Legal liability should not depend on ad-hoc largesse

Despite India being one of the most litigious countries, our compensatory jurisprudence is largely inadequate

Agovernment committee is all set to award “compensation” to the victims of faulty hip implants sold by Johnson & Johnson (J&J), a major multinational corporation. It forces one to ask: why will J&J pay this compensation? Under what law is this being worked out? For the Drugs and Cosmetics Act (DCA) clearly does not provide for this, applying as it does to very limited circumstances involving the sale of spurious/adulterated drugs.

Even more worrying is the alleged intention of the committee to rely on the Motor vehicles act framework to determine compensation. Is this a joke?

Let’s be clear: J&J is not legally obliged to pay even if the committee arrives at a very considerate compensatory amount. If they do so, it will have to be on a purely voluntary basis. Why then is the government investing so much in this committee whose ultimate success will rest on the charity/largesse of a multinational corporation? Are we playing into the hands of this clever MNC that has managed to evade liability so far in India? Or is this just a half-baked attempt by the government to show that it is doing something?

Indeed, this is not an isolated incident. We’ve had a history of short-circuiting quests for justice with quick-fix solutions that come at the cost of a more robust evolution of jurisprudence. Consider the Bhopal gas tragedy case, where in order to ward off public criticism, a judge awarded an interim compensation of ~250 crore to victims. Till date, it is not clear as to how such a figure was arrived at, and under what provision of law the interim settlement was worked out.

Is this the kind of jugaad justice we deserve? Should we not move to a more sustained development of jurisprudence in which theories of legal liability are clearly spelt out and compensation worked out with more analytical rigour, drawing in economic and other experts where necessary? This will yield a legal regime that is stable and reliable in the long run, one that makes it easier for future victims to take their perpetrators to task.

It is paradoxical that despite India being one of the most litigious countries and our judges enjoying considerable discretion in fashioning relief, our compensatory jurisprudence is largely underdeveloped. Fortunately, this is slowly changing, with courts beginning to hand out significant damages, even in specialised cases such as intellectual property infringement. As such, patients are best placed to take their shot at courts, rather than rely on the government which appears to have set up a largely toothless committee to counter public anger.

While some patients have initiated law suits (under the consumer protection act, mainly), there is no class action lawsuit as yet. A class action is one in which litigants aggrieved by a common cause can pool their resources and take the litigation forward as a group. While class action suits are popular in the United States,the practice is not common in India. Patients should therefore consider this route more seriously. They should approach the Supreme Court to club the pending cases and fast track them.

Patients could also explore suing J&J in the US. Unfortunately, the infamous Bhopal gas leak case stands in the way, where a US judge held that since the accident occurred in India and almost all witnesses/evidence were located there, India was the more “convenient” forum. Even more unfortunate was the fact that it was the affidavit of Nani Palkhiwala, a legendary Indian lawyer, that swung the case in favour of the Union Carbide Corporation (UCC). He argued that Indian law was as good as the US ones when it came to redressing complex claims in mass tort cases. But as the aftermath of the Bhopal case revealed, he was way off the mark. The Indian legal system is deficient in more ways than one when it comes to compensating for product liability. For one, our law in this regard (mainly the common law of torts and the Consumer Protection Act) hinges significantly on “negligence”, where affected patients have to necessarily prove that the “defect” was attributable to a failure by the manufacturer to take reasonable “due care”.

Contrast this with the US where state laws often provide for strict liability and manufacturers are liable for defects, irrespective of “negligence”. Further, unlike Indian laws, US laws provide for contingency fee of lawyering, where the costs of litigation are borne by lawyers, who take a cut from the damage awarded. This gives even poor patients get access to courts and a shot at justice. In India, however, we make it even more difficult for litigants by imposing significant court fees.

Notwithstanding the shortcomings, let’s not forget that Indian law provides for a robust right to life and good health, one that cannot be derogated from under our Constitution. Patients can, therefore, claim damages as an entitlement, not a mere largesse to be handed out by a multinational corporation which is at fault. They must, therefore, use the full force of the courts to secure justice, rather than relying on a reluctant government.

One can only hope that our courts rise to the occasion and do better than they did in the Bhopal case, moving away from a quickfix mindset to one in which clear theories of legal liability and a rigorous compensatory framework are drawn up. May this case turn out in a way that will provide guidance for future cases and deter errant corporations from playing poker with the lives of patients.

WE’VE HAD A HISTORY OF SHORTCIRCUITING JUSTICE WITH QUICKFIX SOLUTIONS THAT COME AT THE COST OF A ROBUST EVOLUTION OF JURISPRUDENCE. THE BOTCHED BHOPAL GAS TRAGEDY CASE IS AN EXAMPLE