Need for the Codification of Law of Torts in India

I. Introduction

Law of torts is a civil wrong. It has increases its ambit day by day and it is developing continuously. At one hand, it is an ever-growing branch of law and on the other hand it is most unexplored branch of law. The law of torts in India is evolved from the English Common Law and remain uncodified like the English torts of law. It is developed through various judicial precedents of House of Lords as well as by our Indian judges. During these years, law of torts has developed a lot but still it is uncodified and remained scattered.

The word tort has been derived from the latin term ‘tortum’², which means ‘to twist’, crooked or unlawful. According to Winfield, “Tortious Liability arises from the 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”³. It is based on the legal maxim, ‘Ubi jus ibi remedium’⁴ which means, “where there is a right, there is a remedy”. Thus, law of torts deals with the situation, where there is the violation of any legal right, there is the provisions of unliquidated damages. The damages are actually a monetary compensation.

II. Effect of non-codification of Law of Torts

Law of torts is an ever growing and an evolving law. Law of torts was applicable in India since the India was under the British rule. Britishers had applied their English common law of torts to the India’s population. But our learned judges have taken very innovative view in the sense that they have accepted only those areas or principles of law of torts which is applicable and suitable to the Indian context. Judges are following or citing the English torts law cases so long as it is suitable to the Indian cultures and societies and if it need some modifications then courts could deviate from the English case laws and give their own new principles. Like in the case of M.C. Mehta v. Union of India⁵, court has developed the principle of ‘Absolute liability’. In this case Justice P.N. Bhagwati⁶, has rightly pointed out 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”.

Basically, at one hand, the presence of uncodified law of torts is an opportunity for the Indian courts to evolve and develop the more equitable principles. It keeps door open for the courts to bring and adopt new principles according to the changing needs of the Indian culture and society and to make modifications according to the legal changes in the Indian legal landscape.

On the other hand, the codification of law of torts will hamper the growth of tort laws in India. It will limit the judicial advancement and will restrict the courts from evolving the law of torts according to the changing dynamics of the society. If the law of torts is codified then possibility is that complete justice could not be done due to the certainty and closed nature of the law of torts.

III. Merits of codification

Codification simply, means, shaping the previously existing customs, traditions, judicial precedents into a code in the form of enacted law.

Few advantages of codification-

• Codification can simplify the law and brings clarity to law.
• Codification can bring greater certainty of law in legal system.
• Codification can provide a clear, unambiguous, and thorough formulation of law.
• Codification can modernize the law and can be change with the changing needs of the society through the instrument of interpretation.

Previously, we have codified laws like Indian Penal Code, Civil Procedure Code, Criminal Procedure Code etc. And we have subjected them under the instrument of interpretation, revision, modifications, alterations and amendments according to the changing needs of the contemporary world and society. Then why can’t we have codified law of torts?

IV. Attempts to codify law of torts in India

In the past few years, attempts were made by the parliamentarians to codify this uncodified law but they were concluded with no codification. The first proposition regarding the codification of torts law was passed by F. Pollock in 1886⁷, who constituted a bill named ‘Indian Civil Wrongs Bill’. But it was of no effect because it was never taken into consideration by the Indian government. In 1965, a bill was introduced in the parliament for the codification of law of torts but it was lapsed in 1967 and no statutory laws were passed. In 2010 again the then Union Law Minister Veerappa Moily expressed his concern for the codification of law of torts in India so that adequate compensation can be given to the victim and liability can be fixed without any confusion and ambiguity but it was totally in vain.

Although the attempts to codify the law of torts failed in India but Parliamentarians were successful in systemising the certain areas of law of torts by bringing them into some statute book. Laws like Consumer Protection Act, 1986; Motor Vehicles Act,1988; Workmen’s Compensation Act; Employers Liabilities Act etc. These are the acts which create tortious liability of the wrongdoer and made them liable to pay adequate damages.

But these are not enough to meet the requirements of plaintiff’s claims. For certain kind of torts, we need a clear, unambiguous and written torts of law. So that the tortious liability can be easily fixed and compensation can be adequately made and a justice can be completely done.

V. Need for the codification

As the English common laws were applicable in India since pre-independence, this law of torts was also made applicable, which is till date uncodified like the United Kingdom. The reasons being uncodified is that law of torts is an evolving law. It is developing gradually with the span of time. It is so dynamic that it can cover any branch of new legal issues which is not already covered in any other laws. So, it’s like an open book which can provide remedy for any kind of legal injury, if that’s legal injury is not mentioned in any statutes. Till the time, it is open, it can formulate legislations or principles on new legal issues for example rule of absolute liability, tortious liability of state, public insurance liability etc. Thus, the reluctance or ignorance to codify law of torts in India is due to the reasons that a codified law will close the openness of arena of torts laws. If the torts laws will be in a legislation form, most probably it would be very difficult for the courts to evolve new principles and it would snatch the flexibility of the law of torts and ultimately the main purpose of law of torts to provide damages for breach of legal rights will be frustrated.

But there are certain cases in the Indian legal history where we have witnessed that due to lack of uncodified law of torts many plaintiffs didn’t get adequate compensation and many injured persons didn’t get justice.

As in the case of Bhopal Gas Tragedy, which took place on 2^nd December 1984, due to the leakage of methyl Iso-cyanate, which took around more than 2000 lives and many people got injured, is a classic and most hazardous incidence of history. In this case though there was settlement between union carbide corporation and government and court has awarded compensation to the victims but still many claims are unheard and victim’s litigations are pending in the court.

The landmark case of M.C. Mehta v. Union of India (1987) has paved the way for the evolution of torts law in India. In this case, there was leakage of oleum gas from the Shri ram food fertilisers industry, it caused injury to the many people. Court made the defendant liable by saying that they are not going to blindly adopt the English torts of law. Consequently, court while giving judgement in this case court deviated from the rule of ‘Strict liability and propounded a new rule of ‘Absolute Liability’. By applying the rule of absolute liability court held the defendant liable for the compensation to the victims.

Uphaar Cinema Hall fire Case (1997) It was another unfortunate tragedy, in which compensation was granted by the court, where fire caught in the Uphaar Cinema Hall of Delhi and 59 people died and many people injured. Even after 19 years of ongoing litigation in this case, court were not able to provide adequate damages. This case took 19 years due to the uncodified law of torts. If the law of torts would have been codified then there might be the possibility of taking up of these cases on priority basis and these cases should be dealt as expeditiously as possible.

Recently, the occurrence of Vizag gas leak case (2020) is another unfortunate tragedy, where leakage of styrene gas from an industrial plant (LG Polymers chemical plant) have affected many people and caused difficulty in breathing. By applying the rule of Absolute liability, tribunal held them liable.

Due to the absence of codified law of torts, these cases of gas leakage are more rampant in India. For the past few decades, we are witnessing these hazardous incidences affecting the life and natural environment are increasing day-by-day. The person who runs these industries and plants are taking the advantage of uncodified law of torts. Due to uncodified law, there is no detailed procedure for taking up of the cases, no minimum amount of compensation is fixed, no time period for the completion of tortious litigation is provided, no uniformity in the awarding compensation.

Thus, India needs a codified law of torts which will bring certainty in the dealing of tort cases. Following are the reasons why law of torts should be codified in India-

• We need to codify law of torts in order to increase the awareness of civil remedy for certain torts among the country’s population.
• To increase the cases of tortious litigations in the courts and it should be deal in expeditious manner.
• To adequately compensate the victims of torts. To make good to the loss suffered by them. The ultimate aim of the court should be to restore the victims to their original positions.

VI. Conclusion

Law of torts is a branch of law which provides damages or compensation in the case of the breach of any person’s legal rights. It develops a sense of obligation and liability in the mind of tortfeasors. And if tort is committed by any tortfeasors, then the injured person is compensated by way of awarding damages. Due to uncodified law of torts many claims are still unheard, many people are getting only minimal amount of compensation and many people are not knowing that they have civil remedy in a particular tort case. So, it is the need of hour to formulate a written law of torts which will specify all the necessary procedures for tort litigation, defining the various types of torts committed by tortfeasors, the time period of completion of tort litigation, amount of adequate compensation on case-to-case basis and this shall be subject to modifications, alterations, amendments and must be open to judicial interpretation according to changing socio-economic and culture of Indian society.

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Footnotes

1. Author is a Student at Campus Law Center, Delhi University, India.

2. Bangia, R. K., and Narender Kumar. R.K. Bangia's the Law of Torts, Allahabad Law Agency, 2018 ↩

3. Jolowicz, J. A., and T. Ellis. Lewis. Winfield on Tort. Sweet & Maxwell, 1963. ↩

4. “Ubi Jus Ibi Remedium – For Every Wrong, the Law Provides a Remedy.” Indian News, Law News on Indian Law, Latest Indian Law News, 18 Feb. 2016. ↩

5. AIR 1988 SC 1037 ↩

6. M.C. Mehta v. Union of India, AIR 1988 SC 1037 ↩

7. Mittal, Jitendra Kumar. Indian Legal History. Central Law Agency, 2005. ↩