This article on, ‘Limitation of Law of Torts in India – Know Here‘; is written by Parvraj Patni. He is a 1st Year Student in LL.B. (Hons.) from Jindal Global Law School.
Table of Contents
A “tort” is a private or civil wrong or injury, including an action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages. Section 2 (m) of the Indian limitation act defines a tort as a civil wrong that is not exclusively a breach of contract or trust. As society is progressing, we are becoming more and more aware of our rights. We are aware of certain offences that were found to be trifles or negligible in the past but now attract heavy liabilities.
As Justice Dalveer Bhandari rightly pointed out in; What is cruelty in one case may not amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.” This can be taken into context that what one finds to be normal can be pretty extreme for another; for instance, a single slap. Torts cover these areas where the offence may seem to be normal for one but can be drastic for another.
Torts law in India
In SK Bhatia’s Specific problems of the law of torts in India; he mentions that during the 1950s the people weren’t aware of the liabilities that arise out of certain activities that were in true nature, an offence. People believed very much in the divine theory of law through “Dharamshastras”. Incidents like trespass, assault, battery, negligence (professional and individual) were not very common in India. Dharma’s principle was that performance of duty and obligations took one near to ‘moksha’ and omission of those had an opposite effect.
The emphasis on the spiritual welfare of the individual was so great in ancient times that one wonders if the aggrieved party could have even contemplated receiving pecuniary compensation where the receipt of such compensation was dependent on the ‘adharma’ of another. It is perhaps not inconceivable that in those days the aggrieved party himself granted ‘kshama’ to promote not merely the spiritual welfare of the wrongdoer but also his own.
[contd.]In the modern days, Torts law in India is usually governed through the system of precedents and judgements. Presently, most of torts law in India is usually governed through the English law system which also works on the system of common law. In India, while governing torts cases, the judiciary depends on previous judgements, a certain statute for specific torts and also the socio-cultural practices prevalent in the country
Torts Law in the United Kingdoms
In the 1950s the English torts law was very advanced as compared to India. English torts law was already accepted by the people of the country and were very aware of the offences in the same. English was developed to give power to the kings’ court to litigate even the smallest matters.
By that time the courts in England had already passed many landmark judgements; and also introduced the idea of a duty of care through the Donoghue case. The king’s court was already granting reparation in the torts cases. People were aware of their duties and obligations towards society whereas India was already struggling with the issues mentioned in the preceding part.
“Thus, the English law of torts developed in circumstances which were different from those of India. Even so, in the garb of ‘justice, equity and good conscience, they were transplanted in India during the British rule”
The modern-day English torts law still is an un-codified system of law wherein, they are completely dependent on the previous judgements and precedents set. The difference between torts law in India and UK is that the former is still dependent on landmark judgements of the latter. The courts of India still hear the citations of UK torts cases.
Limitations of the Law of Torts in India
1. Un-codified System of Law
In India courts still rely on UK judgements while delivering the verdict here. Prerna Deep’s, The Door Left Ajar: Evolution of Law of Torts in India; mentions that The judges surely look at the socio-cultural practices in our country before applying the English courts’ judgements.
Also, despite India experiencing the cases like Bhopal gas tragedy; the recent LG gas leak at Vizag and not to forget up haar gas tragedy; India still doesn’t have a codified system of torts law. The heavy reliance on the previous judgements doesn’t help in defining the liability of the companies in these types of cases. The interpretation of previous judgements plays a vital factor in this.
Apex Courts View
In M.C. Mehta vs U.O.I., Justice Bhagwati observed; “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 jurisprudence.”
The aim of the law of torts is to put the party back in position as it was before the act was committed. This aim of tort is completely defeated when the tortfeasor gets away with minimum penalty despite the grave nature of these acts.
There has always been a demand for codified torts law both in India and England. This will help the law to be compartmentalized and easy to interpret. In the modern era, some parts of the law of torts have been codified. For example, The Fatal Accident Act, Workmen’s Compensation Act, The Employers’ Liability Act, etc. Still, the major portion of this branch of the law is based on legal precedents.
The codification of law will help in making people more aware of their rights and duties as citizens. The judgements for a non-reader of law are always for a normal person to comprehend and understand. This also leads to a lack of awareness of rights because of the non-codification of law.
2. Interpretation of Judgements
What one judge might agree with doesn’t mean that the other one will too. One thing that is true for the judgements for torts in India is that judges mostly try to analyse the social and cultural factors while applying English law judgements but one can never really contemplate the interpretation of the English law cases.
Justice Bhagwati’s statement tries to show that the judiciary has accepted that the British era laws need to do away with because now the conditions in our country vary from England. This difference in socio-cultural practices has made the torts decision difficult for the judges. India is a hybrid law system where there is a codification of law and also reliance on judgements.
Most of the branches of law have been codified and are available for reading for non-readers of the law. Torts as mentioned completely rely on the judgements of the previous cases, sometimes the reading of judgements are difficult for the public to understand.
3. Need for an ADR System
Indian courts are always overburdened with the number of cases for various reasons that go beyond the scope of this paper. This calls for various other reasons for solving dispute resolution. Courts have always allowed ADR methods in various other branches like personal law like juvenile crimes, religious disputes, corporate sector etc.
Section 89 of the Civil Procedure Code says that if the judiciary sees opportunities of solving the dispute outside the court then they allow that through Arbitration, Conciliation, Mediation or ‘Lok Adalat’. The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act and, The Legal Services Authority Act.
Courts have always allowed organization like Darul qaza for solving the disputes of the community. Courts have recognized that these types of ADR organizations provide a cheap source of justice. In Vishwa Lochan Madan vs Union Of India & Ors; the court also said that they are an informal justice mechanism.
The recent establishment of Hindu courts, the first of its kind coming up in Meerut. These same principles can be applied in cases of torts. There can be alternatives to solve the disputes that arise due to minor offences to protect the rights of both parties.
There can be counselling of the individuals, the aggrieved party as well as the offender. The main aim of torts is to put the aggrieved party back into position as it was before the act was committed. Counselling can be resorted to achieve the same if there has been some kind of mental distress or trauma to the victim.
The present times require a better approach towards the torts law situation in our country. What is more surprising is that how can we consider something law which isn’t backed up by any statute or act? Torts weren’t considered to be of the same importance as other branches like criminal law, property law etc. in India .this was due to the reasons mentioned. This isn’t just about the country but other countries as well.
When torts law were first introduced on the English land the situations weren’t as volatile as they are today. The occurrence of torts offences was a rarity. In the present times, we observe that people get away with these kinds of offences very easily; just because of the lack of a codified system of law. It’s high time that we adopt a codified system for the law of torts; and reduce our reliance on English judgements. This could be another step towards breaking the ties with the colonial era.
What can be Solutions
The system that can be adopted here can be on the lines of the family dispute resolution system. Like there are family courts at the initial stage of the family dispute; the same can be adopted for the torts cases. There can be a dispute resolution mechanism set up just like a family court. The court’s major objective would be to counsel the parties and try to find a solution to the dispute through mediation.
Counselling will play a major part in the functioning of these courts. This can also help both parties to grow individually. One of the major challenges of Indian litigation is the heavy monetary costs that the parties have to bear; those can be eliminated through these forums/courts.
Torts law has gained a lot of significance in modern India. People are more aware of their rights and duties. The readers of the law have put torts in a very significant position because of its ever evolutionary nature. What was considered to be a minuscule offence once, now attracts heavy liability due to the acceptance of torts law in India! Certain big issues are still yet to be addressed by this law in a codified nature. As ever-evolving it is, there is a need for its codification and an alternate dispute resolution.
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