« prev   random   next »


The principle of "absolute liability" in Indian law

By Patrick follow Patrick   2019 Jun 29, 11:30am 265 views   0 comments   watch   nsfw   quote   share    

A friend who is a former lawyer sent me this, about how the Indians, strangely enough, are far more advanced than we on this point.

The is the famous case where the Indian court established the principle of absolute liability for industrial accidents.

This should be the law in the United States, and it should, in my opinion, be applied heavily to Silicon Valley research, esp involving nano-tech, robotics, or biogenetic activity. But to many other industries, also, not to just pick them out . . .

From the Wikipedia article on absolute liability:

In India, absolute liability is a standard of tort liability which stipulates that

where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an
accident in the operation of such hazardous or inherently dangerous
activity resulting, for example, in escape of toxic gas, the
enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis-à-vis the
tortious principle of strict liability
under the rule
in Rylands v. Fletcher
Absolute liability

In other words, absolute liability is strict liability without any exception. This liability standard has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak Case). These exceptions include:-

Plaintiff’s own mistake
Plaintiff’s consent
Natural disasters
Third Party’s mistake
Part of a statutory duty

The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy, December, 1984 (Union Carbide Company vs. Union of India) to enforce greater amount of protection to the Public. The Doctrine of Absolute Liability was therefore evolved in Oleum Gas Leak Case and can be said to be a strong legal tool against rogue corporations that were negligent towards health risks for the public. This legal doctrine was much more powerful than the legal Doctrine of Strict Liability developed in the case of English tort law Rylands v Fletcher. This meant that the defaulter could be held liable for even third party errors when the public was at a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard the public.


Rather than copy into this email at length worshipful wording from the case, please start reading this link further down where the opinion of the court is rendered (in larger print)


I allow myself a couple of examples, however . . .

7.(i) 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 to ensure that if any harm results to anyone, 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.
7.(ii) 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 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. [844A-B]

also . . .

Thus it was in S,P. Gupta v. Union of India, [1981] Supp. SCC 87 that this Court held that "where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons." This Court also held in S.P. Gupta's case (supra) as also in the People's Union for Democratic Rights and Ors. v. Union of India, [1983] 1 SCR 456 and in Babdhua Mukti Morcha's case (supra) that procedure being merely a handmaiden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and therefore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would suffice to ignite the jurisdiction of this Court. We wholly endorse this statement of the law in regard to the broadening of locus standi and what-has come to be known as epistolary jurisdiction.

This is HARD DOWN shit and should be the law EVERYWHERE, which would quickly put an end to abuses by corporations.

THIS is the justice that courts should be all about, not the sucking of corporate dick we see in American courts
no comments found

about   best comments   contact   one year ago   suggestions