Akshya & Kriti Chopra
There are no prizes for guessing the most favoured destination for spending the summer vacations for most of us practicing in the courts of northern India. The hills in the Himalayan belt of our nation are a perfect get away spot from the hustle and bustle of the court. Another attractive feature of the hills is the adventure sports like trekking on offer.
These activities give us a much-needed adrenaline rush, but unknowingly pose a threat to our lives. It is assumed and expected that a person with a sound mind and a healthy body, knowing the anticipated risks of the sport, is undertaking the activity. But unfortunately, that is not always true.
This summer, a family of three approached an agency for organizing a trekking excursion to cross the majestic Hampta Pass in Himahcal Pradesh, situated at a height of about 14,100 feet. The family made all the necessary arrangements regarding the equipment, and even opted for a one-day training program to acclimatize themselves with the weather conditions. Soon after they started their trek, the family could not continue as their younger one – a mere 8-year-old child -started facing medical problems due to the surroundings. The traumatized family had to trek back at least 13 hours to reach the base camp where they could establish network to contact the Civil Hospital in Manali.
Many of us will agree that the agency should have informed the family about the possible risks of trekking in such extreme conditions, or that the “waiver form” that the agency makes everybody sign is their ticket out of legal liability. The agency, being the centre of all the mess, walks out absolutely scot-free on the pretext of this waiver form, which allows them to shift the burden of liability on the consumer in the event a trek doesn’t go as planned.
If you decide to go on a trek today, all you would have to do is sign on the waiver form, and you are good to go. It would be illegal in countries which have a Mountain Code (eg. Norway) to allow someone as young as 8 years old to trek at 14,100 feet. But in India, it is perfectly legal, and sadly, the insurance sector remains aloof of the ground realities when it comes to adventure sports.
While we do have state-specific laws governing paragliding and white river rafting, we still don’t have any regulation for trekking. The Indian Adventure Tourism Guidelines do offer a roadmap on the same, but these can only be enforced if the agency/organisation is a member of Adventure Tours Operators Association of India (ATOAI). It would not take a lawyer to guess that their inspection rules are self-declaratory. Due to this state of affairs, we see the lawlessness as witnessed by Nicholas Roerich during his travel in the Himalayas.
It’s not only the consumers of adventure sports who stand at risk of death in this unregulated ecosystem. In India, we have porters going missing or dying in huge numbers every tourist season.
A few years ago, a foreigner decided to cross the Pin Parvati Pass (17,450 ft) with a team of 24 porters and a trekking guide. While crossing the pass, the team suddenly faced a blizzard and got separated. The guide and the foreigner were the first ones to make it out of the blizzard and reach the safety of base camp. Only 12 potters made it back. The team waited for a day, but none of its remaining members made it out alive. A search and rescue operation had to be organized, after which the dead bodies of the 12 porters were shovelled out of the snow.
The reason given by the district administration was that they froze to death on the mountain pass. But anyone who has relevant knowledge and experience of trekking will tell you that the porters are the ones least prepared for a blizzard, as you won’t anticipate them shopping in a place like Decathlon prior to the expedition while earning a meagre daily wage of ₹450 for carrying the load. Ironically, the company which organised the trek was, yet again, not legally liable to pay any compensation to the porters.
Trekking, being an unorganised sector, is out of the realm of Labour Codes, due to which exploitation runs rife. Even though the Ministry of Tourism has started registering only those Adventure Tour Operators (ATOs) who fulfil their guidelines, these guidelines do not touch upon rights conferred by labour laws.
Certain state-specific laws are attempting to address this cause at a preliminary stage by making the operator of the agency duty-bound to provide for bare necessities like washrooms at the workplace. However, still they don’t safeguard the interests of the porters, guides or the cooks who are risking their life for a mere ₹ 450 per day.
Most of the people involved in this sector are not aware of the risks they are enrolling for. Be it Norway or Nepal, many nations the world over have established a regulatory regime for trekking after a major accident in their jurisdiction, and we should act on similar lines as soon as possible.
It will be interesting to witness how the jurisprudence of this subject of law will develop under the concurring jurisdiction of the Supreme Court, National Green Tribunal, labour courts and consumer courts in the near future.
Akshya is a legal adviser for Hippie in Hills, and Kriti Chopra is an advocate currently pursuing her LL.M. in International Dispute Settlement.