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

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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

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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

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