But is China’s responsibility only a moral one , or can China be held legally accountable to compensate the countries who have suffered so grievously on account of its China’s sins, which are not merely of negligence and lethargy but of active and fraudulent misrepresentation and malafide suppression which deprived other countries of a priceless opportunity to defend themselves.
We have to go back to the 19th century and re-visit the principle of English common law laid down in the great and leading case of Rylands vs Fletcher – that if a person has something in his property which is potentially dangerous or noxious or damaging to others, he owes them an unconditional legal obligation to ensure that it does not escape and hurt them or damage their property. The English Courts have gone to the extent of laying down that this legal obligation is absolute and exists even if there is no negligence. This principle of English common law has been applied in a variety of situations such as a large reservoir of water on the defendant’s land , or the presence of a source of pollution such as sewage or even a wild animal that could wreck havoc if let loose. This illuminating principle of English common law , based on sound reasoning , was carefully and meticulously evolved by English judges who were universally acknowledged forensic giants , masters of the act of judgecraft. To quote the great English Judge Sir Edward Coke :-
“Reason is the life of the law , nay the common law itself is nothing but reason”.
The principle in Rylands vs Fletcher is directly applicable to the Covid virus. China has not only enabled , indeed facilitated the travel of the virus to the rest of the world. China has also effectively prevented the rest of the world from insulating and protecting itself , which would have greatly mitigated the extent and rigour of the pandemic. We do not even need to go to the extent invoking absolute and unconditional liability , independent of negligence. China has been in fact egregiously callous and negligent , with full knowledge of the catastrophic consequences to other nations.
International law is nothing but the principles observed and acted upon by civilized nations. The International Court of Justice (ICJ) which was set up under the aegis of United Nations, has in the past expressly stated that it would rely on the legal principles laid down by eminent jurists. Rylands vs Fletcher would certainly fit the bill.
India should initially take up the matter discreetly with China through diplomatic channels and try to reach a settlement or understanding regarding the compensation to be granted to India and the form it would take. China would be only too eager to avoid a legal dispute which would invite huge publicity and inevitably provoke the much harder hit countries like Italy and Iran to make massive legal claims on China. India should capitalize on this situation.
In sum , India has a strong claim on legal as well as moral grounds against China which it should assert strongly and firmly and take whatever measures are required to obtain redress. The Indian economy has received a “Kung-flu” body-blow from Covid, from which it may take well over a year to recover. The human distress from the loss of millions of jobs and closure of lakhs of business is absolutely mind boggling. The Indian media should clearly and emphatically articulate the outrage of the entire nation. This is its solemn duty in this hour of crisis , and the sooner it wakes up to it , the better.
(The writer is a senior advocate, Supreme Court. Views expressed are his own)
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