Study Notes: Evolution of Tort Law in India

By Fazila Khan 17 Minutes Read

Introduction

A tort is a type of civil wrongdoing that deals with someone being held responsible for breaking their duty to another person. Tort law is a relatively new development in India, integrating diverse legal principles. It requires further supplementation and the codification of related statutes to consolidate them under a single roof.

The term ‘tort’ derives from the word ‘Tortum’ this term means the twisted/crooked/wrong. In French, the term “tort” is equivalent to “wrong” in English.

Origin of law of torts

  • Since 1066, after the Norman Conquest of England, the legal system underwent significant changes. The previously decentralized laws were replaced with a more organized system influenced by Norman legal principles.
  • Over time, judges from England began assimilating and applying these principles, which emphasized consistency and precedent-based rulings. These judicial decisions, based on past cases, became known as legal precedents.
  • In India, the development of tort law draws heavily from English common law, including the concept of legal precedents established through judicial decisions. This influence has shaped the structure and application of tort law within the Indian legal system.
  • After the Norman Conquest, French became the language used in the English judiciary. Many technical terms in English law, including “tort,” originated from French. The primary aim of tort law is to uphold people’s rights and duties.

Meaning

  • Tort, in simple terms, refers to a civil wrong.
  • It focuses on holding individuals’ liability for their actions or failures to act, especially when they cause harm to others.
  • Unlike breaches of contract, torts deal with violations of general legal duties recognized by civil law. These duties exist independently of any specific agreements between the parties involved.
  • Tort law is emerging as a new chapter in India, blending various legal principles. It requires additional support and aims to codify related statutes, bringing them under one comprehensive framework. Additionally, they will enhance our nation’s international reputation within the legal community.
  • As there is one legal maxim based on this i.e., the “ubi jus ibi remedium” which means “where there is a right there is a remedy”.
  • One crucial aspect of tort law is that the person who commits a tort is not automatically deemed guilty or considered at fault.

Essential Elements of law of tort

  • Act/Omission: To constitute a tort, an action is necessary, which can be either negative or positive.
  • Breach of Duty: This action must also involve a breach of duty, whether through an act or omission. A duty exists to either perform or refrain from specific actions, or to behave in a prescribed manner.
  • Legal Damage: To constitute a tort, there must be a breach of a legal duty. The rights of the plaintiff must have been infringed, whether through a specific act or omission that breaches such legal duties.
Injuria Sine DamnumDamnum Sine Injuria
“Injuria sine damnum” is a Latin term meaning “injury without damage”, referring to a legal injury or violation of rights without actual financial loss or harm. This concept allows individuals to seek remedies for infringements of their legal rights even in the absence of monetary harm, ensuring the protection of broader legal interests beyond economic losses and promoting fairness and accountability in legal disputes. “Damnum sine injuria” is a Latin term which means “damage without injury”. It refers to a situation where harm or loss (damnum) is suffered by someone, but there is no accompanying legal injury or violation of a legal right (injuria). In other words, even though there is damage or loss, no actionable legal wrong has been committed. 
This maxim was famously applied in the landmark case of Ashby v. White[1], where the plaintiff received damages for the violation of his right to vote, despite not suffering any direct physical harm. This case established the principle that the deprivation of a legal right, like the right to vote, constitutes a legal injury warranting compensation, even in the absence of other tangible harm.This maxim was famously highlighted in the Gloucester Grammar School Case[2], where, despite the plaintiff suffering financial harm due to the opening of a new school, the court ruled that not all harm or loss is necessarily legally compensable unless a legal right is violated.

Evolution of Law of Tort in India

  • To address misconduct among individuals, concepts similar to torts existed in Hindu and Muslim laws, but it was formally introduced by the British Crown in India.
  • It is founded on principles of fairness, justice, and ethical conduct. The law of torts primarily follows the English common law principles. In Indian courts, the application of tort law is selective, considering its relevance to the social circumstances in India.
  • This law in our nation evolved through three distinct phases:

Ancient times:

As in ancient India, people believed that the state was crucial for maintaining peace and progress in their lives. They trusted that the king could do no wrong. Many texts discuss the legal foundations, the accountability and immunity of the king, and the origin of the state. Individual responsibilities were paramount, and there was a system of ordeals to determine guilt or innocence, along with principles of fair justice.

Medieval period:

In medieval India, the progress of tort law was relatively limited compared to criminal law and other areas during the rule of Islamic rulers like the Delhi Sultanate. This was influenced by the principle of “Like for like” or Retaliation is justified which is Justice demands reciprocity.

Modern times:

Most tort laws were adopted from English tort law after careful consideration of their suitability for Indian culture and societal circumstances. In the 18th and 19th centuries, under British rule, India saw the establishment of three presidential courts led by Sir Henry Maine and Sir James Stephens. This era also marked the introduction of common law and tort law by the British. In 1886, jurist Sir Frederick Pollock attempted to create a Civil Wrongs Bill to codify these laws, but it did not pass through parliament.

While tort law mainly relies on common law principles and judicial precedents, there are some statutory provisions in India that provide codification and structure to certain aspects of tort law. These laws address specific areas and types of torts, thereby supplementing the common law framework. Some of these legislations include:

  • Article 21 of the Indian Constitutions guarantees the right to life and personal liberty, which has been interpreted broadly by courts to include the right to compensation for injuries caused by tortious acts.
  • Further, Article 300 of the Indian Constitution permits suits to be instituted by and against the government in any court of law within the territory of India.
  • The Consumer Protection Act, 2019: This act deals with consumer rights, providing a framework for consumers to seek redress for issues such as defective goods, deficient services, and unfair trade practices.
  • The Motor Vehicles Act, 1988: This act addresses torts related to motor vehicle accidents, including provisions for compensating road accident victims and mechanisms for determining liability.
  • The Public Liability Insurance Act, 1991: This legislation ensures immediate relief for those affected by accidents involving hazardous substances, requiring industries to maintain public liability insurance.
  • The Environment Protection Act, 1986: While primarily focused on environmental regulation, this act also addresses torts related to environmental pollution and provides penalties and remedies against environmental harm.
  • The Indian Penal Code, 1860: Certain provisions of the IPC deal with tortious acts that overlap with criminal offenses, such as assault, defamation, and negligence causing harm.

However, it is pertinent to note that the development procedure of law of tort in India is slow due to many factors. However, it is pertinent to note that the development of tort law in India has been slow due to a variety of factors. These factors include the complexities of the legal system, limited awareness and understanding of tort law among the general public, and a backlog of cases that clog the judicial system. Additionally, the influence of traditional dispute resolution mechanisms, such as panchayats, and a general preference for criminal litigation over civil suits have contributed to the sluggish pace of tort law development. Furthermore, inadequate legal infrastructure and limited access to legal resources in rural areas exacerbate the problem, hindering the evolution and effective implementation of tort law across the country.

Development of Law of Tort in India through Judicial Pronouncements

The evolution of tort law in India has been significantly shaped by judicial pronouncements, creating a robust legal framework that addresses various aspects such as state liability, environmental protection, medical negligence, consumer rights, and workplace safety.

Early Foundations and State Liability

The journey began with State of Rajasthan v. Vidyawati[3], where the Supreme Court expanded the scope of tortious liability of the state for the wrongful acts of its employees. This case marked a significant departure from the traditional doctrine of sovereign immunity, establishing that the state could be held liable for the negligence of its officials in the course of their duties.

Building on this foundation, Khatri and Ors v. State of Bihar[4] further solidified the state’s accountability. The Supreme Court held the state liable for an accident caused by a negligently parked government truck. This case underscored that government bodies could be held accountable for negligence under tort law, similar to private entities.

Environmental Law and Absolute Liability

The devastating Union Carbide Corporation v. Union of India[5] (Bhopal Gas Tragedy) led to loss of thousands of lives, caused widespread injuries and ongoing generational sufferings due to fatal illnesses. This catastrophe culminated in a settlement mandating Union Carbide to pay $470 million in compensation. However, debates arose regarding the adequacy of the settlement and the necessity for corporate accountability in cases of extensive environmental harm. The tragedy highlighted the urgent necessity for a strict liability framework without exemptions, ensuring that responsible parties could not evade accountability for such catastrophic incidents.

A major leap in environmental tort law came with the landmark judgment in M.C. Mehta v. Union of India[6] (Oleum Gas Leak case), where the Supreme Court applied the principle of absolute liability to industries handling hazardous substances. This case emphasized the need for compensation and prevention of environmental harm, echoing the principles established in the English case Rylands v. Fletcher[7].

Expanding State Liability

The principle of state liability was further expanded in Nilabati Behera v. State of Orissa[8], where the Supreme Court recognized compensation as a remedy for the violation of fundamental rights, particularly in cases of custodial deaths. This case reinforced the state’s responsibility to protect citizens’ rights and provide redressal for their violations.

Environmental Protection and Sustainable Development

In Indian Council for Enviro-Legal Action v. Union of India[9], the Supreme Court reinforced the “polluter pays” principle, holding companies liable for environmental pollution and ensuring they compensate for the harm caused. This case expanded the scope of environmental torts and emphasized the importance of corporate responsibility in environmental protection.

The M.C. Mehta v. Union of India[10] (Taj Trapezium Case) saw the Supreme Court ordering the relocation of polluting industries to protect the Taj Mahal from environmental degradation. This case reinforced the principle of sustainable development and the need to balance economic growth with environmental protection.

Similarly, in Sterlite Industries (India) Ltd. v. Union of India[11], the Supreme Court imposed a hefty fine on Sterlite Industries for the damage caused by its copper smelting plant in Tamil Nadu, emphasizing the “polluter pays” principle.

Workplace Safety and Rights

The landmark case of Vishaka v. State of Rajasthan[12]  extended tort law principles to protect fundamental rights at the workplace. The Supreme Court recognized a civil remedy for sexual harassment, ensuring redressal for violations of dignity and safety, thus highlighting the role of tort law in safeguarding workplace rights.

Medical Negligence

The case of Dr. Suresh Gupta v. Govt. of NCT of Delhi[13] highlighted the liability of medical professionals for gross negligence. The Supreme Court held that medical professionals could be prosecuted under criminal law for severe negligence, setting a high standard for establishing criminal liability in medical negligence cases.

Conclusion

The evolution of tort law in India, rooted in English common law, has adapted to local contexts over time. It serves as a crucial tool for addressing civil wrongs and ensuring justice for individuals harmed by negligence or intentional acts.

Tort law in India serves as a vital mechanism for addressing civil wrongs and securing justice for individuals harmed by the actions of others. It encompasses a wide range of issues from negligence to intentional harm, providing avenues for compensation and redressal.

The evolution of tort law in India underscores its crucial role in protecting rights, promoting accountability, and adapting to meet the evolving needs of society. Continued reforms and initiatives are essential to uphold fairness and justice for all individuals within the Indian legal system.


[1] (1703) 92 ER 126.

[2]  (1410) YB 11 Hen IV, fo. pl. 201, 23, f. 47, pi. 19.

[3] 1962 AIR 933.

[4] 1981 SCR (2) 408.

[5] 1992 AIR 248.

[6] (1987) 1 SCC 395

[7] (1868) LR 3 HL 330

[8] AIR 1993 SC 1960.

[9] 1993 AIR 1960.

[10] AIR 1997 2 SCC 353.

[11] 2013 (4) SCC 575.

[12] AIR 1997 SC 3011.

[13] (2004) 6 SCC 422.

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