On Torts... And A Rule Of Law Society

A headline story in the ToI of today says that the health ministry (of Ramadoss) is planning to introduce a bill soon that will increase the punishment for those who manufacture or sell spurious drugs, from 10 years to life.

Yet, the same paper, on the very same day, has two other stories on spurious products:

First, on spurious alcohol.

And the second on adulterated ghee.

There was the sensational case some years ago about people getting afflicted by dropsy from adulterated mustard oil.

Then, of course, there was the Bhopal tragedy.

And I am being plied with nakli ganja and charas all the time. Cough, cough.

What about all these? The legislation that Ramadoss seeks will only apply to medicines.

The solution then, is to seek a GENERAL RULE: a rule that will apply to all such cases in all future instances.

That general rule is the Law of Torts.

(The word “tort” is the root of the word “torture” and it means that damage has been caused, physical, mental, or material.)

Anyone who causes damage to anyone else, knowingly or unintentionally, will have to fork out monetary compensation to the victim/s.

This will be a civil (and not criminal) case, which will be decided quickly, “on the preponderance of evidence.” Criminal cases need to be proved “beyond reasonable doubt,” – so they take much more court time. Torts are therefore “efficient.”

There will thus be a monetary incentive to be careful, i.e., in other words, there will be a serious disincentive against carelessness.

In the case of medicines, then, the retailer will have to take the first call of the court – for it is he who sold the spurious medicine.

As this general rule will apply across the board, all retailers of medicines, ghee, booze, spices, ganja and charas, or whatever, will be careful not to pass on adulterated stuff.

And if they do, they run the risk of having to sell their shops to cough up the damages.

Note that Ramadoss’ bill is heavy on the criminal justice part: jail for 10 years extending up to life imprisonment. With our dysfunctional criminal justice system, there is simply no chance that manufacturers of spurious medicines will feel the deterrent effect of this proposed punishment. And anyway, the bill will apply only to medicines. What about all the rest?

Just the other day, over 250 people died in a “hooch tragedy” in Karnataka – and the government paid the compensation! This means that taxpayers are being held liable for the damages caused upon others by tortfeasors.

If damages are to be paid, then these should be paid by the tortfeasor, under civil law. This should have nothing to do with the government, or its criminal law.

Torts are therefore a pillar of a “rule of law society”: a society that operates under general rules that all individuals will happily follow.

The other choice is the “rule of men” – as with parliament passing ramadoss’ bill. This is like “central planning” of law, and it cannot work.

A rule of law society exhibits a “natural order” – an order that the arbitrary and capricious “rule of men” destroys.

Away with ramadoss’ bill!

And read my old article: “Ring In Torts”.