Development of Law of Torts in India
The law of torts as administered in India is the English law as found suitable to Indian conditions and modified by the Acts of Indian legislature. The law of torts was introduced through British Courts in India.
The first British Courts established in India were the Mayor’sCourts in the three presidency towns of Calcutta, Bombay and Madras.These Courts were established in the eighteenth century. The Charters which established these courts introduced the English Common law and statute law in India. The Charter required these courts “to give judgment and sentence according to justice and right”. Later on these courts were replaced by the Supreme Courts in these three towns, but similar jurisdiction was conferred upon them. The Supreme Courts were superseded by High Courts in those three towns, but the jurisdiction to administer the English common law continued. The law of torts is a branch of English Common law and it was in this manner the English Law of torts was introduced in the provinces of Madras, Bombay and Calcutta.
Also Read What is the meaning of independent liability in law of torts?
Also Read Inter relation and difference between tort and other subject of law
As regards other courts, (other High Courts and all the subordinate courts) in India, there is no express provision for the administration of English Common law. These courts have been established by Acts, and the Acts which established them contain a section which require them,in absence of any specific law or customary law or usage to act according to “justice, equity and good conscience”. The expression “justice, equity and good conscience” was interpreted by the Privy Council to mean rules of English law so far as they are applicable to Indian society and circumstances (Waghala Rajsanji v. Shekh Masludin, (1987) 14 IA 89; Ratan Lal v. Vardesh Chander, AIR 1976 SC 588). Thus the law of torts as administered in the High Courts of Bombay, Calcutta and Madras in their original jurisdiction was the part of common law of torts. In other courts in India, the English law of torts was administered as a principle of justice, equity and good conscience.
Also Read Process of development of law of Torts in India
Reasons for slow development of law of torts in India
The reasons for slow development of the Law to Torts in India may be summerised as follows:
(1) Uncertainty of law: It is well known, the Law of Torts is not a codified law and it is still developing. Due to the uncodified law there is no uniformity and certainty in its rules and doctrines. Uncertainty of the law increases, in the circumstances when these is lock of precedents.Due to developing law there is lack of precedents for every situations. Although precedents are available in England on many points but they cannot be applied in the Indian situations. Thus there is a lack of case law in India.
(2) Lack of Political consciousness: Due to lack of political consciousness most of the people are not aware of their rights. A large part of Indian population is illiterate consequently they neither have any knowledge of their rights nor they have courage to go to the courts and seek remedies against the violation of their rights. Apart from this, in India the emphasis is on the performance of one’s duties rather than assertion of rights.
(3) Illiteracy: The main reason for the ignorance of their rights is due to illiteracy. Large part of the Indian population is illiterate. Due to illiteracy they have neither knowledge of their rights nor they have courage to go to courts for remedy against violation of their rights.
(4) Poverty: Poverty is another major factor for the less number of tort cases in India. Most part of the population of India is economically backward and as a result of this they are not capable of meeting the high cost of litigation for the enforcement of their rights.
(5) Expensive and dilatory judicial system: Indian judicial system is very expensive and dilatory. The rate of court fee and the lawyers’ fee is very high. Consequently, the poor instead of going to the courts think it better to suffer the violation of their rights. Even small dispute takes years to be disposed off. If after conducting the case for a numbers of years and after expending lot of money he gets Rs. 50 or Rs. 100 as damages then he considers it as no benefit at all. On the other hand,the administration of justice in England is very inexpensive, fast and these type of cases are decided in England within the maximum period of one year.
Recent Trend In this Regard
Inspite of above mentioned difficulties, the law of torts in India is developing. The main reasons for this is expansion of education and political consciousness in the Indian Society about their rights. The tort litigation is increasing. Particularly under the Motors Vehicles Act, 1988 now-a-days number of cases are going to the Courts.The main reason for this is that the court fee is not charged on the basis of valuation and the claims are decided without delay by the Claims Tribunals. Under the Act there is a provision for compulsory compensation to be given in hit and run cases and in certain cases the principle of ‘no fault liability’ has been recognised. The Motor Vehicles Act, 1988 provides that in cases of death Rs. 50,000 and in cases of permanent incapacity Rs. 25,000/- compensation is to be payable to the person.
Rule of Absolute liability: Indian Courts have refused to follow some of the doctrines of law of torts as established by the English Courts in the 19th century. The Supreme Court of India in the landmark decision in M.C Mehta v. Union of India, has established a new doctrine-Doctrine of absolute liability-in place of the doctrine of strict liability which was established in the famous case of Ryland v. Fletcher, in 1868 to deal with new situations in society arising out of modern industrial development.There are certain exceptions to the rule of strict liability while present doctrine is absolute and not subject to any exceptions.
In that case the harm was in a highly industrialised economy. Chief Justice Bhagwati who laid down the new principle (of absolute liability) said.
Also Read Discharge of Torts in India
Also Read Damages for Nervous or mental shock
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialised 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.”
Also Read Rule of Novus Actus Interveniens
Also Read Remoteness of Damages
Also Read Determining the amount of compensation/damages for personal injuries
It is true that in India the law of torts has not been completely codified, but this work has not been completely neglected and Indian Parliament has from time to time enacted many Acts in order to make the law clear and definite. The following enactments are worth mentioning-
(1) Fatal Accidents Act, 1955
(2) Indian Carriers Act, 1865
(3) Cattle Trespass Act, 1871
(4) Copy Right Act, 1957
(5) Air (Carriage by Air) Act, 1972
(6) Specific Relief Act, 1963
(7) Easement Act, 1882
(8) Indian Patents and Designs Act, 1911
(9) Workmen Compensation Act, 1923
(10) Sale of Good Act, 1930
(11) Judicial Officers Protection Act, 1850
(12) Patent Act, 1970 (& Patent Amendment Bill, 2005)
(13) War injury (Compensation Insurance) Act, 1943
(14) Motor Vehicles Act, 1988
(15) Trade and Merchandise Act, 1958
(16) Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.
Question
Trace out the process of development of law of Torts in India. Elaborate on the reasons for the slow development of Law of Torts in India. Also examine some recent trends in this regard.