Jurisprudence Project

On

CONCEPT OF LIABILITY AND KINDS OF LIABILITY: A

JURISPRUDENTIAL ANALYSIS W.R.T. ON-LINE GAMES

Submitted to:

Dr. KAUMUDHI CHALLA

(Assistant Professor)

Submitted by:

MUSKAN KHATRI

Roll no.:87

Semester-VI, Section-B

B.A. L.L.B. (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, Atal Nagar (C.G.) – 492002
 DECLARATION OF ORIGINALITY

I, Muskan Khatri, have undergone research of the project work titled “CONCEPT OF
LIABILITY AND KINDS OF LIABILITY: A JURISPRUDENTIAL ANALYSIS W.R.T. ON-
LINE GAMES”, as a student of Jurisprudence. I hereby declare that this Research Project has been
prepared by the student for academic purpose only, and is the outcome of the investigation done by me
and also prepared by myself under the supervision of Dr. Kaumudhi Challa, Faculty of Jurisprudence,
Hidayatullah National Law University, Raipur. The views expressed in the report are personal to the
student and do not reflect the views of any authority or any other person, and do not bind the statute in
any manner. I also declare that this Research Paper or any part thereof has not been or is not being
submitted elsewhere for the award of any degree or Diploma. This report is the intellectual property of
the on the part of student research work, and the same or any part thereof may not be used in any manner
whatsoever in writing.

Muskan Khatri
Roll. No. 87
Semester VI, Section B

I
 CERTIFICATE OF ORIGINALITY

This is to certify that Miss. Muskan Khatri, Roll Number 87, student of Semester VI, Section B of

B.A.LL.B.(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has undergone

research of the project work titled “CONCEPT OF LIABILITY AND KINDS OF LIABILITY:

A JURISPRUDENTIAL ANALYSIS W.R.T. ON-LINE GAMES”, in partial fulfillment of the

subject of Jurisprudence. Her performance in research work is up to the level.

Place: Atal Nagar ………………………… ……………………………

Date: 10.07.2020 Dr.Kaumudhi Challa.

(Faculty- Jurisprudence)

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 ACKNOWLEDGMENT
I feel highly elated to work on the project “CONCEPT OF LIABILITY AND KINDS OF
LIABILITY: A JURISPRUDENTIAL ANALYSIS W.R.T. ON-LINE GAMES”. The
practical realization of the project has obligated the assistance of many persons. Firstly, I
express my deepest gratitude towards Dr. Kaumudhi Challa, Faculty of Jurisprudence, to
provide me with the opportunity to work on this project. Her able guidance and supervision in
terms of her lectures were of extreme help in understanding and carrying out the nuances of
this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would
be grateful to receive comments and suggestions to further improve this project.

Muskan Khatri
Roll. No. 87
Semester VI, Section B

III
 TABLE OF CONTENTS
Declaration of Originality………………………………………………………………………... I
Certificate of Originality……………………………………………………………………........ II
Acknowledgments………………………………………………………………………………..… II

Introduction and Research methodology…………………………….…………....... 5

Problem of the Study……………………………………………………………….. 6
Rationale……………………………………………………………………………. 6
Objective…………………………………………………………………………… 6
Review of Literature………………………………………………………………... 6
Hypothesis………………………………………………………………………….. 7
Nature of the Study………………………………………………………………… 8
Chapterisation…………………………………………………………….………… 8
Time Limit………………………………………………………………………….. 8
Contribution………………………………………………………………...……… 8
Limitation of the Study…………………………………………………………….. 9

Chapter-II
Concept of liability………………………………………………………………10
Chapter-III
Origin of liability…………………………………………………………………12
Chapter-IV
Kinds of liability………………………………………………………………….15
Chapter-V
Measures of liability……………………………………………………………...23
Chapter-VI
Jurisprudential analysis of liability w.r.t. online games………………………….24
Conclusions…………………………………………………………………………….25
References……………………………………………………………….......................26

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 CHAPTER I:

INTRODUCTION AND RESEARCH

METHODOLOGY

In civilized societies most of the relation between the individual and the state are governed by rules
made or recognized by the state; that is, law. Law lays down the rights and duties of the individuals.
In other words, it prescribes what one is to do and what one is not to do and what one is entitled to
get "it” done. A branch of these rules is called wrong. When a person has committed a wrong, he is
said to be liable. Thus, liability is the condition of the person who has committed a wrong. Liability
or responsibility results from a wrong of breach of duty. It is something which a person must do or
suffer on account of his failure to do what he ought to have done "duty”. A person has a choice in
fulfilling his duty, but liability arises independently of one’s choice. Liability is the "vinculum
juris”, i.e. the bond of legal necessity that exists between the wrongdoer and the remedy of the
wrong. Liability differs from obligation in as much as the latter refers to what a person ought to do
on account of some duty cast upon him but the former refers to something which the person must
do or suffer because he has already failed to do. One of the traditional fields of orthodox
jurisprudence is liability. This also felt the impact of new jurisprudence1.
The term liability, which occupied a place of pride in the hierarchy of the legal concepts, has in
English law been used to express three things.
1) It has been used to express the position of person who has undertaken to do or to abstain from
doing something by contract with another person.
2) The term has been used to express the condition of person who has failed in the performance of
source duty, and who is consequently, called upon to make compensation to some person who has
suffered damage thereby.
3) The term “liability” has been used to express the condition of a person who has not failed in the
performance of any duty, but who has done an act which has caused damage to another for which
he is required to make compensation2. The duty to fulfill a contract and the duty to make
compensation for damage caused by an act which is not a breach of duty are primary duties,
whereas duty to make compensation for damage caused by a breach of duty is a secondary one.
Liability “ex-conlracto” which is liability to a primary duty and liability “ex-delicto”, which is
liability to a secondary duty, have long since been recognized as two subdivisions of the same class.

1
P.B.Mukherji, The new jurisprudence, P.I3
2
MARKBY, Elements of Law (3rd Ed. 1885) P.292
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PROBLEM OF THE STUDY:
Liability or responsibility is a word or tie that comes into existence as a result of wrongful act of an
individual. This is called vinculum juris by which a man, who is under it, must do certain things. A
man’s liability consists in these things which he must suffer. It is the ultimatum of law. It has its
sources in the supreme will of the state. According to salmond, liability or responsibility is the bond
of necessity that exists between the wrongdoer and the remedy. From the rapid growth of gaming
trend, online gaming has come at the point of destroying one’s life. Gaming trend is sucking out the
life of player which has turned a serious question about the morality of society and helplessness of
state to turn against these life sucking game owners to hold liable.

RATIONALE:
The motto of my thesis is to bring into light the non considered current situation prevailing among
the youngsters who are caught in harmful online games which are creating health disorders, mental
disorders and ultimately suicidal effect on human mind. My thesis presents concept of liability
through which owners could be charged by the state through penalization.

OBJECTIVE:
1. To understand the origin and concept of liability.
2. To understand the kinds of liability.
3. How the concept of liability and its implementation would prevent the harm caused by
owners of online games on others?

REVIEW OF LITERATURE:
Some of us may make a statement that addiction of playing online game is one of the modern-
day psychological disorders and some of us are disagree with that statement. On the other
hand, helplessness of state to impose liability on owners poses a serious question on society.

1. Contemporary Tort Theory and the Reinvention of Enterprise Liability: tort scholarship
was dominated by traditional tort theory, a view that stood in opposition to the
legislative and common law agenda of the enterprise liability scholars. A classic
statement of that view is found in Oliver Wendell Holmes's 1881 book,The Common
6
 Law, in which he summarily rejected the idea that the “state might . . . make itself a
mutual insurance company against accidents, and distribute the burden of its citizens’
mishaps among all its members.

2. In their research they claimed that the most groups of age to use the internet for
entertainment and for communicating with friends and family is the teens and
generation Y. From the survey they make, they conclude that teen internet users’
favorite online activity is game playing which is 78% of 12- 17 year old internet users
play games online, compared with 73% of online teens who email, the second most
popular activity for this age group.

3. In other study done by Eun Joo Kim, Kee Namkoong, Taeyun Ku and Se Joo Kim
(2008), they want to investigate the connection between online game addiction and
self-control, aggression and narcissistic personality traits, which are known as the
psychological characteristics linked to “at-risk” populations for online game addiction.
They find out that that aggression and narcissistic personality traits are positively
correlated with online game addiction, whereas self-control is negatively correlated
with online game addiction. In addition, a multiple regression analysis revealed that the
extent of online game addiction could be predicted based on the person's narcissistic
personality traits, aggression, self- control, interpersonal relationship, and occupation.

HYPOTHESIS:
As the world nowadays is developing with advanced technology, the old school thing was
forgotten by the new generation. There are several improper habits and behavior with this
development which the researcher finds in a study on online game towards the doer. The study
is to show how even an online video game can effects someone through various aspect. Its
purpose is to explore and identify the aspects concerning the jurisprudential impact on the
subject and the liability towards maintaining it. The aspects explored are the experience and
commitment to playing online video game, the gamers health issues, the inconsistent
emotional reaction during playing online video games and reality versus fantasy realization
that is shown due to reduction of social interaction which eventually affect the gamers
relationship with others. The finding will help victims of these games new phenomenon to
charge owners of online games and make them legally liable ensuring the harm has been
compensated.

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NATURE OF THE STUDY:
The nature of the study in this project is non-doctrinal and is primarily descriptive and
theoretical.

SOURCES OF THE STUDY:

This project is largely based on secondary sources of data such as cases and reports of Books,
case laws, journals & other reference as guided by faculty of Jurisprudence are primarily used
for the completion of this project.

CHAPTERIZATION:

Chapter 1 deals with introduction and Research methodology.

Chapter 2 deals with definition and concept of liability.
Chapter 3 deals with origin of liability in India.
Chapter 4 deals with kinds of liability.
Chapter 5 deals with measures of principle of liability.
Chapter 6 deals with jurisprudential analysis with respect to online games.

TIME LIMIT:
It took the roughly 7 days to complete this project in its entirety.

CONTRIBUTION:
A lot of ink has been spilled with regard to a review or criticism regarding game owners
liability towards the victims who were actually players of the game experiencing body
disorders and ultimately death. Also, a lot has been written regarding the concept of liability in
Indian legal jurisprudence be it in Ancient, Medieval or Modern India. This project seeks to
initiate the discussion regarding the relationship between the two and hopes that in future
more research would be undertaken regarding the same.

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LIMITATION OF THE STUDY:

This study is limited to the findings and research of players onto Indians only. There is no
comparative jurisprudential analysis with other countries around the world.

9
 CHAPTER II

CONCEPT AND DEFINITION OF LIABILITY

Liability, as defined by SALMOND, is the bond of necessity that exists wrongdoer and the remedy
of the wrong3 has more often been said to have contract or delict.
Roman lawyers seem to have had some similar notion, and they tried to squeeze all liability under
those two expressions by adding to each class a number of things which did not properly holding to
it, which they called “quasi-contract” and “quasi-delicit"4. Very likely the Roman law had some
good practical reason for so doing. English lawyers seem to have kept up the distinction between
contract and delict chiefly because of the rule which one existed as to the joinder of actions; an
important branch of that rule being that causes of action arising on a breach of contract could not be
joined with causes of action arising on a delicit5. But there is a good deal of liability which is never
considered as arising out of either the one or the other, for instance, the liability of trustees or the
liability of a person who has used a ferry to pay the toll. Of course, it would be possible to extend
the word "delict" so as to cover any breaches of duty, but this extension has rarely been made. By
“delicts" only certain classes of breaches of duty are intended. English lawyers often called them
torts.
According to MARKY: “the word liability is used to describe the condition ofa person who has a
duty to perform".
According to AUSTIN, liability consists in those things which a wrongdoer must do or suffer. It is
the ultimatum of law and has its source in the supreme will of the state. Liability rises from a breach
of duty which may be in the form of an act or omission. AUSTIN prefers to call liability as
"imputability". To quote him, “these certain forbearnaces, commissions or acts, together with such
of their consequences as it was the purpose of the duties to avert are imputable to the persons who
have forborne, omitted or acted. Or the plight or predicament of the persons who have forborne,
omitted or acts is styled imputability”.
It is thus evident that liability arises from a wrong or the breach of a duty in law. Liability is in the
first place either civil or criminal and in the second place either remedial or penal. In the case of
criminal/ penal liability the purpose of the law, direct or ulterior, is or includes the punishment of a
3
SALMOND : Jurisprudenc (12th Ed.) P.349
4
MARKBY : Op.eit. PP 293-294
5
Some peculiar expressions in English law, such as, a tort founded on a contract, or a tort flowing from a contract, were
perhaps invented to get rid ot the objection ofmisjoinder. The only questions now affected by the considerations
ofwhether a claim is founded on a contract or on a tort seem to be the amount of costs ot be allowed in an action and
thejurisdiction of country courts, see, Campbell on Negligence, 2nd Edn. P.19
10
wrongdoer while in the case of remedial liability the law has no such purpose at all; its sole intent
being the enforcement of the plaintiffs right, the idea of punishment being wholly irrelevant. The
liability of a borrower to repay the money borrowed by him is remedial and that of the publishers of
a libel to the imprisoned or to pay damages to the person injured by him is penal. All criminal
liability is penal while the civil liability is sometimes penal and sometimes remedial.

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 CHAPTER III

ORIGIN OF CONCEPT OF LIABILITY

English Common Law the maxim w "The King can do no wrong" and Change of position by the
Crown Proceedings Act, 1947. Now the Crown is liable for a tort committed by its servants just like
a private individual.
In America, the Federal Torts Claims Act, 1946 provides the principles, which substantially decides
the question of liability of State.
Presently State liability in India is defined by the Article 300(1) of the Constitution ←Section 176
of the Government of India Act, 1935 ← Section 32 of the Government of India Act, 1915 ←
Section 65 of the Government of India Act, 1858 ← same as that of the East India Company before,
1858.
Article300(1): Suit and proceedings: The Government of India may sue or be sued by the name of
the Union and the Government of a State may sue or be sued by the name of the State and may,
subject to any provisions which may be made by Act of Parliament or of the Legislature of such
State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their
respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
If the constitution had not been enacted, the liability of the Dominion and provinces of India before
the commencement of the constituted was described in sec. 176 of the government of India act,
1935, referring back to see. 32 of the government of India act, 1915 which is turn refers to sec. 65
of the act of 1858, sec. 65 of the act of 1858 provided that on the assumption of the government of
India by the British Crown, the secretary of state for India in council would be liable to the same
extent as the liability of the government whether prior to the constitution or under the constitution is
the same as that of east India before 1858.
The leading case arising under sec. 65 of the government of India 1858 is case: P & 0 steam
Navigation co. v. Secretary of state (1861) In this case the servant of the plaintiff company was
traveling in a horse-driven carriage belonging to the company. While the carriage was passing near
the government dockyard certain workmen employed by the government negligently dropped an
iron bar on the road. The noise so created scared the horse of the carriage and injuries were
sustained by the horse and the servant of the company. The plaintiff company filed a suit for the
damage caused by the negligence of the government servants. Peacock CJ. (Of the supreme court of

12
Calcutta) held that the action against the defendant was maintainable and the court classified the
acts of secretary of state into two categories:
1. Sovereign.
2. Non-sovereign.
The secretary was liable for the acts but enjoyed immunity from former acts.
Case Secretary of state v. Hari Bhanji (1882). In this case a suit was filed to recover the excess
excise duty collected by the state on a consignment of salt. Rejecting the pleas of immunity, the
Madras High Courts held that no immunity attaches to actions done under the colour of municipal
laws as the immunity of east India Company extended only to acts of state.
Post Constitutional view: State of Rajasthan v. Vidyawati (1962). A jeep was owned and
maintained by the state of Rajasthan for official use of collector of a district. Once the driver of the
jeep was taking it back from the workshop after repairs by (his) rash and negligent act of driver of
the jeep a pedestrian was knocked down and fatally injured. He died. His widow sued the state for
damages. The state claim immunity on the ground that in similar circumstances the east India
Company would not have been liable, as the jeep was maintained in the exercise of sovereign
functions and not as a part of commercial activity of the state was vicariously liable for the rash and
negligent act of the driver and held that the doctrine of sovereign immunity founded on English law
had no validity in India.
Kasturil Ial v. State of UP (1965). A certain quantity of gold and silver was seized by police from
Raila Ram on the suspicion that it was stolen property. It was kept in government Malkhana which
was in custody of a Head Constable. The property was misappropriated by the head constable who
fled to Pakistan. Raila Ram was prosecuted but acquitted of charge. A suit for damaged was filed by
Raila Ram against the state for the loss caused to him by the negligence of police authorities
following the principle laid down in steam navigation co. case, the supreme court ruled that the
state was not liable as police officers were exercising sovereign functions.
Satyawati v. Union of India (1967) Delhi. In this case the Delhi High Court held that the carrying
of a hockey team in a military truck to the Air force station to play a match is not a sovereign
function.
Union of India v. Savita Sharma (1979) J & K. In this case a military truck was going to railway
station to bring military personnel to the unit headquarters. It dashed against the vehicle and injured
its occupants. Ruling that the drivers of the truck was not engaged in performing any sovereign
function, the court held that the transportation of military personal from one place to another could
be performed by any private person. The state was held liable.
Mohd Shafi Suleman Qazi v. Dr. Vilas Dhondu Kavishwar. In this case the Bombay High Court
held that the ruining of hospital is not a sovereign function. The state was held liable for acts of
13
negligence committed by hospital employees in courses of their employment in state run hospitals.
Writ and damages for governmental torts state liability for un-constituently acts: Recent judicial
trend is in favour of holding the state liable in respect of tortious acts committed by its servants
according to the traditional classification, arrested and detention can ordinarily be characterized as
sovereign functions. There are decision of the Supreme Court which seems to indicate that where
there is gross violation of the right to life and personnel liberty enshrined in articles 21 of the
constitution by the government servant, the court issues write quash arrested or detention and at the
same time holds the state liability to pay compensation to the victims.

Khatri v. State of Bihar (1981). In this case it was alleged that police had blinded certain prisoners
and as such the state was held liable to pay compensation to them.

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 Chapter-IV

KINDS OF LIABILITY

Liabilities can be of many kinds. There are civil and criminal liability, remedial and penal liability,
vicarious liability and absolute or strict liability.

CIVIL LIABILITY AND CRIMINAL LIABILITY

Civil liability is the enforcement of the right of the plaintiff against tire defendant in civil
proceedings. Criminal liability is the liability to be punished in criminal proceeding. A civil liability
gives arise to civil proceedings whose purpose is the enforcement of certain rights claimed by the
plaintiff against the defendant. Examples of civil proceedings are an action for recovery of a debt,
restoration of property, the specific performance of a contract, recovery of damages, the issuing of
an injunction against the threatened injury, etc. It is possible that the same wrong may give rise to
both civil and criminal proceedings. This is so in cases of assault, defamation, theft and malicious
injury to property. In such cases, the criminal proceedings are not alternative proceedings but
concurrent proceedings. Those are independent of the proceedings. The wrongdoer may be
punished by imprisonment. He may be ordered to pay compensation to the injured party. The
outcome of proceedings in civil and criminal liability is generally different. In the case of civil
proceedings, the remedy is in the form of damages, a judgment for the payment of debt, an
injunction specific performance, delivery of possession or property, a decree of divorce, etc. The
redress for criminal liability is in the form of punishment which may be in the form of
imprisonment, fine or death. In certain cases, the remedy for both civil and criminal liability may be
he same, viz. the payment of money. In certain cases, imprisonment may be awarded for both civil
and criminal liability. Even in a child case, if a party dares to defy an injunction, he can be
imprisoned. Civil liability is measured by the magnitude ofthe wrong done but while measuring
criminal liability we take into consideration the motive, intention, character ofthe offender and the
magnitude of the offence.

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Distinction Between Civil And Criminal Liability:
About the distinction between the two, different jurists have given different views.
AUSTIN says: "an offence which is pursued at the discretion of injured party or his representatives,
is a civil injury. Offences which are pursued by the sovereign or by the subordinates of the
sovereign are a crime...All absolute obligations are enforced criminally".
SALMOND’s view is that "the distinction between criminal and civil wrong is based on any
different in the nature of the right infringed, but on a difference in the nature of the remedy
applied".
One view is that the main difference between the two lies in the procedure. In other words their
procedures are different. Generally, four points of distinction between the two have been put
forward:
1) Crime is a wrong against the society but a civil wrong is a wrong against a private individual or
individuals.
2) The remedy against a crime in punishment but the remedy against the civil wrongs is damages.
3) A third difference between the two is that of the procedure. The proceedings in case of a civil
wrong are called civil proceedings and criminal and civil proceedings takes place in two different
sets of courts.
4) The liability in a crime is measured by the intention of the wrongdoer; but in a civil wrong the
liability is measured by the wrongful act and the liability depends upon the act and not upon the
intention.

THEORY OF REMEDIAL AND PENAL LIABILITY

Civil and criminal liability cannot be treated as identical with that between remedial and penal. For
the distinction has been made on the notion of the legal consequences of the action against the
wrong. Thus where after a successful proceeding the defendant is ordered to pay compensation for
damages, or to pay a debt or to make a specific performance of a contract, the liability" may be
known a remedial, but where it after a successful proceeding the wrongdoer is awarded punishment,
which may be the fine, imprisonment etc. it may be called penal liability. Though civil liability may
generally be remedial and the criminal penal, the argument is not always true, because in some
cases liability may be both remedial and penal. So also is true of criminal liability, though in
exceptional cases.

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Remedial Liability:
In so far as remedial liability is concerned it is founded on the well-known maxim - “ubi jus ubi
remedium” which means, where there is right, there is remedy. Thus where the law creates or
imposes duty, it also enforces its specific performance. For every breach of duty, there is a remedy
in the law. But there are certain exceptions where the duty is not specifically enforced.

1. DUTIES OF IMPERFECT OBLIGATION:

In the first place, there are duties of imperfect obligation. A time-barred debt is an example of it.
Thought eh debt exists in law, it is not enforceable.

2. DUTIES WHICH BY NATURE ARE INCAPABLE OF SPECIFIC PERFORMANCE

Another exception of the rule are duties of such a nature, which once broken cannot be specifically
enforced, for example, in an act done the defendant cannot be made to refrain from it. Everyone has
a right to reputation, and therefore, there is a corresponding duty imposed on others not to violate
such right. But if at a libel, is committed the specific enforcement of corresponding duty of
defendant “i.e. the person who has committed libel’’ is not possible. In other words, once a mischief
has been done, it cannot be undone. In such case damages are perhaps the only adequate remedy.

3. WHERE SPECIFIC PERFORMANCE IS INEXPEDIENT OR INADVISABLE

In the third place, there are cases where thought eh specific performance of duty is plausible, the
tew does not enforce its specific performance but rather awards damages to the plaintiff. For
example, law does not enforce the specific performance of a promise of marriage or painting to
picture but normally award damages in such cases.

In other words, “ubijus ibi" remedium - which means where there is right there must be a remedy.
When law creates a duty it ensures its fulfillment also. For the breach of duty there is some remedy
prescribed by law, and it is enforced by law. Thus, the purpose of remedial liability is to ensure the
specific enforcement of plaintiffs rather than punishing the wrongdoer. According to the theory of
remedial liability whenever law creates a duty it should enforce the fulfillment of such duty. The
law imposes remedial liability on one who fails to perform such duty.

17
Briefly ordinarily a duty is enforced by law except in the following cases where law will not
enforce the same:
1) Duties of imperfect application, e.g. time-barred debt
2) Incapable of specific performance due to its intrinsic nature — here only compensation will
come into play e.g. tarring one’s reputation.
3) Specific performance inexpedient- promise of marriage. Court would not insists on enforcing a
marriage. -In all above cases duty is there but it cannot be enforced. Remedy is lost.

Penal Liability:
As stated earlier, the main purpose of penal liability is either directly or indirectly, to punish a
wrong-doer. The basic principle underlying penal liability is contained in the maxim - "actus non
facit reum, nisi mens sit rea” which means that act alone does not amount to crime, unless it is
accompanied by guilty mind. Therefore, two elements i.e.
i) act; and
ii) Guilty mind are essential to constitute a crime.
No person can be punished merely because his act resulted into some crime unless it was
accompanied by “Mens Rea” or guilty mind. Conversely, mere presence of “mens rea" shall not
constitute a crime unless it is accompanied by some act. Thus “act” is his physical element of the
crime and “mens rea” is the mental element. Generally a man is hold criminally liable only for
those wrongful acts which he does either willfully or negligently. There are, however, some
exceptional cases when law imposes strict liability as in case of offences under the licensing acts or
offences against public health. In such cases, the act itself becomes punishable even without the
presence of guilty mind or negligence. That apart, the criminal law exempts certain categories of
cases from penal liability. These are commonly known as defences or general exceptions and
include mistake of act, accidents, infancy, minority, necessity, self-defence, voluntary intoxication,
etc. If the offender succeeds in establishing any of these defences, he is not punished though his
offence may satisfy the two conditions of “actus” and “mens rea".
The maxim “actus non facit reum nisi mens sit rea” stated long before by St.Augustine6, became,
with slight change the best known maxim of the English criminal law though the words ultimately
used by COKE. As late as in 1798, KENYON, C.J. had stated that “the intent and act must both
concur to constitute the crime”. Since that time the English reports do not show any case in which
the authority of Lord KENYON has been denied by the English courts.

6
St AUGUSTINE had said : "Ream Lmguam nonfacit nisi mens rea", sermons no. 180 C.2; cited m Pollock &
MaiHand, Hist. OfEnglish law, 11476, N.5
18
The maxi thus, which has been accepted by the English courts as a cardinal doctrine of English law
for centuries, recognizes that there are two constituent elements in crime,
i) A physical element, and
ii) A mental element.
It makes plain that at common law no man may be found guilty of crime and therefore legally
punishable unless in addition to having brought about a harm which the law forbids, he had at the
time a legally reprehensible state of mind. It is, therefore, necessary to reach an understanding of
these two constituent parts of criminal responsibility.
According to AUSTIN intention and negligence are the alternative forms in which ‘‘mens rea” can
exhibit itself. It is a condition precedent for the existence of guilt. In other words, a person is liable
to be punished if he does a wrongful act intentionally or negligently.
SALMND calls it the physical or material condition of liability. If there is no act, there can be no
punishment.
To quote Justice BRYAN: “the thought of man cannot be tried, for the devil itself knoweth not the
thought of man KENNY gives the following example: “a man takes an umbrella from a stand at
his club with intent to steal it, but finds it his own”. He has committed no offence. The second
condition 6f penal liability is “mens rea" or guilty mind. An act is punishable only if it is done
intentionally or negligently. Intention and negligence are the alternative forms in which “mens rea”
can exhibit itself. The conditions of penal liability, the act does not constitute guilt unless it is done
with a guilty intention. Two things are required to be considered in this connection and those are
the act and the “mens rea” or the guilty mind ofthe doer of the act. "Mens rea” requires the
consideration of intention and negligence. The act is called the material condition of penal liability
and the "mens rea” is called the formal condition of penal liability.

STRICT LIABILITY
Apart from the negligence and wrongful acts, there is another class of wrongful acts for which a
person is liable irrespective of mens rea. This liability is called the strict or absolute liability. The
strict liability is an exception to the general rule about the conditions that constitute liability. It is
said that in civil wrongs, strict liability should be the rule. The aim of civil law is to redress the
person who has suffered harm and there is no question of punishment.
Therefore, the person who suffered should be redressed without the consideration as to whether the
wrongdoer did it intentionally or negligently. This view has no wide recognition in modern times
because cases where redress is a penal redress are considered as punishment. In such cases, the
damage awarded to the plaintiff amount to a penalty inflicted upon the defendant for which he is

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liable. Therefore, it is argued that there should be no strict liability in civil law also. This view is
supported by many English jurists, and to some extent, it is applied in the English law. In modern
times, there is a tendency of expanding the field of strict liability. In cases where the redress is
penal, it is intended more for mending the conduct of the wrongdoer in future than it is a penalty for
subjective guilt. Difficulty of knowing the intention: Â very strong argument that is given in favour
of strict liability is that it is very difficult to procure the evidence of intention or negligence in every
case and it would make the administration of the justice very difficult. Therefore, in some kinds of
cases the law makes a conclusive presumption of mens rea on the basis of the external conduct. It is
clear that this liability would fall very heavily upon the innocent persons. But the supporters of
strict liability say that it is not so serious and hard as it appears to be. In cases of civil wrongs, a
man does a thing at his own peril; therefore he should be liable for it in every case. In criminal law,
the rule of strict liability is applied only to a comparatively minor and trivial kinds of offences
which in many cases do not imply any moral stigma on the part of the wrongdoer and in majority of
the offences mens rea is a necessary condition for liability. Thus, in criminal law, rule of strict
liability is almost an exception.
The strict liability may be divided into the following three headings:
1. Mistake of law.
2. Mistake of fact.
3. Accident.

1. Mistake of Law:
The principle that ignorantia juris non excusat (ignorance of law is no excuse) is followed in almost
all the legal systems. A person who has committed a wrongful act will not be heard to say that he
did not know that it was forbidden by law, or, in other words, he did not know the law. This is an
irrebuttable presumption that every person knows the law of the land. This is an instance of strict
liability. The law will not go to make an inquiry as to whether the person taking the defence of the
ignorance of law actually knew it or not. This irrebuttable presumption or, in other words, the strict
liability is on the following grounds.
First, that law is definite and knowable and it is the duty of every person to know the law
concerning his rights and duties.
Second, law in most of the cases is based on common sense, or in other words, it is based on the
principle of natural right and wrong which generally every person knows. A person might not be
acquainted with the Indian Penal Code, but he knows that to kill a man intentionally or to steal is a
wrong.

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Third, there shall be evidential difficulties in accepting the defence of the ignorance of the law. In
most of the cases, the wrongdoers in the first instance will take this defence and the court will have
to enquire as to whether the wrongdoer knew the law or not before going into the merits of the case.
This will create great difficulties before the courts and it will hamper the course of the
administration of justice. Arguments in support of the rule not convincing It is submitted that
grounds given in support of strict liability are not very convincing in modern times. In a country
like ours, where every citizen is governed by the law made by the two legislatures and the rules
made by the local bodies which undergo frequent amendment also, to say that every person knows
the law is nothing but a fiction. The second argument that law is based on common sense also does
not hold much water. In modern times, the law has grown very complex and in many cases it has
nothing to do with the common sense. Some general rules and principles of the law are undoubtedly
based on common sense, but now most of them are based on the expediency or other things. Thus,
the strict liability that everyone knows the law is very hard and severe. However, there are certain
exceptions to this general rule. For example, one is not presumed to know a by law until it has been
duly published.

2. Mistake of fact:
The principle about it is that  ignorantia facit excusat (ignorance of the fact is excuse). It means
that a person is not liable for a wrongful act if he has done it under a mistake of fact. In other words,
mistake is a valid defence against a wrongful act. But this principle applies only in case of a
criminal wrong and not a civil wrong. In civil wrongs, except in few cases, the mistake of fact is not
a valid ground for discharging a person from liability. But in criminal law, the strict liability for a
mistake of fact is only in exceptional cases (IPC Act 1860, section 76 to 79). An example of such
exception or strict liability is that if a person kidnaps a girl below 16, he is always liable, although
he honestly believed that she was above 16.

3. Accident:
A person is not liable for an act taking place accidentally. Accident differs from a mistake of fact.
Every unintentional act is done by mistake when the consequences of the act are intentional, the
mistake is only about the circumstances and in that respect it is unintentional. For example, For
example, if I arrest A taking him to be B, it is a mistake of fact. In this case the consequence that is
arrest is intentional but there is a mistake about the circumstances and I was to arrest B and not A.
So the arrest of A is unintentional. An act is said to be done accidentally when it is unintentional in
respect of its consequences also. For example, if I am cutting wood with an axe, and the axe slips
away from my hand and falls upon the head of a man and causes his death, it is accident because the
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consequence was never desired. Accident is culpable or inevitable. It is considered to be culpable in
those cases where it could not have taken place at all had the doer of it observed the proper care.
For example, if one drives a car above the fixed speed limit in a crowded place, and harm or injury
is caused to any person, the person so driving is liable, although it is unintentional. The accident is
called inevitable when it could not have been avoided by the wrongdoer and it takes place without
any fault on his part. Culpable accident is no defence, save in those exceptional cases in which
wrongful intent is the exclusive and necessary ground of the liability. Inevitable accident is
commonly a good defence in the criminal law (IPC Act, 1860 Section 80). It exonerates the
wrongdoer from the liability. The rule in (Rylands v. Fletcher, (1868) L.R 3 H.L. 330) and in some
other cases of that nature is that if a person accumulates or keeps a thing which may cause danger if
it escapes, he does it at his own peril and he is strictly liable for any harm or damage that the thing
causes, although it is caused accidentally.

VICARIOUS LIABILITY
The general principle of law is that person is liable for his own-acts and not for the acts of others. But in
certain kinds of cases a person is made liable for the act of another on account of the standing in a particular
relationship with that person. This liability is called vicarious liability. This kind of liability existed in
ancient times also but the grounds of liability were entirely different from what it is in modern times. The
principle of vicarious liability in ancient times was that a person must be made answerable for the acts of the
person who are akin to him. With the onward march of time this principle of liability underwent a great
change, and in modem times, this liability exists in a limited kind of cases. Now a person is made liable on
the grounds of expediency and policy, and not on any other ground. Normally, it is tire wrong-doer himself
who is held liable for the act. But there may be certain circumstances when the liability of the wrongdoer is
imposed on some other person than the wrongdoer himself. That is, some other person is made liable for the
wrongful acts of the wrongdoer. For example, a master is liable for the Wrongful acts of his servant done in
the scope of employment. Likewise a principal is liable for the wrongful acts of his agent done in the
ordinary course of business or a guardian is liable for the wrongful acts of his words. The doctrine of
vicarious liability is based n the principle of "respondent superior". According to SALMOND the rational
basis of the rule of vicarious liability, of which the master-servant liability serves as the best illustration, is
mainly evidential. To quote the own words of SALMOND, “there are such immense difficulties in the way
of proving actual authority, that unless some such conclusive presumption is drawn, masters would make
tools of their servants to commit great wrongs. A word, a gesture or a tone from the master will be sufficient
to induce a servant to commit greatest wrongs, yet who could prove such a measure of complexity".

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 Chapter-V
MEASURES OF PENAL AND CIVIL LIABILITY

Measures of criminal liability:

The measure of penal (Criminal) liability mainly based on the following three major considerations-

1) the motive of the commission of an offense

2) The nature/magnitude of the offense

3) The character of the offender

The motive of offense is an important factor in determining the penal liability and sentencing of the
offender. The gravity, nature or magnitude of the orphans is the evil consequences resulting from
the offenders' criminal act. This factor is also considered while sentencing the offender. The
character of the offender is also one of the important factors which is taken into consideration by
the Court while deciding the nature and quantum of punishment. In case of harden or habitual
offender reformative measures such as Probation, Parole etc hardly served any useful purpose.
Therefore deterrent punishment can only be proper and adequate in such cases, whereas first
offenders, juveniles, and persons who have committed an offense under compelling circumstances
may be dealt with leniently and lesser punishment main serves a useful purpose in the cases.
Under the Indian Criminal Law, the maximum punishment for different offenses has been laid
down in the Indian penal code and it is left to the judicial discretion of the magistrate to decide the
quantum of punishment keeping in view the motive of the offender, his character and the gravity of
the offense.

Measure of civil liability -

The purpose of civil liability is to award compensation to the injured party. The quantum of the
compensation is dependent on the actual loss caused to the plaintiff. in civil cases, neither the
character nor the motive, of the defendant is relevant in determining the liability. It has been held
in Headley vs Baxendale (1854), that the damages will be awarded only for the direct
consequences arising out of the usual course of business and not for directed or to remote
consequences.
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 Chapter-VI

JURISPRUDENTIAL ANALYSIS OF LIABILITY

W.R.T. ONLINE GAMES

Digital addiction is real and it could be as dangerous as drug addiction, warned psychiatrists while
outlining practical ways to fight the urge to use gadgets non-stop both among children and
adults. The warning came following reports of a 24-year-old mother committing suicide last week
in Tamil Nadu after she was prevented from using TikTok. Moreover, a 16-year-old student from
Madhya Pradesh also suffered a major cardiac arrest and lost his life because of PUBG
addiction. All new online games should be reviewed for their potential to cause harm and addiction
and their appeal to children, a report on gambling-related harm recommends. A third of a million
people in the UK are considered problem gamblers, and according to a separate report from the
Public Accounts Committee, a further 1.8 million people are considered "at risk".

Now more than ever, there is growing concern within the mental health field about the extent to
which kids and adults are developing full blown disorders involving internet and video gaming. I
recently listened to a call-in radio show where a parent lamented the fact that her son had turned
down an engineering scholarship and deferred starting college so he could continue spending 8 to
10 hours a day perfecting his video gaming skills in the hopes of pursuing that professionally.
Although she was upset, she felt helpless to change his mind, was tired of the fighting, and resigned
herself to support him financially and allow him to continue living at home as he “gamed” in
hiroom. Just as we see with typical addictive behaviors, excessive internet gaming includes an
intense preoccupation with the behavior and a build-up of tolerance so it becomes necessary to
spend more and more hours gaming in order to achieve the same degree of satisfaction and
pleasure. Disordered gamers actually experience withdrawal and feel deeply unhappy and resentful
when they are unable to play their games. Despite the fact that family, friends, and mental health
professionals ask them to cut back on their gaming, such people become defensive, refuse to
accommodate those requests, and persist in the behavior even when it causes serious problems.
Kids, teens, and adults might try to argue that gaming is a fun pastime, but taken to extremes it
often serves the purpose of promoting: dissociation and escape from stressors,
interpersonal problems, or mental health issues including depression and social anxiety. Although
in the short term the behaviour helps to alleviate psychic pain through distraction, in the long-term
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the behaviour is self-destructive and tends to increase arguments, shame, stress, and guilt. It begins
to adversely impact work, school, finances, relationships, even health. Many will hide the behavior
or lie about the extent to which they engage in it. These deceptions feel necessary and serve the
purpose to protect the behaviour and foster a sense of denial about it. Inevitably, when the lies are
uncovered, there is a dramatic increase in fighting and conflicts with loved ones. Gaming
disorder should not be minimized or rationalized. It creates serious problems and winds up fuelling
isolation, low self-esteem, depression and anxiety. One of the more insidious by-products of a
gaming disorder is the fact that the countless hours spent on-line or in an altered state
of fantasy detract from time that could be spent with studying academics, interacting with peers and
family, connecting with nature, exercising, and engaging in other hobbies and activities that enrich
mental, physical, and emotional wellbeing. Although the mother in the call-in show meant well,
allowing her son to continue gaming, even to the detriment of his education and future career, her
choice is like offering him an endless supply of drugs and alcohol. Gaming disorder should not be
minimized or rationalized. It creates serious problems and winds up fuelling isolation, low self-
esteem, depression and anxiety. Loved ones should be careful not to enable the behaviour and push
for an intervention and formal treatment. Owners of these games have a moral responsibility
towards its customers and design the game according to the environmental factors of society and
prevailing thought process of youth. Legally owners cannot be penalised for harm caused due to
excessive gaming because owners do not compel or promote the excessive playing. Therefore,
liability cannot be imposed onto the owners of game but a moral obligation must be imposed on by
the government for keeping in mind the youth and adult positive development. Current gaming like
the blue whale challenge, player unknown battleground (pubg), pokemon challenge etc created a
serious negative impact on players which is ultimately leading them to kill themselves or get died
due to excessive playing. On Christmas Day 2015, 12-year-old Angelina Davydova killed herself in
the Russian city of Ryazan. A little over a fortnight later, so did Diana Kuznetsova, a teenager from
the same city. When the parents examined the online accounts left behind by their daughters, they
found something curious - the two girls were part of similar online groups. In these groups were
drawings of Rina Palenkova, posts about suicide and numerous mentions of blue whales.
The key to fighting digital addiction is to realize the problem when someone develops it, the experts
said. “The two most important things that people have to do is maintain a balance between work,
life indoor, outdoor recreation and social engagements. One must also ensure they are getting
proper sleep, recommended that adults should undergo four hours of “digital detox” every week – a
period when they do not use their phone or any gadget. “If one finds it difficult to go through those
four hours then there is a problem which needs to be addressed, People who are addicted to using
gadgets, tend to get “withdrawal symptoms” in the form of always thinking about that them, or
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becoming irritable with disturbed sleep when they try to stop using their devices, “Digital addiction
is as bad as an addiction to any other drug. So if you are hit by digital addiction, the signs are that
you actually tend to go off your normal routine life. You are always dependent and on the screen.
Such people can neglect personal hygiene and their own self. They also tend to stop interacting with
the society, with their family members and stop thinking about their responsibilities or stop doing
their day-to-day chores. The only exit from this addiction is detoxing and taking clinical help. “One
can have clinical depression, anxiety, obsessive symptoms, insomnia, irritability, and difficulty in
concentrating on other things. “And you can have in rare cases, when one becomes over-dependent,
psychosis. So you have to be aware of all this and it can be very challenging if you don’t realise that
you are going into addiction.” It is not just adults who are vulnerable to digital addiction as use of
smart phones and other gaming devices have become common among children. The experts
suggested that parents should be alarmed when they notice that a child’s ability to live life normally
has got affected and they lash out badly when digital access is denied. “Parents need to be good role
models. If parents spend too much time on digital gadgets then children learn and follow by
example. Encourage children to be social and develop hobbies,” “If you keep focusing your child’s
attention on indoor activities there are higher chances of him/her becoming digitally addicted.
Therefore encourage him/her to play sports or meet friends and family. Reading is also a great way
to combat boredom if indoors,” It is suggested that when parents realise that their child is spending
too much time on screen, it is very important first to have a dialogue with the kid and ask them to
cut down on media consumption. “If they feel that either the child is not responding the way they
want, or if they feel that the child is trying to tell them lies and still using time on screen, then it’s
better to consult a mental health professional,”

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 CONCLUSION

Thus, in modem times the principle is that all the offences do not involve equal guilt on the part of the
wrongdoer and the entire offender are not guilty for the same offence. This being so, the punishment of all
kinds of offences and for all wrongdoers having committed the same offence cannot be uniform. The aim of
the law is to bring the maximum good at the costs of the maximum sacrifice, therefore, in awarding the
punishment it proceeds on foe same line. If the punishment is same for assault and murder, a person who
intends to cause injury to his enemy would prefer to cause the later kind ofthe injury. Thus the uniform
punishment for every offence would bring more evil than good. Similarly, if the punishment is very severe
such as hanging for petty thefts it may bring down the crimes, but the "evil so prevented would be far
outweighed by that which the law would be called on to inflict in the cases in which its threats proved
unavailing”. Therefore, the different offences have different punishments and secondly the judge is left with
ample direction in awarding punishments. The law has generally fixed the maximum punishment that can be
awarded in a particular offence and the judge awards the punishment within the limit taking into
consideration the nature of the guilt, and the character of the offender, etc. In modern times, thought there is
a great theoretical support of the reformative theory of punishment in practice, the punishment to some
extent, serves the retributive purpose and in the most part the deterrent purpose. Thus, at last I would like
to conclude that every activity of the Government has a public element in it and it must therefore,
be informed with reason and guided by public interest: Government cannot act arbitrarily and
without reason and if it does, its action due consideration of legitimate expectation of affected party
are Court has held that the right to refuse the lowest or any other tender is always available to the
Government but the principles laid down in article 14 of the Constitution have to be kept in view
while accepting or refusing a tender. The right to choose cannot be considered to be an arbitrary
power. Of Course, if the said power is exercised for any collateral purpose the exercise of that
power will be struck down.

27
 REFERENCES
Internet Links Used:
1. http://www.legalserviceindia.com/legal/article-1931-concept-of-liability-in-the-light-of-
jurisprudence-an-overview.html
2. https://www.dawn.com/news/1566352
3. http://www.legalservicesindia.com/article/2000/Liability-of-State-In-Contract-And-In-
Torts.html
4. http://www.mcrhrdi.gov.in/89fc/week12/PCCI-
Vicarious%20Liability%20of%20the%20State.pdf
5. https://www.lawyersclubindia.com/articles/Constitutional-Torts-Under-Article-300-of-the-
Constitution-Of-India-3841.asp#_ftn2
6. https://spicyip.com/2010/05/article-300a-of-constitution.html
7. www.jstor.com
8. https://www.legalindia.com/tortious-liability-of-administration-in-modern-times/
9. https://www.srdlawnotes.com/2020/05/measure-of-penal-and-civil-
liability.html#:~:text=Measure%20of%20civil%20liability%20-
%20The%20purpose%20of,the%20defendant%20is%20relevant%20in%20determining%20
the%20liability.
10. https://www.igeeksblog.com/blue-whale-challenge-facts/

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