The branch of tort law is undergoing serious reform on different counts. This presentation takes a look a the debate over the codification of tort law in India - viability, challenges and the solution to tort litigation in India

1. THE CASE FOR CODIFICATION AND
DEVELOPMENT OF TORTS
IN INDIAN COURTS
Law of Torts Research Paper Presentation
Aditya Sarkar 2015-5LLB-03

2. RESEARCH QUESTIONS
 What is the nature of the application of Torts in India
through the Common Law system?
 How has Tort reform taken place in India in relation to
other Common Law countries and what is required of
this reform, specific to India’s unique legal mores?
 What are the merits or demerits of codification of
Torts in India given historical attempts to codify it in
various legal spheres?

3. TOPICS COVERED
 The Nature of Torts and It’s Conceptualization
 Torts and the Common Law System
 The History and Evolution of Torts in India
 Modern Application of Torts in Indian Courts
 Tort Law Reform in India
 The Case for Codification of Torts
 Present State of Torts in India

4. NATURE OF TORTS
 Derived from the Latin term tortum, meaning twisted
that was used to denote ‘twisted, incorrect conduct’
 Described as a class of actions that was distinct from
breach of contract, hence a separate category of civil
action
 Formally introduced in England after the Norman
invasion through the courts of Normandy and Angevin
Kings of England
 Uncodified across many Common Law countries,
however it is codified in American jurisprudence

5. HISTORY OF TORTS IN INDIA
 Existed in pre-British era in Hindu and Muslim
jurisprudence for dealing with ‘crooked or fraudulent
conduct’. But scope was narrow. System was retributive
and not restitutive
 British Empire brought Common Law and formal Tort
law to India through the 3 Presidency Courts through
efforts of Sir Henry Mane and Sir James Stephens
 Attempt at codification in 1886 by Sir Frederick Pollock
but Indian Civil Wrongs Bill was never legislated upon
 Largely dependant on selective application of English
laws and modified Acts of Indian legislature – Principle
of justice, equity and good conscience

6. TORTS & THE COMMON LAW
 After the Norman invasion of England, Common Law
developed through principles of precedence in early
Courts
 Torts became a part of the branches of law that were
dealt with in the Curia Regis
 Legal transplant took place in other Commonwealth
countries and Tort was established as a branch of law
formally across legal systems
 Being uncodified in many legal systems, Torts heavily
depends on precedence, Stare decisis, jurisprudence
principles

7. MODERN APPLICATION IN
INDIAN COURTS
 In the landmark M. C. Mehta case, Bhagwati, J. said “we
have to evolve new principles and lay down new norms ...
have to build our own jurisprudence” .
 Change over from blind application of outmoded
common law
 New concepts of tortuous Liability being determined –
State Liability, Parental Torts, Medical Torts,
Constitutional Torts, Mass Torts, Environmental Torts
 Flexibility of application, creativity in interpretation,
wider scope for legal conceptualization due to its non-
codified, interpretational nature

8. TORT LAW REFORM IN INDIA
 Discussion in legal forums for development of Tort law in
India due to lack of stability or continuity in judgments
 Justice System in India focuses on punishment over
compensation for wrongs
 Arbitrary award of remedies and compensation in cases due
to lack of codification of proper damages
 Heavy burden on civil Courts to deal with matters beyond
the realm of Torts
 Judicial Activism oversteps its jurisdiction frequently
 Too much dependence on common laws of England and civil
statutes from foreign jurisprudence

9. CASE FOR CODIFICATION
OF TORTS
 Previous attempts at codification – Indian Civil Wrongs
Bill
 New cases for Judicial requirement for Codification
 Vadodara Municipal Corporation v. Purshottam V.
Murjani & Ors - (2014) 16 SCC 14
 Inability of Codification in Indian context –
 Judicial Activism required
 Economic Factors (Deep Pockets Theory, Damages)
 Constitutionalism
 Nature of Justice – Retributive vs. Restitutive
 Adoloscence of Tort development in India – Lack of
flexibility

10. PRESENT STATE OF TORTS
IN INDIA
 Codification of certain aspects of Tort Law – Motor
Vehicles Act 1988, Public Liability Insurance Act, 1991,
Environment Protection Act, 1986, Consumer Protection
Act, 1986, Human Rights Protection Act, 1998
 New fields opening up for development of Torts – MNC
Liability, Family Torts, Congenital Torts
 External lacunae must be dealt with for development of
Tort litigation – red tapism in Courts, absence of
trustworthy testimony, lack of legal aid and awareness,
development of Standards of Care, accessibility of justice