Law of Torts in India: Origin, History & Key Concepts

Introduction

The law of torts consists of rules recognized and acted on by courts of justice. But before the state emerged, the law was enforced by a person whose right has been violated with the assistance of family and clans.

Etymology:

The term tort is the French equivalent of the English word “wrong” and of the Roman law term “delict”.
The word tort is derived from the Latin word "tortum" which means twisted or crooked or wrong. The law of torts has its philosophical roots in the Roman maxim 'alterum non laedere', meaning 'not to injure another'.

For example:

Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. The person who commits the act is called a tortfeasor.

“Torts” are “civil wrongs”

The injured party can seek legal redressal for torts or civil wrongs.
Usually, the injured party in a tort action is entitled to claim unliquidated damages (i.e. compensation that has not been previously determined/specified or agreed between the parties)
The decision of claim is decided in a court of law by the judge based on the facts, circumstances and the injury suffered by the party who approaches the court.

Essentials of a Tort

For a civil wrong to qualify as a tort, three essential elements must be present. The absence of even one of these elements means that no actionable tort has been committed.

Wrongful Act or Omission The defendant must have committed a wrongful act or must have failed to perform a legal duty, an omission. The act or omission must be recognised as wrongful by law. A purely moral or social wrong does not constitute a tort. For example, if a person fails to help someone in distress on the street, it may be morally wrong, but it does not amount to a tort unless there exists a specific legal duty to act.
Legal Damage The wrongful act must result in legal damage to the plaintiff. This is understood through two important Latin maxims that are frequently tested in law entrance exams:
- Injuria Sine Damno: This means injury without damage. It refers to the violation of a legal right without any actual loss or physical harm. Such a violation is still actionable under tort law. The landmark case of Ashby v. White (1703) is the classic example, a returning officer wrongfully prevented a qualified voter from casting his vote. Even though the candidate the plaintiff intended to vote for won the election, the court held that the mere infringement of the legal right to vote was sufficient to sustain an action in tort.
- Damnum Sine Injuria: This means damage without injury. It refers to actual loss or harm suffered by a person without any violation of a legal right. Such damage is not actionable under tort law. In the Gloucester Grammar School case, the defendant opened a rival school near the plaintiff's school, causing the plaintiff financial loss due to reduced students. The court held that since no legal right of the plaintiff was violated, there was no actionable tort.
Legal Remedy: There must be a legal remedy available to the plaintiff. As the principle goes, ubi jus ibi remedium, where there is a right, there is a remedy. If no remedy exists in law for the wrongful act committed, a tort cannot be said to have been committed. The primary remedy in tort law is unliquidated damages, compensation determined by the court based on the facts and circumstances of the case.

Law of Torts: Origin

Prior to William the Conqueror's 1066 Norman Conquest of England, the legal system was somewhat haphazard, conducted on a more-or-less case-by-case basis.
After 1066, eminent judges were delegated to travel about a given region in order to absorb those village laws which had developed over two centuries.
Benefiting by this information, these judges noted and implemented precepts they deemed most fair-minded into their own court findings. In time, when referred to often enough, these cases became what are now called legal precedents.
Sessions during which these judges conducted trials were dubbed "assizes", or in modern terms, “sittings". Even now, the place from which a judge renders verdicts and sentences is called “the bench”.
Once established, these precedents were meant to be applied equally to every member of society, from a lord to a serf, bringing about the term common law.

Law of Torts: Historical Background

Law of Torts in England

After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown.

Law of Torts in India

The law of Torts in India came through England. After the Norman Conquest, French became the spoken language in England’s judiciary and thus many of the English law’s technical terms owe their origin to French and tort is one of them.

The term ‘tort’ is based on the concept that there are certain rights for everyone in society. The purpose of this tort law was to enforce rights and duties.

Law of Torts in India

The law of torts in India is a body of law that addresses and provides remedies for non-contractual acts of civil wrongdoings. A person suffering legal damage may be able to use tort law to receive compensation for those injuries from someone who is legally responsible or liable.

The law of Torts in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages.
While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Notably, Indian tort law uniquely includes remedies for constitutional torts, actions by the government that infringe upon rights enshrined in the Constitution, as well as a doctrine of absolute liability for enterprises engaged in hazardous activities, which goes beyond the UK's rule in Rylands v. Fletcher.

The Hindu & The Muslim Law of Torts

Under the Hindu law and the Muslim law, tort had a much narrower conception than the tort of the English law, as:

The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs.
The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England.
It was made suitable to the Indian conditions appeasing the principles of justice, equity and good conscience and as amended by the Acts of the legislature.
The origin is linked with the establishment of British courts in India.

In M.C. Mehta v. Union of India, Justice P.N. 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 that matter in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence”.

Section 9 of The Code of Civil Procedure

It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, implies jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.

In the landmark judgment of Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat [(1994) 4 SCC 1], Sahai, J., observed:

“Truly 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 tortious liability. Even for social development, orderly growth of the society and cultural refinement the liberal approach to tortious liability by court would be conducive”.