Author: Nishi Doshi, 1st Year, LL.B, Jitendra Chauhan College of Law, Mumbai.
The article has been written by the author while pursuing the internship program with us.
- Salmond finds the term as “civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.”
- Winfield held that “tortious liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
In India, litigation for torts is very limited as well as restricted. Legislature has also made efforts to lay down codified statutes regulating the Law of Torts, such as The Workmen’s Compensation Act, 1923 and The Fatal Accidents Act, 1855. In fact, The Indian Penal Code, 1860 itself, in addition, includes many provisions which are treated as criminal offences but are also otherwise torts.
Likewise, Wrongful restraint and confinement, assault, house trespass, defamation and others. It is however not unwise to state that, through Public Interest Litigation, the penalty is levied on guilty persons who rely on strict, constructive or other principles of liability.
Following the case of Gujarat State Road Transport Corp., Ahmedabad vs. Ramanbhai Prabhatbhai & Anr [1987 AIR 1690, 1987 SCR (3) 404], it was observed in the case of Rajkot Municipal Corporation vs. Manjulaben Jayantilal Nakum & Ors [1992 ACJ 792, (1991) 1 GLR 650] – In India, unlike in England, there is no statutory law regulating damages for tortious liability. In the statutory law or established principles of Law laid down by this Court of High Courts in accordance with Indian requirements and circumstances, the Court has chosen to apply the principles of common law developed by the courts in England on the grounds of justice, fairness and good conscience. The common law principles of tort developed by the Courts in England may be applied in India to the extent of suitability and applicability to Indian conditions.
HISTORY OF TORTS
The term Tort has been in presence since the pre-independence period. The Sanskrit word “Jimha”, which means ‘slanted’ was used as a part of old Hindu law message in the context of ‘tortious of fraudulent conduct’. Under Hindu Law and the Muslim Law, tort was not considered significant compared to English Law.
The English Law of torts and the law of torts in India are dependent on the standards of the customary law of England. But, the Indian Courts have to check whether it is suited to the Indian culture and conditions before applying any control of English Law. The use of the English law in India has in this way been a specific application.
In the case M.C. Mehta v Union of India [1987 SCR (1) 819, AIR 1987 965] Justice Bhagwati observed, we need to develop new principles and lay down new standards that will deal adequately with the new problems that arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law that prevails in England or in any foreign country. We are certainly prepared to receive light from whatever source it may come, but we must build our own jurisprudence.
TORT LAW REFORMS IN INDIA
- There have been discussions going on in legal forums for the development of tort law in India due to lack of stability and continuity in Judgments.
- The Justice system in India is more focused more on punishment than compensation for wrongs.
- There are Arbitrary Award of remedies and compensation in cases due to lack of codification of proper damages.
- There is a heavy burden on Civil Courts to deal with matters beyond the realm of Torts. There is too much dependence on common laws of England and civil Statues from foreign jurisprudence.
- India has a tort law deficiency including steep court expenses, low honours of damages and poor implementation of judgments.
NEED FOR CODIFICATION
- Legal experts in England and in India have often worked on the law of torts to be diminished as a statutory framework. The advantage of such a frame would be, to the purpose that the law would find itself unequivocal and compartmentalized. However, it must be borne in mind, that this branch of the law has taken legal decisions, that its exceptional premise is case law (both English and Indian), and perhaps more harm than good can be done to the advancement of this branch of the law by reducing it to a statutory code.
- The maximum advancement in the tort law is possible because of the Indian Judges and Lawyers. In spite of the fact that proposals for an establishment on tort law were made as early as 1886 by Sir F Pollock, who introduced a bill popularly known as the ‘Indian Civil Wrongs Bill’ at the occurrence of the Government of India, it was never accepted up for enactment. There is a little doubt that code is very valuable. However, it is well to perceive that this branch of law remains to be developing and that since it is hard to line up code, it would not accordingly help a legitimate advancement of the law to do as such.
- The fact that the law of torts is not codified increases its ambit to encompass various cases. Other nations have put too much effort when talking about the development of tort law compared to that of India. Recognizing how a tort code may be inappropriate for the above-mentioned reasons, it might be more sophisticated, to begin with, for institutions on particular topics on which case-law in India is inappropriate and needs to be changed. One of the principal proposals for enactment made by the Law Commission delegated by the Government of India is regarding the matter of obligation of the government for torts of its servants.
OVERLOOK ON TORT REFORM IN INDIA
The development of the Absolute Liability in M.C. Mehta Case and also the guidance of the Supreme Court on Multinational Corporation Liability, recognition of Governmental Tort by employees of government, the evolution of tort of sexual harassment, granting interim compensation to a rape victim, and award of damages for violating human rights under writ jurisdiction, including an Rs.20 crore exemplary damages in the Upahaar Theatre Fire Tragedy case [Assn. Of Victims of Uphaar Tragedy vs Union Of India (UOI) and Ors. II (2003) ACC 114, 2003 ACJ 1631, 2003 IIIAD Delhi 321, 104 (2003) DLT 234, 2003 (68) DRJ 128, 2003 RLR 333] by Delhi High Court are significant changes in the tort law of India.
There has been a number of enactments such as Public Liability Insurance Act, 1991, Environment Protection Act, 1986, Human Right Protection Act,1986, Pre- Natal diagnostics Techniques Regulations and Prevention of Misuse Act,1994, embodying the new principles of tortious liability in India, which proves that the tort law in India has not been overlooked.
There is an inability of Codification in India because Judicial Activism is required followed by Economic Factors (Deep Pockets Theory, Damages), constitutionalism and lack of flexibility.
AREAS OF TORT REFORM IN INDIA
- Some features of the law of torts developed in England are absent in India. The Indian Courts, therefore, apply principles by taking into consideration the situations going around. This means there is bone of contention from the British law to suit the Indian Conditions.
- The judicial activism that was present in certain cases like UCC case or the Nilabati Behera case, these are examples of development in constitutional tort. This fact demonstrates that the judiciary is in fact, active on setting precedents on tort law. There has been different acts and statutes relating to different kinds of torts like the Motor Vehicles Act, 1988 and Water Pollution Act, etc. The Environment Protection also came up, as of late 1986 after the effect of Bhopal Gas Tragedy (Union Carbide Corporation vs Union Of India Etc) [ 1990 AIR 273, 1989 SCC (2) 540].
There is a need to know whether the existing laws, enactments and regulations dealing with civil wrongs and liabilities under tort law in India are effective and well developed to provide remedies and determine the liabilities of individuals as well as the State in the true sense or not. India, when compared to other countries like USA and UK lacks in developing tort law due to lack of triple activism – Activism in People, Judiciary and Legislature. Torts Law is a subject that has not been recognized in India. In addition, the lack of single/distinguished codified statutes for the above- mentioned has led to a situation in which the common man must approach the judiciary and invoke its alternative options which are not to his own comfort. Therefore, current lacunae must be resolved for the advancement of Tort Litigation – red-tapism in Courts, lack of trustworthy testimony, lack of legal aid and education, provision of quality of treatment and quick access to justice.
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