- Gateway House - https://www.gatewayhouse.in -

Hurdles in class action

The families of 71 people who were killed after Cyclone Tauktae battered ONGC’s barge vessels off Bombay High last month have received compensation up to Rs 2 lakh from ONGC, and between Rs 35 lakh and Rs 75 lakh from Afcons, which was assigned the project contract. Three directors of ONGC have been suspended, and NHRC has issued notices to the Petroleum Ministry, ONGC, and the Coast Guard. A surviving engineer has filed a case of criminal negligence against the deceased captain of barge P-305, which sank. Neither ONGC nor Afcons have taken responsibility for the loss of lives.

For over 35 years, India’s laws for negligence and liability have not been strengthened, in order to force safety and prevention measures, and to minimise such incidents. In the ONGC matter, there is little the families can do in terms of personal injury suits, or class action suits. Both these legal options are weak in India, and not considered a worthwhile exercise. However, they are necessary if India is to improve its ease of doing business rankings, especially in disaster prevention and risk of life.

How can such incidents be made preventable, and in the eventuality of damage and death, how can the parties be made responsible, with adequate damages paid? How can India move in the direction of such accountability, which is taken seriously in developed economies, and which makes them better abodes for employment and business?

What are class action suits?

A class action suit is a legal action or claim that allows one or many plaintiffs to file and appear for a group of people with similar interests. Such a group forms a “class”. A class action suit derives from representative litigation, to ensure justice to the ordinary individual against a powerful adversary.

While class action suits have a history dating back to the 18th century, these were formally incorporated into law in the United States in 1938 under the Federal Rules of Civil Procedure. Over the years, class action has become so successful at curbing negligence, that it is now a part of US corporate and consumer laws, environmental litigation, etc.

The ubiquity of representative litigation in the US has given rise to a class of lawyers called “ambulance chasers” — those who solicit for clients at an accident or disaster site, largely for personal injury cases. They get financial compensation for their clients from the perpetrator, a percentage of which they keep. While such soliciting violates professional legal conduct in the US, it has helped hold people and corporations accountable.

The most successful class action suits in the US are the $206 billion settlement made by four American tobacco companies to cover medical costs for smoking-related illnesses; the $20 billion BP Gulf of Mexico oil spill in 2016, which caused environmental damage; and the $7.2 billion settlement made by Visa and MasterCard to retailers who claimed they had overpaid credit and debit card fees to the card companies.

In an incident made into a film, Erin Brockovich, Pacific Gas & Electric was ordered to pay $333 million for knowingly discharging harmful chemicals in surrounding water bodies in California that led to bodily harm.

Is there an Indian equivalent of US class action suits?

The most actionable suit was the Bhopal gas leak from the Union Carbide factory in 1984, where more than 3,700 people died. Three class action suits were filed in the US, which dismissed all claims for environmental clean-up, personal injuries, and medical compensation. In India, the central government filed a case on behalf of the persons who had been injured as a result of the gas leak.

Eventually, Union Carbide was asked to pay $470 million in compensation, one-seventh of the claim asked for. This also ended all civil and criminal complaints. The water is still contaminated, people still haven’t recovered from their injuries, and multiple generations suffer the effects.

During the 2009 Satyam Computers scandal, there was fraud and misrepresentation to the stock exchanges, regulator, and investors. A class action suit was filed, but because India didn’t have an appropriate law, 300,000 Indian investors were deprived of damages while Satyam’s US investors were made whole. The amendment of Section 245 of the Companies Act, as mentioned below, was a consequence of this case.

In 2015, the Government of India filed a case on behalf of consumers in the National Consumer Disputes Redressal Commission against Nestle after the Food Safety and Standards Authority of India found higher than permissible levels of lead in instant noodles. The case is still pending.

India now has legal provisions for filing class action suits, but under four laws:

Is a class action suit comparable with public interest litigation?

For filing a public interest litigation (Article 32 or Article 226 of the Constitution), the plaintiff need not have a personal interest or claim in the matter. The PIL must serve a matter of public interest. A crucial difference is that unlike a class action suit, a PIL cannot be filed against a private party.

What has deterred the development of a mature body of class action suits in India?

There are several hurdles, which are not necessarily regulatory in nature.

This article was first published in The Indian Express.

Manjeet Kripalani is Executive Director and co-founder, Gateway House.

Kartik Ashta is Researcher for International Law Studies Programme, Gateway House.