The word tort
is derived from the Latin tortus, meaning ‘twisted’. It
came to mean ‘wrong’, and it is still so used in French: ‘J’ai tort’; ‘I am
wrong.’ In English, the word ‘tort’ has a purely technical legal meaning – a
legal wrong for which the law provides a remedy. But the word ‘tort’ as used in
law has various definitions according to different writers. Law of tort is still
an unexplored charter or at least not a thoroughly explored one, even till date
especially in developing countries. For a majority of commoners, it still
remains an enigma. This uncodified law is a chamber of riddles for people in
growing countries like India itself. Here we shall take a look why tort law has
not sufficiently evolved in India.
Reasons for its insufficient evolution:
One of the basic reasons behind the insufficient evolution of Law of Tort in
India is because it is not codified. Undoubtedly a code is useful, but it is
well to recognize that this branch of law is still in the process of growth
and while it would be difficult to prepare a code, it would not also help a
proper development of the law to do so. Lack of a code for the law of tort
acts as a deterring factor for it to branch out as a favoured form of
Moreover, there is no uniformity and certainty in its rules and principles or
doctrines. Although there is a plethora of precedents on law of tort available
in England on many points, those cannot be applied in Indian situations. Just
because of this reason, there is a lack of case-laws in India with regard to law
of tort. Just to accommodate the law of tort to situations of India, in some
case Indian courts have established. For eg. In M.C. Mehta v. UOI, the supreme
court established the doctrine of absolute liability, only doctrine of strict
liability was present at that time.
Others reasons, why tort law is not sufficiently evolved is because of poverty
and illiteracy. The judicial system in India is very expensive and dilatory.
Therefore, many people can’t fit in its ambit. It is very clear that as a result
of poverty, most of the people are not capable of meeting high costs of
litigation for enforcement of their legal rights. Also one reason as exemplified
by this illustration— if a poor man is ready to pay huge court-fees for
violation of his civil right, after long gap of years, he gets only 500 or 1000
as compensation or damages, he considers it as no benefit at all. Most of the
people in India are unaware of their rights. Also due to lack of political
consciousness, most of people in India are unaware of their legal rights.
Also due to heavy case load, it is impossible for the court to dispose all the
Another scenario helpful in understanding the scenario is as- If a person goes
to a police station to lodge a civil suit to seek remedy under Tort law stating
that his legal right is violated or infringed, it is highly probable that he
will be questioned about the maintenance of such suit and he can be sent back.
People have no certainty over what will be the outcome after filing the plea.
Acknowledging the fact that a code on torts would be premature for the reasons
aforementioned, it would perhaps be wiser to start with enactments on particular
topics on which the case-law in India is unsatisfactory and has to be rectified.
One of the first recommendations for legislation made by the Law Commission
appointed by the Government of India is on the subject of liability of the
government for torts of its servants.
So, it is clear that it is not that tort law is unnecessary or simply
overlooked, but it merely requires enactments to make it more ascertainable.
Failure of aggrieved persons to assert their legal rights is perhaps to be
ascribed not merely to insufficient appreciation of such rights but to other
causes as well, e.g., difficulties in proving claims and obtaining trustworthy
testimony, high court fees, delay of courts.
The elimination of difficulties which obstruct aggrieved parties in seeking or
obtaining remedies which the law provides for them is a matter which is worthy
of consideration. If these lacunae are removed, India could also witness a
growth in tort litigation. It is true that there are number of problems in tort
law, even though it has not lost its sight and it is developing though at a slow
- Percy Henry Winfield et al., Winfield and Jolowicz on Tort (Sweet and
- R. K Bangia, The law of torts, including compensation under the Motor
Vehicles Act (Allahabad Law Agency) (1995)
- M.C. Mehta And Another Versus Union Of India And Others Lnind 1986 SC