It is often said that 'India needs change'. Various Laws and Rules are
challenged every other day, which may or may not be targeting at a better
tomorrow. From decision of Indian Rupee Devaluation of 1991 to Demonetization of
2016, every other legal policy of Indian Government has been questioned for
once. However, criticism of legal system of India doesn't stop here. Law of
Torts is one subject which exists in spirit in India but isn't appreciated
enough, despite the fact of it's universal applicability. Law of Torts is yet
another leg to Civil Law which attracts tortuous liability if such a prohibited
action is committed. This subject is of such significance and relevance, that,
it is recognized by and prevails in every legal system of the world, yet is
somehow underrated in Indian regards. In the world of multiplicity of laws, this
paper attempts to bring about and redefine the importance of Law of Torts along
with it's modern constituents, brief comparison and analysis of the same with
distinct legal systems of the world with Indian scenario including eminent case
laws and statutes. It further covers special mention of existent situation of
Law of Torts in India and urgent reformations suggested thereon. While giving
practical illustrations of pitiful fettles, this paper extensively glorifies
keys to various peculiar conditions arising as noted. Therefore, this paper
shall act as supplement to thoughts to lawmakers, Law Commission of India,
Ministry of Law & Justice and should be of interest to public in general. To
this end, this paper might be considered as an external aid to interpretation of
respective statutes and might also be kept for consideration by Hon'ble Courts
throughout and under India while delivering judgments with their prudent and
efficient minds. Additionally, this paper acts as a whistleblower and a watchdog
over problematic situations arising in Indian context, also giving reference of
foreign laws and cases, hoping for immediate development in field of law and
social sciences in India, calling for a better tomorrow.
Law of Torts:
Fundamentals and Urgent Reformations Suggested
Before learning about the various aspects of Law of Torts and reformations
needed in India, it is expedient for us to understand what a 'tort' is. Tort is
a wrong done to a person, but it is not a criminal wrong. Rather, it's a branch
of civil law tree. It is a civil wrong however, not breach of contract or breach
of trust either, it is a civil wrong of it's own kind. When a tort has been
committed, it is necessary that there should be an injury of legal nature. And
for such an injury, there should be a legal remedy available.
The term "tort" is a French word, which literally means "injury or wrong." It
has been derived from Latin term "tortus" which means "twisted or crooked act."Therefore, the term implies that it is a conduct, which is unlawful and
crooked. It maybe compared to the Sanskrit term "jimha" or English term
"wrong" or Roman term "delict."
Definitions of 'torts' by Eminent Jurists, Cases & Statutes :-
1.Salmondfinds the term as "civil wrong for which the remedy is common
law action for unliquidated damages and which is not exclusively the breach of
contract or the breach of trust or other merely equitable obligation."
2.Winfieldheld that "tortious liability arises from breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages."
3.S.P. Singh maintains that "tortuous liability arises from the breach of
a duty primarily fixed by law which results in an infringement of private legal
right of another and for which civil action for unliquidated damages,
injunction, specific restitution of property or even self-help, as the case
maybe, can be maintained.
4.It was held in the case Rogers vs. Rajendra Dutt that Tort is an act or
omission which prejudicial affects, another and some legal right giving him a
right to claim damages.
5.The Indian Legislature recognizes the concept of torts through The Limitations
Act, 1963 which states that "Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust."
It is found that Indian Legislature's definition doesn't carry the scope of the
term to a very large extent. However, to my belief, definition by S.P. Singh is
the broadest and most reliable one. For purpose of better understanding, 'common
law' means the body of law derived from judicial decisions, rather than from
statutes or constitutions. It is law based on precedents. And 'unliquidated
damages' means the amount owed to a plaintiff in a torts suit that cannot be
predetermined, such as compensation against mental agony, pain and suffering.
In addition to the definition, it shall be necessary to comment that in India,
litigation for torts is a very limited and restricted one. There have been
efforts made by Legislature to lay down codified statutes regulating the Law of
Torts, such as The Workmen's Compensation Act, 1923 and The Fatal Accidents Act,
1855. In fact, The Indian Penal Code, 1860 itself contains several provisions
regarding actions which are treated as criminal offences but are otherwise torts
as well. For example, wrongful restraint and confinement, assault, house
trespass, defamation and others. Also, it shall not be incorrect to state that,
through Public Interest Litigation, penalty is imposed upon guilty persons
relying on strict, constructive or other liability principles.
However, there are only handful enactments regulating the matter. Biggest reason
being for limited application of the said law is lack of consciousness and
knowledge about rights granted to oneself. Other reasons being absence of
relevant codified law, problem of recognition by Court of Law of an action being
a tort (or trifle matters not being given much importance), slow justice
delivery system, low compensation amounts in award and others. India is yet not
modern enough to explore and establish strict norms for tortuous liability,
simply because overburdened Legislature and Judiciary cannot oversee every
activity that becomes a tort. There are numerous ways to commit a tort and this
numerical maybe so large that it is almost impossible to specify each and every
activity as punishable under different laws.
Law of Torts in India is based on English Common Law, which is the product of
judicial decisions. In fact, following the case ofGujarat State Road Transport
Corp., Ahmedabad vs. Ramanbhai Prabhatbhai & Anr, it was stated in the case of
Municipal Corporation vs. Manjulaben Jayantilal Nakum & Ors that:-
"There is no statutory law in India, unlike in England, regulating damages for tortious liability. In the absence of statutory law or established principles of
law laid by this Court or High Courts consistent with Indian conditions and
circumstances, this Court selectedly applied the common law principles evolved
by the Courts in England on grounds of justice, equity and good
conscience. Common law principles of tort evolved by the courts in England may be
applied in India to the extent of suitability and applicability to the Indian
Few instances which are punishable in distinguished foreign laws are as
1.Unlawful detention/arrest of body of a person.
2.Negligence caused in treatment of a patient by one or more medical
3.Injury or death, as the case maybe, caused by items prepared by a person
or company, including serving foods, liquor, cold drink, medicine and others.
4.Loss caused due to power cut, water supply cut, or cut in other
5.Diseases caused by environment maintained by some agency, including
diseases caused because of pollution.
In fact, in a recent matter, Oxford University had been directed to face trial
where a suit was filed complaining the varsity for "hopelessly bad" and "boring"
teaching which allegedly resulted in him getting a second class degree and in
turn led to loss of earnings in his career as a lawyer. The above said events
are merely handful. There are numerous other scenarios where actions can be
brought in foreign countries under Law of Torts. Considering the aforementioned
five events, actionable claim can be brought in Court of Law in India also,
however, there are not many codified statutes dealing in the same. Compensation
or other awards maybe granted concerning the event through Writ Petition under
Article 32 or 226 of the Constitution of India or suit for damages, or suit for
recovery, or suit under Specific Relief Act, 1963 or other appropriate suits.
In other words, remedy can be sought even in Indian scenario but without strict
norms and regulations governing them. These laws exist in the spirit of justice
but not upon the face of it. It runs in the blood of the judicial system but it
is not as muscular or apparent as other laws.
The main objective of having these laws is based on the principle "alterum non
leader" which means "to hurt nobody by word or by deed." In the case
Salt Words (P) Ltd vs. State of Gujarat it was stated that the purpose of having
these laws controlling torts and claims thereon is to prevent human from hurting
one other, intentionally or unintentionally, which may extend to preservation of
life, property, reputation or anything in their name. It was further elaborated
"Truly speaking, entire law of torts is founded and structured on morality that
no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finality
the ever-expanding and growing horizon of tortious liability. Even for social
development, orderly growth of the society and cultural refineness, the liberal
approach to tortious liability by courts is more conducive."
Therefore, action brought against a tort is usually either a claim for pecuniary
compensation or specific restitution, as the case maybe, in respect of damage
suffered as the result of invasion of a legally protected interest. It was held
in case Rajkot Municipal Corporation vs. Manjulaben Jayantilal Nakum & Ors
"The law of torts prevents one human to hurt another. All torts consist of
violation of a right in the plaintiff. Tort law, therefore, is primarily evolved
to compensate the injured by compelling the wrong-doer to pay for the damage
done. The purpose of the law of tort is to adjust these losses and offer
compensation for injuries by one person as a result of the conduct of another."
To my belief, Law of Torts in India, though not as codified as another country,
however, is running in the soul of Justice delivery system. Due to the fact that
this law, not being as rigid as it should be, justice sometimes gets severed. It
is true that spectrum of Law of Torts is ever expanding, nevertheless, what can
be observed by a prudent mind should also be laid down with strict polices so
that Judiciary is not further overburdened to enact rules of it's own.
Constituents of Torts:-
Generally speaking, tort can be classified into any action or omission done
performed by the defendant of the suit against plaintiff of the suit, which was
without a reasonable cause or excuse and because of this conduct, the plaintiff
has suffered some legal damage or injury. The following are the constituents of
1.Wrongful Act or Omission performed by the defendant of the suit.
What it means is there must be some activity done by a person which violates the
legal rights of another person. Some movement, touching of articles, entering on
land, physical interaction where there exists lawful right of another person, or
a breach of duty and more, fall under this category. It means that a person has
performed some act which he wasn't expected to do, or has abstained himself from
doing something which he was supposed to do. This breach of duty should,
however, be imposed by law. Wherein he doesn't act like a reasonable and prudent
mind, he is liable to be tried for such wrongful act or omission, as the case
maybe. But the crucial test of legally wrongful act or omission is it's
prejudicial effect on the legal right of another.
Such as in the case of Municipal Corporation of Delhi vs. Subhagwati where some
parts of a clock tower fell on some people, the Apex Court held that the
respective area Municipal Corporation was under duty to maintain the tower and
to look after it's repairs, which were omitted. Therefore, deaths were caused
due to falling of such articles arising out of Corporation's failure to maintain
and repair the tower and thus, the Corporation was held liable.
2.Violation of Legal Right
The following was held in the case Rogers vs. Rajendra Dutt:-
"The act complained of, should, under circumstances, be legally wrongful as
regards the party complaining, that is, it must prejudicially affect him in some
legal right, merely that it will, however directly, do him harm in his interest
is not enough."
Therefore, there must be violation of a legal right, and not merely conflict of
Now, what is a legal right? Austin attempted to define "legal right" as a
faculty which resides in a determinate party or parties by virtue or a given law
and which avails against a party (or parties or answers to a duty lying on a
party or parties) other than the party or parties whom it resides.
To have appropriate remedy, rights have been broadly classified into following
a) Private Rights– all rights which are available to a person
in individual capacity. It includes all rights which belong to a certain
particular person only. Every violation of such right automatically denotes an
injury against which action is taken. As per the case Allen vs. Flood the
following are included in set of Private Rights:-
i) Right of reputation (safety to public image)
ii) Right of bodily safety and freedom (safety to body)
iii) Right of property (safety to estate)
b) Public Rights- all rights which are available to members of
a society generally, such as, right to earn income, right to legal aid, right to
be served with justice and more. When a public right is infringed, liability
does not arise per se. Punishment is inflicted when there lies a special injury
in addition to the injury suffered by public in general. It was held in the case Lyon vs. Fishmongers' Company
that no actions will lie against an
infringement (not authorized by law) of a public right unless there exists in
addition to the injury to the public, a special, peculiar and substantial damage
to occasioned the plaintiff.
3. Legal damage/injury
Law of Torts operates relying upon two maxims, namely "injuria sine damno" and
sine injuria." The former means violation of a legal right which may or may not
result into causing of harm, loss or damage to the plaintiff. For example, right
to healthy environment. On the other hand, latter one means an injury or damage
sustained but without violation of a legal right. For example, ousting of a
competitor from market without use of anticompetitive practices.
Ashby vs. White is the classic case where violation of a legal right took place
yet no damage was sustained. Facts were such that, defendant wrongfully refused
to register vote of a qualified voter at the parliamentary elections. The
candidate for whom the vote was tendered did actually win the elections and no
loss was suffered by the rejection of vote. Despite the fact that no injury was
sustained as the desired candidate anyway win elections, Court held that legal
right to vote was violated and it was thus an action lay. Thus, we can
understand that case of "injuria sine damno" shall be an actionable claim even
if there is no proof of any injury or even if no actual damage is proved.
On the other hand, Mogul Steamship Co. vs. McGregor Gow & Co. is the classic
example where no legal right has been infringed yet damage has been done. Facts
were such that a number of steamship companies joined hands and lowered their
freight with a view to drive out one of the competitors in the market, which
happened. Though it's an old case, yet it holds good subject to the Competition
Policy of the State. For example, in India, such an activity would be an
anticompetitive practice under The Competition Act, 2002.
Resultant of these two maxims is, that there are torts which are actionableper
se(i.e. which do not need proofs of damage) and not actionableper se(i.e.
which need proofs of actual damage). As the case maybe, when conditions are
fulfilled, legal remedy is sought.
4. Legal Remedy
Legal remedy is the last constituent yet the most influential one. This
essential is based on the maxim "ubi jus ibi remedium" which means there is no
wrong if there is no remedy. What this means is, a tort is actionable only to
the extent if there exists a lawful remedy to the said wrong. For example,
unauthorized trespass of land is prohibited under many laws throughout globe.
But, if there doesn't exist any remedy against the said wrong, claim is not
maintainable. For example, suit for damages can be sought in case of destruction
of property but not for a moral wrong, such as disobedience to speech of a
spiritual guru. Or, as put in better words "ex turpi causa non oritur
action" i.e. an action does not arise from an immoral or a base cause.
Law of Torts and the World:-
Law of Torts of USA is based on common law along with strict norms of respective
State. They have their respective Civil Codes dealing with law of torts. Unlike
Indian system, their law is more organized, better schemed and with a goal to
have payment of compensation. They have a more categorized Law of Torts, which
recognizes three main heads, which are as follows:-
A. Intentional Torts (requires intention, act, act's result, and a proximate
B. Negligent Torts (based upon failure to fulfill a duty of reasonable care
by a prudent mind, which is the actual cause of damage done.)
C. Liability defined Torts (includes principles of Strict Liability, Product
Liability and other)
What is common between Law of Torts of entire USA is that they understand the
mental agony one goes if a tort is committed against a person. Litigation in
Torts is much high in number over there. Following are the common objectives to
be secured by Law of Torts in USA :-
1.To develop a peaceful means for dispute settlement
2.To restore the injured in original shape by way of payment of
3.To have a deterrent effect against the wrongful actions
4.To create an environment socially aware of it's responsibilities
5.Idea is to restore the injured person back to his place and not merely
punish the wrong doer. Therefore, penalty is usually very high, which allows
suffering person, restore himself, if possible, to his original situation.
French law of Torts is an entirely codified one. They recognize the concept
through Article 1382 of the French Civil Code, which states that "any act
whatever of man, which causes damage to another, obliges the one by whose fault
it occurred, to compensate it." Additionally Article 1383 provides that "One
shall be liable not only by reason of one's acts, but also by reason of one's
imprudence or negligence." On the other hand, Australia is one such country
which is running on precedents to a greater extent rather than on legislations.
Though Australia refers laws implemented and judgments pronounced in UK,
however, from time and now they have attempted to make identity of their own in
this respect. Such as, Australian law doesn't require the wrongdoer to have
intention to trespass, whereas the law of UK holds intention as an important
element to constitute the offence of trespass.
Reformations – History and New Needs:-
It is a very well settled concept of sociology that "society is always
changing." Society is never in a stagnant and still position, it keeps on
changing itself from time to time. Clue here is that when society changes,
appropriate law is required, which may be achieved by way of amendment to
present the law or by enacting another. India is a society with race of about
1.3 billion peoplewith multiple topographies having more than 8 religions
existing. This means stagnant relations cannot be observed. This is may be why
Parliament of India never attempted to make strict norms relating to Law of
Torts. It is yet another true statement that Torts is an ever-growing subject.
Better put as "The society develops the law and the law develops the society."
However, difficulty which arises here is the dispute settlement and justice
delivery system. The customs and traditions of particular sect of the society
applies it's own laws for dispute settlement, which may be soft or harsh in
nature. Many traditions of the ancient times recognized beheading as the
punishment to guilty person. of course, beheading someone itself is a crime in
the modern era, however, these traditions have been proved to be an obstacle in
the course of justice in today's world. Since there are no strict norms, there
are no regulations for appropriate justice as well. Indian Judiciary relies upon
precedents for this matter. Though, our judiciary is somewhat influenced by
judgments of UK, we have made our own principles too.
Main idea behind enacting a law is multi-fold, but one cannot deny that one such
idea is benefit to the people of the State. If the law is outdated, it can be
said that justice is delivered mere physically but not morally. Having said that
in this behalf, precedents do play a very crucial role but they may get outdated
some day or the other. Thus, what we need is quick amendments to existing laws
concerning the Law of Torts, along with future-proof legislations. The Code of
Civil Procedure, 1908; The Indian Penal Code, 1860; The Indian Contracts Act,
1872 and others are beautiful examples of smart wits of the British. Even after
completion of centuries, many of British-made laws hold good in India. A law may
be changed afterwards at any time, but for such changes be made, we at least
require the law to be there Therefore, having strict laws which are able to
adapt to the needs of the future is recommended.
Second concern is award of damages. 'Damages' is the compensation amount ordered
by the Court to be paid by defendant to claimant. Since there are no certain
fixed rules in this behalf, way to the Court and from there too, it may become
expensive. If nothing else, role of obstacle is played by the legal
practitioner, who charges fees for his services at his will. Many foreign
countries have enacted regulations that a legal practitioner is entitled to
receive only a fixed percentage out of the award given. But as we see in India,
legal practitioners having limited control over them by BAR Council of India in
this behalf, they charge fees of their choice.Law Commission quoted one of
Supreme Court's statement in it's "Costs in Civil Litigation"that "equally
urgent is the need to revise the advocate's fee provided in the Schedule to the
Rules, most of which are outdated and have no correlation with the prevailing
rates of fees."
Even when the claimant is fortunate enough to afford litigation for his cause,
it is another common move of the 'Indian' defendant to play insolvent. The
benefit of playing the character with no money many times allows the defendant
to pay lesser amount of damages than the appropriate one. Though financial
statements of the person concerned are presented before the Court, but it is yet
another skill of an Indian to show on record how poor he is to file tax returns.
Manipulations in the system is the signature move of every Indian stuck in
Third concern in the difference between amount of damages. Our system
understands the concept of necessity while determining compensatory amounts.
Necessity is understood as not just the bare essentials of life, but whatever
the claimant was used to in his daily life before the occurring of incident. Due
to difference in economic conditions of separate claimants, different amounts
are awarded, which causes disparity. Due to this disparity, comes loss of faith
in the justice delivery system. Or, put in better words, per capita cost varies
in terms of damages amount in these torts cases. When a person knows that the
rich men will get more compensation than him, if some tort is committed against
him, he will instead of approaching the Court, will attempt to clear out the
matter himself. Additionally, because of better wealth status, media also
focuses on those who are suitable for TRP ratings. A common man is flashed on
media only when he is bold enough to strengthen his voice in public with wits.
While a rich man is able to afford a reputed/famous lawyer, a common man may not
be able to hire the same.
Because of this difference, their case doesn't receive the proper attention and
treatment as it was meant to be. Ultimately, due to media highlights and/or
political pressures, compensatory amounts may vary. This is allowed, again
because of absence of statutes in various fields of Law of Torts. Merely because
our system runs on the common law system in first place and then the legislative
control is opted, we do not have enough strict norms dealing with the same.
After implementation of the National Green Tribunal by virtue of The National
Green Tribunal Act, 2010 only we have seen change in the trend-wind. Tribunal
has been acting as a watchdog, a rather ferocious one, to look over any
trespassers to territory of healthy environment. It has slapped various
corporations and entities with heavy fines on those damaging the environment.
With more awareness and modern thoughts, Hon'ble Supreme Court of India has also
accepted the new era and has made itself more integrated into and compatible to
the society. Not only the Apex Court is supervising every activity of the State,
but it is now better understanding the needs of the new society of India. Law
Commission of India and the Supreme Court of India both have recommended from
time to time to enact various laws, some are accepted; some are pending. It is
only Legislature which has to understand the need of having strict norms rather
than letting the system run on precedents. It is said in particularly with
reference to Law of Torts.
Fourth concern is the statistics of civil litigation. India has always been
known for having systematic procedures in field of litigation. Because of this
step-by-step mechanism, we have arrived to a situation where Judiciary is
overburdened.Not only is the Judiciary working overtime and overnight with
authentic cases, a major fraction is filed only to create more pressure on the
defendant. Such as, if a divorce case is filed, it is another tactic of the
lawyer to file injunction against the husband to have him restrained of having
any conversation/interaction with the wife except other than the Court. What is
needed is, making a stringent rule, not applicable on just tort cases but across
all the judiciary that, one who files the case, shall be the person liable to
pay litigation fees of the opposite party if in case he loses the matter. This
will allow a number of unauthentic upcoming cases be avoided. We Indians just
love to save money. Although there is practice of filing false cases with a view
to create pressure or extort hefty amounts from defendant, it is also suggested
that offences relating to furnishing false evidence and false information and
other concerned matters be taken very seriously.
Fifth suggestion concerns the system of payment of compensation. Like there are
provisions in The Motor Vehicles Act, 1988which talk about liability of the
defendant to pay for the death of the victim to the incident even in case of
absence of negligence, it is suggested that other fields of Law of Torts must
also be having similar principles where claimant is able to secure some
reasonable amount against the act done, if nothing else. A social security
scheme/insurance policies may be introduced that will serve such concerned
victims without unnecessary hassle. These types of schemes will allow our
Judiciary to be relieved off prolonged litigation and in fact, secure needs of
the unfortunate. Establishment of separate Tribunals is also suggested.
Additionally, in order to assure that claimants are entitled to sufficient
compensation, The Code of Criminal Procedure, 1973 comes very handy, which
permits the Court while sentencing an accused to fine, to award compensation out
of the said fine to any person for loss or injury caused by the offence when
compensation is, in the opinion of the court, recoverable by such person in a
Civil Court.It also provides that a Court may demand from the accused (apart
from the fine) to indemnify the victim, by way of compensation.
As understood, Law of Torts is an ever-growing subject. It shall change
accordingly when society changes. But what is needed to be understood is that,
what we can see should be codified. What Supreme Court of India has laid down
and Law Commission of India has recommended is usually accepted and codified by
Legislature at a very later stage. For example, we can look about several
amendments done to The Code of Criminal Procedure, 1973 concerning specifically
the law of arrest. All the amendments were in fact orders by Supreme Court of
India given in the case ofShri D.K. Basu,Ashok K. Johri vs. State of West
Bengal, State of U.P
However, it must be admitted that Legislature has enacted several wise laws as
well. Such as, The Water (Prevention And Control of Pollution) Act, 1974; The
Air (Prevention and Control of Pollution) Act, 1981; The Environment
(Protection) Act, 1986 and various others. These enactments have allowed the
State to impose penalty on those who damage the environment. Principle of "duty
of reasonable care" was thus introduced by these enactments. Acts like The
Employee's Compensation Act, 1923 and The Factories Act, 1948 also hold great
Even where the apprehending person seeks preventive measures, he may approach
the Court under Part III of The Specific Relief Act, 1963. An injunction may be
granted to prevent damage to property or life, trespass of property or body, or
causation or continuance of nuisance. Mechanism for recovery of property,
moveable or immoveable, is also prescribed in the Act.In fact, the right of way
can also be challenged, subject to customs and The Limitation Act, 1963.
Supreme Court of India has also acted vigilant in this regard. There are
numerous "M.C. Mehta vs. Union of India" cases, however, while deciding the famousOleum Gas Leak casethe Apex Court firmly held the ground on absolute
liability principle. Court insisted on not letting industries go away without
payment of their liability against damage done to the environment. It observed
the need to depart from the usual trend of imposing fine only on contravening
the law and declare that damage to the environment shall be a punishable act.
Supreme Court has time to time held that personal benefits out of business while
damaging the society or environment is not acceptable. It has frequently laid
numerous strict norms for conduction of business in this regard.
Another smart play by the Supreme Court of India was evolution of the concept of
Public Interest Litigation (PIL). Late Justice P.N. Bhagwati gave this idea for
common benefit for all through the case of S.P. Gupta vs. President of India & Ors. This system is in fact another watchdog concerning the changing needs of
the society. The following was held in the case:-
"Where a legal wrong or a legal injury is caused to a person or to a determinate
class of persons by reason of violation of any constitutional or legal right or
any burden is imposed in contravention of any constitutional or legal provision
or without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons is by
reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of
the public can maintain an application for an appropriate direction, order or
writ in the High Court under Article 226 and in case of breach of any
fundamental right of such person or determinate class of persons, in this Court
under Article 32 seeking judicial redress for the legal wrong or injury caused
to such person or determinate class of persons."
Main idea behind establishing this concept was to eradicate technicalities
attracting 'locus standi.' The term means what is the relation of petitioner to
the said case, or what interest does he have in the said matter. Many a times,
judges were forced to dismiss the plea on the basis that petitioner had to right
to file the said case. Also, prior to this judgment was the red-tape involved
system of approaching the respective State Pollution Control Board. It was up to
the Board whether or not to approach the Court. At times, corrupt board members
used to settle dispute with the said polluting agency and not file the case.
Resultant was, these members were obtain illicit funds and polluting environment
was virtually legitimate.
By virtue of establishment of PIL system, a citizen was now allowed to enter the
Court to fight for his right of healthy and safe environment. He was also
entitled to receive free legal aid by virtue of the judgment Hussainara Khatoon
& Ors vs. Home Secretary, State of Biharand The Legal Services Authorities Act,
1987. Though the concept of PIL was need of 'that' hour, it is presently being
misused by notorious lawyers in order to achieve fame. Some also quote PIL as
'Publicity Interest Litigation.' However, judiciary is already aware of the
situation and it imposes heavy fines on those who attempt to secure personal
gain instead of benefit of society.
Thus, it can be said that Law of Torts, though attempted to be reformed by the
Legislature and the Judiciary every now and then, is still a weak subject in
India. Not only there exist mere handful number of Tribunals/Commissions dealing
with very specific types of tort, the non-recognized ones are adjudicated
through usual process i.e. Civil Courts, who's litigation costs are no friendly
and duration is no short. Consumer Forum, Motor Accident Claims Tribunal, State
Electricity Regulatory Commission are few such examples of authorities dealing
in modern Law of Torts if India. It is admitted that there exists a priority for
any law to be enacted and enforced, it is however opposed that Law of Torts is
continuously an ignored subject on part of Legislature, probably because of the
view that it will attract more litigation, and litigation has always been seen
as a negative approach from eyes of common Indian. Continuous and unaddressed
distress shall erupt at some point of time. Cutting on Court fees, enactment of
strict norms and regulations through Acts, codified and simplified procedure,
limitation for adjudication in terms for duration, intensity of burden of proof,
imposing strict responsibility and non-rebuttable procedures amongst others are
few of the subjects which can be thus discussed.
Law of Torts is a subject which has not got it's appreciation in India. Having
the absence of single/distinguished codified statutes for the aforementioned has
actually led to a situation where common man has to approach Judiciary and
invoke his alternate options, which are often not to his comfort, thereby
discouraging them to having their right exercised, further causing loss of faith
in the whole system. It is evident that Legislature had made several attempts to
enact laws while Judiciary has supplemented it by inserting additional
situations and exploring the applicability of laws, but a time has come where
common man is in stress at all times and his issues are not being addressed,
merely because they are inferior in hierarchy in the priority list. Admitting
that enacting criminal, income tax, property-related laws are on the top of the
list, but where does a common man go? Where should he submit his grievances? Who
shall adjudicate better? All of these are few of questions unanswered till now.
Common man is in stress and mental agony. Contributors to his situation include
after-sale service harassment by companies, especially MNCs, not forgetting the
poor quality of service by Indian companies; unnecessarily delayed procedures
for settlement of dispute with respect to claims; poor quality of products
commercially or otherwise sold; absence of specialized adjudicating authorities,
especially in emerging science and technology like Internet Service Providers
(ISPs) and mobile network service providers; lack of awareness about rights and
duties, which are mere few of the complete list. It is about time that
Legislature focuses on enacting laws strictly dealing with Law of Torts so a
revolution is welcomed which will put an end to the silent but disastrous misery
of a common man. Laws codified by Parliament of India have been always given
credit for being well-researched, balanced and target-hitting. This talent
should also be applied to this concerned field of law. What is the future of
India is a question nobody can answer. It is cannot be held incorrect that
Republic of India is going in the direction of being a country dominating the
world. Improvising domestic laws will not only strengthen faith of resident
citizens, but will also uplift the image of the country internationally when
modern thoughts are their basis.
# Ratanlal & Dhirajlal – The Law of Torts, 21stEdition, 1987 (thoroughly
Revised & Revitalised by Hon'ble Mr. Justice Guru Prasanna Singh), published by
Wadhwa and Company Pvt. Ltd. Law Publishers.
# Salmond & Heuston, Law of Torts, 18thEdition, 1981 as provided byIbid.
# Winfield & Jolowiz onTort, 12thEdition, 1984 as provided byibid.
# Law of Tort: Including Compensation Under the Consumer Protection Act by S.P.
Singh, 5thEdition, published by Universal Law Publishing Co.
# (1860) 8 M.I.A. 103 (136)
# Section 2(m) of The Limitations Act, 1963
# Black's Law Dictionary, 10thEdition, 2014. ISBN: 9780314613004
# Section 339 and Section 340 of The Indian Penal Code, 1860.
# Section 351 of The Indian Penal Code, 1860.
# Section 442 of The Indian Penal Code, 1860.
# Section 499 of The Indian Penal Code, 1860.
# 1987 S.C.C. (3) 234
# (1997) 9 S.C.C. 552
# The Times of India – "Oxford faces trial over Indian student's bad teaching
lawsuit" on January 22, 2017.
# 1994 S.C.C. (4) 1
# (1997) 9 S.C.C. 552
# A.I.R. 1966 SC 1750
# (1860) 8 M.I.A. 103 (136)
# Volume II, Page 786.
# (1898) AC 1
# (1876) 1 App. Cas. 662.
# (1703) 2 Ld. Raym. 938
# (1892) A.C. 25
# Section 3 of The Competition Act, 2002.
# Sociology, 7thRevised Edition (2015) by C.N. Shankar Rao, published by S.
Chand & Company Pvt. Ltd.
# World Population Prospects, the 2015 Revision by United Nations Department of
Economic and Social Affairs, Population Division, Population Estimates and
Projections Section. July 2015
# Naman Sharma on 13/07/2017 at Amity University, Noida, Uttar Pradesh.
# For illustration, The Civil Rights Attorney's Fees Award Act, 1976 of the
# Report No. 240, Costs in Civil Litigation, Law Commission of India, Government
of India in May 2012.
# "District courts: 2.81 crore cases pending, 5,000 judges short across India"
by The Indian Express on 15/01/2017.
# Section 140 of The Motor Vehicles Act, 1988.
# Section 357 (1) (b) of The Code of Criminal Procedure, 1973.
# Section 357 (3) of The Code of Criminal Procedure, 1973.
# (1997) A.I.R. 1997 S.C. 610
# Chapter I of The Specific Relief Act, 1963.
# Section 25 of The Limitation Act, 1963.
# 1987 S.C.R. (1) 819
# A.I.R. 1982 S.C. 149
# 1979 S.C.R. (3) 532