law of torts
source: https://www.westmorelandinjurylawyers.com/blog/what-is-tort-law/

Abstract

A tort is a civil wrong or a wrongful act done intentionally or by accident. The tortuous law is very vast as compared to any other field of law. It is beyond the reach of the courts to address all the torts and group them in certain branches. The Law of Torts is still developing in India. Since this field of law is not codified, there is a significant lack of precedents for all the situations. In addition to the problems of poverty, awareness, and illiteracy, the other notable problem is that the judicial system in our country is dilatory and exorbitant. Our country needs to work on these areas to make people understand the importance of the Law of Torts which would make it easier for a common man to seek remedies when there has been any violation of his right.

Keywords:  Damages, violation, compensation, evolution, dilatory, judiciary

Introduction

The word ‘tort’ is derived from a Latin word ‘torture’, meaning to twist/twisted. The word corresponds to the English word ‘wrong’. In general, it means he conduct that adversely affects the legal rights or infringes on the legal rights of others.

In simpler words, tort means any wrongdoing for which the wrongdoer is liable to pay the damages or the compensation. Matters or issues relating to daily routines are covered under the Law of Torts. It is more close to public morality and safeguarding public rights than in the books of Jurisprudence.

For a healthy and peaceful society, it is necessary that it is free of anti-social elements and that an individual should have the freedom to exercise his basic rights without someone else’s restriction. Further, if there is a transgression of any right, there must be a way or a remedy to compensate for the damages or to restore the right following the maxim “ubi jus ibi remedium” which implies wherever there is a right, there is a remedy.

This principle was recognized in the case Ash (htt1)by v White, 1703. The tort law is designed as a fault-based system for compensating injuries. The notion that the ‘victim’s injury’ must be ‘someone else’s fault’ and that someone shall bear the damages and be made liable to pay the compensation, evolved the need of Tort Law. This area of law is primarily concerned with the liabilities or compensation for socially unacceptable behavior in the eyes of law.

Law of Torts in India

Torts in India existed in the pre-British era in Hindu and Muslim jurisprudence for dealing with the misconduct in the society. The system then was retributive and not restitutive. It was through the efforts of Sir Henry Maine and Sir James Stephens that the British Empire brought common law and formal Tort Law to India through the 3 Presidency Courts.

The Tort Law arises when there is a breach of some duty or obligation or when a person acts or omits an act independent of contract which causes damage to the plaintiff’s body, reputation, or property giving rise to a civil cause of action and for which remedy is available. The English Law has a broader conception of torts than under Hindu and Muslim Law. The position of compensation for the wrongs was obscure as compared to punishments of crimes in these systems. The Indian Law of Torts is based on English Law principles applied in India as rules of justice, equity, and good conscience.

It has been further argued that the development or the evolution of the Law of Torts India need not be on the guidelines of the English Law. In a landmark case, M.C. Mehta v Union of India, Justice Bhagwati stated that India must evolve new principles and lay down new norms which would adequately be dealing with problems arising in the ever-developing nation and an industrialized economy. This clearly proclaims the lack of procedural and practical capability to handle this branch of litigation in India. Nonetheless, Indian society is not overlooking the law of torts ever since it was introduced but it requires more awareness and to make liabilities under the Law of Torts more stringent in India.

Development of the theory of ‘absolute liability’

The development of the theory of ‘absolute liability’ in the Bhopal Gas Tragedy case and few other rulings of the High Courts and the Apex court of India on tortuous liabilities of MNCs, the evolution of sexual harassment at workplaces as an offense, payment of damages and victim receiving compensation schemes for violation of legal or the human rights are some examples reflecting the importance of Law of Torts in India.

The leisurely pace of Tort Law in India

If a person goes to a police station to lodge a civil suit to seek remedy under Tort law stating that his legal right is infringed in India, chances are that he would be questioned about the maintenance of such suit and he can be sent back. The problem in India is that people here seek remedy under Penal Law instead of a remedy under Civil Law for any kind of wrong against them.

The major reasons behind this are lack of awareness of Law of Tort, poverty, illiteracy, unnecessary delay in the disposal of civil suits, the requirement of court fee, advocate fee, cumbersome or the unwieldy procedure and even if the court delivers the relief in years, damages paid to the victim is nowhere near to the expected relief. These may be the major reasons for which the people in India withhold going to civil courts seeking remedy for cases based on torts.

Reasons and probable solutions

  • Lack of certainty and awareness of the Law of Torts in India

The law of Torts in India, being uncodified, has no uniformity and certainty in its rules and structure. Though there are a number of precedents on the Law of Torts in England, those can’t be applicable to the situations in India. This is the major reason for the lack of case-laws in India related to the Law of Torts. The majority of the Indian population is unaware of their legal rights due to the lack of awareness, illiteracy, and political consciousness.

The codified branches of Law of Torts such as the Motor vehicles Act, 1988, Consumer Protection Act, 1986, Fatal Accident Act, etc., has made most of the related issues and accidental conflicts systematic. The court fee in such cases is NIL or very less and affordable, which makes it easier for people to seek judicial remedies. Therefore, the codification of all the remaining branches of torts or at least the issues essential for the public is very important and time is ripe for the codification of the law of torts in India.

  • Illiteracy and Poverty

Literacy is the key to the socio-economic progress of any nation. The literacy rate in India is under 75%. Being among the most populous nations, a lot of people in India do not have the knowledge of their legal rights or simply ignore them. Though the Indian economy is among the fastest-growing economies, poverty in India is still a major issue in the slow development of Law and obstruction in legal awareness among the people. India has the third-highest number of people below the poverty line after Nigeria and Congo. The economic backwardness makes the people incapable of meeting the high litigation cost which further refrains them from filing suits for damages under the Law of Torts.

In India, more significance should be given to law awareness programs. Public legal education or civic education is intended to build skills and awareness about the law and judicial system. It would not only help people recognize that they have a legal right but also help them pave the way to take suitable actions and to avoid situations wherever possible.

  • The cost of the Judicial System and its slow approach

In addition to the problems of poverty, awareness, and illiteracy, the other notable problem is that the judicial system in our country is dilatory and exorbitant. The rate of court fees and the lawyers’ fee is pretty expensive for a common man. The court fee and advocates fee is high and even if a common person beers the fees and difficulty, he gets lethargic with the number of dates, and in the end, the damages paid to him are nowhere near to the expected relief. So he faces the violation of his rights and chooses to suffer instead of seeking judicial remedies. There are over 3.5 crore cases pending across the courts in India.

According to the National Judicial Grid, in every four trials in India, one remains pending for the last five years now. In a study of the Indian judiciary, it was found that a judge in Patna high court gets about two minutes on a regular day for one hearing. There is no question so as to why there are so many pending cases in India. These facts are enough to say that the judicial system is sluggish in India.

The shortage of judges, complex procedures, uncodified laws, and new conflicts are among the many reasons for the slow judicial process in our country. If there is a proper bifurcation of the cases under the concerned branches of law. In other words, it would become a lot easier for both the people and the judicial officials.

Conclusion

There are various contemporary functions of torts including punishments, compensation, to prevent offenses, and so on. Despite the factors hindering the growth of the Law of Torts in India, it is not true that the law of Torts has lost its sight. There have been many thought-provoking and landmark decisions where the courts decided in favor of public welfare and protection of legal right under the Tort law. Some of the major causes are Jai Laxmi Salt Ltd. v State of Gujrat, Union Carbide v Union of India, M C Mehta v Union of India, Bhim Singh v State of J & K and so on.

The eradication of difficulties and the removal of the hiatuses will surely help in the growth of tort litigation in India. I strongly believe that by adopting simple procedures, charging fewer court fees, and following similar steps in other branches like the Motor Vehicles Act, 1988, there is a strong chance to safeguard the civil rights of people in India and helping them approach civil courts to file tort-based cases.


Author:

tushar srivastava Tushar Srivastava | Amity Law School, Noida


References

(n.d.). Retrieved from https://indiankanoon.org/doc/1486949/

(n.d.). Retrieved from http://legalnook.com/brief_details.php?Brief=Ba9f0e9bc7c52735a7c9b0be66646c5f030048b06

(n.d.). Retrieved July 12, 2020, from https://www.halt.org/5-important-things-to-know-about-tort-law/

(n.d.). Retrieved from https://www.britannica.com/biography/Henry-Maine

(n.d.). Retrieved from http://www.thisweekintorts.com

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