Vicariouis liability and article 21

RELATION BETWEEN VICARIOUS LIABILITY AND ARTICLE 21

Understanding vicarious liability

Vicarious liability means that one person takes or supplies the place of other so as far as liability is concerned. This doctrine has its roots in the earliest years of common law. We can say that it is the liability of one person for the act done by the another person. But there are certain rules according to which liability can be considered .Following are the liabilities under it 

     1: Liability of the principle for the tort of his agent

     2: Liability of the partners of each other’s tort

     3: Liability of the master for the tort of his servant

These are based on the principle “Qui facit per alium facit per se”which means that the act of an agent is the act of the principle or in general “he who does an act through another is deemed tin law to do it by himself”.Liability arises only when the act is done by the servant under the course of employment. As Lord Pearce has shortly exclaimed “vicarious liability is based on, social convenience and rough justice”. That is why sometimes this liability is explained on the basis of maxim respondent superior, which means the superior is responsible for the providing answer. Anyway it is a vast topic but after getting a general idea about vicarious liability, we are concerned with “vicarious liability in relation with Article 21.”

UNDERSTANDING THE LAW RELATED WITH ARTICLE 21

Article 21 lays down that no person shall be deprived of his life or personal liberty except according to ‘procedure established by law’. The expression ‘procedure established by law’ introduces into India the American concept of procedural due process which enables the courts to see whether the law fulfils the requisite elements of a reasonable procedure.

             The word ‘law’ in article 21 does not mean merely enacted law but incorporates principles of natural justice so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these principles in the procedure laid down by it.

It can fairly be said that ‘law’ is used in the sense of lex (state made laws) and not jus. The expression ‘procedure established by law’ would therefore mean the procedure as laid down in an enacted law.

 RELATING ARTICLE 21 AND VICARIOUS LIABILITY   

There are number of cases in which some how the right of life or the right of personal liberty is infringed by a person who was working as a servant or the agent of somebody when the act was committed. So in these cases the superior authority was held liable and the compensation was granted.

The authority may be a personal company or the state. As in the case of Mariayappan v State of Tamil Nadu., a constable assaulted a woman during his prohibition raid. The inquiry into the incident was allowed to be dragged on. The court directed initiation of criminal proceedings the police constable for his rude behaviour in his pushing her to ground, which subsequently ended in her death apart from the expediting the departmental inquiry pending against him. The state was directed to pay Rs 2 lakhs to her family with the right to be indemnified by and take such actions as may be available to them against the wrong doer.

         Custodial deaths and violence are reaching the courts regularly even as the courts have been imposing compensation holding the state vicariously liable for the wrong committed by the police or the other employees. In Moheela Moranv. State of Assam, Phoolwati v. NCT of Delhi,   and the courts heard the cases of custodial death including the death, and in all the cases the state is made to pay the compensation. The remedy of compensation is more frequently being characterized as an interim measure. So we can see that this concept is slowly and slowly spreading its wings.

     These trends can also be seen even in the Encounter Killings the task is not that easy now as asserted by the Gauhati High Court in Gopal Ch Sharma v. State of Assam  basing his judgement on a judicial inquiry instituted by the court, gave a lie to the assertion of death in an encounter and directed that Rs 2.5 lakhs be paid in compensation. As seen in the case of State of Gujarat v. Govindhai Jakhubhai the constable assaulted a person in the course of his duty and that resulted in amputation of his limb. The state was held vicariously liable, and the doctrine of sovereign immunity was expressly rejected. It is not only the case with the state and it’s employees but every time when we talk about the master-servant relationship or any employee-employer relationship and such a case arises similar are the results.

In the case of Bisan Devi v. Sirbaksh Singh , where the husband of the claimant was run over and killed by a truck driver by his rash and negligent driving, the owner of the truck was held liable to pay the compensation. This is a remarkable case the owner of the truck tried a lot to prove that the truck had been stolen and was driven by an unauthorized unlicensed driver. But the court refused to care about that and held the owner vicariously liable.

Thus we see that under this concept all the principles of vicarious liability are indulged and also in some of the cases the act of sovereignty and its status was clearly distinguished.      

In question of applicability of this concept to non-citizens, the Supreme Court has emphasized that even those who come to India as tourist also “have the right to live as long as they are here, with human dignity, just as the State is under an obligation to protect the life of every citizen in this country, so also the State is also under the obligation to protect the life of the persons who are not the citizens.” This is a wider sense of including this concept into the area ‘vicarious liability under Article 21’. We will see in the annexure that how the Bangladeshi women who was visiting in India was sexually harassed by the railway employees and the railway board had to pay the compensation to her per orders of the Supreme Court of India. (See annexure)      

CASE TO ANALYSE

STATON v. NATIONAL COAL BOARD ALL E. R. [1957] 667

[This case has been taken from all England reporters and is of such an earlier time because in whole of the above pages we’ve talked about the recent changes but it is of no relevance if we don’t see the earlier situation. And this case is an important one.  ]

CASE

STATON v. NATIONAL COAL BOARD

Summary of facts:

1: T. was a defendant’s employee, and was requires to collected his weekly wages on the defendants’ premises on Friday afternoons.

2: He was bicycling towards the pay office in the premises; he decided to ride across the bus park where several buses were standing.

3: he turned down a gap between two of the buses in order to rejoin the road.

4: As he came along the gap, he collided with one S. an employee of the defendants, who just left out one bus

5: S was killed as the result of the collision

6: S’s widow brought the action against the defendants for damages for the negligence of their servant T.  

What was held in the court?

The plaint was allowed

Reasons

1: T. being actually on his employer’s, and was in order required to collect his wages on the premises, and was under the course of employment at the time of accident so as to make the master liable under vicarious liability.

CONCLUSION

This is the case when this idea of indulging right to life with vicarious liability had not taken its place in the arena. The person died in the accident that was infringement of his right to live and as far as his right to personal liberty was concerned it vanished with the man, but the thing that is material is that a person died and there was no discussion about his right to life. Infact it was the possible strongest point on the behalf of the plaintiff. Together with vicarious liability it would have strengthened the case for the plaintiff. That was the condition in the earlier times and if we see the condition in present scenario we must refer to the annexure which depicts the true concept of the very concept of ‘vicarious liability and article 21’ this is such a relief that the experiments are being done and successfully being done to increase the capacity of law. This is the time of relativity i.e. relating one indispensable idea with another to get a better or we can say a hybrid idea, an idea without flaws, and an idea which is complete, complete in every sense. On one hand this concept brings down the essence of constitutional law and on the other hand it brings the law of torts. So in this way we can say that we are heading towards what we thought while making this thing called ‘LAW’ that “NO CONVICT SHUOLD REMAIN FREE AND NO INNACENT SHOLD BE CONVICTED”.

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