO without consulting its own official consultant, NEERI.The Hon’ble Supreme Court in the Tehri Dam case [1992 Supp(1) SC Cases 44] has laid down : “The Court can only investigate and adjudicate the question as to whether the Government was conscious to the inherent dangers pointed out by the petitioners and applied its mind to the safety concerns.” So, the Courts have jurisdiction as well as public responsibility to ‘investigate and adjudicate’ whether the UPA Govt had got examined by competent experts in fair, transparent and substantive manner concerns raised by Prof Tad S. Murthy and others about increased danger to the lives of fellow citizens living in the coastal areas by future tsunamis due to breach being made in the Ram Sethu.  The Delhi High Court in the Uphaar Cinema case [104(2003) Delhi Law Times 234(DB)] has also held: “the activity of the enterprise (here TPT and SSCL) must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harms and it should be no answer for the enterprise to urge that it had taken all reasonable steps.” Thus, the Courts have right as well as public duty to inquire & adjudicate whether norms of the ‘highest standards of safety’ were actually adhered to by the TPT and the Government of India prior to 19th  May 2005 in assessing security concerns, or, were these concerns dismissed by ‘empty and perfunctory’ rituals in casual & cavalier manners by Ministers and officials. It may be recalled that in the Uphaar Cinema case, the Delhi High Court and the Supreme Court have also laid down that a public servant shall be held personally liable for prosecution if he caused injury to public, here to more than bare minimum number of public, by his casual and cavalier functioning, and, that, the traditional alibi of working in ‘good faith’ or in ‘public interest’ will no more be available to such ‘casual & cavalier’ public servants including ministers.  Information available in the public domain clearly suggests that security concerns were dismissed perfunctorily showing “callous, casual and cavalier” attitude of decision makers [Prime Minister, Shipping Minister, Environment Minister, the then Cabinet Secretary, Shipping Secretary and CMD, TPT] who could be personally & individually held responsible for breaching Sec 304(A) etc of IPC for approving an alignment which has potential to endanger lives of more than bare minimum number of people  as public servants are facing in the Uphaar Cinema case even after demitting their offices. On the subject matter of endangering human lives, the Ratanlal Dhirajlal IPC [page 322, 28th Edition Reprint 2001] states that “it is not necessary that rash or negligent act [of approving current alignment] should actually result in injury to life. Offences against public safety are complete [as soon as rash behaviour is established] although the rash or negligent act has not [yet] resulted into any injury.” At page 422, it adds “ acts probably or possibly involving dangers to others, but which in themselves are not offences, may be offences under ss 336, 337, 338 or 304(A), if done without due care to guard against the dangerous consequences.” Charges of criminal negligence would be that PM and his team approved an alignment without due care to guard against the dangerous consequences to lives of lager number of fellow citizens. If the Palk Bay and the Gulf of Mannar are connected by a deep water channel, more turbulent waters of the Bay of Bengal will freely enter into the Palk Bay and the Gulf of Mannar washing away monazite sands of southern coast into sea, thus, depleting our thorium reserves which is so essential to run our fast breeder reactors.Thus the UPA alignment endangers our ‘energy security’ in days to come. Better solution is to connect these two seas by a channel with locks which will not allow more turbulent Bay of Bengal  waves to freely wash away monazite sands into sea.It is still not too late to get the alignment reviewed by a multi-disciplinary committee. The best option appears having a canal through Pamban, far away from the Ram Sethu, on the pattern of the Panama Canal with locking system. Rather than dredging into the sea surface let us raise the sea level within a channel by locking system to enable bigger ships pass without circumnavigating around Srilanka. Let the good governance prevail.  [The writer recently retired in the rank of Secretary to the Govt of India in the Indian Foreign Service (1971 batch). He has served as Ambassador to Finland, Estonia, Jamaica, Dominican Republic, Republic of Haiti, Tunisia and Tanzania and; as Consul General, Dubai (UAE) and Birmingham (UK).]June 24, 2007
Sethusamudram Ship Channel Project
UPA adopts the maximum public casualty alignment!
By O.P. Gupta, IFS (Retd.)

In her June 25, 2005 statement, Dr J. Jayalalitha, a former CM, claimed that in March 1998 initial Environmental Impact Study was entrusted to the National Environmental Engineering Research Institute (NEERI), Nagpur, which was made available in August 1998 but the Tamil Nadu Pollution Control Board-appointed expert committee (Dr M. Ravindran) categorically concluded that the study by NEERI had a number of deficiencies.

Larger ships like Very Large Crude Containers (VLCCs) will not be able to use this channel, and other ships in view of higher pilotage, tug and towing charges by SSCL may prefer to circumnavigate Sri Lanka as before. It is estimated that about 84.5 million cubic metres (mcm) of sand and silts will be dredged under sea from the project area.

Any responsible government would have got updated these pre-December 2004 reports before acting on these so as to keep the number of loss of lives of fellow citizens at the bare minimum in the wake of future tsunamis but it seems it was not done reflecting “callous, casual and cavalier” attitude of union ministers and civil servants concerned.

It is understood that at least six alternative alignments were suggested, the 1961 alignment, the 1968 alignment, the 1996 alignment, the alignment suggested by the Steering Committee, the 1998 alignment and the present alignment approved by the Manmohan Singh government in May 2005.

At present ships between the east coast and the west coast of India have to circumnavigate around Sri Lanka. The Sethusamudram Ship Channel Project [SSCP] aims at creating a shipping channel between the Gulf of Mannar and the Palk Bay by dredging about 83-kilometre-(44.9 nautical miles) long, 300-metre-wide at the base, and 12-metre-deep channel.

The Rs 2400 crore project was sanctioned by the UPA government on May 19, 2005; and, was inaugurated in indecent haste by Dr Manmohan Singh, Prime Minister, on July 2, 2005 at Madurai. Basic advantage of this project will be reduction in travel distance of more than 350 nautical miles (650 km) for ships plying between the east and the west coast. Strategic advantage will be that Indian ships will travel within the Indian waters but strategic disadvantage will be that the Palk Bay and the Gulf of Mannar, which at present are open only to India and Sri Lanka, will become open for all countries.

Further, larger ships like Very Large Crude Containers (VLCCs) will not be able to use this channel, and other ships in view of higher pilotage, tug and towing charges by SSCL may prefer to circumnavigate Sri Lanka as before. It is estimated that about 84.5 million cubic metres (mcm) of sand and silts will be dredged under sea from the project area— about 32.5 mcm sand will be dredged in the Ram Sethu area and 52 mcm in the Palk Bay area. Para 6.1 of the Environmental Impact Assessment (EIA) report (prepared by NEERI) suggests that dredged sand and spoils will be discharged at Pamban and in the Bay of Bengal but contradicting it, the very next para 6.2 of the same EIA report says that dredged material will not be disposed in the sea.

If it is so, the EIA report is half baked and should not have been relied upon by the PMO in approving the project. Debris in large volumes in sea do affect direction and force of undercurrents. Non-finalisation of debris sites is clear indication that final studies of undercurrents could not have been undertaken, so how could the government finalise the alignment?

It shows that project was finalised based on incomplete and infirm data. It is a fatal flaw. In her June 25, 2005 statement, Dr J. Jayalalitha, a former CM, claimed that in March 1998 initial Environmental Impact Study was entrusted to the National Environmental Engineering Research Institute (NEERI), Nagpur, which was made available in August 1998 but the Tamil Nadu Pollution Control Board-appointed expert committee (Dr M. Ravindran) categorically concluded that the study by NEERI had a number of deficiencies. She further asserted that Union Ministry of Environment and Forests without obtaining the statutory ‘no objection certificate’ from the Government of Tamil Nadu gave environmental clearance to this project. If true, it is another serious flaw.

The project of connecting the Palk Bay and the Gulf of Mannar was probably first conceived in 1860 by Commander Alfred Dundas Taylor of the Indian marines. The Government of India appointed the Sethusamudram Project Committee in 1955, headed by Dr. A. R. Mudaliar, to examine the desirability of the project.This Committee recommended that the junction between the two seas should be connected by a canal, and, the idea of cutting a passage through the Ram Sethu should be abandoned. Since then many committees have looked into this project

It is understood that at least six alternative alignments were suggested, the 1961 alignment, the 1968 alignment, the 1996 alignment, the alignment suggested by the Steering Committee, the 1998 alignment and the present alignment approved by the Manmohan Singh government in May 2005.

As per principles of good governance and obligations flowing from the Indian Penal Code, the government can choose only that alignment (when more than one alignments are on the table) which will cause the bare minimum loss of public lives in the wake of any disaster. The public and courts will be well within their rights to ask whether the alignment selection in May 2005 was subjected to this test or not. It is understood that some suggested alignments do not involve any cutting across the Ram Sethu structure thus pose no additional threat on account of future tsunamis to residents of the southern coast. Therefore, it is not understood why, ignoring the renewed security concerns of public in the wake of the December 26, 2004 tsunami experience, was the present alignment selected which cuts across the Ram Sethu?

A gap in the Ram Sethu structure will allow a tsunami in the future to hit the Kerala and southern Tamil Nadu coasts with its full force inflicting more casualties and more loss of lives than without the gap. The December 2004 tsunami got deflected or moderated by the Ram Sethu working as a natural barrier but still about 25,000 Indians on southern coast lost their lives. Simple common sense indicates that the present alignment will cause much more public casualties in the wake of tsunamis. Concerns have also been raised against the approved alignment by environmentalists, seismologists, oceanographers and the local people.

In 1997, the Union Ministry of Surface Transport appointed the Tuticorin Port Trust (TPT) as the nodal agency for the SSCP. In 2002, TPT appointed NEERI as consultant for this project and the provisional executive summary of the Environmental Impact Assessment (EIA) was submitted by NEERI to TPT in May 2004. Detailed Project Report (DPR) was submitted before November 30, 2004 by the L&T India. Techno-economic report was submitted by NEERI by July 2004 based on which this project was approved in May 2005. It should be noted that NEERI completed all its reports before the December 2004 tsunami struck the southern coast. So the project appears to have been cleared by the UPA government without studying the impact of future tsunamis on the SSCP and the very stability of 12-metre-high underwater walls of the SS Channel. This lapse is scandalous as well as criminal. It should be noted that the tsunami of December 2004 has radically altered the bathymetry (sea-depth) of the region. Any responsible government would have got updated these pre-Dec 2004 reports before acting on these so as to keep the number of loss of lives of fellow citizens at the bare minimum in the wake of future tsunamis but it seems it was not done reflecting “callous, casual and cavalier” attitude of union ministers and civil servants concerned towards lives of fellow citizens attracting various provisions of the Indian Penal Code.
On March 8, 2005, Prime Minister’s Office referred 16 objections to the CMD, Tuticorin Port Trust, which included security concerns of the world-renowned tsunami expert, Prof. Tad S. Murthy, who was engaged as an expert by the Government of India to set up a tsunami-warning system. Prof. Murthy is firmly of the opinion that this present alignment will destroy Kerala and most of the coastline of southern India. But TPT is reported to have replied to the PMO on June 30, 2005 without consulting experts from NEERI and NIOT on these objections, and, the PMO satisfied with this ‘empty ritual’ and went ahead post-haste with inauguration on July 2, 2005.

Firstly, the PMO ought to have referred the public objections not to TPT, a commercial entity, but to independent experts for sake of transparency. Secondly, it was irregular and unlawful on part of a commercial entity (TPT) to have replied on technical matters to PMO without consulting its own official consultant, NEERI. The Hon’ble Supreme Court in the Tehri Dam case [1992 Supp(1) SC Cases 44] has laid down : “The Court can only investigate and adjudicate the question as to whether the government was conscious to the inherent dangers pointed out by the petitioners and applied its mind to the safety concerns.”

So, the courts have jurisdiction as well as public responsibility to “investigate and adjudicate” whether the UPA government had got examined by competent experts in fair, transparent and substantive manner concerns raised by Prof Tad S. Murthy and others about increased danger to the lives of fellow citizens living in the coastal areas by future tsunamis due to breach being made in the Ram Sethu.

The Delhi High Court in the Uphaar Cinema case [104(2003) Delhi Law Times 234(DB)] has also held: “The activity of the enterprise (here TPT and SSCL) must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harms and it should be no answer for the enterprise to urge that it had taken all reasonable steps.”

Thus, the courts have right as well as public duty to inquire and adjudicate whether norms of the “highest standards of safety” were actually adhered to by the TPT and the Government of India prior to May 19, 2005, in assessing security concerns, or, whether these concerns were dismissed by “empty and perfunctory” rituals in casual and cavalier manners by ministers and officials concerned. It may be recalled that in the Uphaar Cinema case, the Delhi High Court and the Supreme Court have also laid down that a public servant shall be held personally liable for prosecution if he caused injury to public, here to more than bare minimum number of public, by his casual and cavalier functioning, and that the traditional alibi of working in “good faith” or in “public interest” will no more be available to such “casual and cavalier” public servants including ministers. Information available in the public domain clearly suggests that security concerns were dismissed perfunctorily showing “callous, casual and cavalier” attitude of decision-makers (Prime Minister, Shipping Minister, Environment Minister, the then Cabinet Secretary, Shipping Secretary and CMD, TPT) who could be personally and individually held responsible for breaching Sec 304(A) etc of IPC for approving an alignment which has potential to endanger lives of more than bare minimum number of people as public servants are facing in the Uphaar Cinema case even after demitting their offices. On the subject matter of endangering human lives, the Ratanlal Dhirajlal IPC [page 322, 28th Edition Reprint 2001] states: “It is not necessary that rash or negligent act (of approving current alignment) should actually result in injury to life. Offences against public safety are complete (as soon as rash behaviour is established) although the rash or negligent act has not (yet) resulted into any injury.” At page 422, it adds: “Acts probably or possibly involving dangers to others, but which in themselves are not offences, may be offences under Sections 336, 337, 338 or 304(A), if done without due care to guard against the dangerous consequences.” Charges of criminal negligence would be that PM and his team approved an alignment without due care to guard against the dangerous consequences to lives of lager number of fellow citizens.

If the Palk Bay and the Gulf of Mannar are connected by a deep water channel, more turbulent waters of the Bay of Bengal will freely enter into the Palk Bay and the Gulf of Mannar washing away monazite sands of southern coast into sea, thus, depleting our thorium reserves which is so essential to run our fast breeder reactors. Thus the UPA alignment endangers our energy security in days to come. Better solution is to connect these two seas by a channel with locks which will not allow the more turbulent Bay of Bengal waves to freely wash away monazite sands into sea. It is still not too late to get the alignment reviewed by a multi-disciplinary committee. The best option appears having a canal through Pamban, far away from the Ram Sethu, on the pattern of the Panama Canal with locking system.

Rather than dredging into the sea surface let us raise the sea level within a channel by locking system to enable bigger ships pass without circumnavigating around Sri Lanka. Let the good governance prevail.

[The writer recently retired in the rank of Secretary to the Government of India in the Indian Foreign Service (1971 batch).]

http://tinyurl.com/2e9vru

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