The objective of this article is to discuss torts in general, its origin and development of Law of Torts as a branch of legal studies in India. The law of Torts in India is a relatively a 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. 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’.
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.
The sessions during which these judges conducted trials were termed ‘assessments’ or ‘sittings’ in modern terms. The place from which a judge makes judgments and sentences is still called ‘bench’. Once these precedents were set, they were intended to apply equally to every member of society, from a lord to a servant, resulting in the term common law.
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.
In the case of 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.
What are the 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. The reasons for it are as follows: –
- 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 Judiciary system is very expensive and takes a long time in panting decision, therefore victims day to go to quotes and is the cause of non-development of the law of torts.
In M.C. Mehta vs. Union of India, Justice Bhagwati said: – We have to develop new theories and create new norms that will adequately deal with the new problems arising in a highly industrialized economy. We cannot allow our judicial thinking to be constructed in terms of law as it is prevalent in England or in any other country for that matter. We are of course ready to receive light from any source, but we have to create our own jurisprudence.
It is pertinent to mention here that Section 9 of the Code of Civil Procedure 1908, as amended, which empowers the civil courts of the country to try all kinds of suits, which are civil in nature, under the Law of Torts Holds the jurisdiction responsible for trying cases. On the fundamentals of justice, equality and good conscience.
In Jai Lakshmi Salt Works (P) Ltd vs. State of Gujarat, Justice Sahai, R.M. held in: – 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.
In the light of the above 2 judgments, and with the aim of creating a distinctive Indian jurisprudence system, the following various branches of the Law of Torts in India have been codified: –
- Judicial Officers Protection Act,1950
- Indian Carriers Act, 1865
- Cattle Trespass Act, 1871
- Easement Act, 1882
- Workmen Compensation Act,1923
- War Injury (Compensation Insurance) Act,1943
- Fatal Accidents Act,1955
- Trade and Merchandise Act, 1958
- Specific Relief Act, 1963
- Air (Carriage by Air) Act, 1972
- Bhopal Gas Leak Disaster (Processing of Claims) Act,1985
- The Consumer Protection Act,1986
- Motor Vehicles Act, 1988