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There has been an urgent need in India to reform various sectors of law and torts continue to be ignored, mostly for the reasons of high costs of tort litigation.

Tort is the area of law where in response to a private or civil wrong or injury the courts provide the remedy of allowing a lawsuit for (usually monetary) damages. Thus, the goal is to restore the victim to his or her former condition. It has been suggested that the law of torts is developed in India in a scattered manner, but yet it provides for very effective remedies. Most of Indian tort law was developed after the British colonization. The continued underdevelopment of Indian tort law is surprising given the impressive commitment to both compassion and comprehensiveness embodied in the Indian constitution ratified in 1950 (three years after independence from Britain).[1]

Tort law is said to be a development of the old maxim ubi jus ibi remedium (Every right needs a remedy). Are Indians simply possessed of fewer rights in this important sphere? What are we to make of this underdevelopment regarding a fundamental question in almost all systems of law- how to make the victim whole, how to provide reparation? The law of torts as administered in India in modern times is the English law as found suitable to Indian conditions and as modified by Acts of the Indian Legislature.[2] The law of torts or civil wrongs in India is thus almost wholly the English law, which is administered as rules of justice, equity and good conscience.[3] In English law, a tort is a civil wrong, as distinguished from a criminal wrong. The term tort comes from the Latin tortus, meaning crooked. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court - in a criminal case. The police does not enforce a tort. It is a civil action taken by one citizen against another, and tried in a court in front of a judge (only rarely, in certain cases of defamation, with a jury). Certainly, some of the features of the law of torts are which were developed in England are absent in India.  The Indian courts therefore, apply those principles to match the situations in India. This means there is an altercation from the British law to suit the Indian conditions. This fact is quite appreciated because there is a difference in the societies and systems of Britain and India. Tort law is not codified in India. This means whenever an exigency arises, a precedent shall be set up to take care of the peculiar situation. This definitely is a good solution to cope up with civil matters in the largest democracy on the planet. It has also been noted in the Union Carbide Case[4], that Section 9 of the Code of Civil Procedure, which enables a Civil Court to try all suits of a civil nature, impliedly confers jurisdiction to apply the law of torts as principles of justice, equity and good conscience. This definitely is, providing a forum to try civil wrongs and making them a miscellaneous category. This provides the courts with a wide array of jurisdiction. Nuisance, negligence, etc. are wrongs of a different nature. It is definitely agreed that the simpler torts need highlighting, but the problem again remains the same. Litigation. To overcome the same there should be courts specifically set for these small offences or even bigger ones, of civil nature.

The judicial activism which has been present in certain cases like the UCC Case, or the Nilabati Behera[5] case, are typical examples of development in constitutional tort. This outlook has profoundly influenced the direction which tort law has taken. The concept of sovereign immunity has been axed; the vicarious liability of the state concept has been recognized in several cases. Henceforth, it is very much evident that the magnum of the wrong, the parties involved, and the gravity of the situation has decided (and continue to do so) the delivering of judgments relating to torts. This fact shows that the judiciary is in fact, active on setting precedents on tort law. There has been a scattered array of acts and statutes relating to different kinds of tort, like the Motor Vehicles Act, 1988 (it was also enacted in late 80s) and Water Pollution Act, Air Pollution Act etc. The Environment Protection also came up, as late as 1986, as an after effect of the Bhopal Gas Tragedy.

A land mark case needs mention here, because of the progressive approach of the Indian judiciary in this regard. A more stringent rule of strict liability than the rule then the rule in Rylands v. Fletcher was laid down by the Supreme Court in M.C.Mehta v. Union of India.[6] The court gave the reasoning that the old rule of the common law did not meet the modern techniques of science and industrial society. There is a need to depart from that rule whereby the industries ought to be aware of their responsibility, if they are taking benefit out some hazardous business. This approach of the Supreme Court clearly shows that there is no need for a settled or a model tort law structure in India. Its so-called branches are now assuming different dimenstions. Thus, there is a present grund norm or a basic covenant, which directs tort law. That grund-norm may be located in the common law.

A plethora of debates and agitations were unleashed after the Bhopal Gas Tragedy and environmental legislations came in. The crux remains the there has been an importance given to the issues of global importance like environment protection, which also finds a place in the law of tort. Assault, battery etc. are smaller torts and there have been provisions incorporated for them either in the CPC or the CrPC. Thus, there is no need for a specific legislation dealing with such small civil wrongs.

Another thing, which needs highlighting at this juncture, is the Consumer Protection Act, in India. It has assumed a different jurisprudence altogether and has become a different stream in itself. It also provides for trying of medical negligence cases before a consumer court or forum. It is a vitalizing point again, that since it has assumed a stature and that of a very high degree, it has become important. And, to the extent that, a legislation was indeed enacted for the same. This fact clearly shows that the legislature has provided for effective remedies for civil wrongs, and thus the law of tort as a sum total for debating purposes only, and it wouldnt be necessary to give a lot of importance to it - like codifying it, as some argue.

The law on nuisance does provide for public nuisance and private nuisance. It has to be continuous to bring up a claim. Private nuisance can be considered when there has been a substantial nuisance and unreasonable interference.[7] Bringing on claims merely on ordinary discomforts would definitely be a futile litigation and it would overlook the practicalities of life. On this ground it would be quite wrong to say that torts are being overlooked. [8]It must be noted that the court, while interpreting S.133 of the CrpC has indeed allowed private claims as well.[9]The court did say that the language used by the said section does not necessarily mean public or private nuisance.

Now, with reference to nuisance, there has been a clear distinction via several cases between, environmental nuisance and tort nuisance. Now, nuisance has been given, a more criminal tilt to it[10]. It is evident that the remedy provided in the CrPC or the IPC, has been effectively exhausted. The classic example being, the Ratlam Municipality Case.[11]When it comes to nuisance and as a civil wrong (private nuisance to be more specific), remedies available are scarce, and the injured parties are often disinterested. The tort litigation in India is no where as compared with that of the U.S.A or for that matter, the country which has given India its uncodified tort law, Britain. There is a proper jury in certain cases of defamation in England, while in India; it is not taken too seriously. Defamation has been made a criminal act too. The system in England is quite different from India. They run on precedents. Thus it would be wise to cut down the court fee to appreciate more legislation, rather than giving much importance to the law of tort.

The development of tort law is evident in the law relating to nuisance as well. Principles, such as the polluter pays principle are now being accepted through various judicial pronouncements in India.

There has been a wide acceptance of cases going to the Supreme Court via writ petitions or public interest litigations. This is a more effective and expeditious remedy available. How often it has been seen, that the Supreme Court has admitted writ petitions under Article 32 of the Constitution of India.[12]The courts have awarded compensation in such cases as well. Thus, the courts have tried to provide an effective forum and method to the citizens. Now, in matters like environment, in which the claimants problems used to be the prerogative of the State Pollution Control Board. It was upon the Board to approach the court. The situation has changed now. The courts have recognized citizen suits in such matters too, thus opening a new way for the common men to approach the courts. Another reason why the Supreme Court has become a remedy provider is that, there are very few problems of locus standi. Most of the cases have been dispensed off in a very tactful and justifiable manner.

  Taking about compensation, Section 357(1) of the CrPC permits a court, while sentencing an accused to fine, to award compensation out of the fine to any person for loss or injury caused by the offence when compensation is in the opinion of the court, recoverable by such person in a civil suit. Further, Section 357 (3) provides that a court can ask the accused (apart from the fine) to indemnify the victim, by way of compensation.[13] The point is that, the courts and the legal system does provide for alternative remedies and a wide range of remedies. Then why is there a need to give importance to tort, as a single entity?

There is also a provision for injunction in the Code of Civil Procedure as well as the Specific Relief Act.[14] An injunction is an order of a court restraining the commission, repetition, or continuance of a wrongful act of the defendant.[15] An injunction may be granted to prevent waste, trespass, or the continuance of nuisance to dwelling or business houses, to right of support, to right of way, to highways, to ferries, to markets etc. Thus there is a mechanism available to sort out or look in to trifles as well. These small torts can also be taken care of, by the two Acts mentioned above. The Specific Relief Act also provides for restitution of property. Thus a person who is wrongfully disposed of immovable property[16] or of specific movable property[17] is entitled to recover the immovable or movable property, as the case may be. All these examples exhibit a wide range of legal issues and their remedies that are indeed available in the procedural (as well as substantive) laws of this country.

Now, coming to the law relating to defamation in India, there is a diversion from Britain. The common law rule that slander is not actionable per se has not been followed in India, except in a few decisions. The reason given is that the rule is not founded on any obvious reason or principle, and that it is not consonant with justice, equity and good conscience. Both libel and slender are criminal offences under s. 499 of the Indian Penal Code and both are actionable without proof of special damage.[18] Thus, there is an option available for defamation in India, to go for a civil remedy or a criminal one. This again exemplifies the ease with which the judiciary has molded the different branches of tort law in to the Indian legal system.

Finally, we would be inclined to conclude that it is quite obvious that there is no need to centralize the law of tort. Nuisance, negligence, defamation etc. are independent of each other and there are different remedies available for them, as we have seen. These remedies are more effective and wide in nature, but for the cost of litigation that needs to be brought down.


(The author Mr. Vijay Purohit is a student at Gujarat National Law University in Gandhinagar.)



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Category Civil Law, Other Articles by - Viswanath