Development of Law of Tort

The law of Torts in India is a relatively new branch of evolving clustered law which needs to be supplemented by codifying statutes by bringing it under the ambit of one umbrella upon the basis of the maxim ubi jus ibi remedium which means “where there is a right, there is a remedy.”. Improvising on the existing laws will undoubtedly strengthen the faith of citizens, we the people of India, but will also elevate the image of the country in the international arena of legal fraternity.

The word Torts is derived from the Latin word ‘Tortum’ which means twisted/crooked/wrong. Tort in French corresponds to the English word wrong and the Roman expression delict. In a society when a person turns directly from the normal course of conduct to a person who injures or causes harm to another, he is considered to have committed a tort – a conduct that is twisted or crooked. A person who commits such devious acts is marked as a tortfeasor.

It is different from breach of contract and trust. Tort is when the act of one party causes some harm to the other party due to negligence, carelessness on the part of another party. The one who sues is known as ‘plaintiff’ and the one who is sued is known as ‘defendant’.

The concept of Law of Torts is one of the main obligations under Civil Law. When a legally protected right is violated, causing any harm or destruction such an act is named as Tort. In short, a tort basically means a civil wrong. Each and every facet of rights gives rise to a specific element of tort. The important thing here is that the person committing a tort is never considered guilty and he is seen only as he is liable to the act or omission.

In Gordon vs Lee The mental object of the Law of Torts is that people are responsible only for the consequences of their act or omissions. The Great Jurist Salmond defines tort as a civil wrong for which remedy is a civil law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely just obligation.

To put it into simple words, when a wrongful act done by a person affects our rights and causes legal damage, there arises a remedy and such process is called the Law of Torts. Since tort is a civil law, evident differences can be seen between a tort and a crime as a tort is a wrongful act which constraints the individual or his material objects while crime is actus reus which restraints the social order of the social group we live in. Moreover, Crime takes place mostly with an intention to cause harm or hurt.

Origin of Tort Law

Prior to 1066, the French William the Conqueror of the Norman conquest of England, the legal system was somewhat disorganized, carried out on a more or less case-by-case basis. After 1066, to assimilate the village laws that had developed over two centuries, eminent judges were delegated to visit a given area. These judges, benefiting from this information, noted and applied the precepts they believed to be most impartial in their own court’s findings. Over time, these cases became what are now called legal precedents when referenced often enough. The law of tort came to India via England. The law of tort came to India via England.

After the Norman Conquest, French became the language spoken in the judiciary of England and thus many technical terms in English law originated from French and tort is one of them. The term ‘tort’ is based on the concept that there are certain rights for all in the society. The purpose of this atrocity law is to enforce rights and duties.

Evolution Of Tort Law In India

The evolution of tort law in India can be observed in three phases namely

  1. Ancient era
  2. Medieval era
  3. Modern era

I . ANCIENT INDIA

It was considered that the main and basic modes for the peaceful progression of the lives of the people were the State and the King. It was believed that a King can do no wrong. There are several written materials which also talk about the law and the legal foundation, liability and unsusceptibility of the King, concept of the origin of the State, responsibilities of the supreme towards its individuals and equitable remedy to the smitten people through Ordeal system etc. The most important among the various manuscripts are the Vedas, Smritis, Sutras, Arthasashtra, , and the writings of overseas travelers. They also tell us the liability of the State to counterbalance the victims, aggrieved by the King’s officials during ancient period. The concept of vicarious liability was formulated during Vedic period in India. The King had to protect the life and property of the people.

If any wrong occurred affecting the people, the King was liable to make up them. Brihaspathi says where a servant authorized by his master does any wrongful act for the welfare of his master, the master shall be held liable for it. Thus the concept is established that when the servant’s act is for the welfare of the master in the due course of his employment, the master is made liable.

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II. MEDIEVAL ERA

It was analyzed that there was a very little progression of law of torts in India when compared with the law of crimes when the country was ruled by Islamic rulers such as Delhi Sultanate, Mughal empire. The reason behind this is their principle of n eye for “an eye and tooth for a tooth.”

III. MODERN ERA (during 18th and 19th Centuries)

The British empire brought Common Law and Tort law came into India when the British Empire established three presidency courts at the efforts of Sir Henry Mane and Sir James Stephens. It tried to codify such laws 1886 through Sir Frederick Pollock in the form of Civil Wrongs Bill which was never passed.

During British rule, Courts in India were administered by the Statutes of Parliament in the UK. The Indian enactments were supposed to act based on justice, equity and good conscience which are commonly known as the “General Principles of Law” when there was no specific law to solve the particular dispute in a suit. In the cases of damages for torts, courts preceded the English common law as it was in harmony with the general principles of law. They did not consider it when any of its rules were found unreasonable and unsuitable to Indian situations.

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Development of the Law of Torts in India

The Law of Torts is based on the principles of ‘Common Law‘ which is primarily the English Law of Torts. The law of tort is selectively enforced in Indian courts if it suits the circumstances of the Indian society.

In India, the term tort has existed since the pre-independence period. Tort did not have such an important beginning under Hindu law and Muslim law compared to English law. Most of the laws of tort in India is adopted from the English law of Torts. However, the Indian courts before making any application of the laws adopted from the English law of torts see whether it is compatible with Indian culture and circumstances. Using the English law in India has thus had a distinctive application.

In India, the origin of torts is related to Charter of 1726. Under charter 1726 the English courts were established in three presidencies i.e. Bombay, Calcutta and Madras which were known as ‘Mayor courts’. These courts were working under ‘Common law’ full stop in India also the common law was made applicable but the directions were made to quotes that the common law is made applicable. In the application of common law, in the application of common law, the principles of equity, justice and good conscious were being followed. Law of torts was being considered an inseparable part of the common law. This was made applicable in India in this reference but due care was taken that it applied as per the conditions, customs and traditions of India.

To deal with the malicious behavior of the people tort existed in Hindu and Muslim law but it can be said that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society

In Naval Kishore vs. Rameshwar Nath And Ors. ( A.I.R. 1995 Allahabad 594) it was stated that the rules of law of torts of England should be made applicable as per the Indian atmosphere, that is, corresponding to traditions and Customs of it.

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Justice Bhagwati in M.C Mehta v. Union of India observed that: “We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”

Reasons for the slow development of law of torts in India?

In view of the above, the stability of the law of torts in India is due to English law. Since 1726, this law is made applicable in Indian courts, but the process of development of it is very slow. 

  1. The Law is Not Codified: – The main reason for the slow development of the law of torts in India is that is not codified. Due to this, there is always a problem of uncertainty in front of the court. It is very difficult to decide which action comes under tort and which are not torts. The decisions of courts are generally based on precedents.
  • Ignorance of Law: – The second cause is ignorance of the law. People are not aware of their legal rights. Most people are illiterate and are unaware of their rights. This is the reason that they do not move to courts for justice even on violation of their rights.
  • Poverty: – Poverty has also distant the development of the law of torts. A number of people do not approach the Court due to poverty. They keep silence tolerating humiliating experience of extradition and tannery. But now the efforts are made so that a person may be deprived of justice due to the reasons of poverty.

Arrangements for free legal assistance have been made in paragraph 39(A) of the constitution. Now the conception of public interest litigation is also contributed in forwarding the applicability of the law of torts.

  • Lack of Political Will Power: – The formation of adequate law and their implementation are not willfully desired by the political representatives, which is also restaurant the development of the law of torts. The government is not effective as it ought to be in reference to reference to law and Justice.
  • Expensive and Delaying Judicial System: – The process of the Judiciary system is very expensive and takes a long time to pant decision, therefore victims day to go to a quote which is the cause of the non-development of the law of torts.

In Jai Lakshmi Salt Works (P) Ltd vs. State of Gujarat, Justice Sahai, R.M. held that the entire Law of Tots is morally based and structured. Therefore, it would be primitive to strictly shut down or eventually to the ever-expanding and expanding horizon of tortious liability. Even for social development, orderly development of society, and cultural sophistication, the liberal approach to fraudulent liability by the court would be favorable.

References:

  1. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2612883
  2. https://academic.oup.com/book/8078/chapter-abstract/278667390?redirectedFrom=fulltext
  3. https://www.legalserviceindia.com/legal/article-2161-development-of-the-law-of-torts-in-india.html
  4. https://blog.ipleaders.in/law-of-torts/
  5. https://legalpaathshala.com/development-of-law-of-torts/#:~:text=India%20via%20England.-,The%20law%20of%20tort%20came%20to%20India%20via%20England.,for%20all%20in%20the%20society.
  6. . R.K. Bangia Law of Torts, 26th Edition 2021 by Allahabad Law Agency
  7. M.N. Shukla The Law of Torts 18th Edition Central Law Agency
  8. THE LAW OF TORTS by Dhirajlal & Ratanlal 28th Edition LexisNexis Publication

Aishwarya Says:

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