Reporting, Safety Review and the Offences

The offences

Section 41, punishment for obstruction. Whoever obstructs a person in the discharge of his functions under the Act, or refuses to comply with a direction given under it, is punishable with imprisonment which may extend to one year, and where the obstruction or refusal results in loss of lives or imminent danger to life, with imprisonment which may extend to two years.

Section 42, offences by Departments of Government. Where an offence is committed by a Department of Government, the head of the department is deemed guilty and is liable to be proceeded against and punished, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent it. Where the offence is proved to be attributable to the neglect of any officer, that officer is also liable.

Section 43, offences by companies, is the corresponding provision for a company: the person in charge of and responsible to the company for the conduct of its business is deemed guilty, subject to the same defences, and a director, manager, secretary or other officer with whose consent or connivance or by whose neglect the offence was committed is also liable.

Section 44, cognizance. No court takes cognizance except on a complaint made by the prescribed authority or by a person who has given the prescribed notice of the alleged offence and of his intention to complain.

Section 45, annual report of safety status. The safety status of every specified dam is reported annually.

Broken down

Section 42 is the section that makes the Act credible. Most Indian dams belong to State departments. A statute that punished only a private owner would have almost nothing to punish. By deeming the head of the department guilty, subject to the due diligence defence, the Act reaches the person who actually decides whether the money in section 21 is spent.

The graded sentence in section 41 is the ordinary technique: one year for obstruction, two where lives are lost or imminently endangered.

Section 44's citizen complaint route matters. A person who gives the prescribed notice may complain, so enforcement is not entirely in the hands of the authority that may itself be at fault. It is the same device as section 19 of the Environment (Protection) Act, 1986.

Worked example

A State dam has not had a comprehensive evaluation for eleven years. A cyclone damages the spillway. The chief engineer of the department declines to allow the independent panel access, and a breach follows in which four people drown.

Step one, was an evaluation due? Yes, at the prescribed interval, and additionally after damage in an extreme hydrological event.

Step two, was there an emergency action plan? If not, that is a separate breach and it is the reason the four deaths were not prevented.

Step three, the refusal of access. Obstruction of a person in the discharge of functions under the Act, punishable under section 41.

Step four, does it become the aggravated offence? The obstruction resulted in loss of lives, so the punishment extends to two years.

Step five, who is prosecuted? The offence is by a Department of Government, so under section 42 the head of the department is deemed guilty subject to the due diligence defence, and any officer to whose neglect the offence is attributable is also liable.

Step six, who may complain? The prescribed authority, or a person who has given the prescribed notice under section 44.

Distinctions

What it does NOT mean

It does not mean a dam failure is automatically an offence. The offences are obstruction and refusal to comply. Liability for the failure itself is civil, and for a hazardous activity it is governed by the rule of absolute liability.

It does not mean the head of a department is liable without more. Section 42 gives the defences of want of knowledge and of due diligence.

And it does not mean the Act displaces the Disaster Management Act, 2005. The emergency action plan is the point at which the two meet, and the response to an actual breach is run under the 2005 Act.

Quick revision

Comprehensive dam safety evaluation: by an independent panel of experts, at prescribed intervals and additionally after major modification, after damage in an extreme hydrological or seismic event, and on signs of distress; reported under section 40.

Emergency action plan: prepared and updated by the owner and shared with the disaster management authorities.

Section 32: compulsory instrumentation. Section 45: annual report of safety status.

Section 41: obstruction or refusal to comply, one year; where it results in loss of lives or imminent danger to life, two years.

Section 42: the head of the Department of Government is deemed guilty, with the defences of no knowledge and due diligence; a neglectful officer is also liable. Section 43: the same for a company. Section 44: cognizance on a complaint by the prescribed authority or by a person who has given notice.

Test yourself

1. In what three additional situations, besides the prescribed interval, must a comprehensive evaluation be done? After a major modification of the dam; after damage in an extreme hydrological or seismic event; and where signs of distress or unusual behaviour appear.

2. What is the punishment for obstruction under section 41, and when is it aggravated? Imprisonment up to one year, extending to two years where the obstruction or the refusal to comply results in loss of lives or imminent danger to life.

3. How does the Act reach a State irrigation department? Through section 42, which deems the head of the department guilty of an offence committed by the department, subject to proof of want of knowledge or of due diligence, and which also makes a neglectful officer liable.

4. Who may set the criminal process in motion? The prescribed authority, or a person who has given the prescribed notice of the alleged offence and of his intention to make a complaint, under section 44.