This article is by Shivani Panda from Amity Law School, Delhi. Here she walks the readers through the Uphaar fire tragedy and the legal implications surrounding the incident. 

Introduction

The Uphaar fire tragedy was one of the deadliest fire tragedies this country has ever seen. It claimed 59 innocent lives and heavily injured more than 100 people, which would have been prevented if proper safety guidelines had been followed. In this article, the author will discuss the event in detail and the legal battle which the families had to go through for 23 years.

Chronology of events

The Uphaar theatre located in Green Park, New Delhi caught fire on July 13, 1997, while the movie ‘Border’ was screening. The events which led to the outbreak and the aftermath of the event is discussed below: 

1. Two transformers installed on the ground floor of the Uphaar Cinema building caught fire on the morning of June 13, 1997, at around 6:55 am which was doused in 30 minutes or so. Afterwards, it was sloppily repaired by the Delhi Vidyut Board (hereinafter DVB) by 11 am and the transformer started again by 11:30 am. 
2. Due to the incomplete and unsatisfactory repair of the transformer that day, the loose connections caused sparking, causing a hole in the radiator fin from which transformer oil started leaking. 
3. The loose connection when connected with the oil ignited the fire in the basement where the cars were parked, which in turn caught fire. The smoke produced by the fire entered into the stairwell and through the air ducts to the cinema hall where the movie was playing. 
4. Around 1000 people were watching the film, out of whom 750 escaped, however, 59 patrons died due to asphyxiation and suffocation caused by smoke and carbon monoxide. Further, around 100 people were severely injured due to stampede and pandemonium caused in the hallway while escaping. 
5. Special mention shall be given to Capt. Manjinder Singh Bhinder of the Indian Army, who on his initiative, gave up his and his family’s lives and saved up to 150 people from the fire.
6. On July 22, 1997, the owner of the theatre Sushil Ansal and his son Gopal Ansal were arrested in Mumbai, and the investigation of the case was transferred from the Delhi Police to the Central Bureau of Investigation (hereinafter CBI). 
7. The CBI filed chargesheet against Sushil and Gopal Ansal, along with DVB and 13 others on November 15, 1997. 
8. Association of Victims of Uphaar Tragedy (AVUT) was formed by the Krishnamoothry family, along with 30 families, whose family members either died or were gravely injured in the incident. 
9. The Trial Court initiated the trial and framed charges against the accused on February 27, 2001, under Section 304, Section 304A read with Section 36, and Section 337 of the Indian Penal Code, 1860. Further, they were charged under Section 14 of the Cinematograph Act, 1952. 

Safety measures flouted by the management

An inquiry committee headed by Mr Naresh Kumar, the South Delhi Administration’s Deputy Commissioner, submitted a report regarding the causes of fire and highlighted the safety measures flouted by the owners of the theatre. The committee did a thorough floor-wise inspection of the building, and recorded the following negligence committed according to the Building Bye-Laws, 1983 (hereinafter BBL):

1. Inflammable materials were stored in the basement, and no separate staircase for fire exit was built. 
2. The parking lot of the theatre had a permit for an 18 car parking area, which should have a distance of 10-12 feet. However, on that day 40 cars were parked within 3-4 feet distance which led to the spread of fire. Further, the cars were parked in front of the transformers’ room, which violates the guidelines laid down by the BBL. 
3. Sufficient care was not taken to facilitate fire exits to the people sitting on the right side of the auditorium, because 52 extra seats were added in the balcony along with the 250 seats constructed originally. Permission was granted by the DCP for the same. 
4. The emergency exits were to cater to a maximum of 150 people, however, one exit being blocked due to extra placement of seats, more than 200 people were exiting from an entrance that led to stampede due to panic among people. 

Another report submitted by the Electrical Inspector, Mr K.L. Grover, displayed the negligence regarding the installation of transformers violating the Electricity Act, 2003 and the Bureau of Indian Standard: 10028 (Part II) – 1981, which are as follows: 

1. Two transformers (one installed by Uphaar and another by DVB) which were installed in the basement were not separated by a fire-resistant wall. They also did not have oil soak pits necessary for soaking the oil content, which led to its leakage. 
2. There was no proper ventilation and free movement of air on all sides of the transformer. 
3. Further, more discrepancies were found in the DVB transformers, which are: 

i) When the fire broke out at 7 am, it was doused by sand, and DVB was called to repair the damage. It was found that a wrong method was used by the Board to repair the transformers, which led to a huge break out of the fire in the afternoon.

ii) The low terminal (LT) side of the transformer was not enclosed in a box, and the panels’ outgoing switches did not have fuses. 

iii) The check nut of the neutral terminal was found to be loose, and the earth strips were not properly joined. 

Other forms of managerial negligence which were gathered from the statements of the witnesses are as follows: 

1. Only three exits were constructed, as opposed to four, and all three of them were locked. When the gatekeeper got to know about the fire, he fled away without unbolting the exit doors. Since the doors were locked, it had to be pushed by the people trapped inside, which took 10-15 minutes due to which they were exposed to carbon monoxide and other toxic gases. 
2. The stairway was blocked by the illegal construction of office and narrow passage, which created a bottleneck and led to the death of people. 
3. Four exhaust fans which were supposed to face an open space opened out to the staircase from where the patrons were exiting. Moreover, there were no fire alarms or emergency lighting to warn the people about the fire. 
4. The management fled the scene without helping the people trapped inside the hall. Moreover, the movie was being played while there was fire underneath. The announcement system that was present in the room of the projector operator was faulty, and no announcement could have been made.

The negligence mentioned above was observed and upheld by the trial court and all other courts of appeal. 

Judgement and Appeals

• Trial court

The trial of the case State Through CBI v. Sushil Ansal & Ors. that commenced in the Sessions Court of Ld ASJ L D Malik in 1999, was later transferred to Ld ASJ Mamta Sehgal in 2000, who pronounced the judgment of this case. A criminal writ petition was filed by AVUT in the Delhi High Court in 2007 to speed up the process of hearing, after which the Court started hearing the matter daily for 3 months. The Court passed the judgment in August 2007, but deferred the verdict three times, before pronouncing it in November 2007, where it convicted 12 accused, along with Sushil and Gopal Ansal. They had to undergo imprisonment for two years and pay a fine of Rs. 5000, under the provisions of IPC except for Section 304A. Further, it convicted them under Section 14 of the Cinematograph Act, 1952, wherein they were fined Rs. 1000. 

• High Court

The aggrieved party, that is, the 12 accused filed an appeal in the Delhi High Court for the reversal of the decision by the Trial Court, in which they were granted bail by the HC, which was later reversed by the Supreme Court in 2008. A review petition was also filed by AVUT contending the accused must be convicted under criminal negligence. They were tagged together and were heard in the case of Sushi Ansal & Ors. v. State Through CBI. The court upheld the conviction of six out of 12 accused by the trial court but reduced their sentence from two years to one year.

• Supreme Court

Again, two appeals were made, each by both the parties. AVUT and CBI also prayed for the enhancement of punishment of the accused. The case was heard in front of a two-judge bench, who upheld the decision by the High Court but differed in their sentences. Justice T.S. Thakur awarded them one year of imprisonment as mentioned under Section 304 of IPC. However, Justice GS Mishra awarded them two years of imprisonment, which could be substituted by paying Rs. 50 Crores for each year.

• Three-judge Bench

In the appeal in front of the three-judges bench led by Justice Anil Dave, the Court directed the two appellants to pay Rs. 30 Crores each to the victims and their families and also pay to build a trauma centre in the NCT of Delhi. It further held that, if the convicts failed to pay the amount, they had to go through rigorous imprisonment of two years, concurrently.

• Review Petition

The AVUT filed a review petition in the Supreme Court against the judgment of the three-judge bench of SC. The Court upheld the fine of Rs. 30 crores each along with imprisonment of Gopal Ansal for a year, but declined imprisonment of Sushil Ansal due to old age. Chief Justice Ranjan Gogoi and Justice Kurian Joseph held this view, however, Justice A.K. dismissed it by citing no merit in the review petition.

• Curative Petition

Recently, in February 2020, a Curative Petition filed by the AVUT was dismissed by the Supreme Court. The bench consisted of Chief Justice S.A. Bobde, Justice N.V. Ramana and Arun Mishra, who further stated that they did not find any discrepancy in the sentence pronounced by the bench led by Chief Justice Ranjan Gogoi. This marked an end to the 23-year-old legal battle of victims. 

A man-made disaster

What happened in Uphaar is no way defined as an Act of God, or a natural calamity, but is a man-made disaster. However, in these incidents, humans are directly responsible for their criminal negligence, error or inaction, and liability can be fastened on them. These disasters can be broadly divided into following incidents: 

1. Fire outbreaks in buildings
2. Building collapses
3. Stampede in public places
4. Industrial Disaster, such as gas or oil leakage in land and water bodies
5. Exposure to radioactive waste

The Uphaar fire tragedy is clearly a man-made disaster that could have been completely avoided if safety measures were not ignored by the owners of the building and DMV. Further, numerous managerial faults were also considered by the courts which have been listed in the previous section. Unlike natural disasters, preventive actions and regulatory measures play a greater role in the disasters categorized above. 

The Supreme Court had observed in the Uphaar case the need for a legislative act governing such man-made disasters, however, it has been 23 years since the outbreak of fire in Uphaar cinema, but no step is taken towards the enactment of such act or amendment of the existing act. The Law Commission, on the direction by the apex court, submitted a report that suggested preventive and remedial measures that should be incorporated in the relevant acts which are yet to be taken into consideration by the legislature. These suggestions are discussed in detail in the subsequent sections of this paper.

The Concept of Negligence

In the Uphaar Case, the accused was convicted under Section 304A of the Indian Penal Code. Along with this, charges under Section 304 and 307 were also framed against the defendants, which were dropped later. Section 304A criminalises any rash or negligent act that causes the death of any person which does not amount to culpable homicide. The ingredients of criminal negligence are expounded below:

• Rash and Negligent Act

For a person to be held guilty under this section, another person’s death must be caused by a rash or negligent act of an accused. Rashness, in this section, can be understood as hazarding a dangerous or wanton act with the knowledge of the gravity of the act, but without the intention to cause an injury or the knowledge that it will probably be caused. Thus, the criminality lies in the indifference or recklessness of the act, even after knowing the gravity of the act. 

On the other hand, negligence is the gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury to the public in general or to an individual in particular, which was the imperative duty of the accused. It can also be stated as an act or omission of an act which a reasonable and prudent man would or would not do and the death resulted from such rash or negligent act must be proximate and efficient, without the intervention of an act of another negligent person. There are four elements of criminal negligence, which are as follows: 

1. There must be a legal duty of care by the accused towards the plaintiffs.
2. The legal duty was breached by the defendant. 
3. The act or the omission of an act was done by the defendant. 
4. Death is caused by such an act or omission of the act. 

• Not Amounting to Culpable Homicide

The meaning of culpable homicide is given under Section 299 of the IPC, which defines it as an act with the intent or knowledge of causing death or bodily injury that will result in death. Thus, an act which is committed without the intention or knowledge of causing death would not lead to culpable homicide but would be covered under Section 304A, as an act of negligence. This section criminalizes an act where there is no mens rea. 

In the Uphaar case, the owners of the building were held liable under Section 299, however, the apex court reversed the decision of the High Court that held MCD liable for negligence by giving NOC to the owners of the building, and directed the defendant to pay compensation. The court opined that the act committed by MCD has no proximate cause or direct negligence with the act, and thus they cannot be jointly and severally liable with the Licensing Authority and DVB.

Strict liability v. Absolute liability

The basis of the principle of strict liability and absolute liability lies in the inherent harm that some activities can inflict, even when the owners are not directly liable. The rule of strict liability is a common law principle, which originates from the case of Rylands v. Fletcher. According to this case, when a hazardous or a dangerous object is kept in the property of a person, the owner must make sure that the object must not escape the boundaries, even when he is not negligent. There are a few exceptions of this principle, which are enlisted below: 

1. act of god
2. wrongful Act of the third party
3. plaintiff’s fault
4. consent of the plaintiff

The rule of absolute liability is a stringent version of the rule of strict liability, wherein, the exceptions mentioned in the rule of strict liability are scrapped. This is a rule developed by the Supreme Court of India in the case of MC Mehta v. Union of India (1986). In this case, oleum gas, which is a hazardous substance escaped from a factory owned by Shriram Foods and Fertilizers Industries, which caused damage to the people living nearby the factory. This rule was also followed in the Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy, 1989). To ensure immediate relief to the victims of such man-made tragedy, The Public Liability Insurance Act, 1991, was also passed in the Parliament, wherein, a public liability insurance fund is to be created by every person or industry carrying out inherently dangerous or hazardous activities. This fund is to be used to compensate the victims of such tragedies. 

In the Uphaar Fire Tragedy, the Court held that the transformers used in the building are an inherently dangerous and hazardous substance. The fire resulted due to the gross negligence of the owners and DVB, and they were held to be both strictly and absolutely liable by the apex court.

Suggestions

A report by the Law Commission on man-made disasters suggested amendments in the relevant acts regarding preventive measures, punitive aspects, and remedial measures that will provide relief, including compensation and rehabilitation. Under the punitive measures, the Commission highlighted the inadequacies in various acts providing punishment through compensation or imprisonment, which are mentioned in the following table: 

Act	Relevance of the Act	Sections in question	Remedial measures	Observations and Suggestions
Cinematograph Act, 1952	This Act deals with the certification of films for public exhibition and the regulation of those exhibitions. The rules regarding the safety precautions, seating capacity, etc. are provided by each state. The Delhi Government has formed Delhi Cinematograph Rules, 1981.	14: It deals with contravention of the rules provided by the Centre and each state.	Fine extending Rs 1000, and in the case of a continuing offence, it is further fined with Rs. 100 for each day during which the offence continues.	It was observed by the committee that no provision for imprisonment was provided for flouting the safety rules.
Delhi Fire Services Act, 2007	This Act was enacted after repealing the Delhi Fire Prevention and Fire Safety Act, 1986, and the rules were made under it in 2010. It is a comprehensive Act that provides the guidelines and fire safety rules that are to be followed in a building.	49: It provides penalties for flouting the safety measures mentioned in the act.  52: General Provision for the punishment of offence committed.	49: 3 months imprisonment or fine extending to Rs. 1000 or both, and if it is a continuing offence, Rs. 500 for each day it continues.  52: 3 months imprisonment or fine of Rs. 10,000 or both, and if it is a continuing offence, Rs. 500 for each day it continues.	It was suggested by the committee that the fine and imprisonment shall be enhanced.
Delhi Municipal Corporation Act, 1957	The Act encompasses the building regulations and contains provisions regarding sanctions for construction of buildings, regulating unauthorized construction of buildings, the prohibition of using inflammable materials, etc.	342-349	All the sections, except Section 343, 344 and 347, impose fine, ranging from Rs 50 to Rs. 500. In the remaining sections, imprisonment is up to 6 months or fine of Rs. 5000 or both.	There is a need to increase both imprisonment and rate of fine in all the sections mentioned here.
Electricity Act, 2003	The Act of 2003 repealed the earlier Act of 2010 governing the use of electricity and the interests of the consumers. It also includes safety measures that should be taken care of while installing a machine that requires a huge surge of electricity or may turn hazardous.	146-147	The punishment is imprisonment which may extend up to three months or fine up to Rs. 1 lakh and in case of continuing failure Rs. 5000 per day fine can be levied.	The Committee suggested extending the period of imprisonment to six months or one year.
Criminal negligence, as under Indian Penal Code	Criminal negligence and its aggravated forms are covered under IPC.	284-287, 304A	284-287- Imprisonment of 6 months or fine of Rs 1000, or both.  304A- Imprisonment of 2 years or fine or both.	156th and 234th Law Commission reports recommended increasing the term of imprisonment under 304A, up to 5 years and 10 years, respectively. This view was endorsed by this Law Commission report as well.

Under the amendment of accountability and punitive aspect, it was suggested by the Commission to enact Section 55 and Section 56 of the Disaster Management Act, 2005 in the other acts mentioned in the table. These sections deal with containing corruption among the government officials who are responsible for the approval of constructions and mandatory inspection. Further, it was recommended to set up an ‘Area Inspection Committee’, that will consist of all the officers required under different acts to inspect a building, and any contravention regarding it will be directly dealt with by this committee.

Various recommendations were also proposed by the apex court while pronouncing the Uphaar judgement to control and manage fire tragedies in a theatre. A compilation of such suggestions by the court as laid down in the case of Municipal Corporation, Delhi v. Association of Victims of Uphaar Tragedy are as follows: 

1. Evacuation Plan: Every theatre shall draw up an emergency evacuation plan which shall be approved by the licensing authority. A documentary of the plan shall be made, which will be screened before the movie starts. Further, all the staff should be aware of fire drills and evacuation procedures in case of fire or other calamities, which should be practised regularly by conducting mock drills. The entry door and exit doors should never be bolted shut in any circumstance.
2. There shall be a mandatory half-yearly inspection of the building by senior officers under the relevant acts and rules. Each theatre shall be given a fire safety rating by the Fire Services, which shall be displayed by each theatre to create awareness among the patrons and the owners. Sufficient staff should be employed to inspect and enforce the statutory requirements as provided by any State’s administration. 
3. Maintenance and upgradation of necessary equipment shall take place from time to time as prescribed by any relevant act or recommended by experts. 
4. The inspection and enforcement of statutory requirements should be vested into a specialized body, as also recommended by the Law Commission who are called ‘Area Inspection Committee’. It should involve experts in the following fields: 

i) Fire Prevention

ii) Electric Supply

iii) Law and Order

iv) Municipal Sanctions

v) Urban Planning

vi) Public Health

vii) Licensing

The author also recommends the establishment of a Tribunal in each metropolitan city that should deal with man-made disasters to speed up the procedure of trial and provide timely justice to the aggrieved party. The Tribunal will have a wide scope which shall address the matters related to safety measures in theatres and multiplexes. It should incorporate the principle of natural justice and the rule of law, along with powers and duties of a Trial Court as given under the Code of Criminal Procedure, 1973. The appeal from such tribunals should lie in the Supreme Court. 

Conclusion

The Uphaar Fire Tragedy is a classic case of delay and denial of justice. The victims instead of getting justice by the court of law were tortured by the case proceedings and by the influential opposition. It is apparent from the proceedings of the Court, that even in a sensitive case such as this, the Court took three years to frame charges against the accused. Further, it convicted the accused by deposing a meagre amount of fine and imprisonment against them. 

It is the same judicial system that pronounced landmark judgments such as the Kesavananda Bharati v. State of Kerala & Anr. (1973), that upholds natural justice, rule of law, and supremacy of law as a part of the basic structure of the Indian Constitution, but when it comes to the implementation of these principles, it backs out. Even after 23 years of the legal fight by the victims, justice was not served to them, for which both legislative and judiciary can be held accountable. Thus, the author humbly implores that the suggestions given by the Law Commission and the Judiciary should be taken into account before another such tragedy shakes up the whole nation yet again.

References

• http://racolblegal.com/association-of-victims-of-uphaar-tragedy-v-sushil-ansal-and-another/

• http://www.legalserviceindia.com/legal/article-752-uphaar-cinema-case-study.html

• https://rememberuphaar.com/?p=14
• http://www.legalservicesindia.com/law/article/1236/5/Absolute-Liability-In-Indian-Context

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