Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

The Evolution and Reform of Tort Law in India - Case for Codification


Published on

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

Published in: Law
  • Login to see the comments

The Evolution and Reform of Tort Law in India - Case for Codification

  1. 1. THE CASE FOR CODIFICATION AND DEVELOPMENT OF TORTS IN INDIAN COURTS Law of Torts Research Paper Presentation Aditya Sarkar 2015-5LLB-03
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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