A cheque that buries the claim

Ex gratia translates, literally, as by grace. Something given freely, as a favour, without legal obligation and without admission of wrong. When the Indian State reaches for this phrase after disasters it was positioned to prevent, writing cheques as it forms SITs and suspends officials, the etymology is not decorative. It is precise. Grace, by definition, is not owed. And what is not owed cannot expose the giver to liability.

This is the mechanism. 21 people died within 48 hours: 7 women migrant workers from Assam, Odisha and Jharkhand killed by an ammonia leak at a seafood processing facility in Tiruvallur, Tamil Nadu on June 21; and 15 students killed the following afternoon when fire swept through an animation coaching centre in Lucknow's Aliganj neighbourhood. The Prime Minister announced ₹2 lakh ex gratia for each Lucknow victim. In both states, investigations have commenced. In neither has the government publicly acknowledged what the law already knows: these were not accidents for which the State is a grieving bystander. They were outcomes the State's regulatory apparatus was designed to prevent.

The Supreme Court has built, across four decades of constitutional litigation, a coherent framework for State accountability in cases of preventable death. It is worth tracing this framework not to explain what courts know, but to mark precisely how wide the gap between doctrine and practice has grown.

The foundation is Rudul Sah v. State of Bihar (1983). Chief Justice YV Chandrachud held, for the first time, that monetary compensation was an enforceable constitutional remedy under Article 32 for violation of fundamental rights. The significance was structural: constitutional courts were not merely forums for declarations and writs, but courts of substantive relief. Where the State violates Article 21, it does not receive a judicial reproach alone. It pays.

A decade later, Nilabati Behera v. State of Orissa (1993) placed the doctrine on its sharpest footing. Justice Verma dismantled what remained of sovereign immunity inherited from colonial tort law, holding that the Kasturilal principle - that sovereign functions shield the State from tortious liability - has no application in the constitutional scheme. Public law compensation under Articles 32 and 226 - the constitutional tort remedy that arises when State action or inaction violates fundamental rights - operates independently of any private law suit and cannot be defeated by a sovereign immunity plea, the Court held.

Alongside this constitutional compensation jurisprudence, MC Mehta v. Union of India (1987) laid down absolute liability for private hazardous enterprises. Justice Bhagwati's departure from Rylands v. Fletcher was a deliberate constitutional choice: the exceptions available under strict liability - act of God, third-party cause, consent of the injured - were shed because a modern industrial economy cannot allow enterprises to externalise, through legal technicality, the full cost of the hazards they operate for profit. The liability is absolute. Compensation must be commensurate with the magnitude and financial capacity of the enterprise itself.

These 3 cases form a coherent argument: the State, and those it licenses to operate hazardous activity, cannot escape accountability for preventable harm by invoking immunity, technicality, or the mere fact that an investigation was announced after the bodies were counted.

The Tiruvallur tragedy and the Lucknow fire differ legally. And the precision matters.

The seafood processing facility in Tiruvallur employed approximately 120 migrant workers, many living on premises, in operations involving ammonia refrigeration, which is an inherently hazardous system. If investigations confirm, as preliminary reports suggest, that the ammonia leak arose from operational or maintenance failures in that system, the enterprise falls within the MC Mehta framework. The owners cannot invoke defences. They cannot argue third-party cause or act of God. The only remaining question is the quantum of compensation, which under MC Mehta's own formulation must be commensurate with the enterprise's scale and financial capacity; not settled by administrative discretion.

The Lucknow case is the harder and more instructive one.

The building at Aliganj Sector D was approved for residential use. The Lucknow Development Authority (LDA) issued a demolition order on May 10, 2016 for unauthorised construction. That order was revoked on July 5, 2016, less than two months later. The SIT constituted by the Chief Minister has been directed to examine the reasons for the revocation. At present, no public record has emerged explaining the basis on which the order was withdrawn. The building then operated commercially for another decade, housing the coaching centre where 15 students died.

Under Nilabati Behera, the LDA's withdrawal of its own enforcement order is not a "sovereign function" immune from constitutional scrutiny. It is a documented administrative act that removed the only available legal barrier between an illegal structure and a decade of uninterrupted commercial misuse. Where a State agency actively neutralises its enforcement mechanism without lawful reason and death follows that withdrawal, constitutional tort liability does not merely permit a claim. It invites one.

The Uphaar Cinema fire of 1997 is the closest precedent, not in factual particulars, but in the liability question it settled. 59 people died because of a transformer failure in an overcrowded, structurally deviant cinema hall whose deviations the licensing authority, the Municipal Corporation of Delhi and the Delhi Vidyut Board had each observed and failed to address. The Delhi High Court in 2003 held all 4 defendants jointly and severally liable, awarding ₹18 lakh per adult victim and ₹15 lakh per minor. Critically, the ex gratia already paid - ₹1 lakh per death - was directed to be deducted from the compensation awarded, not treated as equivalent to it.

That formulation deserves attention. The Court did not treat ex gratia as partial satisfaction of the legal claim. It treated it as a prior payment against a subsequently quantified liability. Implicit in the Court's arithmetic is a distinction the state consistently elides: ex gratia and legal compensation are instruments that operate in entirely different legal registers. One is grace. The other is obligation.

Even after the Supreme Court on appeal in 2011 controversially reduced the compensation to ₹10 lakh per adult and ₹7.5 lakh per minor, the final judicial figure was nearly 4 times the ₹2 lakh being offered to Lucknow families today. But the number is not the real point. The Uphaar families received what no ex gratia payment carries: a court's finding that the licensing authority's failure to enforce its own mandates made it a co-author of 59 deaths. That finding is legally operative. A public record of institutional negligence and a statement of constitutional fact that no post-tragedy SIT is designed to produce.

The practical effect of paying ex gratia before the legal process begins is strategically favourable to the State. The payment is low enough to be manageable, fast enough to reach families before legal counsel does and structured without any admission of liability that could anchor future litigation. The Uphaar comparison makes this visible: the distance between what ex gratia offers and what law requires is not a rounding error. It is a gap the current system is organised to maintain.

This is the deeper problem these two tragedies expose; and it deserves to be named directly.

India has developed, over decades, a response architecture for mass-casualty regulatory failures that is administratively competent and legally immunised. The ex gratia payment, the SIT, the suspension of officials, the reissued enforcement order. In Lucknow, the LDA reissued its demolition notice one day after 15 students died in the building it had failed to demolish for 10 years. These are not failures of the system; they are the system. They generate the appearance of accountability while systematically avoiding its legal consequences.

Legal accountability requires a finding, a record, an enforceable acknowledgment that specific acts and omissions caused specific deaths. Administrative sympathy through the ex gratia cheque, the suspended official, the recommissioned inspection produces none of these. It produces activity. And activity, in the absence of legal consequence, is the State's most effective insulation against the doctrine its own courts spent four decades constructing.

The courts have done the intellectual work. Rudul Sah established the remedy. Nilabati Behera defeated the immunity. MC Mehta removed the defences. What the State has learned to do, in the decades since, is build its crisis response in the space that precedes the courthouse door - the moment between disaster and litigation when families are most grieving, most economically exposed and most likely to accept what is offered rather than pursue what they are owed.

The law already knows how to assign responsibility. It did so after Uphaar. It did so after Oleum. What remains absent is not doctrine. It is willingness. When inspection is followed by inaction and inaction is followed by death, a cheque is not compensation. It is evidence.

The building in Aliganj was found illegal in 2016. The demolition order was withdrawn in 2016. The students died in 2026.

10 years is not a tragedy. It is a policy.

Paras Sharma is a practicing advocate at the Punjab and Haryana High Court, Chandigarh. Views are personal.