The Nature of Torts in India as an Uncodified Branch of Law

I. Introduction

The word tort is derived from the Latin word ‘tortum’², meaning twisted or unlawful. As defined by Salmond, “A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation” ³. Essentially, this indicates that this branch of law was introduced for all citizens to have a “civil course of action”⁴. They will be provided relief and compensation when affected by wrongful actions of others in a public or private context. The law of torts ensures that everyone conducts themselves in a straightforward manner and when they do not, there must be consequences for their twisted ways.

The law of torts has been present, in spirit, in the Indian judicial system since before independence. This is indicated by the use of the Sanskrit term ‘Jimha’, in a Hindu law text, which means “tortious or fraudulent conduct”⁵. However, the less than significant presence of torts in Hindu and Muslim law has led to the understanding that this branch of law largely originated from the Common Law system introduced by the British empire when they ruled India. The implementation of the English law of torts in India began with the establishment of the British Mayer court in the Presidencies of Bombay, Calcutta and Madras, which were administered by officials that referred to the principles of Common Law.

II. Nature and implementation of torts in india

The structure of torts in India is characterized by an absence of a codified structure and is largely governed by the principles of justice, equity and good conscience. In keeping with the codified framework of torts in multiple other countries, some portions of the law of torts in India have been codified, for example the Motor Vehicles Act 1988, The Consumer Protection Act 1986 and others⁶. Despite this, this branch of law evolves with important decisions taken by the Indian judicial system, which set a precedent for future judgements in similar cases.

The lack of codification in the structure of tort laws plays a significant role in the impact and effectiveness of the same. This is because in the absence of complete statutory authority accorded to torts in India, the biggest source of development of the law of torts stems from judgements made in the Supreme Court or other recognized judicial bodies. As stated in Bakshi (2015, p. 590)⁷, in interpreting related pieces of legislation and identifying the gaps in the current framework of laws, uncodified branches of law like torts, can be developed further.

An important aspect of the nature of implementation of torts is that in the Indian society, there are a lesser number of cases decided in the past that set an example to dictate the course of judicial decisions in the present. Therefore, the landmark cases in the English tort law are used by judges in the Indian context as well, in situations not dealt with before. In the implementation of torts, it was recognized that the importance of following the principles of Common Law, prevalent in England, must not overshadow the need to ensure that the law is also enforced after taking into consideration its impact in the Indian context. It is widely acknowledged that in order to increase the effectiveness of tort laws in India, the culture and social conditions in the country must be taken into consideration.

This view is adequately summarized by Justice P.N. Bhagwati’s statement in the case M.C Mehta vs Union of India⁸ - “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.” It is clear that in the enforcement of torts in the Indian context, it is necessary to account for legal variations and specification that could arise in the future, irrespective of whether it exists in another country or not.

Thus, the absence of a complete codified structure to the law of torts allows the branch to evolve and adapt to new situations as presented before the court. The very essence of torts that allows morality and conscientious judgement to shape the verdict, ensures that citizens are made to follow a code of conduct that will force them to behave responsibly and reasonably, while respecting the rights of others.

III. Impacts of codifying tort laws in india

Evidently, the lack of codification of torts laws in India has a significant effect on its implementation. This unique feature of this type of law has been discussed widely by eminent jurists, lawyers and judges. The possible impact of codifying tort laws is a relevant topic in legal discussions everywhere. Considering the common occurrence of civil wrongs and the subsequent importance of torts in our daily lives, it is important to carefully analyze the changes that might arise by the codification of tort laws. It becomes imperative to compare the advantages and disadvantages of maintaining the current structure, as opposed to bringing about a radical change by codifying the tort laws.

A positive impact of compressing the entirety of torts in a codified manner would be the existence of a comprehensive and detailed body of rules that would govern the implementation of torts and the relief and compensation provided. It would serve as a concrete reference in the use of torts in court cases and otherwise, eliminating any uncertainty regarding new situations and conflicts. Codification of tort laws in the Indian context would prove to be helpful, not only to legal professionals but also to the public, in making them aware of the rights that they can avail of.

However, the reason the idea to codify the law of torts has never been enacted is because there exists a fundamentally inherent need to preserve the current format. The lack of a structured framework of torts allows this type of law to grow and adapt when new cases are presented. There are not enough precedents available in the Indian context for an expansive document to be created that would cover all aspects of torts. In a rapidly developing country like India, advancement on the political and economic front also means constant changes in the laws and to restrict such evolution by codifying this branch of law would negate any progress made over the years.

IV. Need for codification of torts in india

The first recommendation to codify tort laws came from Sir F. Pollock⁹ in 1886, in the form of the ‘Indian Civil Wrongs Bill’. Most recently, a recommendation has also come from the National Commission for Review of Working of Constitution (NCRWC) to define the state’s liability for torts of its employees in a statutory manner¹⁰. As a result, certain segments like the Indian Carriers Act 1865, Judicial Officers Protection Act 1950 and other acts have been codified, but most of the law of torts is still uncodified.

Before evaluating the need to accord a codified format to tort laws in India, it would be useful to consider the statement made by Hon’ble Justice Sahai in the case of Jay Laxmi Salt Works (p) Ltd v the State of Gujarat¹¹. According to Justice Sahai, “Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever-expanding and growing horizon of tortious liability....”¹². As abundantly clear, the flexibility that accompanies an uncodified version of tort laws permits the modern views of judges and lawyers to shape the structure of torts. This is of significance, especially in a country like India, which is progressing at a rapid pace and must keep with social developments while defining the laws. Each day is marked by significant changes on the political and economic front as well that do have a consequent impact on certain segments of tort laws in India, and if not for this flexible structure of tort laws, characterised by a lack of codification, such changes would not be accommodated in future judgements concerning torts.

On accounting for the importance of tort laws in maintaining law and order, there is no doubt that eventually, the need for codifying all parts of torts will result in the formation of a comprehensive code. Till then however, a developing nation like ours could use the absence of a codified structure to our advantage and allows tort laws to “increase its ambit and encompass various cases”¹³. With a constantly changing legal landscape and new landmark judgments being passed every day, the need for codification of torts as a whole could be replaced with an attempt to maintain the importance of tort Acts that have been codified, while increasing awareness among citizens about the rights accorded by the non-codified segments as well.

V. Conclusion

Torts provide Indian citizens with the most basic form of rights – to be compensated and provided relief when wronged by others. To ensure that tort laws continue to be as effective as they were when first introduced in India by the British, various developments have taken place in this branch of law. While a large part of the content comes from English laws, all judicial precedents arising from the implementation of Common Law cannot be enacted in the Indian context. For this purpose, the biggest source of expansion of the scope of torts comes from judicial decisions of legal professionals in India. Thus, it is the uncodified nature of tort laws in India that allows changes in the legal environment to be incorporated within the existing tort laws.

Having a comprehensive code of existing torts and the remedies available to citizens would be immensely helpful but it is its current flexibility that is required to expand the scope of tort laws, considering the nascent stage of development this type of law is in. In conclusion, the undeniable importance of tort laws in India ensures that legal professionals everywhere continue to discuss the debate regarding the need for reformation in its structure. It is, however, essential to allow the law of torts in India to take shape and grow before it can be condensed in a statutory manner.

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