Sikkim High Court Order on Dec 5, 2022 in the matter of death of two persons on May 23 2020 due to drowning following sudden release of water from a private hydropower project flags very important lessons that are relevant for all hydropower projects in India.[i]
Justice Meenakshi Madan Rai’s order in Writ Petition (Civil) No 46 of 2020 in the matter “Dolma Kumari Thatal and another Vs State of Sikkim and others”[ii] not only holds the hydropower developer responsible for the deaths, but also underlines some basic safety norms that need to be followed when suddenly huge quantity of water is released from the hydropower project downstream of the dam or power house of such projects. The Judgement also makes it clear that it is the responsibility of the state to ensure that all hydropower projects follow such norms and that responsible officers of the state must physically verify compliance with such norms every two months and make their report public.
The hydropower project in question seems to be the 110 MW Chuzachen hydropower project[iii] of Gati Infrastructure Limited in East Sikkim district. The project involves two headrace tunnels taking off from two dams, one each on Rangpo and Rongli rivers, the two tunnels then converge into a common tunnel that ends in a surge shaft followed by a power house with two units of 55 MW each.
The drowning incident in May 2020 At about 10.45 am on May 23, 2020, as per the order, “when three boys, namely, Passang Lepcha, Tek Bahadur Thatal and Rohan Roy, went in search of edible ferns in the nearby forest. On their return, they decided to cross the Rorathang River, on foot, since the river water level was low. In the midst of their crossing the river, the water level suddenly swelled and the current increased, to avoid which, the boys stood atop the largest rock that they could locate. Nevertheless, despite the precaution, they were swept away by the swollen river. From the three boys, Passang Lepcha was rescued by people of the locality, while the other two boys were not so fortunate… Learned Counsel (for the petitioners) also urged that there has been a complete disregard and violation of the directions of this Court in Zangpo Sherpa (supra). Besides, the siren that ought to have been placed at a distance of about one kilometer each in terms of the guidelines issued by the Home Department, Government of Sikkim, vide Notification No.26/Home/2015, dated 22-06-2015, were not in place nor was one installed at the site of the incident. Had some care and attention been employed by the Respondent No.3 who was the Company operating the Dam, the needless deaths could have been avoided.”
The order went on to add: “Learned Additional Advocate General for the State- Respondent Nos.1 to 2 submitted that the directions of the Division Bench of this Court are being complied with by the State Government. That, despite guidelines issued by the State Government vide the Notification No.26/Home/2015, dated 22-06- 2015, the Respondent No.3 has been irresponsible and failed to put in place the sirens or other warning devices to prevent the death of persons who may be in and around the rivers. That, had Respondent No.3 acted responsibly the tragedy would not have occurred, hence orders be issued as deemed proper by this Court.”
The counsel for the respondent No 3 (the Dam owners Gati Infrastructure Limited) denied any dereliction of its duty. The order notes about the contention of the respondent no 3: “It was also glibly submitted by Learned Counsel that the victims ought not to have been out and about crossing the river during the period of National Lockdown and that, had it been imperative for them to have gone out they ought to have used the foot bridge across the river and desisted from crossing the river on foot.”
Sikkim HC order in 2016 in case of death of school girl due to NHPC’s Teesta V Dam Sikkim High Court order in Zangpo Sherpa vs State Of Sikkim And Ors on 1 July, 2016, was delivered by a bench of Chief Justice Sunil Kumar Sinha and Justice Meenakshi Madan Rai.[iv] This was a case in which in the afternoon of April 18, 2014, an eleven year of school girl Radhika Gurang went swimming in Teesta River downstream from NHPC Ltd’s Teesta V HEP. The girl drowned when without any warning dam suddenly released huge quantity of water, drowning the girl. A case was filed against the negligence of NHPC Ltd in the Sikkim High Court, the Public Interest Litigation was known as Zangpo Sherpa Vs State of Sikkim and Others.
The petitioner argued that the death of the girl was due to the callous attitude of NHPC Ltd and was completely avoidable. NHPC Ltd “in the first instance ought to have had safety mechanisms and protocol in place, for release of waters from the Dam… (NHPC) has failed to create public awareness by dissemination of information regarding the various timings of the release of the Dam waters or to install machines such as sirens for advance warning to the public living near the Dam, the banks and downstream. It is alleged that there are times when the water released from the Dam is at its minimum, leading children to believe that they can walk or swim across the river. At other times however the sudden release of the Dam waters results in a sudden increase in the volume of the river, without prior notice which thereby leads to loss of life and property of people.”
The petition argued that the state of Sikkim “for their part have failed to either implement or direct the Respondent No.3 (NHPC) to provide timely and regular public warning, through sirens and other means at least one hour prior to release of the waters and thereafter at regular intervals of fifteen minutes. Thus, the unregulated release of water has resulted in violation of the public’s right to life guaranteed under Article 21 of the Constitution of India”.
The conclusion of the Judges after going through all the arguments of NHPC Ltd (Respondent No 3), petitioners and Sikkim officials is clear and unambiguous: “Hence, from the gamut of the facts reflected hereinabove, it emerges that there was no protocol for release of water from the Dam into the river. Stating that the guidelines have been issued by Respondents No.1 and 2 after the incident and was not applicable then, is an irresponsible statement, when conscience and public interest ought to have guided the Respondent No.3 to ensure that a protocol was in place. There was no system in place to warn the public of the impending release of the water by way of hooting of sirens or any other procedure/protocol for release of water or specific timings. Although sirens were alleged to be in place, the inspection indicates that they were either non-functional or there was no person to man the said installations. The Forest Guard at Rangpo Check Post, a Government servant, was foisted with the task of blowing the siren for Respondent No.3, when in fact they ought to have had their own personnel in place. The claims of the auditory range of the sirens appeared to be disproved by the physical inspection carried out by the concerned officials. It is also evident that water was released into the river irrespective of the season being lean or monsoon. It is axiomatic that the totality of the above circumstances lead to the inevitable conclusion that the Respondent No.3 was negligent, thereby answering the first issue… Thus, liability can be fastened upon Respondent No. 3 not only for the non-compliance of the sprocedure and failure to disseminate awareness, but also for causing the death of the child.”
The High Court order also included following directions among others:
– “The Respondents (Project Developers) shall follow the Notification No.26/HOME/2015 dated 22-06-2015 for public safety at Hydro Power Projects.”
– “The Respondents No.1 and 2 (representatives of State of Sikkim) shall carry out bimonthly inspections by a team of Officers selected by the District Magistrate to check whether safety measures as required are in place and guidelines issued vide Notification No.26/HOME/2015, dated 22-06-2015, are being adhered to.”
– “The Respondent No.3 shall install scientific and technical instruments necessary for ensuring the safety of the Dam and the life and property of people in the area and downstream.”
June 2015 notification Notification No.26/HOME/2015 dated 22-06-2015 for public safety at Hydro Power Projects was issued AFTER the May 2015 tragedy at downstream of NHPC’s Teesta V dam where an 11 year old school girl was washed away following sudden release of water from the dam. The notification included “Guidelines for Public Safety at Hydropower Projects” in Sikkim. The Sikkim High Court order quoted the key paragraph 4 of the guidelines in its recent order:
- “4. SAFETY DEVICES AND MEASURES
As a general rule, all Projects will require some type of safety devices, warning systems or other measures. The amount of protection necessary increases as public exposure to the hazards increases.
Safety devices and measures can be divided into five basic categories:
(1) Educating and informing the public
(2) Visual and audible warnings of hazardous areas
(3) Physical restraining devices
(4) Escape devices
(5) Procedures for safer Project operations.
(1) EDUCATION AND INFORMATION Developers are usually well aware of the hazards that can exist near hydropower Projects. Therefore, the Developers has a responsibility to take the initiative to educate and inform the public of the specific hazards near its hydro Projects and of the general rules that should be followed to be safety conscious. Where appropriate, information could be disseminated in recreational brochures, company literature, Video tapes, televisions or radio announcements and in newspaper articles and advertisements. The Developer should make every effort to meet the public at schools, civic organizations, etc., communicate with the public through the media, and distribute literature on water safety practices in the vicinity of the Hydro Project areas.
(2) WARNING DEVICES Warning devices include such items as danger and warning signs, canoe/rafting portage signs, audible warning devices, lights and illumination, beacons and strobe lights, buoys, verbal warnings. These devices are required where necessary to warn of hazardous spillways, powerhouse intake areas, tailraces, and other hazardous areas and conditions.
(i) Danger and Warning Signs Each dam should have adequate danger and warning signs. Properly located and spaced signs can be an effective method of preventing persons from entering hazardous areas. It is important to locate signs so that persons entering area from any direction can see one or more of the signs. Where it is not feasible to install boat restraining barriers due to the length of the dam or spillway, or other constraints, a system of warning buoys and signs should be installed at least 300 feet from the structure or at a greater distance, depending on where the hazardous current begin. If the Project reservoir is small, as a practical matter it may be necessary to place the buoys and signs closer to the dam. The size of lettering and the signs themselves should be of sufficient size that persons (even those with less than perfect eyesight) would not have to enter the danger zone to read the signs. As a general rule, when a person is 300 feet from any dam, signs warning of a dam should be legible and easily noticed. Proper wording of signs is important and can improve effectiveness. Signs should convey a message that clearly advises the reader of the real danger. In addition to “No Trespassing” or “Keep Out” signs, it would be informative to have signs that state; “Danger – Dam Ahead”, “Danger of Drowning”, or “Stay Alive by Staying Out”. Signs should be kept in good condition and fading signs should be repainted. Plants, grasses, and trees that obstruct shoreline warning signs should be removed. Contrasting colors should be used for sign lettering and background. A regular sign inspection programme should be developed and documented to ensure that all signs are maintained in good condition. It is particularly important to inspect signs after severe weather or flood conditions.
Power and Communication Lines Power and communication lines require special signing to warn recreationists of clearance heights. Minimum recommended vertical clearances for power and communication lines over reservoirs are found in the standard codes and regulations.
Audible Devices Audible devices, such as sirens, horns, or buzzers, are generally used to warn of sudden changes in the rate of flow, usually in tail water areas of spillways or powerhouses. It is also important to provide warnings of sudden changes in operation, such as a gate opening to pass flows that have been cut-off due to a plant shutdown. At Projects where difficult terrain prevents a quick exit from the river, advance warning of 30 to 45 minutes may be necessary. Signs advising of the meaning of the audible devices should be posted along all access points near hazardous tail water and other areas. At least one adequately big siren should be installed at every 1-2 km along the entire river bed within the Project area and the area downstream that comes within the Project. All these sirens should be operated through GSM with adequate power backup so that they could be blown from one central location itself and also in case of power failure.
Lights Lights should be used to illuminate signs, the dam itself, and other hazardous areas. It is desirable that at least some of the warning signs around dams be illuminated at night. Lighting should be considered at dams, tailrace areas, substations. Specifically designed signs, safety devices, including lighting may often be necessary so that safety devices are effective under adverse weather conditions.
Beacons Beacons and strobe lights can be utilized near spillway gates and overflow spillways and, if appropriate, they should be activated to provide visual warning when water is being discharged. Flashing strobe lights can also effectively complement audible warning devices.
Buoys Individually anchored buoys basically serve as floating signs. In general, buoys should be installed in accordance with accepted rules and regulations in the State where the Project is located. Buoys may not be appropriate in low-use areas in many cases or in areas where the pristine nature of the area should be preserved. However, buoys should not be substituted for restraining barriers where a positive restraining barrier is feasible.
Verbal Announcements Recorded or direct verbal warnings can be used at many smaller Projects to warn the public in tailrace areas that gates are going to be opened if the Project is always manned. However, this can only be effective if dam tenders and other personnel working near dams are adequately trained to advise the public of a Project’s hazardous area.” [Emphasis as supplied in High Court Order.]
Sikkim High Court Order on March 1 2021 In another case that was started suo moto my the High Court on May 31, 2017, the disposal order on March 1, 2021[v] by a bench of Chief Justice Jitendra Kumar Maheshwari and Justice Bhaskar Raj Pradhan concluded: “Thus, we close the case with the direction that the hydropower projects in Sikkim shall ensure strict compliance of the safety guidelines. The concerned Governmental authorities are also directed to undertake periodic inspection and review to ensure that the hydropower projects in Sikkim follow the safety guidelines and all other rules and regulations mandating safety measures to ensure that life and properties of the people living in the vicinity of the hydropower projects and in the areas which could be affected by the flow of the waters from these projects are safeguarded.” This case and order was about all the hydropower projects of Sikkim following the Sikkim Govt Order of June 22, 2015 about mandatory safety guidelines for hydropower projects.
It is surprising however, that while Sikkim HC passed this order on March 1, 2021, another bench of the HC was looking at the violations by the Chuzachen Hydropower project of Gati Infrastructure Ltd that led to death of two persons in May 2020. The two cases on the same issue of safe operations of hydropower projects in Sikkim were going on in parallel without either taking note of the other one.
High Court Order in Dec 2022 Some key points from the High Court order dated Dec 22, 2022:
– “there is a lackadaisical attitude with total indifference exhibited by the Respondent No.3.” This was in the context of the May 2015 notification from the Sikkim Govt quoted above.
– “The State-Respondent Nos.1 and 2, during their inspection, failed to take into consideration that the noise that can be generated by a gushing swollen river flowing downstream, in a mountainous region, drowns out all sounds making it an impossibility for a person in and around the river to hear a siren six kilometers away. Admittedly the siren was at a distance of six kilometers from the place of incident… They also discovered that the sirens are not 1-2 kilometers apart as per the guidelines in the Notification of the Home Department.”
– “Placing warning devices admittedly at a distance of six kilometers serves no purpose whatsoever and is merely a token gesture of the Respondent No.3 to feign compliance, with no attention paid to the gravity of the directions in the Notification.”
– “The reason enumerated by Respondent No.3 that due to lack of network and the terrain the sirens could not be installed is inexcusable and incongruous considering that an entire Dam project was constructed in the same isolated terrain, revealing the cherry picking attitude of Respondent No.3 and its indifference in subscribing to the safety measures prescribed. It is not the contention of Learned Counsel for Respondent No.3 that as directed in the Notification (supra) at Clause 4(2)(iii) advance warning was issued at least 30 to 45 minutes before releasing the Dam waters.”
– “The Respondent No.3 claimed to have erected caution Notice Boards near the Bridge which had been removed by the “locals”. At the time of inspection, no Caution Boards were found in the vicinity. The Inspecting Officials found no Notice Boards and accepted as the ultimate truth the claims of Respondent No.3 that the Boards had been removed by locals, sans proof. The claim of having erected Notice Boards to caution the people in the area and the allegation that they were removed by the “locals” was not established by way of indicating to the Committee the places where such Boards stood prior to such removal. The contents of the alleged Boards were not disclosed nor were photographs of the alleged installed Boards furnished for the perusal of the Committee or for that matter this Court, to establish their allegations of compliance of Home Department’s Notification supra. Why “locals” would remove the caution Notice Boards which had been put up for their safety is beyond comprehension. It is an apparent effort on the part of Respondent No.3 to cast aspersions on the persons living in the locality when it is clearly non-compliance on their own part of the Notification of the Home Department and directions of this Court”.
– “No proof of dissemination of brochures to the public or announcements on televisions, radio or newspaper articles educating the public of the specific hazards near the Hydro Power Project and general rules requiring obedience have been placed before this Court by the Respondent No.3.”
– “It thus concludes that there has been a total lack of compliance of the Notification No.26/Home/2015, dated 22-06- 2015, of the Home Department, by the Respondent No.3… It is worth remarking that State-Respondent Nos.1 and 2 and Respondent No.3 have not complied with the directions of this Court.”
– “The submission of Learned Counsel for the Respondent No.3 that the victims ought not to have been out and about in the forest reveals an authoritarian approach of the Company towards the people residing in and around the Dam area and the downstream river banks. The Hydro Power Project Companies cannot control and put restrictions on the free movement of free citizens of the country. Their responsibility is limited to ensuring that all necessary guidelines and directions issued for safety of persons who may be in and around the rivers at any given time are followed and precautions are taken without compromising on any aspect whatsoever.”
– The Court directions included: “The State-Respondent Nos.1 and 2 shall ensure compliance of the direction pertaining to ensuring installation of sirens and all other directions of this Court in Zangpo Sherpa (supra) and of the Notification No.26/Home/2015, dated 22-06-2015, of the Home Department… It is reiterated that all safety measures in the Notification No.26/Home/2015 dated 26-06-2015 shall be complied with… Sirens, at an equi-distance of one kilometer each along the length of the river where a Project Dam exists shall be installed immediately but not later than three months from today by the concerned Hydro Power Projects in the entire State.”
Lessons for Hydropower Projects across India These cases in the Sikkim High Court and the Sikkim Govt notification of June 26, 2015 quoted above provides huge and urgent lessons for the hydropower projects across India. The mandatory guidelines in the Sikkim Govt notification and the responsibility given to the district collectors to ensure these are followed is something that is urgently required for all hydropower projects across India with the same force of law. The Union Ministry of Power, the Central Electricity Authority, The Central Water Commission and Ministry of Jal Shakti are some of the central agencies that one would have expected to take this up, but considering their track record, this is unlikely to happen. One agency who can do this is National Disaster Management Authority, who can bring out such guidelines under the disaster management act. Hope this happens soon. Every year dozens of people are dying all over India due to disastrous and negligent operation of hydropower projects. It is high time something effective is done to stop this and hold those responsible accountable.