THE CONCEPT OF ABSOLUTE LIABILITY: THE STUDY ON ITS DEVELOPMENT IN INDIA BY - MUSKAN SHARMA
THE CONCEPT
OF ABSOLUTE LIABILITY: THE STUDY ON ITS DEVELOPMENT IN INDIA
AUTHORED BY
- MUSKAN SHARMA
B.A. LL.B.
MVN
University, Palwal, India, 121105
ABSTRACT
The environment protection is the
main concern of the world. India is a developing nation that means there is a
rapid growth of industrialization. With the growth of industrialization
industries are setting up rapidly in different areas of country. Many
Industries doing hazardous works this want a lot of care and protection for its
operation. It is important that factories and enterprises which are engaged in
hazardous works activities must follow safety precautions for the protection of
not only to their workers but also the people living nearby such working site.
The rule of strict liability evolved in Rylands vs. Fletcher case set up the
liability of the employers who are involved in a non natural use of land if
mischief happens due to their activities. But it is an older concept which
evolved back about two centuries before when industrialization was in initial
stage. In the case of MC Mehta vs. Union of India, the Supreme Court of India
applied new concept of Absolute liability in place of strict liability which is
modified version of the earlier concept. Justice P.N Bhagwati pointed out that
in the new economic and social scenario the older concept of strict liability
is not much effective. So, the Supreme Court of India evolved the rule of
Absolute liability that suits much more the present condition of country than
the earlier rule of strict liability in India. In this study we will discuss
about the meaning of the concept of absolute liability and also its need and
importance in India. The scope of study is limited because it is mainly based
on secondary data.
Key-words: Strict liability, Absolute liability,
Environment, Industrialization
I. INTRODUCTION:
In the law of torts there are two
most important concepts of liability which are known as the Strict Liability
and Absolute Liability. Firstly, the rule of Strict Liability evolved after
that the doctrine of Absolute Liability evolved. In a very famous case of
Ryland vs. Fletcher[1] case
Blackburn J. applied doctrine of Strict Liability to made liable a person
without any fault from his side if any loss caused due to escape of any harmful
substance from a premises used by him. For application of Strict Liability most
important essential is that the land is used non-naturally which means it is
not used for a general work that is very obvious to be done on such land but it
is used for some special work. The rule of strict liability without any doubt
is an important rule for safeguarding the interest of the people although it is
the rule of 19th century that needs to be modified with relation to
modern conditions. In India as because the British ruled for a long period the English
doctrine of Strict Liability has an equal application in our country. But the
social and economic conditions in India are different from the England where
this rule originates. The Rule of Strict Liability originates when there was
starting of industrialization in England. But the real industrialization
started in India after Independence. After independence new industries were set
up in India. They opened their subsidiaries in around different parts of the
country. Mostly industries set up in big cities where huge population lived.
Many plants of industries started in crowded areas that increase the risk of
safety of health or life of people lived nearby such units that increased to
set an absolute liability for industries for any loss caused by their working
processes. The need of the more strict concept of liability than Strict
Liability need in year 1984 when a mass disaster of gas leak occurred in city
of Bhopal that resulted the loss of life of many people at a time and permanent
lifetime injuries for thousands of people. Further, in next year India saw an
another disaster for life that was caused due to the Oleum Gas Leakage in Delhi
from one of the units of Shriram Foods and Fertilizers Industries. In this case
that is known as M.C. Mehta vs. Union of India, the honorable Supreme Court of
India evolved the rule of Absolute Liability in India to made the culprit of
this mass disaster absolutely liable. It is the landmark case where the Apex
Court modified the rule of Strict Liability into Absolute Liability. The Rule
of Absolute Liability applied in Bhopal Gas Leal case to provide compensation
to the victims of gas leakage. The rule of Absolute Liability is the rule of
Strict Liability without any exceptions. There is no exception left for the accused
to escape the liability in this rule that is applied by the Courts in many
landmark cases which shows its importance in Indian society.
II. LITERATURE
REVIEW:
1. Absolute Liability: The Rule of
Strict Liability in Indian Perspective: In this paper the author analyzed the old principle of “strict
liability” and its development in India. The study discussed the meaning of
both concept of liability. The rule of Strict Liability is modified by the
Supreme Court of India to better apply it in the Indian perspective where
economic and social conditions are fully different from the conditions of
country in which rule of strict liability evolved. The Absolute liability is
the liability without any of the exceptions that presents in strict liability.
Due to high industrialization growth in India we needed a stricter rule of
liability than Strict liability rule. Absolute liability rule is necessary for
present requirement.
2. Strict Liability vs. Absolute
Liability: In this
study author main aim is to make comparison between two Absolute and Strict
liability. Both are the concept of liability for violation of safety measures
that results violation of people’s right. The concept of strict liability is
two centuries old rule that’s why it needs to be modified. The rule of Absolute
liability is modified version of strict liability rule. It must be noted thing
that both rule established ‘no fault liability’ yet there are few exceptions exists
for escape of Strict liability. The Absolute liability in real sense makes a
person or corporation absolutely liable for any damage caused because of their
involvement in some hazardous works.
3. A Critical Analysis of Absolute
Liability and its Role in Environment Law: The study focused on the reasons of shifting of Absolute
liability from Strict liability rule. The Strict liability is British concept
evolved by the English court for existing economic and social scenario. There
are few important reasons behind the evolvement of Absolute liability for
Indian society that are comprehensively discussed in this study. Absolute
liability scope becomes wider as there is no exceptions is there. A person if
doing hazardous working activities for profit his responsibility also increases
for other people. He will be absolutely liable for any damage caused to others
due to their works even he took utmost care.
4. Doctrine of Absolute Liability
vis-à-vis Right to a safe Environment: The study discussed the meaning of strict liability to know
the correlation of it with the rule of Absolute liability. The latter concept
evolved from the former one with more strict applicability. Both rule has a
paramount significance because they ensures justice to the victims and also set
up responsibility of a person to take every possible precaution in carrying
hazardous works. The safety of the life of public is all above the profits or
growths. The bigger the risk in work the greater will be the responsibility.
III. RESEARCH
METHODOLOGY:
The present Research study is done by
analysis of secondary data that includes various books, journals and articles.
These sources are critically reviewed and analyzed that helped to make a base
of study. The nature of study is analytical.
IV. DEVELOPMENT
OF THE RULE OF ABSOLUTE
LIABILITY
IN INDIA:
The Rule of Strict Liability
originates when there was starting of industrialization in England. But the
real industrialization started in India after Independence. After independence
new industries were set up in India. They opened their subsidiaries in around
different parts of the country. Mostly industries set up in big cities where
huge population lived. Many plants of industries started in crowded area that
increases the risk of safety of health or life of people lived nearby such
units that increased to set an absolute liability for industries for any loss
caused by their working processes.
The rule of Absolute Liability is a
modified version of the rule of Strict Liability which is developed by the
Supreme Court in the case of MC Mehta vs Union of India in 1985 a year which
faced a disaster of gas leakage in the city of Delhi. The Bhopal Gas Tragedy
seeks the attention of the Supreme Court of India towards the failure of the
rule of Strict Liability in present cases of mischief. The scientific and
economic conditions are much better than the time of when this rule is evolved.
It became necessary to develop a stricter rule that suits the present Indian society.
The Supreme Court took a bold step to come forward and evolved Absolute
Liability rule in India which is the milestone of environmental protection in
the country. The Court cleared that we are not bound to follow such old concept
of English Law if they does not fit to the Indian economic and social condition.
It is developed in the famous case of M.C. Mehta vs. Union of India after this
case it is followed in Bhopal Gas Leak Disaster Case.
Ø M.C. Mehta vs. Union of India[2]:
Facts of the Case: This case is known as the Óleum Gas
Leak Case’. The facts of the case is such that on 4th and 6th
December, 1985 from one of the units of Shriram Food and Fertilizers Ltd.
Situated in the city of Delhi, a hazardous gas known as oleum gas leaked. This
leakage incident had dangerous impact on the people of Delhi in which
prominently a practicing advocate of the Tis Hazari Court of Delhi died and many
other people suffered critical health issues. The reason behind the leakage was
explosion and leakage of gas from tank that collapsed the structure on which it
was mounted. The unit in which gas was leaked worked in densely populated area
of Kirti Nagar. As a consequence of this incident a Public Interest Litigation
was filed in the Supreme Court.
Judgment of the Court: The three judges bench consisted of
Former Chief Justice of India P.N. Bhagwati, G.L. Oza, D.P. Madon JJ. The
Supreme Court in this case had a greater responsibility on their shoulders
because just before this case likely incident of gas leakage occurred in Bhopal
in which approximately 20000 people died and thousands of people were injured.
The court deeply analyzed that if they applied the old principle of Strict
Liability then it is possible that accused of the case released their liability
by putting them in any of the exceptions provided in this liability. This case
should become an example in future. Finally the Supreme Court did not follow
the rule Strict Liability by saying that we are not bound to follow the 19th
century rule and we could evolve a rule suitable to the present conditions of
India. The Supreme Court observed in the words of Bhagwati, C.J. as:
“The rule of Strict Liability evolved
in the 19th century at a time when all these developments of science
and technology had not taken place cannot afford any guidance in evolving any
standard of liability consistent with the constitutional norm and the needs of
present day economy and social structure. Law has to grow in order to satisfy
the fast changing needs of society. As new situations arise the law has to be
evolved in order to meet the challenge of such new situations. Law cannot allow
our judicial thinking to be constrained by reference of the law as it prevails
in England or for the matter of that in other foreign legal order. We in India
cannot hold our hands back and I venture to evolve a new principal of liability
which English courts have done.”
By the tremendous judgment of the
Supreme Court it the new concept of Absolute Liability evolved which is no
doubt the outcome of judicial activism.
Analysis: By the tremendous judgment of the
Supreme Court in this case the new concept of Absolute Liability evolved which
is no doubt the outcome of judicial activism. There is no doubt while saying
that the judgment of Oleum Gas Leak case is the landmark judgment for
protection of environment as well as human resources. The judgment showed the
visionary thinking of the Supreme Court. There were many problems might be
arose if strict liability applied in this case. The escape is necessary in
strict liability because of that workers who are injured within the premises of
the plant could remain without getting compensation. Further, this gas incident
was not merely an accident but also a part of human disaster by gas leak just
after Bhopal Gas Leak incident in India. The Chief Justice of P.N. Bhagwati
correctly said that an enterprise who is ready to get profit from a hazardous
work by putting the life of many people in danger than if any damage occurs due
to that work, then such enterprise will be absolutely responsible for that.
There should not be any excuse left for such enterprise. The life of people are
more important than anything.
Case: U.C.C. vs. Union of India (Bhopal
Gas Leak Case)[3]:
The
gas known as methyl isocyanate leaked from the pesticide manufacturing plant of
the Union Carbide Industry situated at Bhopal on 2nd and 3rd December 1984. The
toxic gas leaked over the entire city, caused death of around 4000 people over
a short span of time and nearly 1.5 lakh people were had permanent
disabilities. The Union Government filed a case called as Union Carbide
Corporation vs. Union of India, claimed an amount of 3.3 billion dollars from
the said company as compensation for all loss of life and health of victims. The Union of India filed a suit for compensation
in September 1986 before the Bhopal District Court seeking damages of the
amount of 3.5 billion rupees, which the High Court of Madhya Pradesh later
reduced to 2.5 billion rupees.
Further on the appeal
filed by UCC in the Supreme Court of India against the decision of the High
Court of Madhya Pradesh. The Supreme Court ordered UCC to pay 470 million in
order to fully resolve all claims, rights, and obligations related to the
Bhopal gas tragedy (approximately 750 crores rupees). The settlement process
resulted in the completion of all civil proceedings and the dismissal of all
criminal charges.
The government first
claimed 3 billion dollars in compensation, but the UCC only agreed to pay out
470 million. This settlement was criticized. Many petitions were filed for
increase the amount of compensation that was ruled out as the government
compensated the victims. In 1990 the Government of India provided 258 crores in
the fund for the victims. Further, the Seven former employees, including the
former UCIL Chairman, were given 2 years in prison and a US$2,000 fine in June
2010 for carelessness in Bhopal.
Analysis: A thing which must be noted here is that the
amount of compensation in this case was ordered on the application of absolute
liability. The Court while giving judgment had in mind that the amount of
compensation must also included the financial penalty on the corporation. The
amount of compensation was decided according to the financial capacity of the
corporation. It is only the rule of absolute liability that set the liability
of the UCC. If strict liability applied in this case there was possibility of
escaping the liability by the UCC on available exceptions provided in this
rule. And in case UCC did not able to put themselves into any exception even
then the amount of compensation would have been quite low as compared to
absolute liability.
V. ABSOLUTE
LIABILITY MEANING AND ITS ESSENTIALS:
After doing analysis of the case of
M.C. Mehta vs. Union of India we find the meaning of the concept of Absolute
Liability and its basic essentials which are somehow different from the
essentials of the rule of Strict Liability. The Absolute liability is the
liability with no exception so that accused will not escape liability by
putting themselves in the blanket of any of the exception. It is more deterrent
rule than strict liability. The Apex Court in Charan Lal Sahu vs. Union of
India[4] pointed
out that; the rule is absolute and non-delegable and the enterprise cannot
escape liability by showing that it has taken reasonable care on their part. “
If an enterprise is permitted to carry on an hazardous or inherently dangerous
activity for its profit, the law must presume that such permission is
conditional on the enterprise absorbing the court of any accident arising on
account of such hazardous or inherently dangerous activity as an appropriate
item of its overheads”. The following are the basic essentials of the rule of
absolute liability:
1. Enterprise: There must be an enterprise in which
hazardous or dangerous working activities is carried out. The difference
between Strict and Absolute Liability is that an individual person can be
liable for strict liability but in case of absolute liability we cannot make an
individual liable but only enterprises can be liable in such rule.
2. Hazardous or Dangerous Thing: The second and the foremost essential
for absolute liability is involvement of an enterprise in dangerous working
activity. The dangerous activity means which has a potential threat to the
health and safety of the persons working in the factory and residing in the
surrounding areas. In many cases the court held following things is dangerous
ex; large pool of water, chemicals, gas, electricity, explosives, fumes etc.
3. Escape Not Necessary: The escape is not necessary in case
of absolute liability. Here, the important thing is that such escape not only
constitute when it escape outside the premises of the building but escape
inside building also considered complete liability.
4. Injury: It is clear in the judgment of the
Oleum Gas Leak case that if any harm or injury results to any one due to the
activity of the enterprise then such enterprise must be absolutely liable for
such harm and have to provide compensation to the victims.
VI. METHOD
OF CALCULATING AMOUNT OF COMPENSATION:
The Court ruled in the M.C. Mehta
case that the defendant industry is liable for give compensation to the people
who are affected by the gas leakage incident happened in their units. The
Supreme Court of India in Indian Council for Environment Legal Action vs.
Union of India[5]
held that “Once the activity carried on is hazardous or inherently dangerous,
the person carrying on such activity is liable to make good the loss caused to
any other person by his activity irrespective of the fact whether he took reasonable
care while carrying on his activity irrespective of the fact whether he took
reasonable care while carrying on his activity is by far the more appropriate
and binding”. Now the question arose was that how we would measure amount of
compensation payable by the enterprise on account of their absolute liability.
The Supreme Court also provided the mechanism for measuring the amount of
compensation. The amount of compensation will be measured according to the
capacity of the enterprise. It means higher the financial capacity of the
company, higher must be the amount of compensation. In simple words the amount
of compensation is equally proportional to the magnitude and financial capacity
of the company. The reason behind this strict rule of measurement of
compensation is behind the reason that an enterprise which is financially
strong have a capacity to take high standards of safety measures for prevention
of unforeseen losses and if any loss happened to public only because hazardous
or dangerous activities done enterprise for larger profits then it is liable to
pay compensation proportional to its financial capacity.
VII. REASONS
OF THE DEVELOPMENT OF THE RULE OF ABSOLUTE LIABILITY IN INDIA:
The rule of Absolute liability as we
discussed above is much stricter and effect than strict liability. The rule of
strict liability is a 2 century older principle. After this rule the conditions
in society changed. After Independence many big industries set up. There
subsidiaries are working all over the country and more of them worked in
densely populated areas of cities. In which there always a risk of any accident
caused to hazardous work of industries. So, if the risk are increasing then the
protection from such risk must be higher. The Andhra Pradesh High Court in the
case of K. Nagireddi vs. Union of India[6] emphasized
the need of alteration in old rule of liability stated that “In India the
general rule of Ryland vs. Fletcher is accepted, though the principle is needed
to be modified in its application to the Indian Consideration”. Below the
reasons for the development of Absolute liability rule in India are analyzed as
follows:
1. Developing Country: India is a developing country. The
industrialization in India take fast growth after Independence by which new
industries are setting up. The rule of Strict Liability made at a time period
when the industrial growth in England was in there starting stage. So, the
strict liability rule not effectively can work in our country. With the growth
of industries there should be a rule that ensure the working of industries with
high standards of safety that is the rule of Absolute Liability.
2. Population Growth: The India has the largest population
in the world. Due to development in cities most of the people come and settle
in cities. The cities in India are densely populated. Many industries were
setting up in cities around densely populated areas which increase the risk of
an injury. In Bhopal Gas Tragedy case thousands of people suffered injuries and
most of the people died. So, when Oleum Gas Leak occurred just after Bhopal Gas
Leak incident the Supreme Court evolved the Absolute Liability in India.
3. Bhopal Gas Tragedy and Oleum Gas
Leak: There are many
other reasons behind the evolution of the rule of Absolute Liability but the
immediate cause of it was the disaster of gas leaks occurred in Bhopal and
Delhi one after the other. It increases the burden on courts to find out the
solution of such mass injuries caused by hazardous work of enterprises. The
Absolute Liability has deterrent effect on enterprises also set the mechanisms
of calculating compensation to victims.
4. Strict Liability is Not Adequate: The Strict Liability rule find out
inadequate in present conditions. The amount of compensation in it is
calculated with the loss suffered by the people. But in Bhopal Gas Leak case or
in Oleum Gas Leak case it found difficult to calculate the amount of compensation
because of large number of victims. In Absolute Liability the Court set a clear
formula that the amount of compensation is equally proportional to the
magnitude and financial capacity of the enterprise. It ensures adequate
compensation to the victims and provides a financial penalty to the enterprise.
VIII. CONCLUSION:
The rule of strict and absolute
liability both are concept of no-fault liability. The major different point
between them is that the former rule consist certain exceptions while the
latter have no exception. The law is not a dynamic concept but it is evolving. It
evolves with the time if the conditions are changed then law modified itself as
per the need of society. One thing is important that law is for the society not
the society for the law. It was shown in the judgment in Oleum Gas Leak case by
which the older concept of strict liability was modified into the Absolute
liability. The rule of strict liability without any doubt is an important rule
for safeguarding the interest of the people although it is the rule of 19th
century that needs to be modified with relation to modern conditions. Basically
the rule of absolute liability is not completely take place of strict liability
in India but in some special conditions it prefers more in place of strict
liability. The application of both rules wants certain essential requirements
by which we compare the effectiveness of both rule. The rule of absolute
liability did not evolve suddenly but there were major reasons behind that
evolution. In 1984 our country witnessed two major disaster of Bhopal Gas
Tragedy and Oleum Gas Leak resulted loss of life of multiple people. In both
cases a dangerous gas leaked in a working unit of an enterprise which caused
deaths of multiple people. Here, the Supreme Court analyzed rule of strict
liability deeply and reached a conclusion that the time came when we should
apply a new rule of liability than the two centuries older rule of strict
liability. Law can be modified with the changing of conditions in society. In
present economic and social conditions in India the rule of absolute liability needs
that left no exception for big enterprises to escape the liability when
multiple people loss their life because of the hazardous works of them. The
rule of absolute liability put deterrent effect on enterprises so that they
cannot excuse from taking high standards of safety in their work. The role of
Indian judiciary is appreciable. It is tremendous work of judicial activism by
which thousands of people who were lost their lives in gas disaster incidents
get compensation by the application of rule of absolute liability.
BIBLIOGRAPHY:
1)
Bharat Parmar, Aayush Goyal, “Absolute Liability:
The Rule of Strict Liability in Indian Perspective”, Manupatra.
2)
Vidisha Rana, “Strict Liability v. Absolute
Liability”, Volume 20, SUPREMO AMICUS.
3)
Sanjana Parisaboina, “A Critical Analysis of
Absolute Liability and its Role in Environmental Law” Volume 4, International
Journal of Law Management and Humanities, 2021.
4)
Ritwik Jaiswal, “Doctrine of Absolute Liability
vis-à-vis Right to a Safe Environment”, Volume 10, ACCLAIMS, 2020.
WEBSITES:
BOOKS:
Dr. R.K.
Bangia, Law of Torts, p.no. 324, ALLAHABAD LAW AGENCY, Twenty-Fourth Edition,
2017.