Remedies When Technology Causes Harm

General Comment 25, paragraph 45, includes the establishment of effective remedies within the duty to fulfil.

The Indian routes, and where each fails

An answer that lists remedies is adequate. An answer that says where each one breaks is good.

Constitutional

Article 32 gives the right to move the Supreme Court for the enforcement of fundamental rights, and is itself a fundamental right; article 226 gives the High Courts a wider jurisdiction. Public interest litigation has made these the principal route for diffuse harms, and M.C. Mehta was itself a petition under article 32.

Where it fails. It reaches State action and public functions most comfortably; it delivers directions better than it delivers money to individuals; and it depends on a petitioner willing to litigate for years. In M.C. Mehta the Court declined to set up a special machinery for the compensation claims and instead directed the Delhi Legal Aid and Advice Board to file actions in the appropriate court, with the Delhi Administration funding them, which shows the constitutional court routing individual compensation back to ordinary litigation.

Civil

The action in tort, and in this field principally the rule of absolute liability established in M.C. Mehta, which removes fault and the Rylands v. Fletcher exceptions, and measures compensation with reference to the magnitude and capacity of the enterprise so that it deters.

Where it fails. Not on doctrine but on proof, delay and cost. This is the lesson of Union Carbide, where the substantive rule already existed and the victims were defeated by forum, by not being heard before their claims were settled, by the contested categorisation of injury on which every individual award depended, and by time.

Criminal

Prosecution of those responsible. In Union Carbide the Court restored the criminal proceedings that the settlement had quashed, holding that its powers under articles 136 and 142 were not taken away by article 139A.

Where it fails. The standard of proof is the highest; identifying an individual within a corporate structure is difficult; and a conviction compensates nobody. Jacob Mathew, taken in Module II, sets a deliberately high threshold before professional error becomes crime.

Statutory

Consumer protection, industrial and factory legislation, environmental statutes, and sector regulators. The Consumer Protection Act 2019 supplies a forum designed for exactly the small-value, high-volume claim that ordinary litigation cannot absorb.

Where it fails. Jurisdictional limits, the need to fit the claimant into a defined status such as consumer, and the absence of any statute at all in new fields, which is the gap identified in [The State's Duty to Regulate Technology].

The human rights commissions

The Protection of Human Rights Act 1993 constitutes the National Human Rights Commission and State Commissions, with functions of inquiry, intervention in proceedings and recommendation.

Where it fails. The Commission's principal outputs are recommendations, so this route supplies inquiry and publicity rather than an enforceable award, which is a real contribution where the difficulty is opacity and a limited one where the need is money.

Worked example

An industrial process contaminates groundwater in three villages over a decade. Illness appears in a proportion of residents at rates above the district average. The company denies causation, points to other sources of contamination, and its consent to operate was never revoked.

Constitutional. A petition under article 32 or 226 can obtain the things individuals cannot: an order for testing, disclosure of the company's records, an expert committee, and remediation. It is the right route for the facts and for the structural relief.

Civil. M.C. Mehta removes fault, so the claimants do not have to prove negligence, and compliance with the consent to operate is no defence. What remains is causation for the individual, which the absolute liability rule does not touch, and this is where the claims will actually be contested.

Criminal. Available in principle, and it will identify no individual within the company without the documents that the constitutional proceeding is best placed to extract. Note the ordering: the routes are complementary and are usually run together.

Statutory. Whether the residents can bring themselves within a statutory forum depends on their status, and people injured by contamination of a common resource frequently fit none of the definitions.

The Commission. An inquiry can establish and publish the facts, which is disproportionately valuable where the central problem is that nobody outside the company knows what happened.

The realistic assessment. The strongest position is the constitutional proceeding used to establish the facts and to obtain remediation, with compensation pursued behind it. Anyone who says the villagers have a good claim in tort and stops there has not understood what the last forty years of this litigation demonstrate.

What it does NOT mean

Absolute liability does not remove causation. It removes fault. The claimant must still show that this harm came from this activity, and in latent, multi-cause illness that is the whole battle.

A constitutional remedy is not a substitute for compensation. M.C. Mehta itself sent the compensation claims to the ordinary courts.

A settlement is not necessarily a remedy. Union Carbide is the demonstration: a settlement reached without the persons affected being heard, and without a re-opener clause if the fund proved inadequate, was the subject of the review.

And a remedy that is not enforced is not a remedy. Article 2(3)(c) makes enforcement a separate obligation, and it is the limb most often omitted from an answer.

Quick revision

• ICCPR article 2(3): three limbs, an effective remedy notwithstanding official capacity; determination by a competent authority and development of judicial remedies; and enforcement of remedies when granted.
• UDHR article 8: effective remedy by competent national tribunals. UNESCO 1997, article 8: just reparation for damage that is a direct and determining result of an intervention affecting the genome. General Comment 25, paragraph 45: effective remedies are part of the duty to fulfil.
• Five Indian routes and where each fails: constitutional (articles 32 and 226; strong on structural relief, weak on individual money, and M.C. Mehta sent compensation to the ordinary courts); civil (absolute liability; defeated by proof, delay and cost, as Union Carbide shows); criminal (highest standard, hard to attribute within a company, compensates nobody; Union Carbide restored the quashed proceedings); statutory (needs a defined status and an existing statute); Protection of Human Rights Act 1993 (inquiry and recommendation, not an enforceable award).
• Four features that defeat remedies: latency, diffusion, opacity, asymmetry.
• Absolute liability removes fault, not causation.

Test yourself

1. Set out the three limbs of article 2(3) of the ICCPR and say which is most often overlooked. First, to ensure that any person whose rights are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. Second, to ensure that any person claiming such a remedy shall have their right determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system, and to develop the possibilities of judicial remedy. Third, to ensure that the competent authorities enforce such remedies when granted. The third is most often overlooked and is the most important in this subject, because a remedy that is pronounced and not enforced leaves the person exactly where they were, and the Covenant treats enforcement as a distinct obligation rather than an incident of the first.

2. Name the four features of technological harm that defeat remedies, and say which element of a claim each defeats. Latency, which defeats limitation and the availability of evidence, since the harm appears long after the exposure and records and defendants may be gone. Diffusion, which defeats the economics of litigation, since each individual injury is too small to justify a claim while the aggregate is very large. Opacity, which defeats pleading and proof, since the material facts about the process, the maintenance or the model lie inside the defendant. And asymmetry, which defeats endurance, since the claimant faces a party with far greater resources over a period measured in years.

3. Explain why absolute liability, though a strong rule, did not deliver in Bhopal. Because the obstacle was never the standard of liability. M.C. Mehta had been decided in December 1986, two years before the settlement, and it removes fault, removes the exceptions applicable under Rylands v. Fletcher, and measures compensation by reference to the magnitude and capacity of the enterprise so as to deter. What defeated the victims in Union Carbide was procedural: the forum contest that moved the claim between two legal systems and consumed years, the settlement of their claims without their being heard, the absence of a re-opener clause if the fund proved inadequate, the contested medical documentation and categorisation on which each individual award depended, and the passage of time. The case therefore demonstrates that a substantive rule is worth only as much as the procedure available to enforce it.

4. What is the significance of the causal standard in article 8 of the UNESCO Declaration of 1997? Article 8 provides that every individual has the right, according to international and national law, to just reparation for any damage sustained as a direct and determining result of an intervention affecting his or her genome. The standard is significant because it is demanding in precisely the field where causation is at its most difficult. Genetic harm is characteristically latent, probabilistic and multi-causal, so a requirement that the intervention be both the direct and the determining cause will exclude many claims that the rest of the Declaration's protections appear to contemplate. It illustrates the general point of the chapter, that the substantive protection and the remedial standard are drafted separately and can be pitched at different levels.

5. What did the Court do in M.C. Mehta about the compensation claims, and what does that show? Having declined to decide whether Shriram was an authority within the meaning of article 12, the Court did not set up a special machinery to investigate the claims of those affected by the oleum gas escape. It directed the Delhi Legal Aid and Advice Board to take up their cases and to file actions on their behalf in the appropriate court within two months, directed the Delhi Administration to provide the necessary funds for filing and prosecuting them, and asked the High Court to nominate judges so that they could be disposed of expeditiously. It shows that even a constitutional court laying down a far-reaching rule of liability routed the individual compensation claims back into ordinary civil litigation, which is why the constitutional route is strong for structural relief and for extracting facts, and weaker as a means of putting money into the hands of a particular injured person.