The objective of this write up is to discuss torts in general, its origin and
development as a branch of legal studies in India.
The word torts' is derived from the Latin expression tortum
twisted/crooked/ wrong. Tort' in French is corresponding to the English word
and the Roman expression delict. In a society when an individual
diverges from the ordinary course of straight conduct to a crooked alternative,
he is believed to have committed tort - a conduct which is twisted or crooked.
The person committing such crooked act is tagged as a tortfeasor.
The focal point of discussion about torts will invariably start with Salmond's
school of legal interpretation which denotes law to be consisting of rules which
are recognized and acted upon by Courts of Justice. However, before the
supremacy of the State as the custodian, law was enforced by an individual whose
right has been allegedly violated by clans. According to Henry Maine this was
the Penal Law of ancient communities which has emerged as the law of wrongs in
modern day society and has been attributed as the Law of Torts
Broadly defining, Tort may be classified as an act of civil wrong which can be
redressed by an action for unliquidated damages. In India, the law of torts
defines and provides remedies for non-contractual acts which are civil in
Prior to William the Conqueror's 1066 Norman conquest of England, the legal
system was rather chaotic, steered on a case-to-case basis. Post 1066, after the
Norman conquest, fines for illegality were directed to be paid directly to the
courts or the King, instead of intermediaries and this process quickly became a
source of strong revenue generation. A wrong
came to be known as a tort or
trespass, and a distinctive line was drawn between civil petitions and pleas to
the Crown, the later mostly encompassing penal provisions.
After the Norman conquest, once French became the primary language in England's
judiciary, it saw many of English law's technical terms having their origin to
French, of which tort' is one.
The Indian Scenario:
It is a documented fact that the applicability of the Law of Tort in India is
much rudimentary in structure as compared to the British Law. Predominantly, in
the Indian Legal system, punitive and corrective remedies are more in vogue than
compensation for wrongs. In India, the English Law of Torts has undergone a
assuaging to the principles of Justice, Equity and
Good Conscience which has remained the fundamental philosophy of the country's
codified legislative system.
In M.C. Mehta v. Union of India
, Justice Bhagwati said:
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 own
It is pertinent to mention here that Section 9 of The Code of Civil Procedure
1908, as amended, which empowers the Civil courts of the land to try all suits
which are civil in nature, impliedly attributes jurisdiction to try cases under
the Law of Torts based on the fundamentals of Justice, Equity and Good
Conscience. In other words the Civil courts can draw upon its inherent powers
for determining liability as defined in a Tort proceeding.
In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat
, Sahai, J., held:
speaking the entire law of torts is founded and structured on morality.
Therefore, it would be primitive to close strictly or close finally the ever
expanding and growing horizon of tortuous liability. Even for social
development, orderly growth of the society and cultural refinedness, the liberal
approach to tortious liability by court would be conducive.
In light of the above 2 judgments, and with an objective to create a specific
Indian jurisprudence system, the following diversified branches of Law of Torts
have been codified in India amongst others:
Landmark Cases of Torts in India:
- Judicial Officers Protection Act,1950
- Indian Carriers Act, 1865
- Cattle Trespass Act, 1871
- Easement Act, 1882
- Workmen Compensation Act,1923
- War Injury (Compensation Insurance) Act,1943
- Fatal Accidents Act,1955
- Trade and Merchandise Act, 1958
- Specific Relief Act, 1963
- Air (Carriage by Air) Act, 1972
- Bhopal Gas Leak Disaster (Processing of Claims) Act,1985
- The Consumer Protection Act,1986
- Motor Vehicles Act, 1988
- Pravat Kumar Mukherjee Vs. Ruby General Hospital and ors 2005 CPJ 35
- Shashi Tharoor vs Arnab Goswam CS(OS) 253/2017
- D.K.Basu v. State of West Bengal
- Alka Lamba Trespass case
- Ushabti vs Bhagya Lakshmi Chitra Mandi
- Khenyei vs New India Assurance Co. Ltd.& Ors
- Jacob Mathew vs State of Punjab & Anr
The law of Torts in India is a relatively a new branch of evolving clustered law
which needs to be supplemented by codifying statutes by bringing it under the
ambit of one umbrella upon the basis of the maxim ubi jus ibi remedium.
Improvising on the existing laws will undoubtedly strengthen the faith of
citizens, we the people of India, but will also elevate the image of the country
in the international arena of legal fraternity.