Yesterday night, I lay awake thinking about this post. I decided that I had to rush to clarify whether I was talking about civil or criminal liability becauase someone would jump up and down* and point out the difference. Too late! I see that Ritwik is already jumping up and down in the comments.
I am not a lawyer**, so I’ll probably make many mistakes in this post, but here is a quick note about terminology:
If you set fire to a person intending to kill him, it is murder. It is a criminal offence. The police will prosecute you, and you will hang or go to jail.
If you set fire to a shop and someone who is inside dies, it is culpable homicide not amounting to murder. It is still a criminal act. The police will still prosecute you, but you will get a smaller sentence than in the first case.
If you run a theatre and do something extremely stupid – like run an explosives factory in the premises, then you are negligient. This is also a criminal act. The police will prosecute you, and you will get a smaller sentence than in the first two cases. This is what the Ansals were found guilty of, and the court’s finding seems right to me. The real problem is that under the penal code, the maximum penalty is only two years, and I think that under Indian laws, sentences run concurrently – i.e. you can’t sentence them to 59*2 = 118 years of imprisonment. (Of course, the real real scandal is that it takes ten years for even this.)
All three that we have seen so far are criminal offences – i.e. the government prosecutes you, you are innocent till proven guilty, you have to be proven guilty with proof beyond all reasonable doubt, and you can be sent to jail.
There is another class of crimes called civil trials. In civil trials, aggrieved parties prosecute you, the standard of proof required is preponderence of evidence, (a lower standard) and generally you won’t be sent to jail, but you have to pay damages.
Strict Liability, as far as I know,*** makes sense only as a civil offence. Now, before you jump up and down again thinking that I am proposing to let off the Ansals with just a fine, no I am not. The Ansals are already guilty of criminal behaviour. Civil prosecution will apply to only those whose culpability is not as great as that of the Ansals. And punitive damages are a very good way to spread the pain, raise insurance costs and make sure that shareholders sit up and take notice.
Update: Oops – I realise that in my hurry, I missed the conclusion. Ritwik says that under Strict Liability, people will get prosecuted even for accidental fires. Of course, that is the point of Strict Liability – you are considered to have a fiduciary duty to ensure that there is no fire. The responsibility is on you. But at the same time, we shouldn’t prosecute them, but impose a civil liability.
* Just as the Jagadguru’s critics always jump up and down when making a point.
**Which means that I should really consult the Cartel’s legal counsel.
***Once again, I am not a lawyer, so I do not claim to know too much. It might make sense for Strict Liability to be imposed in criminal cases in some situations.