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Insufficient Evolution of Tort Law: Reasons

The word tort is derived from the Latin tortus, meaning twisted. It came to mean wrong, and it is still so used in French: Jai tort; I am wrong. In English, the word tort has a purely technical legal meaning a legal wrong for which the law provides a remedy. But the word tort as used in law has various definitions according to different writers. Law of tort is still an unexplored charter or at least not a thoroughly explored one, even till date especially in developing countries. For a majority of commoners, it still remains an enigma. This uncodified law is a chamber of riddles for people in growing countries like India itself. Here we shall take a look why tort law has not sufficiently evolved in India.

Reasons for its insufficient evolution:
One of the basic reasons behind the insufficient evolution of Law of Tort in India is because it is not codified. Undoubtedly a code is useful, but it is well to recognize 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 [1]development of the law to do so. Lack of a code for the law of tort acts as a deterring factor for it to branch out as a favoured form of litigation.

Moreover, there is no uniformity and certainty in its rules and principles or doctrines. Although there is a plethora of precedents on law of tort available in England on many points, those cannot be applied in Indian situations. Just because of this reason, there is a lack of case-laws in India with regard to law of tort. Just to accommodate the law of tort to situations of India, in some case Indian courts have established. For eg. In M.C. Mehta v. UOI, the supreme court established the doctrine of absolute liability, only doctrine of strict liability was present at that time.

Others reasons, why tort law is not sufficiently evolved is because of poverty and illiteracy. The judicial system in India is very expensive and dilatory. Therefore, many people can't fit in its ambit. It is very 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. Also one reason as exemplified by this illustration if a poor man is ready to pay huge court-fees for violation of his civil right, after long gap of years, he gets only 500 or 1000 as compensation or damages, he considers it as no benefit at all. Most of the people in India are unaware of their rights. Also due to lack of political consciousness, most of people in India are unaware of their legal rights.
Also due to heavy case load, it is impossible for the court to dispose all the cases.

Another scenario helpful in understanding the scenario is as- If a person goes to a police station to lodge a civil suit to seek remedy under Tort law stating that his legal right is violated or infringed, it is highly probable that he will be questioned about the maintenance of such suit and he can be sent back. People have no certainty over what will be the outcome after filing the plea.
Acknowledging the fact that a code on torts would be premature for the reasons aforementioned, it would perhaps be wiser to start with enactments on particular topics on which the case-law in India is unsatisfactory and has to be rectified. One of the first recommendations for legislation made by the Law Commission appointed by the Government of India is on the subject of liability of the government for torts of its servants.

So, it is clear that it is not that tort law is unnecessary or simply overlooked, but it merely requires enactments to make it more ascertainable. Failure of aggrieved persons to assert their legal rights is perhaps to be ascribed not merely to insufficient appreciation of such rights but to other causes as well, e.g., difficulties in proving claims and obtaining trustworthy testimony, high court fees, delay of courts.

The elimination of difficulties which obstruct aggrieved parties in seeking or obtaining remedies which the law provides for them is a matter which is worthy of consideration. If these lacunae are removed, India could also witness a growth in tort litigation. It is true that there are number of problems in tort law, even though it has not lost its sight and it is developing though at a slow pace.

  1. Percy Henry Winfield et al., Winfield and Jolowicz on Tort (Sweet and Maxwell 19)
  2. R. K Bangia, The law of torts, including compensation under the Motor Vehicles Act (Allahabad Law Agency) (1995)
  3. M.C. Mehta And Another Versus Union Of India And Others Lnind 1986 SC 539

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