STRICT LIABILITY AND

ITS MISAPPLICATIONS IN INDIA

Aditya Swarup*

The article critically analyses the development of the principle of ‘strict

liability’ laid down in Rylands v Fletcher, and the manner in which it
has been applied by the Indian Supreme Court. The author argues that
common law and Indian courts have read in various exceptions to the
principle, thereby diluting it to its bare bones. Critiquing the carve-out
of the principle in MC Mehta v Union of India, the author argues that the
Supreme Court’s misinterpretation in recent jurisprudence has made the
application of the principle inconsistent with its intended contours and
limitations. The paper questions the conflation of ‘strict liability’ with
negligence and the trends that have obscured the answer to pertinent
questions regarding strict liability’s application in India. In concluding
that strict liability in its current form is no longer applicable in India
due to such convoluted jurisprudence, the author suggests construing
the rule of negligence and absolute liability in a manner so as to absorb
strict liability, similar to the approach prescribed by the High Court of
Australia in the Burnie case.

i. introduCtion
In late 2015, the Incorporated Council of Law Reporting for England and Wales
(ICLR) conducted a survey to identify the fifteen most important common law cases of
the last 150 years. Notable among the final list of cases was the presence of Rylands v
Fletcher,1 the landmark case on the tort of strict liability. In this regard, Lord Neuberger,
in an extra-judicial speech commented that despite the decision being ‘very well known

* MPhil, BCL (Oxon); B.A., LL.B. (Hons.) (NALSAR). The author is currently an independent
lawyer, practising as a counsel in Delhi. The author would like to thank Prof. Shaun Star,
Assistant Professor, O.P. Jindal Global University, Ms. Yuhina Sangha, student, O.P. Jindal
Global University, Ms. Tanaya Rajwade, Policy Officer, Centre for Internet and Society and
Ms. Tansi Fotedar, student, National Law University, Delhi, for their valuable comments and
assistance.
1 Rylands v Fletcher (1868) L.R. 3 HL 330.
2019 Strict Liability and its Misapplications in India 75

to law students and practitioners alike’,2 its significance has been ‘fading’.3 In 2003, the
House of Lords, while rejecting the submission that the rule was obsolete, held that the rule
of strict liability as developed in Rylands v Fletcher still has a part, howsoever small, in
English law.4 At the same time, the High Court of Australia has stated that the rule of strict
liability no longer exists as an independent head of liability but should instead be regarded
as ‘absorbed by the principles of ordinary negligence’.5

It is then interesting to note that the Supreme Court of India, in the 2016 case of
Vohra Sadikabhai v State of Gujarat,6 applied the principle in Rylands v Fletcher to hold
the respondent liable for damage caused to the property of the appellants by releasing
water from the dam maintained by it when the water level became alarmingly high due to
heavy rains. While there has been no other case in England7 since the Second World War
that has applied this principle and passed a judgment in favour of the plaintiff, numerous
cases have applied it and passed judgment for the plaintiff in India during this time.8 In
the circumstances, it is only apt to analyse the reasons for the existence of this rule and
the manner in which the Supreme Court has applied it. At the outset, it is respectfully
submitted that while Sadikabhai Vohra presented the perfect opportunity for the Court to
examine the present day significance of the principle of strict liability, the Hon’ble Court
applied the principle in a rather convoluted manner – leading to serious apprehensions
about the current position of the law in India.

ii. a taxonomy of the tort of negligenCe in india

The classic exposition of the tort of negligence is stated by Lord Atkin in Donoghue
v Stevenson9 wherein his Lordship held that one must take reasonable care to avoid acts
or omissions which one can reasonably foresee would be likely to injure their neighbour.
Thus, where the law recognises a duty of care and the defendant has breached such duty,
the defendant shall be liable for any foreseeable damage caused as a result of breach of
such duty.10

2 Lord Neuberger, ‘Reflections on the ICLR Top Fifteen Cases: A talk to commemorate the
ICLR’s 150th Anniversary’ (6 October, 2015) <www.supremecourt.uk/docs/speech-151006.
pdf> accessed 20 June 2019.
3 ibid.
4 Transco v Stockport MBC (2003) UKHL 61.
5 Burnie Port Authority v General Jones Pty Ltd (1994) 120 ALR 42.
6 Vohra Sadikabhai v State of Gujarat 2016 SCC 521 (SC).
7 Transco (n 4) [39].
8 Union of India v Prabhakar Vijaya Kumar (2008) 9 SCC 527; Delhi Jal Board v Raj Kumar ILR
(2005) II Del 778; Nagrik Sangarsh Samiti v Union of India ILR (2010) IV Del 293; Alamelu v
State of Tamil Nadu (2012) 2 CTC 644; Indian Council for Enviro Legal Action v Union of India
(1996) 3 SCC 212 (Bichhri case).
9 Donoghue v Stevenson [1932] AC 562.
10 See Anthony M Dugdale and others (eds), Clerk and Lindsell on Torts (19th edn, Sweet and
Maxwell 2006) 8.04. See also Poonam Verma v Ashwin Patel (1996) 4 SCC 332; Nazir Abbas v
76 NLUD Journal of Legal Studies Vol. 1

At the same time, one of the hallmarks of the law of torts is that it provides a remedy
wherever this is a violation of a legal right or legal injury. The Indian courts, too, have
recognised that it would be primitive to ‘class strictly’ and ‘close finally’ the ever expanding
and growing horizon of tortious liability.11 In this background, one of the problems that
arose with the law of negligence was that it did not address a situation where a person used
his land for dangerous purposes (or non-natural purposes) or brought on his land anything
likely to do mischief and such thing escaped and caused injury to another despite such
person taking precautions. The fact that the person was using the land for a dangerous
purpose placed a higher burden of care and the law of torts recognised the principle of strict
liability to redress this legal injury.

In Rylands v Fletcher,12 the defendant built a reservoir on his land and the shafts
holding the water burst, leading to flooding of the plaintiff’s coal mine. The plaintiff
initially alleged negligence and on the finding that the defendant had exercised reasonable
care, alleged that despite, and even if there was no negligence, the defendant was liable.
Blackburn J, speaking for the Exchequer Chamber, held the defendant nevertheless liable
on the following principle:

We think that the true rule of law is, that the person who for his own
purposes brings on his lands and collects and keeps there anything likely
to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural
consequence of its escape.

The House of Lords,13 while approving this legal principle, restricted the rule to
circumstances where the defendant had made ‘a non-natural use’ of the land and the
damage was not a result of an act of God.14 Any use of land would not be deemed non-
natural if it were permitted under statute.15 Thereafter, the House of Lords held that while
the rule applies to an unforeseeable escape, the defendant would not be liable unless the
damage caused was reasonably foreseeable.16

It is submitted that over time, the exceptions to the principle of strict

liability have been enlarged to such an extent that the rule is barely
applicable in the present day. For instance, with respect to the requirement
of a non-natural use, the Privy Council in Rickards v Lothian17 held

Raja Ajam Shah ILR (1947) Nag 555; Zankarsingh v State AIR 1957 MP 78.
11 Jay Laxmi Salt Works (P) Ltd v State of Gujarat (1994) 4 SCC 1.
12 Rylands (n 1) 279.
13 Rylands (n 1).
14 ibid 339, 340.
15 Hammersmith and City Railway Co v Brand LR 4 HL 171, 196.
16 Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264.
17 Rickards v Lothian [1913] AC 263 (PC).
2019 Strict Liability and its Misapplications in India 77

that ‘[i]t is not every use to which land is put that brings into play this
principle. It must be some special use bringing with it increased danger
to others, and must not be merely the ordinary use of the land or such a
use as is proper for the general benefit of the community’.

Given that most non-natural uses of land are for the benefit of the community or have
some statutory backing, there are very few situations where the strict liability principle
will be applicable. The same is true even for Indian law. In State of Punjab v Modern
Cultivators,18 the damage was caused to the plaintiffs by the overflowing of water from
a breach in the canal belonging to the defendant state government. Hidayatullah J, while
noting that this was one of the first cases of its kind in India, held that the strict liability
rule in Rylands v Fletcher was inapplicable as ‘canal systems were essential to the life
of the nation and land that is used as canals is subjected to an ordinary use and not to an
unnatural use…’.19 The Court, however, finally held that the defendant was liable because
the Government had been negligent in exercising due care in maintaining the canals. In
Modern Cultivators, the Court did not rule out the existence of strict liability in Indian law
but only enlarged the exceptions to the application of the principle.

On the other hand, the High Court of Australia recognised that the rule in Rylands
v Fletcher no longer existed as an independent head of liability in Australia but should
instead be regarded ‘as absorbed by the principles of ordinary negligence’.20 Accordingly,
the High Court held that the defendants, who had employed independent contractors to use
highly inflammable material, were negligent in not taking due care to guard against fire and
hence were liable for damage caused to the plaintiff as a result of the fire.

However, in Modern Cultivators, the Supreme Court did not go so far as to do away
with the principle of strict liability. At the same time, until 1994, the courts assumed that
the principle of strict liability laid down in Rylands v Fletcher was ‘modified’ by the
Supreme Court in Modern Cultivators.21 In Jay Laxmi Salt Works v State of Gujarat,22 the
High Court proceeded on a similar assumption and the Supreme Court finally held that the
ratio in Rylands v Fletcher had not been modified by the Indian Supreme Court in Modern
Cultivators. Rather, the Court had preferred to rely on the principle of ‘fault liability’ as
developed by the American Courts. Fault liability, in essence is liability arising out of
negligence – similar to that recognised by the High Court of Australia. However, in Jay
Laxmi Salt Works, the Court said that the difference between strict and fault liability arises
‘from the presence and absence of mental element’ and that a ‘breach of legal duty wilfully,
or deliberately or even maliciously is negligence emanating from fault liability’.23 With

18 State of Punjab v Modern Cultivators AIR 1965 SC 17.

19 ibid [16].
20 Burnie (n 5).
21 Modern Cultivators (n 18).
22 Jay Laxmi (n 11).
23 ibid [8].
78 NLUD Journal of Legal Studies Vol. 1

respect, it is submitted that the understanding of fault liability by the Court in Jay Laxmi
Salt Works is misplaced. One may not have wilfully, deliberately or maliciously breached
their duty but never the less have not taken the requisite duty of care to prevent a thing from
escaping or causing mischief. An intention to cause damage (by malice, or deliberately or
wilfully) has never been a prerequisite to prove liability for negligence24 and the ruling by
the Court stating otherwise is incorrect.

Despite the skewed understanding of fault liability by the Supreme Court, it is

submitted that the decisions of the Court in Modern Cultivators and Jay Laxmi Salt Works
are significant because they recognised liability arising out of negligence and, at the same
time and like the House of Lords in Transco, did not rule out the existence of the strict
liability rule in Indian law.

The implications of the Transco and Burnie Port Authority cases have been considered
by several commentators. The Transco case has been criticised for linking strict liability
with the notion of fault through the foreseeability requirement,25 for being the consequence
of misguided intentions,26 and can be viewed as a consequence of the narrowing gap
between doctrine of strict liability and negligence.27 On the other hand, the Burnie case has
been viewed as ‘replacing one set of uncertainties with another’28 and shifting the burden
onto the victim by requiring proof of fault.29 Although both approaches may have had
similar consequences,30 they have given rise to two conflicting interpretations of Rylands v
Fletcher and its place in modern tort law.

At this juncture, it would be pertinent to note that in the Enviro Legal case,31 the
Supreme Court considered the applicability of Burnie Port Authority to the situation at
hand. Acknowledging the divergence between English law and Australian law, the Court
chose to adopt the principle laid down in MC Mehta v Union of India.32 Despite this, the

24 Clerk and Lindsell on Torts (n 10) 8.02. See also A Lakshminath and M Sridhar (eds),
Ramaswamy Iyer’s The Law of Torts (10th edn, Lexis Nexis 2007) 669-671.
25 Margaret Fordham, ‘The Demise of The Rule In Rylands v Fletcher?’ (1995) Singapore Journal
of Legal Studies 1, 26.
26 Margaret Fordham, ‘Surviving against the odds – The rule in Rylands v Fletcher Lives on:
Transco Plc. v. Stockport Metropolitan Borough Council’ (2004) Singapore Journal of Legal
Studies 241, 247.
27 GHL Fridman, ‘The Rise and Fall of Rylands v Fletcher’ (1956) 34(7) Canadian Bar Review
810.
28 Sheila Dziobon and Richard Mullender, ‘Formalism Forever Thwarted: Rylands v. Fletcher in
Australia’ (1995) 54(1) The Cambridge Law Journal 23, 25.
29 John Murphy, ‘The Merits of Rylands v Fletcher’ (2004) 24(4) Oxford Journal of Legal Studies
643, 666.
30 Kumaralingam Amirthalingam, ‘Strict Liability Restricted: A Critical Commentary on Burnie
Port Authority v General Jones Pty Ltd’ (1994) 13(2) University of Tasmania Law Review 416.
31 Bichhri case (n 8) 244.
32 (1987) 1 SCC 395 (M C Mehta).
2019 Strict Liability and its Misapplications in India 79

strict liability construct continues to be applicable in India till date.33 Subsequent decisions
have interpreted the MC Mehta judgement as ‘not foreclose[ing] the application of the rule
as a legal proposition.34 The relationship of strict liability with the principle of absolute
liability is contentious and shall be addressed in the next section.

A third head of liability emerged from the occurrence of two tragic incidents in the
1980s; the Bhopal gas disaster and oleum gas leak in Delhi. In M C Mehta v Union of India,35
the escape of poisonous oleum gas from one of the units of Shriram Foods and Fertilizer
Industries Ltd. (“Shriram”) resulted in the death of one person and injury to others. The
incident occurred while the Supreme Court was hearing a matter relating to the closure of
various units of Shriram on the ground of they were hazardous to the community and the
Supreme Court was also requested to consider awarding compensation for the injured. The
Constitution Bench of the Supreme Court was constrained and could not directly apply the
principle of strict liability for four reasons. First, the Bench, while considering the grant of
compensation under Article 32 of the Constitution had to first determine whether Shriram
could be considered a ‘State’ under Article 12. The Bench held that given that Shriram
was producing fertilisers (for a public benefit) and was working within the framework
of various statutes, it was a ‘State’ under Article 12 of the Constitution. Consequently,
however, it could not have applied the principle of strict liability as acts for the benefit of
the community and undertaken under statute were excepted from the principle. Second, the
rule in Rylands v Fletcher did not envisage liability or compensation for harm caused to
persons or property within the premises because the rule requires ‘escape’ of a thing. Third,
the principle of strict liability only recognised damage caused to property as a result of the
escape or mischief and not damage caused to persons.36 Lastly, just before the oleum gas
leak in Delhi, one of the worst industrial disasters in the world occurred in Bhopal, where
an explosion at the Union Carbide pesticide plant occurred and the highly toxic methyl
isocyanite gas escaped, leading to the immediate death of over 2,500 people and injury to
at least 500,000 others.

The last reason mentioned in the above paragraph is particularly important. On the
night of 2 December, 1984, a leak of methyl isocyanate gas and other chemicals from the
Union Carbide India Ltd. (“Union Carbide”) plant at Bhopal resulted, as stated above,
in the immediate death over 2,500 people and injury to at least 500,000 others. Union
Carbide was a subsidiary of the Union Carbide Corporation (“UCC”), an American
Company and the Indian government controlled banks and the public held around 49% of
the shares in Union Carbide. Like in the case of Shriram, it could have also been argued

33 M P Electricity Board v Shail Kumari and Ors (2002) 2 SCC 162; Charan Lal Sahu v Union
of India AIR 1990 SC 1480; Gujarat SRTC v Ramanbhai Prabhatbhai (1987) 3 SCC 234;
Kaushnuma Begum v New India Assurance Co Ltd (2001) 2 SCC 9.
34 Kaushnuma Begum (n 33).
35 M C Mehta (n 32).
36 Read v J Lyons and Co Ltd [1947] AC 156.
80 NLUD Journal of Legal Studies Vol. 1

that the manufacture of pesticides constituted a public benefit. Hence, similar to the reasons
applicable in the case of Shriram, it could have been argued that if Union Carbide had not
been negligent, it would also not be possible to apply the principle of strict liability because
of the exceptions to the rule.

What followed was a situation where the Supreme Court, set out the law not only
to decide the lis before it, that is the Shriram case, but also to render it applicable to the
Bhopal gas disaster. Further, in view of the declaratory nature of precedents, the principle
would be applicable to Union Carbide even though it wasn’t law at the time of the disaster.
The Constitution Bench of the Supreme Court held:

… We would therefore hold 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.37

Thus, the Supreme Court developed a new principle of liability to deal with an unusual
situation which had arisen and was likely arise in future instances, and in which the
perpetrators could not be held liable on account of the principle of strict liability.38 The
development of this doctrine and similar exercises in ‘reactive policy-making’ have been
criticised, as value judgements on ‘insurance and risk allocation based on perceived notions
of social welfare’ are best left to the legislature.39 None of the exceptions to the principle
of strict liability are applicable to absolute liability. The question then arises whether the
principle of strict liability has been subsumed by the absolute liability in India.

iii. relevanCe of striCt liaBility in india

While the Australian and English courts have deliberated on whether the principle
of strict liability is relevant or could be considered absorbed by the tort of negligence, in
India, the deliberation has also involved the question of whether the principle has now
been incorporated as part of absolute liability. In the Bichhri case,40 the Supreme Court
proceeded to examine why ‘the rule of strict liability is inappropriate or unacceptable in
India’ – hence assuming that it is inappropriate or unacceptable. Similarly, Courts have

37 M C Mehta (n 32) [31].

38 ibid.
39 Kumaralingam Amirthalingam, ‘Rylands Lives’ (2004) 63(2) The Cambridge Law Journal 273
- 276.
40 Bichhri case (n 8) 244.
2019 Strict Liability and its Misapplications in India 81

often applied the principle of ‘strict and absolute liability’,41 thereby reading the two kinds
of liabilities together. This apparent conflation of the two concepts appears to be based
on misinterpretation of Indian and English case law on strict liability- the Bichhri case
explicitly treated absolute liability as a separate construct42 and Read v Lyons clarified that
the doctrine of strict liability would not be applicable to ultra-hazardous activities.43

It is submitted that despite the recognition of the principle of absolute liability in India
to suit the ‘needs of the present day economy and structure’,44 the principle of strict liability
as developed in Rylands v Fletcher is still relevant in India. This is primarily because
the application of the principle of absolute liability is predicated on the enterprise45 being
engaged in ‘a hazardous or inherently dangerous industry’ which poses a potential threat to
the health and safety of persons working or residing in surrounding areas.46 However, the
principle of strict liability is applicable where a person brings and keeps ‘anything’ that is
likely to do mischief when it escapes.47 Further, such thing must be a non-natural use of the
land. Thus, there may be situations where a person uses his property for a non-natural use
which is not ‘hazardous or inherently dangerous’, for instance, building a bund or small
dam on the property.

This has been correctly recognised by the Courts in India. In Union of India v
Prabhakaran Vijaya Kumar,48 the Supreme Court stated that the rule in Rylands v Fletcher
had been subsequently interpreted to cover a variety of things likely to do mischief on
escape, irrespective of whether they were dangerous per se. The Court gave examples such
as water, electricity, colliery spoils and flagpoles. Further, though I submit the principle
has been misapplied, the courts have applied strict liability to compensate deaths from
electrocution by live wires,49 plaintiffs falling down manholes50 and even those injured by
motor vehicle accidents.51

In Kaushnama Begum v New India Assurance,52 the Supreme Court, interpreting M C

41 M C Mehta (n 32); Jaipur Golden Gas Victims Association v Union of India (2009) 164 DLT
346; Association of Victims of Uphaar Tragedy v Union of India (2003) 104 DLT 234; Research
Foundation for Science v Union of India (2005) 13 SCC 186.
42 Bichhri case (n 8).
43 Read v Lyons (n 36).
44 M C Mehta (n 32).
45 The MC Mehta case did not mention whether the principle would be applicable to individuals
but it is most likely that it is.
46 See MC Mehta (n 32) [31].
47 See Rylands v Fletcher (n 1).
48 Union of India v Prabhakaran Vijaya Kumar (n 8) [27]; See also Delhi Jal Board v Raj Kumar
(n 8); Jaipur Golden Gas Victims Association v Union of India (n 41).
49 Alamelu v State of Tamil Nadu (n 8).
50 Delhi Jal Board v Raj Kumar (n 8).
51 Kaushnuma Begum (n 33); See also Gujarat SRTC (n 33).
52 Kaushnuma Begum (n 33).
82 NLUD Journal of Legal Studies Vol. 1

Mehta’s case held that the Constitution Bench in that case did not ‘disapprove the rule’ of
strict liability and nor did it ‘foreclose the application of the rule as a legal proposition’.53 In
Rajkot Municipal Corporation v Manjulben Jayantilal,54 the Supreme Court acknowledged
that the liability may be strict or absolute.55 More recently, in MV Kew Bridge v Finolex
Industries,56 the plaintiff contended that as a result of the defendant’s vessel carrying LPG
being grounded near the plaintiff’s jetty, it had suffered economic loss as other ships could
not dock on the jetty (although no physical damage had occurred as the LPG had not
escaped). In a motion by the defendant challenging the maintainability of the action on the
basis that liability for negligence on the basis of only an economic loss is not allowed, the
plaintiff argued that the principle of Rylands v Fletcher had been ‘disregarded/distinguished’
by the Supreme Court and that the defendant was liable on the basis of absolute liability.
The Bombay High Court, it is submitted, rightly disregarded the arguments of the plaintiff
and held that the strict liability principle is still applicable in India.57 Further, on the motion
of the defendant, it held that given that there was no ‘escape’ of the LPG gas, the defendant
will not be strictly liable.

Thus, the Courts in India have, despite some judgments to the contrary, continued to
recognise the strict liability rule and apply it to certain circumstances. However, at the
same time, it is respectfully submitted that the rule is being misinterpreted and misapplied
in recent times, leading to confusion about the manner in which the rule is to be applied.

iv. misaPPliCations of the striCt liaBility rule

In Kaushnama Begum v New India Assurance,58 the front tyre of a jeep burst as a
result of which the jeep capsized and hit a person who succumbed to the injuries. The
Motor Accidents Claims Tribunal dismissed the claims before it on the finding that there
was no rashness or negligence.59 The appellant however argued that the respondent is
strictly liable and the Court rightly stated that the question of liability rests upon how far
the rule in Rylands v Fletcher can apply to motor accident cases.60 It is also pertinent to
mention that the appellant did not contend or claim compensation under Motor Vehicles
Act 1988, s 140 that provided for ‘no fault’ liability, since it provided for a fixed amount
of compensation but argued strict liability dehors the provisions of the Motor Vehicles Act
1988. The Hon’ble Supreme Court cited an earlier judgment in Gujarat SRTC v Ramanbhai

53 ibid [16].
54 Rajkot Municipal Corporation v. Manjulben Jayantilal (1997) 9 SCC 552.
55 The Court, however, also used the words ‘special liability’ which could be coterminous with
absolute liability.
56 MV Kew Bridge v Finolex Industries (2014) 7 Bom CR 261.
57 The Court cited Kaushnama Begum’s case in support of its decision.
58 Kaushnuma Begum (n 33).
59 It seems that no policy of third party insurance was taken out by the jeep owners.
60 Kaushnuma Begum (n 33) [12].
2019 Strict Liability and its Misapplications in India 83

Prabhatbhai,61 to hold:

….. In view of the fact and constantly increasing volume of traffic,

the motor vehicles upon the roads may be regarded to some extent as
coming within the principle of liability defined in Rylands v. Fletcher…
Where a pedestrian without negligence on his part is injured or killed by
a motorist, whether negligently or not, he or his legal representatives as
the case may be should be entitled to recover damages if the principle of
social justice should have any meaning at all… Like any other common
law principle, which is acceptable to our jurisprudence, the rule in
Rylands v Fletcher can be followed at least until any other new principle
which excels the former can be evolved….62

With due respect, it is submitted that the principle in Rylands v Fletcher could never
have been applied in this case. There was no ‘thing’ brought on the property of a person,63
no ‘escape’, and even otherwise, it cannot be stated that driving a jeep is a non-natural
use of property.64 Further, the principle in Rylands v Fletcher only applies to proprietary
and not personal injuries.65 Thus, the application of Rylands v Fletcher to motor vehicle
accident cases is misplaced.

More recently, Vohra Sadikabhai v State of Gujarat,66 damage was caused to the
property of the appellants by releasing water from the dam maintained by the respondent
state when the water level became alarmingly high due to heavy rains. The appellants
claimed that the damage was due to gross negligence and lack of administration on the
part of the respondents – the respondents knew that the monsoons were around the corner

61 Gujarat SRTC (n 33).

62 ibid [18].
63 In Fosbroke - Hobbes v Airwork Ltd [1937] 1 All ER 108, the English Court held that an aircraft
is not a ‘thing’ to which the principle of Rylands v Fletcher applies because it is not inherently
dangerous.
64 It may also be argued that the meaning of property in Rylands v Fletcher only included
immovable property.
65 There is considerable ambiguity surrounding this question under English law. See Rylands v
Fletcher (n 1) 279; as the Rylands rule applied to ‘all damage which is the natural consequence
of the escape’ it can be argued that an interest in land was not envisaged to be a requirement to
attract strict liability. For a further understanding of the divergence in case law on this question,
refer to John Murphy and Christian Witting, Street on Torts (13th edn, OUP 2012) 493; See Ribee
v Norrie [2001] PIQR P8 [30]; Re-Source American International Ltd v Platt Service Ltd [2003]
EWHC 1142 (TCC) [171]; McKenna v British Aluminium Ltd [2002] Env LR 30 [20]-[28] for
the implications of applying a proprietary interest requirement in light of the Human Rights
Act 1998; See also Read v Lyons for the application of the proprietary rule. R F V Heuston,
Salmond on the Law of Torts (7th edn, Sweet and Maxwell 1928) 374; Winfield, ‘Nuisance as
a Tort’ (1931) 4(2) The Cambridge Law Journal189, 195; Allen Linden, ‘Whatever Happened
to Rylands v Fletcher?’ in Lewis Klar (ed), Studies in Canadian Tort Law (Butterworths 1977)
335.
66 Vohra Sadikabhai v State of Gujarat 2016 SCC Online 521 (SC).
84 NLUD Journal of Legal Studies Vol. 1

and should have kept the water level low at the dam in order to meet the exigencies of the
ensuing monsoon. The respondent State stated that the release was prompted by heavy
rains which was an act of God and hence it was not liable.

The judgment of the Supreme Court, with respect, is quite convoluted. On the one hand
it rightly acknowledges that the principle of strict liability in Rylands v Fletcher may not be
applicable as the construction of a dam was for the benefit of the community and cannot be
termed a ‘non-natural’ use. Consequently, it proceeded to examine whether the respondent
was negligent and whether the damage was physically avoidable. On the other hand, while
holding that the respondent was negligent, the Court held:

34…. In view of the principle laid down in Rylands v. Fletcher, onus was
on the respondents to discharge such a burden and it has miserably failed
to discharge the same. On that basis, we are constrained to hold that there
is a negligence on the part of the respondents which caused damage to
the fields of the appellants.67

The question of burden of proof or the defendant discharging any burden is irrelevant
to the principle of strict liability as laid down in Rylands v Fletcher. At no stage did either
Lord Blackburn or the House of Lords in that case ever mention the requirement of a
burden of proof or the duty of the defendant to discharge any burden. It is rather surprising
that, without any analysis of that case, the Indian Supreme Court stated it as a principle of
law. Further, the National Green Tribunal in a recent judgment,68 awarding ₹100 crore as
environmental compensation, made numerous references to the principle of strict liability
and stated that its purpose ‘is not only to place the onus upon the Respondents’ but also to
ensure ‘what is proved by the Applicant in relation to damage and degradation of marine
environment is restored and restituted…’.69

Lastly, there are now various statutes that recognise the principle of strict liability.70 To
this end, the general principle is that where the liability is governed by statute, the principle
of Rylands v Fletcher and the exceptions therein will not be applicable.71 Situations arise
when some statutes provide for strict liability and, at the same time, fix the quantum of
compensation. Thus, in Kaushnama Begum,72 the Supreme Court held that even though
the principle of ‘no fault’ liability is provided for in the Motor Vehicles Act 1988, s 140,
a plaintiff may still claim compensation under the principle of strict liability as laid down
in Rylands v Fletcher. Similarly, the principle of strict liability in torts has been applied

67 ibid.
68 Samir Mehta v Union of India MANU/GT/0104/2016.
69 ibid.
70 Railways Act 1989, s 124A; Motor Vehicles Act 1988, s 140; See also Civil Liability for Nuclear
Damage Act 2010, s 6(2).
71 Clerk and Lindsell on Torts (n 10).
72 Kaushnuma Begum (n 33) [20].
2019 Strict Liability and its Misapplications in India 85

in cases under the Railways Act 1989, s 124A.73 It is respectfully submitted that using
strict liability principles existing in tort merely to supplement the compensation provided
by statute renders the statutory provisions meaningless. If this be the case, even the
controversial Civil Liability for Nuclear Damage Act 2010 that limits the compensation for
absolute liability from nuclear damage would be meaningless. The decisions cited above
have therefore been wrongly decided.

v. ConClusion

In view of the misapplications and misunderstandings of the strict liability principle

in India, it is pertinent to deliberate and consider the existence of the principle in India. As
stated earlier, the High Court of Australia in Burnie Port Authority stated that the rule of
strict liability no longer existed as an independent head of liability but should instead be
regarded as ‘absorbed by the principles of ordinary negligence’.74 The rationale being that
all that is required is a higher duty of care when a defendant is undertaking a dangerous
act or brings on his land a thing capable of doing mischief. On the other hand, in Transco,
the House of Lords, while at some level agreeing with the High Court of Australia, held
that abolition of the strict liability principle ‘would be too radical a step to take’.75 In the
author’s view, and as recognised by the Hon’ble Supreme Court in M C Mehta, the law has
to grow in order to satisfy the needs of the society. The principle in Rylands v Fletcher was
set out in the late 19th century and the law of negligence has come a far way to carefully set
out the ‘duty of care’ required of a defendant – proportionate to the danger of the activity.
This aspect was correctly recognised by the Australian High Court and with respect, ought
to also have been recognized by the UK Courts. Clarity in Indian law is found wanting
on two aspects pertaining to the principle (i) whether the principle should be applicable
at all? and (ii) if yes, the circumstances in which the principle must be applied. As shown
in this paper, recent decisions of the Indian courts have muddied the waters with respect
both these questions. In the author’s opinion, in view of the various misapplications of the
principle of strict liability and the presence of ‘absolute liability’ in India, it is apt to do
away with strict liability and apply the tests as prescribed by the High Court of Australia.
Doing so would bring clarity to the law, including the law of negligence.

73 Union of India v Prabhakaran Vijaya Kumar (n 8); Union of India v Sitabai Vasvane (2013) 5
Bom CR 763.
74 Burnie (n 5).
75 Transco (n 4) [43].