“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of the English judges, native law and usage, were without express legislation, largely supplemented, modified and superseded by English law.”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 fullfledged 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 Inida was appointed in 1835. This Commission was entrusted for condification centain 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 recommanded 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 Inida. 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 mannual 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 onnwards, in order to meet the exigencies of the time, East India Company dicided 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.
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 ?