History of Tort Law

    Edited by: Vaani Garg

    The Tort Law is a body of law that addresses civil wrongs and provides remedies for an act that are committed non-contractually.  

    • India is country that follows a “common law system”- a type of a legal system that allows judges to develop law through decisions of the court and similar tribunals. The principle behind it is that it maybe unfair to treat different facts in one single way and sometimes law needs to be changed over course of time for the betterment of society. 
    • This common law or case law system is bound to a future decision having a similar dispute that has been resolved in the past and the court is bound to follow the reasoning used in the prior case (the compensation and the duration of the sentence could be changed on many grounds).
    • One important legal term which is followed in common law that is stare decisis. It is a legal doctrine that obligates the courts and judges to follow previous case judgement, when deciding the judgment and ruling on a similar case facts. 

    The system that we just talked about came before French, during the triumph of William the Conqueror’s 1066 Norman Conquest. After 1066, judges were transferred to different districts to retain those laws which had been created more than two centuries ago. These judges implemented statutes they consider most reasonable into their courts. Later these courts made progress and became what is called “legal precedents“. The French-speaking lawyers and judges of the Courts of Normandy and Angevin Kings of England introduced the term ‘tort’ in English Law. Till about the mid-seventeenth Century, tort was a dark term when the technique was viewed as more meaningful than the privilege of a person till 1852 when the Common Law Procedure Act was passed by England. 

    • The term tort has been present in India since the pre-independence period. The Sanskrit word “Jimha”, which implies ‘slanted’ was utilised as a part of old Hindu law message in the sense of ‘tortious of fraudulent conduct’. 
    • Tort had no significance under the Hindu law and the Muslim law compared to English Law. When British came to India and started ruling they created their courts in India but they still thought as to how English law could suit such a diverse country. So the English law was modified to suit the Indian culture and conditions, but not so much that it changed the meaning of the original English law. 
    • Courts in India during British rule were ordered by the Parliament in the UK and by Indian establishments to act as per equity, justice, and good conscience. Concerning suits for harms of torts, courts took after the English customary law.

     In the famous case of M.C. Mehta And Anr vs Union Of India & Ors, 20 December 1986:

    • Justice Bhagwati observed, “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 the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our jurisprudence.”

    In India, the jurisdiction of section 9 of the Civil Procedure Code, which allows the civil court to try all cases of civil nature also includes tortious cases and liabilities. 

    In the case of Jay Laxmi Salt Works (P) Ltd vs the State Of Gujrat, 4 May 1994:

    • Justice Sahai 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 social and cultural the liberal approach to tortious liability by the court would be conducive”. 

    Conclusion

    The view of Hon’ble Justice Sahai in the Salt Works case and view of Hon’ble Justice Bhagwati in M.C. Mehta case was one of the major and remarkable works in the history of Indian Tort law.

    As we said earlier, many times in our life we embrace English standards and speculations but we can not run away from the fact that till this date we need to make changes, adjustments and new adaptations to meet the requirement of 21st century.