Comparison of Strict Liability in Common Law and in India

STRICT LIABILITY AT COMMON LAW

All common-law crimes require mens rea except those listed below. In other words, in following crimes liability is strict.


Public Nuisance:

The case usually cited is R. v. Stephens[1] but the case is really an authority on vicarious liability. A person may be vicariously liable on a criminal charge, a nuisance created by his agents or servants under his control even though he may not know of its existence and made him strictly liable. Section 268 of the Indian Penal Code defines public nuisance. However, it has been observed that under the Indian Law[2] a principal is not criminally answerable for the acts of his agent, more so in cases of public nuisance


Private libel:

Criminal libels may be directed against a private individual as well as against the public at large on account of their seditious, blasphemous or obscene nature. In a public libel, there must be mens rea but in private libel it is very clear that mens rea is not necessary[3] for common law. In the tort law a person is liable for defamation even though he did not know that what he published is applied to the plaintiffs[4]. Criminal prosecution would lie and is obviously one of Strict Liability. And under Indian law section 499 and section 500 dealt with defamation and its punishment respectively but it is not clearly given that whether the person is liable strictly or not for the offense done without mens rea where the same offence makes a person strictly liable in English law.


Obsense Publication :

A person is guilty whether or not he intends to corrupt or outrage public decency or is reckless as to whether he is corrupting or is outraging public decency


Contempt of Court:

Out of various forms of contempt of court if the publication of the matter is calculated to prejudice the fair trial of the proceedings pending in a court of law, it would fall within the sphere of criminal law and author is strictly liable without defence.


Abduction and Bigamy:

The decision in R v. Prince[5] and R v. Tolson [6]are considered to be one of the earliest and most important decisions on the exceptions to the application of the concept of Mens rea in the case of statutory crimes. Generally in statutory crimes mens rea is required for charging a person unless the statute explicitly exempts the requirement of mens rea.


Public Welfare Offences:

The principle of strict liability is more noticeable in what are now known as "Public Welfare" offences. These are offences dealing with the welfare of the public do not require a mental element.

The mostly offences, which impose strict liability are connected with the sale of food or drugs, or the offence of possession, or pollution, or offences connected with road traffic.


STRICT LIABILITY UNDER THE INDIAN LAW

Generally, on the question of mens rea, the Supreme Court has taken an attitude which conforms to the view taken by the English courts. By dealing with section & of the Essential Commodities Act, which makes it an offence to violate any order made under section 3 of the Essential Commodities Act, 1955, the court examined the question in Nathulal vs. State of Madhya Pradesh[7], where a factual non-compliance of the order by a dealer should amount to an offence even if there was no mens rea on his part. The court held that the object of the Act should not be defeated if we read it with mens rea ingredient of the offence, and it would be legitimate to make him liable if he intervenes intentionally.

The rule of strict liability is applied in India in many cases like motor vehicle accidents; environmental accidents etc., and make the offender strictly liable to the accident. In India, a broader perspective is also taken in MC Mehta wherein the rule of absolute liability came. In this rule the exceptions are not allowed because the rule of strict liability was more diluted by English courts by giving exceptions. So the common law still follows only the rule of strict liability whereas in India the rule of strict liability and the rule of absolute liability are followed.


NATIONAL ENVIRONMENT TRIBUNAL ACT, 1995

The National Environment Tribunal Act 1995 has translated the rule in MC Mehta[8] into legal provision. The law provides for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to victims.

Section 3 says that a claimant making a claim for compensation shall not be required to plead and establish that the death, injury or damage was due to any wrongful act, neglect or default of any person. Any claim arising out of or connected with hazardous substance and makes the offender strictly liable.

Along with this Act, the Public liability insurance Act,1991 provides for public liability- insurance for the purpose of providing immediate relief to the persons affected by accident occurring while handling any hazardous substance and for matters connected therewith or incidental thereto. The no-fault liability principle is applied to the offender.

The doctrine of strict liability had been followed by courts all over the world. In the due course of time it acquired the status of indigenous legal doctrine and was followed by legal fraternity of India. But our study shows a remarkable difference between the British and Indian trends of no-fault liability. Indian judiciary goes farther than British judiciary; by adopting the principle of no-fault liability. The Supreme Court of India was called upon to discuss the liability of the enterprises in serious accidental matters in famous case M.C. Mehta v. Union of India[9], the Supreme Court gave a path-breaking verdict and asserted that it was not bound to follow the nineteenth-century rule of English Law which makes the rule of strict liability rule with some exceptions.

So it propounded the principle of “absolute liability”. The Supreme Court explicitly pronounced that the rule of absolute liability was not subject to any exception. The court propounded that the enterprise who undertook the hazardous or inherently dangerous activity for its benefit must indemnify all those who suffer on account of the carrying on of such activity irrespective of whether it is carried on carefully or not. The Supreme Court said that if the rule of strict liability was followed in such circumstances then those who have set up hazardous and inherently dangerous industries in and around thickly populated areas could escape the liability by pleading exceptions attached to the rule of strict liability. The rule of strict liability is one form of liability under the rule of Absolute Liability.

The rule of strict liability is followed in Bhopal gas case[10]. In this case the offenders are charged under section 304-A which deals with criminal negligence. It says, “ Causing death by negligence- whosoever causes the death of any person by doing any rash or negligent act not amounting to murder to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with, or with both”. This section is of that nature when a crime has taken place and that too with no mens rea that is guilty mind then also the perpetrator is liable[11]. So in the Bhopal gas case the company is strictly liable.

But later the strict liability was modified to absolute liability, wherein the exceptions under strict are not allowed, in Oleum gas leak case[12] as already mentioned above. In absolute liability only those enterprises shall be held liable which are involved in hazardous or inherently dangerous activities, this implies that other industries not falling in the above ambit are covered under strict liable[13]. In addition to the rule of absolute liability rule, the strict rule of strict liability is still applied even there is no mens rea the offenders are made liable strictly for the actus rea done by any person.


BIBLIOGRAPHY

1. Anshumaan Bahadur, An analysis of Bhopal Gas Tragedy with Respect to “VICTIMOLOGY” and Criminal Negligence, Manupatra

2. Bharat parmar and Ayush goyal, Absolute liability: The rule of strict liability in Indian perspective, Manupatra

3. GENERAL PRINCIPLES OF CRIMINAL LAW (2d ed.). By Jerome Hall. Indianapolis, Ind.: Bobbs-Merrill. 1960. Pp. 642.

[1] R. v. Stephens, (1866) LR 1 QB702

[2] Bhiputi, 46 cal. 515.

[3] GENERAL PRINCIPLES OF CRIMINAL LAW (2d ed.). By Jerome Hall. Indianapolis, Ind.: Bobbs-Merrill. 1960. Pp. 642.

[4] Cassidy v. Daily Mirrors Newspaper, (1929) 2. K.B.331

[5] R v. Prince,(1875) LR2CCR 154.

[6] R v. Tolson , (1889)23 QBD 168.

[7] Nathulal vs. State of Madhya Pradesh, 1990 CriLJ 509

[8] MC Mehta Case1987 AIR 1086

[9] M.C. Mehta v. Union of India, 1987 AIR 1086

[10] Bhopal gas case, 1990 AIR 273

[11] Anshumaan Bahadur, An analysis of Bhopal Gas Tragedy with Respect to “VICTIMOLOGY” and Criminal Negligence, Manupatra

[12] 1987 AIR 1086

[13] Bharat parmar and Ayush goyal, Absolute liability: The rule of strict liability in Indian perspective, Manupatra


Submitted by,

Guna Sekhar Kalla (Year V) & Sravani Kurra (Year III),

B.A.LL.B.,

Damodaram Sanjivayya National Law University, Visakhapatnam.



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