Law of Tort: decolonization and its codification

ABSTRACT

The law of Tort is one of the substantive law in India dealing with civil wrongs involving compensation as a way of remedy for damage. The law of Tort in India, being heavily based on English Common Law is a legacy of India’s colonization. Being uncodified, it remains dynamic, changing with socially held ideas of rights and justice. However, the cases decided in England still serve as precedents, despite being adjudged in different circumstances with different aims in mind. The changing time coupled with the global call for decolonizing of laws needs the codification of the Law. This article deals with the critical assessment of the viability of a Statute of Tort and aims to provide solutions to the probable problems.

INTRODUCTION

“Tort” is the French equivalent of the English word “Wrong” and of the Roman law term “Delict”. It now means a breach of some duty independent of contract, giving rise to a civil cause of action for which compensation is available[1]. In India, according to section 2(m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or a breach of trust.” This definition approaches the subject of tort by excluding other civil wrongs from tort. This provides a huge amount of grey area to accommodate new forms of emerging civil wrongs, making it amorphous and dynamic.

Salmond too defined it similarly, “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”[2]

Tort in a more inclusive way was defined by Winfield and Jolowicz as, “Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”[3]

LAW OF TORT IN INDIA

Englishmen while administering justice in the Mayor’s court in three presidencies imported common law and statute law of England and by default imported English law of tort in India according to “Justice, equity and good conscience.” Indian courts, however, can see whether the rule of English Law applies to the Indian situation, in turn, giving power to Judges to make, amend, alter, or remove the tort, giving rightfully the idea of it being a “Judge made law”.

On a brighter note, Indian courts have used this flexible law progressively based on ubi jus ibi remedium to evolve new principles of tort liability for new problems arising in a highly industrialized economy, example in view is absolute liability of an enterprise in a hazardous or inherently dangerous industry.

ISSUES IN CURRENT LAW OF TORT

1. Colonializing influence:

• Tort was developed as a method of social control to control the indigenous people and their rights concerning the interests of the colonial masters. Defenses such as sovereign immunity, and contributory negligence were used to shield the colonial masters from the liability arising from their actions. These features along with others give it a foreign character.
• The doctrines, maxims, and case laws, shaping the current legal judgments of the courts are based on English Common law which developed in conditions foreign to indigenous circumstances working as a deterrent to the development of indigenous theory of civil wrongs, keeping it still, an underdeveloped law with wrongs copy-pasted from other countries.
• The determination of whether a foreign law can be applied in Indian situations or not, is being decided by the honorable judges, who themselves, at a personal level, can be an object of error of subjectivity, biases, and external validation of foreigners.[4]

2. Non-codified:

• The law of Tort being not codified in nature breeds uncertainty as well as subjectivity to Judgments, creating a lot of doubt regarding the actual rights and remedies offered to the individual.
• The unwritten nature also creates an enigma, as while analyzing the judgment given, it becomes difficult for the layman to understand whether the judgment was true to legislative intent or not.
• The case-by-case basis of the development of Law has created an amorphous body of rights and remedies unrelated to each other, thereby, only increasing the complexity to understand and apply the relevant tort in the plaint.
• The years and years of litigation have only created a plethora of cases with opposite judgments by different courts on a similar matter, retarding the development of new legal insights about torts by reducing the scope of comparative analysis with the Law of civil wrongs of other countries.
• The idea of law-making by judges, who are unaccountable to the people creates an antithesis to functional separation of power.
• Judges are reluctant to create new Tort so as not to usurp the legislative power, resulting in long litigation periods, and delaying of awarding compensation.[5]

CODIFICATION WITH INCLUDING INDIGENOUS LEGAL THOUGHTS

The non-codification of the law of Tort has despite giving a huge grey space to accommodate the growing number of torts retarded the development of Law in India as recognizing of new torts take place after years of litigation making a justice-oriented law, cumbersome in practice.

The benefits of codification of the Law of Tort will be

• Self Determination in law-making– The codification will help in removing the undue foreign influence in the view of maxims, and doctrines in the law of tort and also include the aspirations of a common Indian, giving them the right to decide the law which will b applicable over them.
• Removing ambiguity-Codification helps in removing the ambiguities regarding the rights and remedies as the statute will in itself mention them, making them accessible to the layman and creating a level playing field between both parties.
• Consistency and prediction– The non-codified nature provides scope for subjectivity creating different rules, different rights, and different remedies for the same tort in different states or sometimes, even in the same state. This creates a non-proportionate burden over the person whose civil right is infringed, to research the tort committed, and judgments dealing with that tort while also at the same time dealing with the lack of surety about whether the case in question involves infringement of his legal right or not.
• Efficiency in legal proceedings– As no statute is there, judges become reluctant to engage with the grey space as they are bound to interpret the law and not make it. Usurping the law-making power given to the legislature by the constitution would only lead to interference of legislature in judicial proceedings coupled with questioning the court’s neutral stature. These considerations remain in the mind of the judge while presiding over the case. This issue can be solved by codification as judges would be delegated back to their position of being an “Interpreter of law” rather than as that of a maker. Legal proceedings would also be made streamlined and inexpensive by this codification as the cost spent for litigating the matter for years would be saved and both the parties of the suit would benefit.
• Development of indigenous legal thoughts about the law: Currently, judgments of the privy council are of precedent value to subordinate courts until and unless they are overturned by the Honorable Supreme Court. Codification will remove this undue influence of the courts of foreign countries as it should remove the precedent value and give it persuasive value, this will create space for developing of native ideas, categories, and their remedies for the Tort.
• High-value tortious liability: In India, there is no codified law and the lack of it was felt in the Bhopal gas tragedy where compensation was provided not because of judicial intervention but rather because of an agreement by the Union government. In this case, Bhagwati CJ observed the lack of an appropriate statute and called for judicial jurisprudence to fill the gap.

CRITICAL ANALYSIS OF VIABILITY AND NEED OF CODIFICATION

The other side of the intellectual spectrum vouches for –

• Flexibility and adaptability provided by the law of Tort by virtue of it being non-codified. However, codification by itself doesn’t make a statute static, difficulty in amending it coupled with lack of legislative intent makes it static. The stability provided by a codified statute coupled with the flexibility provided by judicial interpretation and legislative amendments can provide similar results with added stability.
• All types of tort can’t be accounted for beforehand: This argument holds some truth to it that being a civil wrong, primarily defined by an exclusive approach, every newly emerging tort can’t be included initially. But the Law of Tort is not a peculiar case in this as every statute doesn’t include every possible outcome. It is made adaptable by amendments, judicial pronouncements, and scholarly interpretations. For this, a skeletal law, similar to the Indian Contract Act 1872, provides a sufficient grey area to provide scope for interpretation.
• Indian courts applied English common law according to justice, equity, and good conscience: The proposition is however, contested by the post-colonial school of thought which points that the upbringing of the Englishmen dispensing the justice, which still acts as the precedent, were done in their homeland and were unaware about the ground realities of the society resulting in the judgments focused on controlling the indigenous people. This inherent contradiction present in the law was observed by many scholars as well as chief justices of India notably Justice Bhagwati.

Experience from other countries: Many developed and developing countries including the UK, USA, and China have codified the Tort law to provide clear rights and remedies to their infringement to reduce ambiguities and incorporate the local viewpoint regarding the Tort.

CONCLUSION

The reasonable conclusion that can be drawn is that a need for codification of the Law of tort is arising to give solutions to multifaceted problems. The ongoing worldwide demand for post-colonialism should be kept in mind while formulating a statute to provide an indigenous answer based on our collective experiences rather than being based on some foreign country’s laws and judgments. The right of self-determination demands that the guiding light of any law should be the experiences and consciousness of the people and not of some, foreign society with different ideals and experiences. The codification, however, should be done to balance flexibility and stability. As legal systems worldwide continue to evolve, discussions on codification in tort law should be informed by a nuanced understanding of the implications and a commitment to achieving a balance between stability and responsiveness to societal changes. Ultimately, the pursuit of a more effective and just legal system requires thoughtful consideration of the benefits and challenges associated with codification in tort law.

Reference(s):

[1] Ratanlal and dhirajlal, “The law of Torts”28^th edition

[2] Bangia, R.K., (2019), The Law of Torts, Allahabad Law Agency Law Publishers

[3] Winfield and Jolowicz on tort, 18^th edition

[4] Stilz A, “DECOLONIZATION AND SELF-DETERMINATION” (2015) 32 Social Philosophy and Policy 1

[5] Giliker P, “CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT” (2021) 70 International & Comparative Law Quarterly 271.