Uphaar and Strict Liability

Before I accepted deeksha from the Jagadguru, I used to be a libertarian, and believe that Strict Liability was a better alternative to regulation in cases like the Uphaar tragedy

Strict Liability” is a legal term of art.  It means that the owners of the Uphaar cinema are liable in court for their act of omission, i.e. failure to provide for the safety of their patrons.

There are many reasons why I thought that strict liability is better than the kind of regulation where fire and safety inspectors from the municipal corporation visit to check if you are following government-specified norms. 

For one thing, those inspectors can be bribed.  Even if they cannot be, government-specified norms focus on the process, while strict liability holds people responsible for results. This means that the theatre owners cannot get away by saying “I was following all the norms. See, I even passed the inspection and everything!”

Strict liability sets a moving target, and it will mean that the theatre owners will have to adhere to the best possible safety norms available at any point, not just the static ones set by the government.

An inspection regime puts a burden on all people, both guilty and innocent, while strict liability will punish only the guilty. The cost the owners save on bribing the inspectors will be better spent on upgrading fire safety equipment. Reducing the cost of doing business will improve competition, which always is a good way to improve standards. And the money you save by sacking the inspectors can be spent on modernizing the courts and hiring more judges – so that the next trial need not take ten years to clear a sessions court.

When I last wrote about regulation, someone reminded me of that tired old aphorism “Prevention is better than cure”. But this is not  a dichotomy between prevention and cure at all.  Punishing the guilty is as much a preventive measure as subjecting theatre owners to a checklist. The only question is, which measure does a better job of preventing tragedies.

Of course, all this thinking was prior to my transformation. Now that I have accepted the Jagadguru into my heart, I am convinced that regulation can never fail.  Any failure of regulation is evidence that we do not have enough regulation. Like Boxer,  we must try harder. Krisham Vande Jagadguru!

10 thoughts on “Uphaar and Strict Liability

  1. O Chief Heretic,

    If I were to substitute “road safety” in place of “fire safety” in post of yores, would I be making a mistake ? If yes, then what is the mistake ? If no, does it mean that there is no requirement of road safety regulations.

  2. Gaurav,

    Upahar cinema is a specific example of ‘fire safety’. it does not cover all of ‘fire safety’. So by ‘road safety’ what do you mean?

    is it the ‘road safety’ scenario where you are renting your vehicle out for other’s to use and where your personal safety is not at stake.


    is it a ‘road safety’ scenario when you yourself are driving and your safety is also at stake.

  3. Ravi,

    How is punishment of the guilty ‘prevention’? The owner of some small XYZ theatre may take a risk with safety standards, assuming that due to the low probability of a fire hazard, the chances that a mishap ever happens with his theatre are minimal (even though they are much greater than the chances that a fire may be set off at some other theatre that willingly follows saftey norms). If a mishap now happens, what exactly have we prevented?

    Second, from a legal standpoint, removing the need to prove mens rea is a significant step, rarely taken for serious criminal offences like murder. Strict liability opens up the theatre owners to criminal prosecution for murder if someone dies, even in the case of a genuinely accidental fire.

  4. … believed … instead of … believe … in the first para, right?

    Other than that, I am tempted to agree with your argument… But I am not fully convinced yet…

  5. Theoretically it works. Won’t work in real life. In real life a mixture of Strict Liability, Government regulation and liability for the inspectors too would work better.

    Proponents of strict liability (read as more deregulation) may take a look at the subprime mess to get an idea of what happens when deregulation happens, the industry is allowed to police itself and the regulators come from the same industry.

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