LAW OF TORTS

ASSIGNMENT

Submitted By: Harshvardhan

1st Year, 1st Semester
UID: SM0120022
Faculty in Charge: Mr. Saheb Chaudhary

National Law University and Judicial Academy,

Assam

Submission Date: 07-12-2020

 WHY LAW OF TORTS HAS NOT SUFFICIENTLY EVOLVED IN INDIA

"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."
-Bhagwati, CJ1

Tort law, in India, is still developing. It is not a codified low yet. Due to
this, there is a lack of precedents for every tortuous situation. The brief
and comprehensive definition of torts is still absent as torts deal with a
variety of rights and duties and there are several instances of such
cases. Tort (means twisted) deals with civil wrongs. It is dissimilar from
breach of contracts or breach of trust or other equitable obligations.
The remedy, in torts, is in the form of compensation.
Salmond2says, "It is a civil wrong for which the remedy is a common-
law action." Winfield3 says, "Tortuous liability arises from a breach of a
duty primarily fixed by the law." Whereas, Underhill says, "A tort is an
act or an omission which is unauthorized by the law."

Before 1860, In England, there were no independent works on the law

of torts. This resulted in the ignorance by the British government in
India in the codification of the tort law. No serious attempts were
made. The need for a full-fledged code of torts in India was raised by
only one jurist, Sir Henry Maine.
Sir Henry Maine voiced his frustration at the indefinite adjournment of
the codification of the law of torts for the following reasons:

1
M.C. MEHTA v UNION OF INDIA, (1987) SCR (1) 819.
2
JHON SALMOND, SALMOND ON TORTS LAW 07-09 (15th ed. 1969).
3
JAMES GOUDKAMP & EDWIN PEEL, WINFIELD AND JOLOWICZ ON
TORT 1-003 (19th ed. 2014).
(a) that the people in India are quite cognizant of being wronged
through their ideas about the quantity of injury they have received may
be vague;
(b) the judiciary has to step in if the legislature does not legislate and
judicial legislation in India suffers from all the evils as in other
countries, like haphazard, slow, and expensive;
(c) the judicial legislation in India then was legislated by foreigners who
were under the subjugation of precedents and analogies belonging to
foreign law, developed under a different climate for a different
civilization.
The British government put forth their effort to codify the law of torts
in India. Past two attempts, to codify the laws, were failed. They are,
1.) The year 1835 saw the setting up of the first law commission of
India. This commission was given the task of codification of certain
branches of law in India including the law of torts. The commission
recommended that torts is an adjective law and hence no codification
was needed for it.

2.) The idea of codification was neglected till 1886. Sir Fredrick Pollock
was requested by the government of India to codify the law of torts. He
prepared a bill in 1886 named, The Indian Civil wrongs bill. This bill was
rejected by the parliament for several reasons but one of the
prominent reasons was that it was prepared on the same lines as Indian
Penal Code,1860".

In the current scenario, the reason behind the insufficient development

of the law of torts in India is very thorough and comprehensive. Some
of the prominent reasons are undermentioned:
1.) Uncertainty of the law- The law of torts has no certainty in its rules
and doctrines. Though the precedents are available in English law,
those cannot be applied in the Indian cases due to a lack of relevant
case laws. To deal with this problem, Indian courts have started
developing their own doctrines. For incidence, in M.C. MEHTA v UNION
OF INDIA4, the Supreme Court of India had a new doctrine of ABSOLUTE
LIABILITY. It refused the doctrine of Strict liability which came in the
existence through the landmark judgment of Rylands v Fletcher in
England.

2.) Lack of legal consciousness- The people in India are highly unaware
of their legal rights. Because of this reason the people only approach
the civil courts for those civil wrongs which are codified.

3.) Illiteracy- Literacy is the most important pillar for the socio-
economic development of a country. According to the census of 2011,
the literacy rate of India was 79.31%. Though there is a significant rise
in the literacy rate as compared to the early 1980-90s, still India is
dealing with the problem of illiteracy. India has one-third of the world’s
illiterates. Illiteracy is the main reason behind the ignorance of legal
rights.

4.) Poverty- India is dealing with the significant problem of poverty

despite being one of the fastest-growing economies of the world. It has
the third-highest number of people below the poverty line (BPL) after
Nigeria and Congo. This results in the unaffordability of the high cost of
the litigation.

5.) Expensive judicial system- The judicial system of India is expensive.

Court fees are high, advocate’s fees are high. Poor people cannot bear
these exorbitant charges. They are ready to suffer violations than to
4
M.C. MEHTA v UNION OF INDIA, (1987) SCR (1) 819.
spend their hard-earned money on legal issues. Even if they are ready
to fight for their rights, they get 500-1000 rupees in compensation after
several years. Civil cases in England take at most one year to conclude,
but in India, it is nearly impossible.

6.) Underreporting of civil cases- This may not seem significant, still,
this is one of the main reasons for underdeveloped tort law in India.
Only High courts and Supreme court decisions are reported (and that
too in case of landmark judgments) by the media. The lower courts’
decision goes highly unnoticed. This creates a lack of awareness about
civil cases among the masses.

CONCLUSION

The English parliament has codified 60% of the Law of torts to date. The
task of codification of the tort law is although slow but it has not been
ignored completely and several crucial branches of torts have been
codified. India has codified 17 major torts law till date. Motor Vehicle
Act, 1988 gave a boost to the development of tort law in India.
However, the codification of other branches of torts is equally
important The Law of torts is not at all lost from sight. It is slowly
developing and going among the masses but the pace of codification of
the remaining tort law should be accelerated so that the people will get
justice in a much better way.