Causes for slow development of Law of Torts 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,
CJ.

Introduction:- Law of Torts is still developing in India and it is not a codified law. As this filed of
torts is not completely codified, there is lack of precedents for every situation. In fact, it is very
difficult to give a concise and complete definition for the law of torts because it signifies violation
of variety of rights and duties and there are heap of miscellaneous instances. ‘’Tort is a civil
wrong. Civil wrong is different from breach of contract or breach of trust or other equitable
obligations. Civil wrong is redressable by an action for unliquidated damages’’. This is the theory
of Salmond. Dr. Winfield says that tortuous liability arised from breach of duty fixed by law.
Fraser defines that a tort is an infringement of right of a private individual giving a right of
compensation at the suit of the injured party.

In England, almost 60% of the Law of torts has been codified. In India , although the law of torts
has not been totally codified, this task has not been completely ignored. Indian Parliament
enacted some important branches of law of torts from time to time. The following enactments
are worth mentioning to know that efforts are being made from time to time to codify important
branches of law of torts.

The following branches of law of torts are codified in India:-

1) Judicial Officers Protection Act,1950
2) Indian Carriers Act, 1865
3) Cattle Trespass Act, 1871
4) Easement Act, 1882
5) Workmen Compensation Act,1923
6) Sale of Goods Act, 1930
7) War Injury (Compensation Insurance) Act,1943
8) Fatal Accidents Act,1955
9) Trade and Merchandise Act, 1958
10) Copy Right Act, 1957
11) Specific Relief Act, 1963
12) Patent Act,1970
13) Air (Carriage by Air) Act, 1972
14) Bhopal Gas Leak Disaster (Processing of Claims) Act,1985
15) The Consumer Protection Act,1986
16) Motor Vehicles Act, 1988
17) Indian Patents and Designs Act,2000

Uncertainty of law:- Inasmuch as law of torts is not codified, there is no uniformity and certainty
in its rules and doctrines. Of course, despite there are catena of precedents on law of torts are
available in England on many points, those cannot be applied in Indian situations. Owing to this
reason, there is lack of case-law in India with regard to law of torts. Indian Courts refused to
follow some of doctrines of law of Torts of English Courts which were established in 19th
century. Supreme Court of India established a new doctrine in M.C.Mehta Vs. Union of India –
Doctrine of absolute liability. Apex Court refused to follow the doctrine of ‘Strict liability’
observed in Rylands Vs. Fletcher and introduced a new doctrine of ‘Absolute liability’.

Lack of political consciousness:- Most of the people in India are unaware of their rights
because of their illiteracy. Due to lack of political consciousness, most of people in India are
unaware of their legal rights. Because of these reasons, they are approaching civil courts to
seek remedies available under law of torts.

Illiteracy:- Literacy in India is a key for socio-economic progress. Indian literacy rate has grown
to 79.31% (2011 provisional census figures). An old 1990 study estimated that it would take until
2060 for India to achieve universal literacy at then-current rate of progress. The literacy rate
grew from 18.33 per cent in 1951, to 74.04 per cent in 2011. It shows that there is still illiteracy
in India. Illiteracy is the main reason for ignorance of their legal rights.

Poverty:- Despite being one of the fastest-growing economies in the world, India has a
significant problem of poverty, In 2010, 69% still lived on less than US $2 a day, and 33% on
less than US $ 1.25 a day. Educational attainment is low, and india holds 1/3 of the world’s
illiterate. The 73rd Amendment to the Constitution of India mandates that 1/3rd of all seats in
Panchayats be reserved for women, bringing more than one million women into elected office.
According to the revised methodology, the world had 872.3 million people below the new
poverty line, India had third highest number of people living in extreme poverty in after Nigeria
and Congo in January 2019. Despite significant economic progress, one quarter of the nation’s
population earns less than the government-specified poverty threshold of Rs. 32 per day
(approximately US $ 0.6). It is thus clear that as a result of poverty, most of the people are not
capable of meeting high costs of litigation for enforcement of their legal rights.

Expensive and dilatory judicial system:- Besides the problems of poverty and illiteracy, the
another significant problem is that the judicial system in India is very expensive and it is dilatory.
Court fee and Advocates’ fee is very high. Common man is unable to bear it. Therefore, the
poor people are ready to suffer their violation rights instead of going to court to seek remedies. If
a poor man is ready to fight by paying huge court-fee in Court for violation of his civil right, after
long of gap of years, he gets only Rs. 500/– Rs.1000/- as damages, he considers that it as no
benefit at all. Tort based cases are being disposed of within one year in England but in India, it
is impossible to dispose of all such cases within one year.

Conclusion:- Although there are number of such problems and difficulties, it is fair to say that
the law of Torts are not lost its sight and it is slowing developing in India. Tort law is increasing
particularly by invoking the provisions of Motor Vehicles Act,1988. The reason for such growth is
that in Motor Accidents cases, court –fee is not charging on basis of valuation and MVOPs are
being disposed of without any delay. If similar steps are taken for the remaining branches of law
of torts, by reducing court-fee, and by adopting simple procedure to dispose of tort based cases,
there is very chance to protect the civil rights of the people of India. Therefore, codification of
reaming branches of law of torts is very essential and time is ripe for codification of law of torts
in India.

-x-

Why are the parties reluctant to come to civil court to file tort based cases?

‘Law of Tort concentrates more to the victim and his harm than to the mental element of
wrongdoer.’

In India, damages recovered in tort cases have no comparability to those awarded by the
American Courts. In USA, lawyers encourage filing tortious claims for high compensation. The
reason is that they will get a share in the damages awarded to the parties to the lis. In India,
delay in getting relief from the civil courts has also obstructed the propensity to approach the
Civil Courts for filing tort based cases.

“The Courts in India are not an adequate alternative forum in which litigation may be resolved,
delays in the resolution of these cases (Tort cases) in India, and India’s Court system lacks the
procedural and practical capability to handle this litigation.” – Union of India admitted in Bhopal
Tragedy case.

Introduction:- Law of tort is comparatively common law development in India. It is supplemented

by systematising (codification) statutes including statutes having authority to grant damages and
compensation. Where there is tort, there is remedy. If there is no remedy, there is no tort. ”ubi
ius, ibi remedium” (Roman legal maxim) says ”where there is a right, there is a remedy”. More
often than not, the law will not countenance a situation where a person has a legal right but no
means of enforcing it. If legal right is infringed, tort comes into play. My poignant theses
concentrates about the lack of the procedural and practical capability to handle this litigation in
India when compared to other countries because Union of India admitted in Bhopal Tragedy
case “The Courts in India are not an adequate alternative forum in which litigation may be
resolved, delays in the resolution of these cases (Tort cases) in India, and India’s Court system
lacks the procedural and practical capability to handle this litigation.”

Is it is safe to the society to simply overlook law of torts? The development of the ”theory of
absolute liability” in the M.C. Mehta’s case is a significant factor to say the law of torts in India
has not been overlooked. Importance of law of torts have been recognized in India is clear from
the recent rulings of the Supreme Court of Indian and High Courts on tortious liability of
multinational corporations in India, findings on constitutional torts, evolution of tort of sexual
harassment, victim compensation schemes, and award of damages for violation of human rights
under the head of Writ jurisdiction by the superior Court , including a recent Rs.20 crore
exemplary damages in the Upahaar Theatre fire tragedy case by the Delhi High Court are also
significant changes in the tort law of India, a fortiori, In Bhopal Gas leak case, the primary
financial restitution paid by UCC was negotiated in 1989, when the Supreme Court of India
approved a settlement of US$470 million (Rs. 1,055 crore (equivalent to Rs. 80 billion or US$1.1
billion in 2017)). This amount was immediately paid by UCC to the Indian government. These
are all examples showing the importance of Tort law in India.

If a person goes to police station and lodges a report, police usually calls the person against
whom the report is lodged, of course, in course of investigation. If a party files a civil suit
seeking remedy under tort law alleging that his legal right is infringed, there are instances that
such plaint is being returned in the first instance on the ground that how the suit is maintainable.
Of course, there is heap of miscellaneous instances for such judicial act. Here, the point is why
are most of the people in India so enthusiastic to seek remedy under Penal law instead of
remedy under civil law? Poverty, lack of awareness of tort law, requirement of court-fee to seek
tort based relief, delay in disposal of civil suits, cumbersome procedure, and even if relief is
ordered after long years, it is very low to the expectations of the parties etc may be some of the
reasons for which the people of India are hanging back to approach a civil court to file tort based
cases. In fact, ‘Torts concentrate more to the victim and his harm than to the mental element of
wrong doer.’

Law of torts in Indian is borrowed from English law of torts. The ‘broader theory‘ of Winfied says
that it is law of tort but not law of torts. On the other hand, according to ‘pigeon hole‘ theory of
Salmond, there is law of torts. Of course, both these theories seems to have recognized some
support.
1. Asbhy Vs. White – (In 1702, the principle ”ubi jus ibi remedium” is recognized)
2. Pasley Vs. Freeman (1789) – Origin of the concept of ‘ Tort of deceit’)
3. Lumley Vs. Gye – (1853) 2 E & B 216 – (Inducement of breach of contract)
4. Rylands Vs. Fletcher – (1868) LR 3 HL 330 – (The rule of Srtict liability. Considred
‘neglgience’ as a separate tort).
5. Rookes Vs. Barnard (1964) A.C.1129 – (The tort of intimidation is discussed)
6. Winsome Vs. Greenbank (1745) – (Considered that inducement to a wife by husband is a
tort).
As was observed in M.C. Mehta v. Union of India ( A.I.R. 1987 S.C. 1099), the Indian courts are
now prepared even to move ahead of the English Courts in ensuring better welfare conditions to
the Indian people. Has the laxity to sue for tort based remedies obstructed the complete
codification of civil wrongs in India? Of course, nevertheless many aspects of law of torts were
codified in separate enactments, it is one of the main reasons. The Consumer Protection
Act,1986 is also one of such enactments.

According to Maine, the group, not the individual, is the primary unit of social life. With the
progress of civilisation, this condition gradually gives way to a social system based on contract.
This is the age of the standardised contract & of collective bargaining (trade unions, business
associations, etc.). Even the contracts, which an individual enters into in everyday life, have
been standardised as contract for water, electricity or contract for a carriage with a railway
company. The freedom of contract is, thus, being curtailed every day. Thus, Maine’s theory of
‘Status to Contract’ does not have much force in the modern age. In India, the policy of ‘mixed
economy’ has assumed greater control over individual liberty & freedom. The State can impose
reasonable restrictions in the interest of the public . See. Article 19(6) of the Indian Constitution .
According to Pollock that this theory is limited only to laws of property because personal
relations like marriage, minor’s capacity, etc. are still matters of status and not of contract.
As per Analytical School, custom is not law, until its validity has been established by a judicial
decision/by an Act of legislature. But, according to Historical School, Custom is law by itself. It
does not require State recognition to become a law.

Tort and Crime:– If a tort is a private/civil wrong, crime is public wrong. Mostly, intention is
irrelevant but there are some exceptions. As to defamation and malicious prosecution etc,
intention is relevant even in torts. But, in criminal cases, ‘Mens rea” is the most essential factor.
Presently, tort law is uncodified whereas criminal law is codified law (Example: IPC).
Despite crime may be a tort (civil wrong), the cause of legal action in civil tort is not necessarily
the result of criminal action. In torts, If a legal right is infringed owing to negligence, such
negligence does not amount to criminal negligence. In civil side, the person who committed the
act is called as ‘tortfeasor”. In criminal side, the person committed the act is known as
”accused”. The difference between Civil and Criminal law:- 1. Who the parties are. (In civil,
plaintiff Vs. defendant; In criminal, State Vs. Accused ) 2. What the possible outcomes are. 3
The applicable stand of proof. (In civil, Preponderance of evidence; In criminal, beyond a
reasonable doubt). 4. The consequences for the defendant. (In civil, Liable or not liable; In
criminal, Guilty or not guilty). 5. The procedural rules that apply. (In civil, Civil Procedure Code;
In criminal , Criminal Procedure Code).

How to know whether it is a civil wrong or criminal act to impose liability. If a person legal right is
infringed by an act outcome of either by intentional action or by reckless behaviour or by
carelessness or under head of strict liability or under the head of product liability, tort law as well
as criminal law comes into play. It means that liability can be imposed under tort law and
criminal law. Example:- A a person commits an accident by his negligence driving, he would be
prosecuted for the offence under section 304-A of IPC. Besides this, civil action follows for
claiming compensation to the victim. Coming to torts are concerned, ‘Torts concentrate more to
the victim and his harm than to the mental element of wrong doer.’ In fact, the word ‘Tort’ was
introduced in 1580. Indian Fatal Accidents Act, 1855 is an Act to provide compensation to
families for loss occasioned by the death of person caused by actionable wrong. The Motor
Vehicles Act was passed in the year 1988 by Parliament of India and regulates almost all the
aspects of road transport vehicles.

Tort and Contract:– A particular act is tort or contract is to be found by observing whether it is a
tortious act or contract; whether it comes under civil law or criminal law; to impose liability,
whether common law principles apply or statutory law. After observation of these principles, it
can be found out whether it is tort or contract. Tort law dictates the relationship between the
parties who have not had an opportunity to agree to a set of rules. Contracting around the tort
law default rules are concerned, the parties agreeing to a different set of rules other than the
default tort rules. Torts is the law of civil wrongs.

Tort and Specific Relief Act:- In order to provide reliefs in cases relating to contracts, torts and
other cases Specific Relief Act, 1877 was enacted. Now, it is the Specific Relief Act,1963. The
remedies under this Act can be summed up as follows:
1. Recovery of possession of the property. (See. Sections 5 and 6 of S.R.Act which deal with
specific immovable property whereas sections 7 and 8 of S.R.Act deal with movable property.)
2. Rectification of instrument (See. Section 26 of the S.R. Act)
3. Injunction (See. Sections 36 to 42 of S.R.Act,1963)
4. Rescission of contract (See. Sections 27 to 30 of Chapter IV of Part II of S.R.Act,1963)
5. Cancellation of Instrument/deed (See. Sections 31 to 33 of the S.R.Act, 1963)
6. Declaratory decree (See. Sections 34 and 35of the S.R.Act,1963)
7. Specific performance of contract. (See. Chapter 2 of Part II of Specific Relief Act, 1963)., etc.,

Consumer Protection under the Tortious law:- Consumer protection Act is to provide for better
protection of the interests of consumers and for that purpose to make provision for the
establishment of consumer councils and other authorities for the settlement of consum​ers’
disputes and for matters connected therewith. In welfare state, like India, tortious liability is very
essential because Tort law is a fundamental law for consumer protection. Why are the people of
India reluctant to take aid of tortious law remedies available to them ? For some inexplicable
reasons score out, they are reluctant to pursue the tortious remedies. The problem is that
poverty, illiteracy and unawareness, about tort law and its remedies which prevailing amongst
the Indian people. Payment of court-fee , to seek tort law remedy is anohter significant factor to
mull over as to availing tortious liability.
1914- 1965 – 613 tort cases dealt by Appellate Courts
1975-1984 – 56 tort cases (only 22 involved product liability cases), which were reported cases.

Though the Consumer Protection Act,1986 is also one of such enactments, as seen from the
provisions of the Consumer Protection Act, many situations were left over under which the
consumer will have to again approach under law of torts for the redressal of his grievances.
What about the remaining issues which were not covered under this Consumer Protection Law?
To fix the product liability, the plea of ”negligence” is one grounds available to consumer.
”Breach of duty’ is also essential factor to discuss about product liability. Product liability
appears to have been transformed from negligence based liability to strict liability base. So,
strict liability is also one of the important to factor for discussion.

On close observation of the language in section 14 of the Consumer Protection Act 1986 and
the rulings to that effect, it is evinced that our Court are recognizing the negligence based
liability with a mixture of fault based theory. Significantly enough, to know the scope of
consumer related civil wrongs,it is very essential to understand the difference between tort and
crime as well as contract and tort.

In all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as
a man of ordinary prudence would, under similar circumstances, take of his own goods of the
same bulk, quantity and value as the goods bailed. (See. Section 151 of Indian Contract Act). In
addition to this, it is seminal to see Latin maxim ” Qui facit per alium facit per se” which means
“He who acts through another does the act himself.” Further, Section 154 of the Indian Contract
Act deals with ”liability of bailee making unauthorized use of goods bailed”. In such a case, in
the given, as it is tortious act, ”Y” is liable to pay damages to the plaintiff who sent his car for
servicing to Y’s garage.

To say in short, If the bailor’s claim comes under the purview of specific provisions of Indian
Contract Act, it is not a tortious act. If such bailor’s claim rests upon a breach by bailee, the
liability of bailee is tortious act. The reason is it is the claim of a visitor against the occupier of
premises under the Occupier’s Liability Act. In English law, occupiers’ liability towards visitors is
regulated in the Occupier’ Liability Act,1957.

The process of co modification and communication through tort law is being criticised because
those are commonly used terms in Marxist literature. It appears that the reason for such
criticism is Martxist literature relates to the tendency of seeing everything in terms of money
value.

Torts concentrate more to the victim and his harm than to the mental element of wrong doer.It is
, therefore, the expected standard of behavior of the citizens is essential in the Society. Other
reason is that tortious liability differs the contractual liability strikingly. The liability under the
Contract Act based upon breach of a moral principle to uphold the promises and criminal
liability. Therefore, Pollock analysed certain grounds of tortious liability and started the lines
saying “Every tort is an act or omission (not being merely the breach of a duty arising out of a
personal relation, or undertaken by contract …”. Hundreds of years back, Salmond also pointed
out that with regard to the province the function of torts, also deserves to be discussed.

From the view of Salmond as to torts are concerned, in succinct, it makes it clear that
1. Law of torts is not a static body of rules;
2. Law of torts is capable of alteration to meet the needs of changing society
3. Tortious liability is flexible;
4. It is difficult to furnish a general formula or criterion like a guide for the decision of the doubtful
tort cases in future. Similarly, it is not possible to explain all tort cases arise in past in which
tortious liability can be imposed;
5. A decision of a court may depend based on number of factors to impose liability in tort cases.

6. It is thus established that historical development; vengeance; deterrence; ability to bear the
loss and economic social background of the case are also relevant factors to impose liability in
tort cases.
The theory of ”the sanctity and freedom of contract” was sound slogan in 19th century whereas ”
the concept of duty to take care” is sound slogan in 21st century. Social value of liability from
being negligent encourages the taking of care. The concept of tort of negligence is very
essential to the present society because it Society would be worse off in case of this liability
does not recognize. If the consumer is injured by a defective product, it comes under the head
of negligence in Torts ( whether it may be negligence of mind or of conduct or a negligent act
itself) for his safety and protection. Although the Consumer Protection Act,1986 was introduced,
the concept of negligence was already broadly covered under Tort Law. The present pattern of
legal rules is an amalgam of contract and tort and also of strict liability and negligence. It is thus
clear that all this amalgam of introducing news rules, and Acts is outcome of delay in
codification of torts in India.

The defect in consumer protection Act prima facies appears is that it only protects the
consumer. What about the victims of mishaps against the manufacturer? Where is the remedy
in consumer protection Act for this situation? Curiously enough, the liability for defective product
is still not a coherent legal theory and it is not our law in India. Similarly, the significance of law
of product liability is not yet developed in India. For some inexplicable reasons scored out, most
of the people of India were unaware of these concepts of liability for defective product and law
of product liability.

Why have Indian consumers been reluctant to file civil cases under the law of torts for breach of
warranties in spite of the fact that remedies have also been available to them under law of torts?
See. The definition of ”deceit” in section 40 of the Draft Civil Wrongs Bill, prepared by Pollock. In
this section, it was also included cases of innocent
and deliberate representations. But, this was not yet codified. Despite Consumer is being
protected under the Consumer law, the possibility of action for the tort of breach of statutory
duty cannot be ignored. The liability of a defective product is broadly covered under the head of
negligence in tort law. To say in short, the liability for defective product is a potent factor for
consideration. Standard of Duty of Care (See. ”Duty of care” as propounded by Lord Atkin );
pecuniary and Economic Losses resulting from careless acts ; liability of State for negligence;
economic losses resulting from careless statement; disclaimer of liability; Duty of owners of
Land or Building ; development of the Concept of Strict Liability in Relation to consumer Torts;

Curiously enough, we must not forget that in M.C. Mehta v. Union of India (1987 SC 1086 ) and
Bhopal Gas Tragedy cases that Indian Courts have gone much ahead with respect to concept
of ”product liability” because in these cases, Hon’ble Supreme Court of India did not apply the
exceptions to the concept of ”the strict liability” observed by the English Court in Ryland v.
Fletcher.

Conclusion:- To sum up this article, it is to be remembered that although some fields of law of
torts are codified by way of some statutes such as the Consumer Protection Act, 1986, The
Motor Vehicles Act,1988, The Fatal Accident Act, etc. Further more, the India Penal Code,1860
criminalises certain areas of tort law.

The problem to understand the solutions for these situations is that in Indian, the courts are
following English law of torts because all civil wrongs were not codified. In USA, they are
seeking solutions following both contract and tort principles. The German Law seeks for
contractual solutions. But, in India, there is no such express formulation. Now, the problem, we
are now facing is such that we cannot depend on English law completely nor can we codify the
all branch of tor law. In Bhopal Tragedy case, our courts did not agree English law principle of
strict liability and the Apex Court introduced new theory as ”Absolute liability”. In some cases,
we follow the English law of trot principles. Therefore, expansion of law of torts , especially by
codifying torts, at least the issues which are essential for public, is acceptable. Indian Courts
can therefore provide for better protection and remedies to the Consumers by applying absolute
liability concept and strict liability where the facts of the case demand it. This approach will be
required especially in such cases where the consumer will not get proper relief under the C.P.
Act 1986 due to negligence based liability recognized there. Then only the consumer’s interest
will get proper recognition and protection but it shall be very difficult for the consumers to move
to the ordinary courts under law of torts due to the requirement of court fees.

Inasmuch as the Courts in India are not an adequate alternative forum in which litigation may be
resolved, delays in the resolution of these cases (Tort cases) in India, and India’s Court system
lacks the procedural and practical capability to handle this litigation, it is time to mull over for
taking effective steps to codification of torts, to reduce delays in the resolution of these cases,
and to invent new procedural laws. I strongly believe that if there is any rebate or waive or
exemption in payment of court-fee and simple procedure laws to disposal of the civil suit, people
will approach civil courts to file tort based cases.
-x-

Why were not ‘Civil wrongs’ codified in India?

“An English man would naturally interpret these words (justice, equity and good conscience) as
meaning such rules and principles of English lav, as he happens to know and considered
applicable to the case; and thus under the influence of the English judges, native law and
usage, were without express legislation, largely supplemented, modified and superseded by
English law.” – Ilbert, Supplement to the Government of India Act, at P. 360 (3rd edition).

Introduction:- It is significant to see that before 1860, there were no independent works on law
of torts in England also. Therefore, then, the British Government did not take this matter
seriously to codify law of torts for India. No serious attempts were then made to codify Torts for
India. There was only one Jurist by name Sir Henry Maine raised voice the need of full fledged
Code of torts for India.

Sir Henry Maine articulated his dissatisfaction at the indefinite postponement of the codification
of the law of torts for the following reasons:
(1) that the people in India are quite conscious of being wronged though their ideas about the
quantity of injury they have received may be vague;

(2) if legislature does not legislate, the judiciary steps in, and judicial legislation in India suffers
from all the vices as in other countries, like hapazard dilatory and expensive;

(3) in addition to (2) above, the judicial legislation in India then, was legislation by foreigners
who were under the thraldom of precedents and analogies belonging to a foreign law,
developed under a different climate for a different civilization.

S.Ramaswami Iyer and Prof. Winfield were then of the view that the law of torts is still in a state
of infancy and so a full fledged code on this branch will hinder the progress of the law. The view
of S.Ramaswami Iyer, was such that ‘Undoubtedly a code is useful, but it is well to recognise
that this branch of law is still in the process of growth and while it would be difficult to prepare a
code, it would not also help a proper development of the law to do so.” (See. S.Ramaswami
Iyer, The law of torts, at p.27- 1965).

Winfield was then of view that :- “From the practitioner’s point of view a great deal of harm
would be done to the development of our law of tort by its reduction to a statutory code with
appropriate definitions of it as a whole and of various parts of it.” See. Winfield, Tort, at p.5 .

Now, Indian courts are not bound by English law. If this is so, why do we have to rely on
English law? Is there is no law (relating to law of torts) in India to come up with any new
situation? Though the Indian courts are no more bound by English law with relation to situations
which were not so covered, however, by their training and past history the Indian judges still
heavily rely on the English law whenever any new situation comes up before them.

Past two attempts, to codify law of torts, were failed.

First Law Commission of India was appointed in 1835. This Commission was entrusted for
codification certain branches of law. (Torts and Grimes were also the subjects referred to the
Commission). If we see the Lex Loci report of the Commission dated 31st Oct. 1840, it is known
to us that the Commission recommended that torts and crimes are adjective laws and therefore
no codification was needed in those branches. The Law Commission expressed the following
reasons.
(i)The definitions of civil Injuries and of crimes are evidently only necessary for preventing
infractions of rights and obligations.

(ii) If we suppose every member of the community to have sufficient motives, independently of
legal proceedings, to respect the rights of his neighbour and his own obligations there would be
no use in defining civil injuries or crimes. If this is so, why were crimes codified as Indian Penal
Code,1860?
Why were not torts codified?

To say in short, the Law Commission Report did not have any effect on law of crimes for
reason that the bill for Law of crimes was already prepared by Lord Macaulay. If so, what about
‘’Law of torts’’? Certainly, this bill did affect the task of codification of torts in India. See. H.P.
Jain, Outlines of Indian Legal History, at p.624.

The idea of codification of Torts was neglected till 1886. It was again in 1886, the Government
of India requested Sir Frederick Pollock to codify Law of Torts to India. He prepared a Bill in
1886. It is ‘’ “The Indian Civil Wrongs Bill”. This was not accepted for several reasons. One of
the main reasons is that “The Indian Civil Wrongs Bill” was prepared almost on the same lines
as ‘’Indian Penal Code,1860’’. What Sir Frederick Pollock’s ’ “The Indian Civil Wrongs Bill” says
is that 1. General part:- It prescribes the general principles of liability and general exceptions. 2.
Special Part:- It says about specific torts.
In 1889, Sir Courtenay Ilbert suggested, although not recommended for complete of Code of
torts, the picking up of those torts which are regularly coming up before the courts and the
declaration of the law concerning to them simply and clearly, clearing up the obscurities and
removing the defects of the existing law. What all Sir Courtenay recommended as follows:- “My
own suggestion was not to attempt the codification of the whole law of torts-indeed it was
doubtful whether the subject had sufficiently defined boundaries to admit of its forming a
separate chapter in a theoratically complete code-but to select such of the leading rules as
experience showed to have been most frequently the subject of litigation, express them simply
and clearly, arrange them on some intelligible principles, and take the opportunity of clearing up
obscurities, and amending defects in the existing law. There is no reason to believe that an Act
drawn on these lines and being in fact simply an authoritative manual of certain rules which a
country judge, has constantly to apply would be as useful and welcome an addition to his library
as the Contract Act.”

On the coming into force of the Indian Constitution, according to Article 372 (1), the law in force
immediately before the commencement of the Constitution was continued.

‘’ 372. Continuance in force of existing laws and their adaptation:-

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395
but subject to the other provisions of this Constitution, all the laws in force in the territory of India
immediately before the commencement of this Constitution, all the laws in force in the territory of
India immediately before the commencement of this Constitution shall continue in force therein
until altered or repealed or amended by a competent Legislature or other competent authority ‘’

The law of torts is the only branch of law (other than personal laws) which has not as yet been
codified. And therefore, the basis of this branch of law in India continues to remain the rules of
English law which had already been imported before the Constitution came into force and
therefore became a part of the Indian law. As seen from Rankin, Background to Indian Law, at
P. 22 (1946), from 1781 onwards, in order to meet the exigencies of the time, East India
Company decided Civil Cases according to ‘justice, equity and good conscience’ under the
provisions of the Charter Act of 1781. (except particular matters which were to be governed by
the personal laws of the Hindus and Muslims).

Point is that even in earlier, the phrase ‘justice, equity and good conscience‘ was nowhere
defined. Therefore, Judges started applying the principles of English law with which they were
conversant. When the courts gradually came to be manned by Indian judges, the rules of
English law so imported continued to be applied by them under the doctrine of binding
precedent. Suits regarding succession, inheritance, marriage and caste and all religious usages
and institutions, the Hindus and Mahomedan Laws were to be considered as the general rules
by which the judges were to form their decision.

Conclusion:-

It is needless to say that civil wrongs are suffered daily in India. Owing to illiteracy, poverty,
heavy cost of court cases, unreasonable delay in the disposal of civil cases, the general
indifference for action of the people in India as a national trait, it has not resulted even by the
year 2018 ( 100 years after Sir Henry Maine expressed his opinion) in a spate of tort litigation
which might have been expected. It is true that the courts in India had therefore very little
opportunity of applying the rules of English law in Indian Socio-economic perspective, in the
area of the law of torts. It is also significant to note that the American Restatement of torts
which could be relied upon for codification of trots in India. My poignant thesis may well-begin
with an idea that why do not we make an attempt for a general codification of the law of torts as
Sir Henry Maine also expressed his opinion in some decades back that time is ripe for complete
Code of torts ?

-x-

J.VENKATRAMAN M.Sc., M.L.,

ADVOCATE,
HIGH COURT OF MADRAS,
CHENNAI-01.
Cell: 9489479742.