Vicarious Liability - The Red Carpet


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Friday, June 4, 2021

Vicarious Liability


The normal rule is undoubtedly to the effect that a man should be punished only for his misdeeds and not for that of others. But from time immemorial, we have read of instances of clan feuds or tribal feuds which for a wrong committed by say, A, belonging to a particular clan X, towards B belonging to a rival clan Y, vengeance will be taken by B, his relations and members of his clan not only upon the actual wrong-doer A, but upon his near relations such as his father, mother, brothers, sisters, and even upon members of his clan X.

We need not condemn this as a barbarous practice which prevailed only in ancient times, for we can see its modern form in the group fines imposed upon the villages by modern state governments. For example, the Protection of Civil Rights Act 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 provide for collective fines.

Notwithstanding these exceptions, it is now generally regarded as a compelling principle of justice that a man should not be penalised for the wrong of another. The principle of vicarious liability, which plays an important part in torts and civil law generally, should not be extended to criminal law. But to this rule of non-liability, two exceptions have been recognised in English common law:

(1) A master is vicariously liable for libel published by his servant. However, it is open to a master-proprietor to show in defence that the libel was published without his authority and with no lack of care on his part.

(2) A master is vicariously responsible for a public nuisance committed by his servant. It would very often be difficult to check effectively acts of public nuisance by menial servants, unless their masters are made responsible.

Exceptions to General Rule of Vicarious Liability

As stated earlier, the rule of vicarious liability is not generally applicable in criminal law. The maxim qui facit per alium facit per se (he who acts through another act s through himself) or the law of agency is not a doctrine of criminal law, but of civil law, is not without its exceptions. Generally, a master is punishable under criminal law for acts of his servant only, where it is proved that he has instigated or otherwise abetted the acts of the person who actually committed the crime.

This is based on the general principle of criminal law that there must be a blameworthy condition of mind or mens rea in order to make a person criminally liable. The condition of mind of the servant cannot be imputed to the master. But, the following are exceptions to the general rule that a master is not criminally liable for the acts of his servants.

Liability under a Statute

It is within the power of the legislature to make a certain illegal act or omission penal and fix an absolute liability upon any person, if a breach of a certain enactment is made. Once absolute liability is fixed, then a particular intent or state of mind is not the essence of the offence. In such cases, acts or defaults of a servant or agent in the ordinary course of his employment may make the master or principal employer criminally liable, although he was not aware of acts or defaults and even where they were against his orders. However, such liability must be specifically imposed by the terms of the statute or at least the fact of implied liability must be sufficiently discernible from the provisions of the statute. No person can be vicariously liable if a provision to this effect does not exist in the statute concerned. In fact, strict liability clauses in statutes might result in the agents being made liable for the act of the master. In Sarjoo Prasad v State of Uttar Pradesh, the appellant, who was an employee, was convicted under the Prevention of Food Adulteration Act 1954 for the act of the master in selling adulterated oil.

Responsibilities of Licensees

It is well-settled in England as well as in India that a licensee is responsible for the acts of his employee done within the scope of his authority, although, contrary to the instructions of the licensee. In order to fix a licensee with a liability for the acts of his servants, personal knowledge of the licensee is not always necessary. Otherwise, the very purpose of the enactments granting licenses to persons of good character would stand defeated.

In Emperor v Mahadevappa Hanmantappa, the accused held a licence under the Indian Explosives Act 1884, to manufacture gunpowder. According to the license, the manufacturing could take place in a building exclusively meant for that purpose and separated from any dwelling place, highway, street, public thoroughfare or public place by a distance of 100 yards. The accused lived in a village and he constructed a building outside the village which complied with this condition and employed a woman to manufacture gunpowder there. One day, the servant took the necessary material for the manufacture of gunpowder, went to the house of the accused in the village and performed part of the process of manufacture there. At that time, there was an explosion. The accused was charged with breach of conditions of his license.

The accused was held liable for the same, in view of the fact that what the servant did was in furtherance of her master's business and not in pursuance of any purpose of her own. What she had done was within the general scope of her employment and the breach of condition of the license was committed when she was so engaged.

(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)

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