Contents  hide 

1.1 Saima Fathima

1.2 Liabilities Strict v. Absolute

1.3.1.1 the principle is need to be modify in its application to the Indian consideration.

1.3.1.2.1 that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken.

1.3.1.2.2 Polluter Pays Principle

1.3.2 Related

Introduction

Strict-To choose between development and life should not be a matter of debate. Although one cannot have his cake and eat it too it is seen time and again that deadly nuclear accidents are a result of not conforming to standards set by competent authorities. Take for example the Bhopal gas tragedy case[1] where safety systems malfunctioned due to liquid MIC stored more than capable in a tank or the more recent Vizag gas leak where the disaster occurred due to human failure of not adding TBC and failure to maintain temperatures below 20 degrees centigrade.

Such disasters are not a daily occurrence yet the agony and suffering cause are enough to make crowds go ballistic. The effects of the Bhopal gas tragedy that occurr in 1984 are seen even today in the third generation after the catastrophe. In such a situation the afflicted turn towards the courts for justice and remedy.

Principles

The two principles of strict and absolute liability come into play. The rule of strict liability was established in Ryland v. Fletcher[2] in 1966. The rule of Strict Liability was subject to many exceptions thereby giving an advantage to perpetrators for escaping liability. The rule of strict liability was not capable of making an individual strictly liable for his negligence, due to this it became essential to make a firm rule that serves the purpose.

The Supreme Court of India in the M.C. Mehta case[3] felt that the principle established in Ryland v. Fletcher of strict liability cannot be use in the modern world because the principle of strict liability was evolve in the 19th century and in that period industrial revolution had just begun, this two-century-old principle of tortuous liability cannot be taken as it is in the modern world without modifications.

Justice Bhagwati also said that the rule of strict liability was evolve in the 19th century, during this time industrial developments were at the primary stage. But in modern industrial society hazardous or inherently dangerous industries are necessary to carry out development programs, thus

this old rule cannot be hold relevant in the present-day context.

In the case of K. Nagireddi V. Union Of India[4], the Division Bench of Andhra Pradesh High Court also stressed the need to modify the principle of strict liability and said that the general rule of Ryland V. Fletcher is to accept in India, though

the principle is need to be modify in its application to the Indian consideration.

The fast-growing Indian economy has outgrown the concept of strict liability. Moreover, the concept of Strict liability emerged from a foreign country. Thus was not make keeping the Indian scenario in mind.

Courts usually consider two elements while deciding cases on strict liability. The first one is that the activity must be dangerous. The second element is that the activity must be uncommon.

The harm that occurs from common activities such as hunting or construction is sometimes inadequately regulate

under this branch of torts.

Absolute Liability

The supreme court of India find the rule of Strict Liability to be inadequate; and thus it was replace by the rule of Absolute Liability. The concept of absolute liability does not depend on whether negligence was caused or not. But on the ability of the troublemaker to pay for it.

It thus holds big corporations who cause serious damage liable.

The landmark case of MC Mehta v. Union of India where leakage of oleum gas from one of the units of Shriram Foods and Fertilisers Industries took place. The supreme court made the decision not to apply strict liability and instead use absolute liability. The following statement make by Bhagwati, C.J. laid down the concept of absolute liability-“We are of the view that an enterprise, which is engage in the hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and

residing in the surrounding areas owes an Absolute and non-delegatable duty to the community to ensure

that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken.

The enterprise must be hold to be under an obligation to provide that the hazardous or inherently dangerous activity in which

it is engage must be conduct with the highest standards of safety. If any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm. It should be no answer to the enterprise to say that

It has taken all reasonable care and that the harm occurred without any negligence on its part.

” The Court with reference to the amount of compensation stated that the measure of compensation in these kinds of cases referred to must be “correlated to the magnitude and capacity of the enterprise” because such compensation would create a deterrent effect. The large and

more affluent the company, the greater will be the amount of the compensation that is pay for the harm cause

as a result of an accident in carrying on the hazardous or inherently dangerous activity by the enterprise. This rule was approve by the Supreme Court in Charan Lal Sahu v. Union of India.[5]

Polluter Pays Principle

The Vizag gas leak attracted a suo motu case by the National Green Tribunal. After inspection, the NGT apply the ‘Polluter Pays Principle’ which is a much-applaud principle where those who cause the pollution

must bear the cost of maintaining and preventing the damage to life. But what is surprising is that the NGT apply strict liability while passing the interim order.

This allows LG Polymers India Private Limited to build a defense by showing that

there was no negligence on their part and escaping liability. By doing this the NGT has acted ultra vires under Section 17 of the National Green Tribunal Act, 2010 which

direct the NGT to apply the principle of no-fault even in cases of accident.

“Our civilization is being sacrifice for the opportunity of a very small number of people to continue making enormous amount of money” –

Greta Thunberg.

[1] Union Carbide Corporation vs Union Of India Etc, 1990 AIR 273, 1989 SCC (2) 540

[2] John Rylands and Jehu Horrocks v Thomas Fletcher,[1868] UKHL 1, (1868) LR 3 HL 330

[3] M C Mehta v. Union of India, 1987 SCR (1) 819

[4] K. Nagireddi V. Union Of India, AIR 1982 AP 119

[5] Charan Lal Sahu v. Union of India,AIR 1990 SC 1480