ABLOUTE LIABILITY

1. SYNOPSIS:
“AN ABSOLUTE LIABILITY IN INDIA WITH SPECIAL
REFERENCE TO INDUSTRIAL DAMAGES.”
Institute of Legal Studies
Session 2019-20 (Odd Sem.)

2. Submitted by:
ANSHUVENDRA MOHAN JAYASWAL
RESEARCH SCHOLAR
PHD in LAW
Roll No.201910301000005
Submitted to:
Dr. Rajesh Kumar Verma
Assistant Professor
Institute of Legal Studies

3. INTRODUCTION
• The rule of absolute liability is similar to the rule of strict liability with some
modification. This rule applies without any limitation or exception and creates
a individual completely liable for any fault. The property to make anyone
absolutely liable for the fault and imposition of high retraction make this
liability as absolute liability.
• The rule of Absolute liability was laid down by the Honourable Supreme Court
of India in the case of M.C. Mehta and anr. v. Union of India and ors. AIR 1987
SC 1086 and Bhopal Gas Leak case AIR 1992 SC 248, where the Hon'ble Apex
Court maximise the limit of rule of strict liability in Ryland v. Fletcher.
• Our Supreme Court found that in modern times of science and technology the
rule of Rylands v. Fletcher was not suitable. So it was replaced by the rule of
absolute liability. Principle of absolute liability was further extended in Indian
Council for Enviro-Legal Action v. Union of India, Vellore Citizens Welfare
Forum v. Union of India, Klaus Mittelbachert v. East India Hotels Ltd., the
Uphaar Cinema Case i.e., Association of Victims of Uphaar Tragedy v. Union
of India.

4. • Statutory compensation legislations like the National Green Tribunal Act,
2010, the Employees Compensation Act, 1923, the Public Liability Insurance
Act, 1991, The Civil Liability For Nuclear Damage Act, 2010, Disaster
Management Act, 2005, Employee's State Insurance Act, 1948, Factories Act,
1948, Health and Safety at Work Act, 1974, Protection of Human Rights Act,
1993 and the Railways Act, 1989 provide comprehensive rules regarding
victims’ compensation for matters that fall within the scope of each statute.
• Apart from constitutional protection against environmental hazards, number of
enactments were made by the Union Legislature like the Hazardous Waste
(Management and Handling) Rules, 1989, Manufacturing Storage and Import
of Hazardous Waste Chemical Rules, 1989, The Atomic Energy Act, 1962, The
National Environmental Tribunal Act, 1995, The Indian Forests Act, 1972, The
Insecticides Act, 1968, The Water (Prevention and Control of Pollution) Act,
1974, The Air (Prevention and Control of Pollution) Act, 1981, The Wild Life
(Protection) Act, 1972, The Forest (Conservation) Act, 1980 and even other
legislations.

5. • Industrial hazards are threats to people and life-support systems. When
these threats exceed human coping capabilities or the absorptive capacities
of environmental systems they give rise to industrial disasters. This usually
occurs in the form of explosions, fires, spills, leaks, or wastes. So there is a
need to implement and monitor, safety measures and protocols (PSM-
process safety management) in a collective way, to stop potential accidents.

6. STATEMENT OF PROBLEM
• Union Carbide’s pesticides plant in Bhopal, have stirred the Indian government
and judiciary into a fundamental reappraisal of the law affecting the
compensatory provisions relating to the victims and the public security
systems and have resulted in several judicial decisions and important
legislative measures and proposals.
• Scientific and industrial revolution is extremely beneficial to human society
but there is certain element of hazard or risk inherent in the very use of
science and technology and it is not possible to totally eliminate such hazards
or risk altogether. Such industries even if hazardous have to be set up since
they are essential for economic development and advancement of the well
being of the people.
• Modern industrial growth could not be reversed. Equally important is that the
profit makers must not go scot-free if the people suffer injuries resulting from
this industrialization. This tends one to re-evaluate the legal devices protecting
and compensating the injured persons. Hence, there is a need to study the
trends of law relating to victim’s compensation without going into the element
of fault.

7. • During past thirty years increasing attention has drawn to the phenomenal
growth of chemicals use both in volume and number, produced by the
industries. Some of these substances have been extremely beneficial to modern
society. Many of them are hazardous to human, animals, others living beings or
to the environments.
• Toxic or hazardous waste has become one of the most critical issues in the
health and safety of human beings in our time. It is believed that between 60%
to 90% of all human cancers are environmentally induced. The problem of
hazardous waste is directly proportionate to the production and use of
chemicals and chemical products and it has arisen because society has not been
able to devise ways and means of getting rid of it in a safe manner.
• The problem of industrial injuries has reached at alarming proportion. The rules
of strict liability and absolute liability are provided as the arms of the law to
fight against the vagrancy and destitution of the victims.

8. • One can notice that the type and significance of various theories of liability
varies with the type of society in which these are evolved. It is an era of
globalization and liberalization of the economies of under developed and
developing countries. The change in moral and socio-economic ideas have a
profound bearing on the legal order.
• Contradiction in judicial trends in the field of liability makes one inclined to
probe the efficacy of legal rules, their origin, development in different stages
and their form and contents. Hence it is worthwhile to probe into the trends
emerging in different forms of liability without fault.

9. AIMS OF THE STUDY
• To study the essentials of strict liability and analyze the necessity of
absolute liability in India.
• To evaluate the scope of the existing judicial decisions and legal frame
work embodying the notions of no-fault liability and to highlight its
intricacies.
• To conduct comparative study of some systems of compensation to the
victims based on the doctrine of no-fault liability with a view to examine
the possibility of a suitable model for India.
• To point out the infirmities, if any, in the present justice system for
compensation to the victims, causes of the failure of the system and
possibilities of the addition of new system for substitutive justice to the
victims.

10. • To find possibilities whether enactments provides for compensation on
base of nuisance, negligence, strict liability and trespass can be converted
to the principle of absolute liability.
• To study the constitutional provisions as well as other enactments relating
to protection and improvement of environment with special reference to
industrial hazards.
• To analyse the perspectives of Supreme Court of India on environmental
issues pertaining to industry and to examine the concept of absolute
liability in pollution cases and its incorporation in Indian legal system for
the protection of victims of environmental harm.
• Analyzing the need to immediately address, process safety management
violations contributing to industrial accidents in order to prevent accidents
in future.

11. HYPOTHESIS
• In modern times of Science and Technology the rule of Rylands v. Fletcher
was not suitable, so it was replaced by the rule of absolute liability.
• The measure of compensation payable, for the harm caused on account of
an accident, in the carrying on the hazardous or inherently dangerous
activity by the enterprise, should be within the capacity of the enterprise,
so that the same can have the deterrent effect.
• The provisions of our constitution laid the foundation stone for the
compensation laws in India, still the prevailing laws of compensation are
not adequate and fails to provide remedy to the aggrieved person.
• There is a need for a comprehensive legislation dealing with tortious
liability, as due to lack of legislation, the courts dealing with the cases of
tortious claims, are not following a uniform pattern, while deciding those
claims and this at times leads to undesirable consequences and arbitrary
fixation of compensation amount.
• Courts are reluctant towards, for not only providing adequate and just
compensation, but also not ensuring that such relief is granted at the
earliest.

12. • Most people are not even aware that they are entitled to receive
compensation. People lack knowledge of the right to compensation
because of illiteracy and poverty.
• For speedy disposal of grievance there should be an alternative dispute
resolution and ascertainment of liabilities and quantification of claims and
tribunals or authorities created as expert bodies for such purposes.
• There is a need to amend and consolidate the laws relating to social
security for the organized and unorganized sector’s workers, on the matter
relating to injuries, death, decease and health etc. and further merging of
PF, ESI, pensions and other social security benefits under single umbrella
code.
• There must be specific provisions for realisation of claims in case the
owner leaves the country or pleads insolvency or bankruptcy or any other
methods adopted to escape liability after ascertainment thereof.

13. • The pollution created on natural environment will surely affect the
fundamental right to life and further there is a liability for polluting
environment under strict and absolute liability by the court.
• There are many national and global laws for the protection of
environment and ecological development, but there is a lacuna in
implementation of laws.
• In the name of industrial development environment cannot be destroyed
and for the same a comprehensive legislation is required.
• There is an urgent need to implement and monitor safety measures and
protocols in a collective way, so as to stop potential industrial accidents.

14. RESEARCH QUESTIONS
• Analyse the long old principle of strict liability laid down in Ryland v. Fletcher
in year 1866 and its development in Indian perspective, how it was replaced
by absolute and non-delegable rule?
• To examine the changing patterns of protection systems and the factors which
either accelerated the decay of some and growth & expansion of others and
relevance of non-formal traditional systems of protection in modern times?
• Examining the need for a comprehensive legislation dealing with tortious
liability so as to follow a uniform pattern while deciding claims and fixation of
compensation amount?
• Why having being the legislature and the judiciary has provided so many
measures to award compensation, still the implementation is still lacking,
most people are continue to be silent sufferers?

15. • Is there is a need for formation of comprehensive policy for rehabilitation of
victims suffered due to hazardous activities including imposing penal
consequences on enterprises for not being cautious while engaging in
hazardous activities, which can result in meaningful application of the concept
of absolute liability?
• What are the constitutional protection and existing legal mechanism in India
against industrial hazards? Is the existing mechanism fool proof of ensuing
environment protection & improvement and protect the victims of the
environment harm?
• How the concept of the doctrine of absolute liability in pollution cases has
been developed and what role the judiciary has played in providing impetus of
the movement of environment protection? Is it only a cosmetic approach by
way of public interest litigation or is there any substance in it?
• Analyzing the need to immediately address process safety management
violations contributing to industrial accidents in order to prevent potential
accidents in future.

16. REVIEW OF THE LITERATURE
• Justice Holmes in “The Common Law” (1881) Harvard Law Review, p. 954, the
application of the principle of strict liability in tort law indicate that in cases
involving damages caused due to dangerous or hazardous activities, the emphasis
is generally on consequences rather than fault or negligence of the defendant.
• W.V.H Rogers, Winfield And Jolowicz Torts, 8th edition 2010 p. 248 discusses M.C.
Mehta case by analysing the need to modify the 19th century rule of Strict Liability
the apex court of India.
• Ratanlal & Dhirajlal : Law of Tort 26th edition p. 520, in absolute liability the
extent of damages depends on the magnitude and financial capability of the
institute.
• Administrative Law by P.P.Craig, 2nd Edition p.446, mentions it is true that
attempts to apply the principle of Rylands V. Fletcher against public bodies have
not on the whole succeeded mainly because of the idea that body which acts not
for its own profit but for the benefit of the community should not be liable.
• S.C. Srivastava, Social Security and Labour Laws (1985), p.9. discusses industrial
activities that causes harmful side-effects and occupational diseases. For example,
air-craft, petroleum, atomic energy, coal-mining and chemical industries use ionic -
radiations, which cause genetic damage.

17. • John Munkman, Damages for Personal Injuries and Death (1985), p.3, discusses
compensation and damages under different laws i.e. the Workmen's Compensation
Act, 1923, and in the Employees’ State Insurance Act, 1948.
• M.R. Mallick, Employees State Insurance Act (1984), p.7. discusses the influence of
the International Labour Organisation that made government accelerate steps for
ensuring security to industrial workers.
• Justice Ashok, A. Desai, Environmental Jurisprudence, 1997 Justice Ashok A. Desai
in his paper presented in the International Conference, 1994 at New Delhi, on the
topic Juris-environmental Prudence discusses the subject involves numerous topics
and he made an endeavour to trace, analyse and consolidate various facets, aspects,
trappings, development and events related to environmental jurisprudence.
• Justice Krishna Iyer, V.R., Environmental Pollution and the Law, 1984, presented the
wide range of topics on environmental quality. The book contains a wealth of legal
information regarding the most and developing subject “Environmental pollution”.
• Ms. Prarthana Trivedi, Major Industrial Disasters in India, ENVIS-NIOH Vol.9, No.4
Oct.-Dec.2014. mentions it is customary to view industrial disasters as "extreme
events" that are different mainly in degree from more mundane disruptions to which
industries and society have become adjusted.

18. RESEARCH METHODOLOGY
a) Doctrinal Approach: The major portion of the law of torts, including the
branch of liability remained un-codified and is spread over a long period
of history of common law. The doctrinal approach of the study includes
historical method, descriptive method, comparative and analytical
methods of probing, exploring and evaluating the subject matter.
b) Legal Material: In this study, legal digests, journals, text books on the
subject have been used extensively, statutes, case-law reports and
journals are scanned thoroughly. There is a vast literature relating to law
of liability in English common law but in India, due to lack of awareness
there are few cases on the subject of compensation to victims.

19. PROPOSED CHAPTERISATION
The researcher proposes to divide the research work in following seven
chapters:
Chapter I ‘Introduction’
Chapter II ‘Emergence of the concept of absolute liability in India’
Chapter III ‘Social security measures in India with special reference to
industrial damages’
Chapter IV ‘Environmental protection with reference to industrial hazards –
Legislative framework and Judicial perspective’
Chapter V ‘Major industrial disasters in India’
Chapter VI ‘Proposal of general principles for framing national policy on
absolute liability’
Chapter VII ‘Conclusions and Suggestions’

20. REFERENCES
Books:
• A Lakshminath M Sridhar, RAMASWAMY IYER‟S THE LAW OF TORTS, 10th edition, LexisNexis
Butterwood Wadhaw, Nagpur
• CLERK AND LINDSELL ON TORTS, 12th ed. 2010, Sweet and Maxwell, UK
• Ratanlal and Dhirajlal, THE LAW OF TORTS, 26th ed., LexisNexis Butterwood Wadhaw, Nagpur
• S.P.Singh, LAW OF TORT, 5th ed. 2010, Universal Law Publishers Co., New Delhi
• W.V.H Rogers, WINFIELD AND JOLOWICZ TORTS,8th ed. 2010, Sweet and Maxwell, UK
• "Strict and Absolute Liability (Discussion Paper) 2006". New South Wales Parliament.
• Law of Torts textbook by Dr. N.V. Paranjape (publisher- Central Law Agency).
• Law of Torts textbook by Dr. R.K. Bangia (publisher- Allahabad Law Agency).
• Anand, AS, Justice, Right of Victim
• Bakshi, P.M., The Constitution of India, 1991
• Charles O. Gregory, Trespass to Negligence to Absolute Liability
• Gupta, G.S., Compensation Claims, Asia Law House, Hyderabad,1987
• Iyer, Ramaswamy, The Law of Torts, N.M. Tripathi Private Ltd., Bombay, 1975
• Jain, M. P., Indian Constitutional Law (Lexis Nexis, 7th ed. 2014)
• Malik, P.L., Industrial Law, Eastern Book Company, Lucknow
• Pandey, J.N., Constitutional Law of India
• Singh, G.P., The Law of Torts

21. Journals:
• Mishra, Preeti: “Compensatory Justice Jurisprudence in India with special reference to Criminal
Law: An Evolution” (2014) I Dibrugarh University Law Journal 69-78
• Kaur, Inderpreet: “Plight of forgotten Men–Victim” (2012) LIX The Indian Police Journal, 43-52.
Bare acts:
• Constitution of India
• Statutes: Disaster Management Act, 2005, The Civil Liability For Nuclear Damage Act, 2010,
Employees State Insurance Act, 1948, The National Green Tribunal Act, 2010, Probation of
Offenders Act, 1958, Protection of Human Rights Act, 1993, Public Liability Insurance Act, 1991,
Railways Act, 1989, The Employees Compensation Act, 1923, Environment(Protection)Act, 1986
Websites:
• http://www.indiacode.nic.in
• http://www.prsindia.org
• http://www.jstor.org
• http://www.manupatrafast.in/
• http://www.lexuniverse.com/
• https://en.wikipedia.org/wiki/
Cases have been referred from SCC OnLine and Manupatra (Legal Databases).

22. THANK YOU