October 3, 2022
tort

By Siddharth Sengupta

The Author is a first-year law student at National Law University Odisha.

torts
Wikimedia Commons

Introduction

The law of torts, in simple words, is a branch of law that deals with minor wrongs. These wrongs are not crimes per se but are still considered to be unlawful. Some common torts are trespass, assault, negligence and nuisance. This branch of law originally belonged to the common law of England, but currently is present in virtually all countries in the world.

The Law of Torts evolved there for centuries and this evolved version of torts made its way to India when the Crown finally took over from the East India Company. The law further evolved in India and very unique types of torts like Absolute Liability were born here.

Despite progression over many, many years, the law of torts still seems to be lacking in many ways. It’s applicability in real-life situations in India keeps reducing and the entire branch seems to be dying a slow death. This article tries to list various reasons for why this is happening and what can be done to revive its practical applicability.

Reasons for its Slow Death

  1. Cost in filing a civil suit

It is not news that India is a poor country when it comes to per capita income. This is a big discouragement to the victims of torts. They hesitate to file cases thinking that the huge amount of struggle and money required is not worth it. What is the point of having this branch of law then, if 70% of the national population is from below the poverty line and will not be able to file a lawsuit?

  1. Trivial nature of wrongs under Torts

The types of offences under torts are trivial. This is the very basis of the field. Although this bridges a big gap between crimes and breaches of contracts, it comes with a huge drawback. Because of the very fact that the wrongs are trivial, the victims feel that suing the tortfeasor in court for such a small act is just not worth it. This leads to the tortfeasors escaping liability more often than not.

  1. Judicial Backlog

The number of pending cases, especially in civil courts, is astonishing. In light of this, the amount of time it takes for the victim to get the compensation is a huge problem. In a case of nuisance, it is absolutely essential that there is an order of injunction or some compensation is passed immediately. What’s the point in filing a suit for a tort of private nuisance (let’s say playing loud music overnight every single day by a neighbor) if the first date of hearing is after 3 months?

  1. Overlapping of Torts and Crimes

When torts and crimes overlap, as in when the same wrong can be both a tort and a crime, the victim usually prefers to file a criminal complaint instead of a civil suit. The reason behind this is the inherent vengeful nature of humans. Retributive theory of punishment always did sound better than compensatory. As a result, in all these areas of overlap, tort law always loses to criminal law.

  1. Low compensation

The amount of compensation awarded in cases of traditional torts like nuisance or trespass is very low. Again, what then is the point of going through litigation for months or even years if the reward for all this is a meagre sum? Let’s take the example of malicious prosecution. The accused may go to jail, always has to win a rigorous criminal trial, file a suit for malicious prosecution and if finally he wins, he gets some very, very small amount when compared to the entire procedure that he had to go through, nevermind the damage to his reputation.

  1. Number of Blunders is high

As it is a common law subject, the number of blunders in law of torts is higher than, let’s say, in constitutional law. Let’s take the example of Absolute Liability. Even though that tort had already been invented in M.C. Mehta v. Union of India, it was not successfully applied in the Bhopal Gas Tragedy case, at least it wasn’t applied fully. This shows that even after the invention of a new tort in a judgement, it usually takes a few years to be effective and efficient in all cases. Statutes, on the other hand, are much simpler to apply as the rules for their application are covered more in depth in the statute itself or in the Constitution.

Proposed Reforms

In one simple sentence, what is required is a lower risk to reward ratio. Currently, the risk is too high as compared to the reward. This can be achieved by the following ways:

  1. Court fees for filing of tort claims should be reduced, and this must be done according to the type of tort claim filed. For example, as nuisance is a fairly common tort and a minor one, very low fees should be charged in cases of nuisance. On the other hand, in cases of absolute liability, fees can continue to remain the same or can be increased even. This is because in such cases, the number of plaintiffs are high and the cases themselves are quite rare. The court fees can be easily shared between the plaintiffs.
  1. Although the type of jurisdiction of a common law subject cannot be radically reformed, if the compensation awarded can be increased, the negative effect of having a trivial jurisdiction can be balanced out as victims would be significantly more motivated to go through the entire process to get the amount And more importantly, the compensation in traditional torts has to increase just so that people file the cases.
  1. Now here is the tricky part. What to do in the areas where torts and crimes overlap? How do we ensure that victims do not blindly dismiss the field? Apart from again increasing the compensation awarded, what can be done is converting some torts into crimes exclusively and vice versa. For example, defamation, which most consider to be very minor to be a crime, can be made exclusively a tort; and torts like malicious prosecution, which urgently needs a reform to make it stricter, can be made a crime. This transfer of offences from one field to another can solve multiple problems. It will not only solve the problem discussed in this point, but will also increase the ‘bite’ of some offences like malicious prosecution.
  1. When it comes to judicial backlog, the solutions are the same for every field and not restricted to torts. There needs to be more judges, vacancies, both in the higher and lower judiciary, need to be filled as soon as possible. Tribunals need to be set up for whichever field possible. Appeals from these tribunals can directly go to the Supreme Court, shortening the tedious appeal procedure from one level of the judiciary to the next.
  1. Finally, how to reduce the number of blunders? The reason why these blunders happen is more often than not the non-following of the doctrine of precedents. Let’s take a simple example: had Indian courts simply followed their own rules when it came to the tort of Vicarious Liability of the State, rampant indecision would not have happened later on. Just because the Kasturi Lal case did not follow the doctrine, the courts in India were bewildered for decades, unable to decide which precedent was the correct one- Kasturi Lal or the cases earlier, the decisions of which were also recommended to be followed by the First Law Commission. The Supreme Court needs to be strict on the High Courts and the High Courts on the District Courts when there is indiscipline vis-a-vis following judicial precedents.

CONCLUSION

The Law of Torts is arguably the largest field of law, having a significant presence in all civilised countries. This field has spread throughout the world because of the widespread colonisation by England. Hence, the torts need requirements in all these countries individually to fit rightly to their distinct societies. In India, this process has been neglected largely. Once this is corrected, lawlessness and rampant filings of false cases can be dealt with much more easily. Reform in the compensation structure is the first thing that is required to kickstart the revolution.

Read more at LAWOGS

Torts, Distinction, Inevitable Accident – LAWOGS

tort of negligence (lawogs.co.in)

Euthanasia in India (lawogs.co.in)

Read more about torts in India.

Law of Torts – Common Law of Torts – Development in India – iPleaders

Tort law in India – Wikipedia

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