Tort law in India

Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.
While Indian tort law is generally derived from English law, there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution, as well as a system of absolute liability for businesses engaged in hazardous activity.
Background.
As tort law is similar in nature across common law jurisdictions, courts have readily referred to case law from other common law jurisdictions such as the UK, Australia, and Canada in addition to domestic precedent. However, attention is given to local norms and conditions, as well as India’s distinct constitutional framework in applying foreign precedent. The legislature have also created statutes to provide for certain social conditions. Similar to other common law countries, aspects of tort law have been codified.
Certain conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code or other criminal legislation. Where a tort also constitutes a criminal offence, its prosecution by the state does not preclude the aggrieved party from seeking a remedy under tort law. The overlap between the two areas of law is a result of the distinct purposes each serves and the nature of the remedies each provides. Tort law aims to hold a tortfeasor accountable and consequently tort actions are brought directly by the aggrieved party in order to seek damages, whereas criminal law aims to punish and deter conduct deemed to be against the interests of society and criminal actions are thus brought by the state and penalties include imprisonment, fines, or execution.
In India, as in the majority of common law jurisdictions, the standard of proof in tort cases is the balance of probabilities as opposed to the reasonable doubt standard used in criminal cases or the preponderance of the evidence standard used in American tort litigation, although the latter is extremely similar in practice to the balance of probabilities standard. Similar to the constitutional presumption of innocence in Indian criminal law, the burden of proof is on the plaintiff in tort actions in India. India, like the majority of common law jurisdictions in Asia and Africa, does not permit the use of juries in civil or criminal trials, in direct contrast to America and the Canadian common law provinces which retain civil juries as well as to jurisdictions like England and Wales or New Zealand which permit juries in a limited set of tort actions.
Categories of torts.
Trespass to the person.
A trespass, or offence, to the person is any tort characterised by harming or threatening to harm an individual's body. This category of tort is closely related to criminal law as the grounds giving rise to a claim for each tort in this category generally constitutes grounds for prosecution under the penal code.. In contemporary Indian tort law, there are three torts of this variety:
Negligence.
Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. With regard to negligence, Indian jurisprudence follows the approach stated in "Ratanlal &amp; Dhirajlal: The Law of Torts", laying down three elements:
The Indian approach to professional negligence requires that any skilled task requires a skilled professional. Such a professional would be expected to be exercising his skill with reasonable competence. Professionals may be held liable for negligence on one of two findings:
Defamation.
Defamation law in India largely resembles that of England and Wales. Indian courts have endorsed the defences of absolute and qualified privilege, fair comment, and justification. While statutory law in the United Kingdom provides that, if the defendant is only successful in proving the truth of some of the several charges against him, the defence of justification might still be available if the charges not proved do not materially injure the reputation, there is no corresponding provision in India, though it is likely that Indian courts would treat this principle as persuasive precedent. Recently, incidents of defamation in relation to public figures have attracted public attention.
In Indian law, there is little distinction between libel and slander and both are actionable "per se". In United Kingdom, only libel and certain types of slander are actionable "per se". Similarly, while criminal libel in UK was abolished in 2010, both slander and libel remain criminal offences in India and other jurisdictions applying versions of the Indian Penal Code. Consequently, individuals liable for defamation in India are subject not just to damages under tort law but also to imprisonment under criminal law. In addition to damages, courts may also issue an injunction to stop further publication of defamatory material.
Economic torts.
Economic Torts seek to protect a person in relation to his trade, business or livelihood.
While Indian courts have been reluctant to award damages for the economic torts of simple and unlawful conspiracy as well as inducing breach of contract due to the confused state of the law, damages are regularly awarded for torts affecting economic interests under the conspiracy to injure and courts have referred to English precedent on the matter.
The courts have been more willing to adopt English precedent in areas such as the tort of deceit, unlawful interference with trade, intimidation, and malicious falsehood which constitute an intentional attempt to undermine the interests of a specific party.
Property torts.
Property torts seek to prevent interference with property in the possession of another. With regard to land, interference may take the form of entering land or part of it, or of remaining there after the withdrawal of permission, or of dispossessing the occupant. Similarly, with regard to chattels, interference may take place in the form of depriving an individual of rightful possession.
The following two land torts currently exist under Indian law:
The following torts with regard to personal property exist in India and other common law jurisdictions:
Sui generis torts originating in India.
While the majority of torts in contemporary Indian law are legal transplants from England and are shared with other common law jurisdictions, a limited number of torts originated in India as a result of the country's distinct constitutional jurisprudence and Asian norms. These torts are confined to consumer protection and the enforcement of human rights, and are closely linked to India's legal culture of public interest litigation, which more closely resembles North American class action lawsuits and private attorney general suits than litigation in the United Kingdom.
Absolute liability, under the rule in M. C. Mehta v. Union of India, in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities. Under the precedent established in the English case of Rylands v Fletcher, upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused. While, in England and many other common law jurisdictions, this precedent is used to impose strict liability on certain areas of nuisance law and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable", Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from the operation of hazardous activity. This differs greatly from the UK approach as it includes all kinds of resulting liability other than damage to land.
Another area of tort that developed in India which differs from the UK is the notion of constitutional torts. Creating constitutional torts is a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle. The tort was further entrenched when the court allowed compensation to be awarded as "a remedy available in public law; based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort". This approach is vastly different from the approach taken in UK as compensation for damages is not an available public law remedy. In practice, constitutional torts in India serve the role served by administrative courts in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of administrative law rather than private law. Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action.
Torts not recognised in India.
Like the United Kingdom and British Columbia, but unlike Ontario and most jurisdictions in the United States, Indian tort law does not traditionally recognise invasion of privacy or intrusion on seclusion as a tort. Nevertheless, there is a shift in jurisprudence toward recognising breech of confidentiality as an actionable civil wrong. Proponents of protection for privacy under Indian tort law argue that “the right to privacy is implicit” in Article 21 of the Constitution of India, which guarantees protections for personal liberties. Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017.
Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED) is recognised as a tort in Indian jurisprudence. While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation. Indian courts, while recognising the infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes, typically follow the English approach, although case law from both the United Kingdom and the North America is frequently employed by judges ruling on cases in which damages for mental distress are sought.
Damages.
Calculation of damages.
Damages in the law of torts in India are premised on the concept of "restitutio ad integrum". India adopts a compensatory method and advocates "full and fair compensation" in all cases.
In determining the quantum of damages, the Indian court will look to similar cases that may enable comparison.
India’s formulation of damages for tort cases is premised on the multiplier method, awarding compensation based on the degree of compromise to the earning ability of the victim. Under the multiplier method, the fair and just amount represents
The multiplier principle is encapsulated in a statutory form for tortious cases involving personal injuries caused by motor vehicles, under the Motor Vehicle Act. However, in so calculating, the court will take into account inflation in calculating damages.
Damages for personal injuries.
Indian jurisprudence identifies seven distinct categories of harm for which damages may be awarded in tort actions involving personal injuries. These categories are referred to as heads of claim and can be divided into pecuniary and non-pecuniary subsets, analogous to the more general distinction made between economic and non-economic damages in other common law jurisdictions. Indian tort law recognises the following pecuniary heads of claim:
Contemporary Indian jurisprudence also recognises the following non-pecuniary heads of claim:
Approach towards pain and suffering.
In analysing pain and suffering, several factors such as severity of injury, medical treatment required, psychological stress and long-term physical and emotional scars, would be taken into account.
In cases of victims who were unconscious, one must award not only for the "loss of amenities and loss of expectation of life, but also for pain and suffering". Such damages are awarded not as a matter of "solace". This view comes close to that expressed by Lord Scarman in "Lim Poh Choo v Camden and Islington Area Health Authority", difference being that an award must be "made even for pain and suffering in case of unconscious plaintiffs". The reason for so doing is that it "looks strange that wrongdoer whose negligence makes the victim unconscious is placed in a more advantageous position than one who inflicts a lesser injury which does not render the victim unconscious".
There are three guiding principles in measuring the quantum of compensation for pain and suffering:
Punitive damages.
Influenced by "Rookes v Barnard", Indian courts initially ruled that punitive damages can be awarded in only three categories:
However, this stand has since shifted with an expanding tort jurisdiction. The Supreme Court accepted a committee's suggestion to evolve a "principle of liability – punitive in nature – on account of vandalism and rioting". The reasoning given was that it "would deter people from similar behaviour in the future".
In an environmental tort case, the defendant was made to pay exemplary damages "so that it may act as deterrent for others not to cause pollution in any manner".
Presently, in addition to compensatory damages and restitution, aggravated damages may be awarded to compensate victims for hurt feelings in certain cases. These damages are determined by examining if the defendant's conduct aggravated the plaintiff's damage by injuring "feelings of dignity, safety, and pride".
Comparative negligence.
While the traditional approach of contributory negligence held that a plaintiff who bore even partial responsibility for the harm they experienced due to negligence could not recover damages in tort law, contemporary Indian jurisprudence is based on the principle of comparative negligence. Consequently, when a person fails to use reasonable care for the safety of either of himself or his property such that that they become blameworthy in part as an "author of [their] own wrong", any damages they may recover are reduced in proportion with the extent of their liability.
Criticism.
India's tort system has been criticised for a variety of reasons, ranging from delays and outdated procedural rules to substantive criticism of the implications of its system of absolute liability and the unpredictability of judicial activism enabled by constitutional torts.
Procedural deficiencies.
The delay in delivery of justice is a major problem plaguing India. This has been attributed to reasons such a low judge to population ratio (1 judge per 100,000 capita, with a small number of courts available), as well as poor administrative governance.
Outmoded procedural laws allow for delaying tactics, such as interlocutory appeals and stay orders. The government has also been accused of employing delay tactics whenever it is a litigant, appealing even when the chance of success is remote. As a result, the system appears to resemble a "sunk cost auction", where litigants invest ever-increasing amounts to stave off higher losses.
Despite being often cited as a litigious country, the rate of litigation is low, due to problems such as long delays, heavy expenses and meagre damage awards. There has apparently been an increase in litigation over the past years, especially with cases involving the government. This has been said to be due to India’s socio-economic growth and the resultant sensitisation regarding legal rights. Due to the problems noted, it has been stated that reformation lay with the parliamentarians and legislators. Structural reforms are to be brought about by amendments to legislation, while operational reforms can only be brought about by "a change in mindset".
Absolute liability.
One of the controversies in Indian tort law concerns the rule on absolute liability. The extremely strict approach, where even acts of God are not recognised as a defence is severely criticised especially since it disregarded the "generally accepted parameter of minimum competence and reasonable care". The implementation of such a rule endangers the growth of science and technical industries, as investors have to take the risk of liability given that there is no defence to the rule.
Constitutional torts and public interest litigation.
In hearing public interest litigation and creating constitutional torts, the Indian judiciary has been criticised for being overly activist and overstepping its jurisdiction. By creating constitutional torts, they are accused of usurping both legislative and administrative functions. Controversy further arose when judges began to read such obligations of the state into Article 21 of the Indian Constitution to impose vicarious liability on the state. However, proponents of public interest litigation and constitutional torts argue that their impact has been to facilitate "social and distributive justice".