‘’ 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 reaming braches 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.