Introduction

Liability is basically the flip side of the rights accorded to citizens. The process of evolution

of liability was one that has always gone in tandem with the evolution of law and society.

Absolute liability in the simplest terms can be defined as strict liability without exceptions. It

is totally independent of wrongful intent or negligence. It has become a highly recognised

principle in India ever since the Bhopal gas leak tragedy. The burden of proof in the case of

absolute liability rests solely on the defendant.

Although the terms absolute liability and strict liability was used synonymously in England,

the judgement of Ryland’s v Fletcher distinguished it. The case carved out some exceptions

which made absolute liability no more absolute or in the words of Sir Frederick Pollock

“become slowly but surely choked and crippled with exceptions”.

The need for absolute liability was felt in India essentially due to the rapid industrialisation

and economic development of the society and the dire need to bring into light those who used

the exception route to evade liability.

Historical Development of the Principle

In India, the rule followed on strict liability was the one laid down in Ryland v. Fletcher. In

this case, the rule laid down was that if a person employs non-natural use of land, then he is

strictly liable for the damage caused by any escape of matter from that land.

It says that if a person who brings on to his land and collects and keeps there anything likely

to do harm and such thing escapes and does damage to another, he is liable to compensate for

the damage caused. Of course, this rule applies only to non-natural user of the land and it

does not apply to things naturally on the land or where the escape is due to an act of God and

an act of a stranger or the default of the person injured or where the thing which escapes is

present by the consent of the person injured or in certain cases where there is statutory

authority.

But soon the principle of strict liability lost its sharpness and utility. The Hon’ble Supreme

Court felt that the English doctrine of Strict Liability adopted by the House of Lords in

Rayland v. Fletcher would not suffice the changing need of the liability principle in India. So

the Supreme Court felt the need of adopting the principle of Absolute Liability or else the

Court of law would fail to provide justice to the victims of these large scale environmental

disasters. Absolute liability was applied in India for the first time in the case of M.C. Mehta v

Union of India.1

M.C. Mehta v Union of India.

The petitioners, in this writ petition under Art. 32, sought a direction for closure of the

various units of Shriram Foods & Fertilizers Industries on the ground that they were

hazardous to the community. During the pendency of the petition, there was escape of oleum

gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi

Bar Association filed applications for award of compensation to the persons who had suffered

harm on account of escape of oleum gas.

In this case,the Supreme Court of India said that law has to grow in order to satisfy the needs

of the fast changing society and keep abreast with the economic developments taking place in

the country. Law cannot afford to remain static.

The Court cannot allow judicial thinking to be constricted by reference to the law as it

prevails in England or in any other foreign country. It also said that, it has to build up its own

jurisprudence, evolve new principles and lay down new norms which would adequately deal

with the new problems which arise in a highly industrialized economy. Also the Court should

not hesitate to evolve such principles of liability merely because it has not been so done in

England.

An enterprise which is engaged in a 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 non-delegable duty to the community.

The enterprise must be held to be under an obligation to provide that the hazardous or

inherently dangerous activity must be conducted with the highest standards of safety and if

any harm results on account of such activity the enterprise must be absolutely liable to

compensate for such harm irrespective of the fact that the enterprise had taken all reasonable

care and that the harm occurred without any negligence on its part.

If the 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

1 1988 AIR 1115, 1988 SCR (2) 530

the cost of any accident arising on account of such activity as an appropriate item of its

overheads. The enterprise alone has the resource to discover and guard against hazards or

dangers and to provide warning against potential hazards.

The measure of compensation in such kind of cases must be co-related to the magnitude and

capacity of the enterprise because such compensation must have a deterrent effect. The larger

and more prosperous the enterprise, the greater must be the amount of compensation payable

by it for the harm caused on account of an accident in carrying on of the hazardous or

inherently dangerous activity by the enterprise.

Some other relevant cases

In the Union of India vs Prabhakaran2, the Supreme Court extended its cover even to public

utilities like the railways, electricity distribution companies, public corporations and local

bodies “which may be social utility undertakings not working for private profit”.

In this case a woman fell on a railway track and was fatally run over. Her husband demanded

compensation. The railways argued that she was negligent as she tried to board a moving

train. The Supreme Court rejected this contention and said that her “contributory negligence”

should not be considered in such untoward incidents. The court ruled that the railways has

“strict liability”.

MPSEB v Shail Kumari3 is another similar case. Here an electric wire had snapped and fallen

on the road. On a rainy night, a cyclist came in contact with it. He died on the spot. His

widow demanded damages from the electricity authorities.

The board argued that the wire belonged to a pilferer and that it was not negligent. Rejecting

this contention, the Supreme Court said: “It is no defence on the part of the board that

somebody committed mischief by siphoning off energy to his private property and the

electrocution was from such diverted line… Authorities manning such dangerous

commodities have extra duty to chalk out measures to prevent such mishaps.” The basis of

the liability is the “foreseeable risk inherent in the very nature of such activity”.

2 [2008] INSC 802 (5 May 2008)

3 2002 ACJ 424, AIR 2002 MP 86

Legislations implementing absolute liability

Though the principle of absolute liability was established by the Supreme Court, the

contributions then on made by legislature are inevitable.

The Public Liability Insurance Act was enacted in 1991 to particularly provide for a scheme

of insurance where an activity involving hazardous substances or processes is carried on. It

imposes no fault liability on the owner to give relief in case of death or injury to any person

or damage to any property, resulting from an accident occuring while handling any hazardous

substance.

Compulsory Insurance requires owner to take out one or more insurance policies, before

starting the handling of hazardous substance. Such insurance policy should provide for

contract of insurance, whereby he is insured against liability to give relief under Section 3(1)

of the Act.

The amount of insurance policy should not be less than the amount of paid up capital of the

undertaking handling any hazardous substance and more than the amount, not exceeding

rupees Fifty Crore, as may be prescribed.

By an amendment in 1992 that provided for a ceiling on the amounts that an insurance

company would have to pay, a provision was created for the setting up of an Environmental

Relief Fund. The National Environmental Tribunal Act of 1995 has a schedule details the

expected losses and heads of damages following an accident involving hazardous substances

or processes.

The National Green Tribunal Act, 2010 intend to provide for the establishment of a National

Green Tribunal for the effective and expeditious disposal of cases relating to environmental

protection and conservation of forests and other natural resources including enforcement of

any legal right relating to environment and giving relief and compensation for damages to

persons and property and for matters connected therewith or incidental thereto.

There is indeed a category of offences termed as absolute offences. It is recognized by the

courts. The Supreme Court is of the view that absolute offences are not criminal offences but

are acts which are prohibited in the interest of welfare of public. This prohibition is backed

by sanction of penalty. An example of absolute offence is the breach of prescription under the

Factories Act 1948.

Conclusion

Absolute liability is in all ways more rigid than strict liability. In R. v. City of Sault Ste-

Marie, the Supreme Court of Canada defined an absolute liability offence as an offence

"where it is not open to the accused to exculpate himself

by showing that he was free of fault."