Coming down from ages, the landmark case of Rylands vs Fletcher that gave us the rule of strict liability, a case of no-fault liability in which the wrongdoer is punished irrespective of fault, has almost stood the test of time now. However, with evolution of the society and keeping in mind the highly industrialized society we live in today, strict liability with its exceptions was too liberal for the Indian Supreme Court to apply in yet another landmark case of Oleum gas leak in 1986 and it gave us a stricter version known as absolute liability.

However, the applicability of the principle which has archaic roots in contemporary times still puzzles the courts of India as to what the current position of law is, specially, given the fact that, including negligence in its ambit, these principles are more overlapping than being distinct.

Thus, in this backdrop, it becomes essential to judge and analyse the doctrine of absolute liability that this paper strives to achieve. This paper is divided into three different segments each one of which deals with a different aspect. The first part explains and analyses the concept of absolute liability and in the attempt, mentions about the development of the said rule from strict liability.

The second part goes on to explore the prevalent point of law and relevance of absolute liability and the extent to which it is recognized. Finally, the third part deals with the fact if absolute liability is "too" absolute in its pure meaning and if the resulting judgements from applying the same could also have been dealt by applying the rules of negligence.

Introduction
In the industrialized society we live in today, all the hazardous undertakings that exist need to necessarily maintain adequate safeguards and precautions for any misfortune that can occur in the future and in the occurrence of any such mishap, they are bound to compensate all those who are affected as part of social commitment. This is the underlying principle on which the concept of no-fault liability is based which is further branched into strict liability and absolute liability.

The former was laid down in the famous English case of Rylands vs Fletcher according to which preservation and escape of dangerous substances or non-natural use of land lead to liability on the part of the defendant. This rule, however, was meant for the primary level of industrial development during the 19th century and can't be said to be keeping pace with the developments of today.

Absolute liability is a more stringent form of strict liability which was recognized by Indian Supreme Court in the famous Oleum gas leak case. Remarking on the rule, Justice Bhagwati, one of the pioneers in Indian Jurisprudence said that any inherently dangerous industry which poses a potential threat to the community owes a non-delegable and absolute liability to the community so affected in the event of a disaster.

With changing demographics and ever increasing and complex industrial development with increasing GDP and India becoming a home to increasing multinational corporations (MNC's), strict liability can't be considered the only redressed principle and something extra is required for the protection of the environment and rights of the citizens affected which is provided by absolute liability.

This standard is additionally supportable on the ground that the hazardous undertaking has the potential to take guard against potential threat by being resourced with assets to provide for adequate security.

However, the law in India regarding absolute liability isn't as black and white as our jurisprudence makes it out to be as there are significant overlaps between no-fault liability and negligence. As the principles of tort law have progressed from the days of using the Doctrine of peril that punishes the non-culpable defendants to negligence and nuisance, in practicality, we are regressing back to the former.

As already set out by the American courts in many instances, simple rules of reasonable care and foreseeability of risk can be applied with the prima facie responsibility being fixed on the defendant but eventually allowing him to rebut the conclusions and show how all the precautions were undertaken to avert the disaster.

The Evolution Of Absolute Liability From Strict Liability

At the turn of the 19th century when practices of agriculture were being side-lined and the process of industrialization had just begun, there was a fear that apart from all the advancements it would bring, there will be ramifications, some being disastrous ones which led the English jurisprudence to give us the rule of strict liability in the famous case of Rylands vs Fletcher which dealt with the release of huge amounts of water from the defendants reservoir over to the plaintiff's mine, dealing thereby with the non-natural use of land.

The rule has its origins in the law of nuisance, but it differs in the sense that it doesn't deal with interference with property rather escape of something kept on the property. In the court of Exchequer chamber, Justice Blackburn gave the famous rule which essentially makes the defendant liable and punishes him, if at his own risk, a dangerous thing escapes from his land or he makes non-natural use of his land, and this punishment would only not be granted if it can be shown that the plaintiff was at fault or there was an act of God involved. Later, with the passage of time, there were other exceptions added like common benefit of the community and natural use of land.

Environmentalists have still shown discomfort with the above rule on several accounts. As a plain reading would suggest, the rule encompasses "anything" that can be brought on the land and the fact that mere probability of mischief to be caused on escape acts against the interests of the industries involved in the making of hazardous substances.

These aforesaid problems have led to universal criticism of the rule and as seen by the judgements given by the courts of America and Australia, there has been a manifest inclination to discover something in the facts that took the case out of the rule. There have been critics who have remarked that all the materials causing damage on losing control can be very well dealt with the negligence theory and there was never a need to create a new terminology like "strict liability."

In fact, the Indian Supreme court in the case of Indian Council for enviro-legal action vs Union of India endorsed the approach taken by the Australian jurisprudence which stated that it will see no-fault liability, essentially strict liability, as having taken recourse to the

ordinary rules of negligence in developing this rule. However, in direct confrontation with the above-mentioned stand, Indian jurisprudence on environment has taken a backseat from the premise that fault is essential to liability and has been readily applying the Fletcher rule until two major disasters, namely, Bhopal gas leak, 1984 and Oleum gas leak, 1986 took place and the latter compelled the Indian Supreme Court to evolve a new rule. The facts of the case pertained to the leakage of Oleum gas from Shriram Industries in Delhi.

Already lacking in a proper legal framework in deciding liability of the wrongdoer and paying compensation to victims, M.C. Mehta vs Union of India was the judgement in which the court denied the applicability of the rule to the facts and said that with India becoming a home to increasing multinational corporations (MNC's), strict liability can't be considered the only redressed principle and something extra is required for the protection of the environment and rights of the citizens affected which is provided by absolute liability.

Chief Justice P.N. Bhagwati, the then chief justice of India, laid down the rule of absolute liability which had mainly four essentials. The first requirement is the nature of the industry i.e., hazardous. Second rule states that injury to persons outside or inside the premise will lead to the invocation of the rule and escape is not important. The third essential is absence of any exceptions as provided in strict liability and fourthly, the quantum of damages to be paid will depend on the financial capability and magnitude of the industry.

Thus, environmentalists have been appreciating the rule which sends a strong message that industrial development cannot be allowed on the pretext of damage to environment and in the happening of the latter, strict measures must be taken. However, legally, this over-simplified approach only complicates the scenario of a developing country like India where instead of taking precedence, environment and development must go together.

The Recognition Of Absolute Liability In India

With the demographs of industrial development in our country soaring high, and with our geography and life becoming increasingly complex, it was considered essential by the Supreme court of India to evolve a stricter form of strict liability and from there we got the rule of absolute liability. However, creating a new concept is redundant in and of itself if it is not essentially recognized by the jurisprudence and it is the recognition of the rule that this section will attempt to achieve.

Doubts as to the validity of the rule were first discussed in the case of Charan Lal Sahu vs Union of India in which the then Chief Justice of India Deepak Mishra determined the correctness of the rule to the extent it was considered as an orbiter in the M.C. Mehta case, and he held that absolute liability was a mere orbiter and that's how was differentiated from the western countries.

The position taken above was however rejected by the court in the case of Indian Council for Environmental Legal Action vs Union of India the facts of which related to the discharge of toxic untreated water and sludge which had percolated deep within the soil rendering it unfit for cultivation. Relying on the principle of absolute liability and denying it to be a mere orbiter, the court created a new rule by "polluters pay" and asked the government to recover the cost of remedial measure from all the "rouge industries" involved in polluting the environment.

Not only the Supreme Court but the high court of Madhya Pradesh too endorsed and applied the rule where due to the negligence of the electricity board, a person died of electric shock due to faulty wires. Another case with similar facts is of Madhya Pradesh electricity board vs Shail Kumari in which a cyclist was trapped and electrocuted by a live wire which was diverted by a stranger on the road to misuse the energy.

The board tried to play on the stranger, however, the court ruled that the board has the statutory duty of supplying electricity and on defaulting, the onus lies on the board which is the primary supplier to compensate the sufferer. Irrespective of any recklessness on the part of the managing authorities, the liability lies on the, in this case, board to compensate the victims. The important conclusion here is that absolute liability has been applied and recognized in both the cases.

In yet another recent case of Mushtaq Ahmend vs State of Jammu Kashmir, the state was negligent and owing to an electric shock, the individual died and though the principle applied in this case was that of strict liability, compensation was paid according to the principle of absolute liability. Irrespective of any negligence on the part of the defendant, it is liable to compensate the victims for injury or death.

Thus, relying on the above-mentioned case laws, it can be said that absolute liability has not only been established but suiting the present conditions of the country, it has been recognized not as a mere orbiter but an established principle.

Relevance And Need For Absolute Liability

Negligence, Absolute liability, and the overlapping of torts

The applicability and correctness of the judgement in M.C. Mehta has rarely been reviewed or questioned by the jurisprudence resulting in the courts of law and tribunals across the country to be puzzled regarding the prevailing point of law and the practicality of using these principles in the modern times. This section of the paper argues that the rule of absolute liability and principles of negligence and even strict liability are more overlapping than being distinct and hence questions upon the relevance and need for the said rule.

In the modern times that we live in today and that give and want us to follow the mature and modern tort law principles that makes the defendant liable only when at fault, we are regressing back to the days of the Doctrine of peril when rules like negligence and nuisance hadn't matured enough for active usage. In fact, as already demonstrated by the American courts, there has been an increasing tendency to apply the rules of negligence to these cases where no fault liability is required.

There exists no reason why the requisites of negligence involving reasonable care and duty of care can't be applied to determine the outcomes in such cases. The prima facie responsibility should surely be fixed on the defendant, but the ultimate judgement should rely after determining whether all the appropriate care was taken.

To much surprise, the courts and statutes in India have taken the same route as America as prevalent in the Manufacture, Storage, and Import of Hazardous Chemical rules, 1989. These rules passed under the Environment Protection Act by the central government impose a no. of rules that are in line with the ordinary rules of negligence.

The rules require any occupier of any hazardous industry to identify all the potential hazards that can take place on the site and prevent such major accidents from taking place by limiting their possibility and giving them the necessary information and antidotes to ensure their safety which is in line with the measure of "foreseeability of risk" as provided in negligence.

Moreover, rule 7 requires the occupier to submit a detailed report to the concerned authorities at least three months before the commencement of the hazardous activity so in place and rule 8 requires further updating the report submitted if there is an increase or decrease in the quantity of the hazardous chemical that must be produced.

Rule 10 requires the occupier to further send a safety report to the concerned authorities at least ninety days before commencing that activity. Rules 13, 14 and 15 talk about preparing on-site, off-site emergency plans and informing the residents in the vicinity of the possible nature of the hazard that can take place.

Conclusion
Thus, we can see that the 'Absolute Liability' rule set forth in MC Mehta, which is hailed by environmentalists and lawyers as a game-changing decision, is neither in line with the development of tort law in common law countries, nor explicitly accepted by legislators when enacting statutes, nor crystal clear in the minds of judges to follow.

MC Mehta's judgement frequently appears to be driven by circumstances. The fact that India had experienced two major gas leak accidents in less than two years, both of which resulted in large-scale fatalities and damage, combined with the lack of tough environmental laws in India and the resulting failure to bring justice for the innocent victims of these two tragedies due to purely technical reasons each time, prompted Justice Bhagwati to write down the 'Absolute Liability' rule, ensuring that such disasters would not happen again.

While Justice Bhagwati's talent and contribution to Indian law are undeniable, this decision appeared to be an attempt at atonement for a highly liberal judge who couldn't help but watch wrongdoers evade the reach of the law in a developing country like India. The frustration of not being able to win total justice for the victims and claimants must have prompted the creation of such a harsh legal framework. Furthermore, judges have been hesitant to change such ostensibly pro-victim rulings, even when an opposing viewpoint resonates better with their legal sensibilities.

References:

• Divyam Agarwal, Conundrum of using absolute liability in the Indian Environmental Jurisprudence, https://deliverypdf.ssrn.com, (accessed on March 24, 2022).
• Jeremiah Smith, Tort and Absolute Liability: Suggested changes in classification, https://www.jstor.org/stable/1327776 , ( accessed on March 24, 2022).

Case List:

• Rylands v. Fletcher (1868) LR 3 HL 330
• M.C.Mehta v. Union of India, 1987 (1) SCC 395
• Indian Council for Enviro-legal action v. Union of India 1996 (3) SCC 212
• C.L.Sahu v. Union of India, AIR 1996 SC 1446
• Madhya Pradesh Electricity Board v. Shail Kumari, 2002 (2) SCC 162
• M.A. Khan v. State of Jammu and Kashmir and Ors., 2004 (3) JKJ 10

Written By: Soumya Shukla, Undergraduate in Law, RMLNLU