TORTS TO PERSON

A tort, in common law jurisdictions, is a civil wrong. Tort law deals with situations where a person's behaviour has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm. The law allows anyone who is harmed to recover their loss. Tort law is different from criminal law, which deals with situations where a person's actions cause harm to society in general. A claim in tort may be brought by anyone who has suffered loss. Criminal cases tend to be brought by the state, although private prosecutions are possible. Tort law is also differentiated from equity, in which a petitioner complains of a violation of some right. One who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is delict. Tort may be defined as a personal injury; or as "a civil action other than a breach of contract." A person who suffers a tortious injury is entitled to receive "damages", usually monetary compensation, from the person or people responsible or liable for those injuries. Tort law defines what is a legal injury and, therefore, whether a person may be held liable for an injury they have caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents, false imprisonment, defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution (toxic torts), among many others. In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently that is, without taking reasonable care to avoid injuring others tort law will allow compensation. However, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and "strict liability" or quasi-tort, which allows recovery under certain circumstances without the need to demonstrate negligence.

Obligation of state
No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner, as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above the law as it is unjust and unfair for a citizen to be deprived of his rights or liberties illegally by negligent act of officers of the State without any remedy. The State is a juristic person, propounded in nineteenth century as sound sociological basis for State immunity, the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalization of the functions of the State as sovereign and non-sovereign or governmental and non-governmental is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for the sake of society and the people, the claim of a common man or ordinary citizen cannot be thrown out, merely because it was done by an officer of the State; duty of its officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is not shaken. Thus in N. Nagendra Rao v State of AP the

Page | 1

Apex Court held In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist. The state was established to meet the needs of the individual and society, and hence it has to discharge properly obligations expected of it. The proper functioning of the state depends upon a well-organized system of duties and rights. It should also promote the health of the individuals, spread education and discharge other functions, political social and economic for developing the personality of the individual.

Role of the State tort law-Indian scenario

In any modern society, interactions between the State and the citizens are large in their number, frequent in their periodicity and important from the point of view of their effect on the lives and fortunes of citizens. Such interactions of ten raise legal problems, whose solution requires an application of various provisions and doctrines. A large number of the problems so arising fall within the area of the law of torts. This is because, where relief through a civil court is desired, the tort law figures much more frequently, than any other branch of law. By definition, a tort is a civil wrong, (not being a breach of contract or a breach of trust or other wrong) for which the remedy is unliquidated damages. It thus encompasses all wrongs for which a legal remedy is considered appropriate. The law in India with respect to the liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution. Sec. 65 of the Government of India Act, 1858, which is the parent source of the law relating to the liability of the Govt. provided that; All persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable against the secretary of state for India as they could have done against the said company . This provision was continued by the succeeding Govt. of India Act, 1915, Sec. 32, Govt. of India Act, 1935 Sec. 176 (1) and is also continued by Art. 300 (1) of the Constitution of India. Given this importance of tort law, and given the vast role that the State performs in modern times, one would reasonably expect that the legal principles relating to an important area of tort law, namely, liability of the State in tort, would be easily ascertainable. However, at present, this ideal is not at all achieved, in reality, in India. It is for this reason that we have considered it necessary to consider the subject and to suggest certain reforms. The cases of Rudul Shah, lead to inference that the defense of sovereign immunity is not available when the state or its officers acting in the course of employment infringe a persons fundamental right of life and personal liberty as guaranteed by the Art. 21 of the Constitution of India. The supreme Court cases discussed above did not refer to the doctrine of sovereign immunity or the case of Kasturilal on which the following submission was made: It is submitted that, that case (kasturilal) even if not overruled can be distinguished on the ground that it did not consider the nature of liability of the state when there is deprivation of fundamental right. The law in India with respect to the liability of the State for the tortious acts of its servants has become entangled with the nature and character of the role of the East India Company

Page | 2

prior to 1858. It is therefore necessary to trace the course of development of the law on this subject, as contained in article 300 of the Constitution.

Liability for Breach of Human Rights

The Human Rights Act, makes comprehensive provision for remedies, in particular against public authorities. In the first place, it provides that a person who claims that a public authority has acted or proposes to act in a way which is incompatible with a Convention / international rights may bring proceedings against the authority in the appropriate court or tribunal, but only if he is, or would be , a victim of the unlawful act. Secondly, in relation to any unlawful act or proposed act of a public authority the court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. The Act provides, however, that damages for a judicial act (since court s and tribunal count as public authorities), if done in good faith, may not be awarded except as specifically provided in the case of unlawful arrest or detention nor may a judicial act be challenged otherwise than by way of appeal or judicial review or under ministerial rules. But many violations also were committed by ministerial acts or orders, police and prison authorities, immigration officials and others. The liability of the state to pay compensation for the deprivation of the fundamental right of life and personal liberty (or any other fundamental right for that matter) is a new liability in public law created by the constitution and not vicarious liability or a liability in tort. For this reason, this new liability is not hedged in by the limitations, including the doctrine of sovereign immunity, which ordinarily apply to states liability in tort. This view is strongly supported by the decision of the Privy Council in Maharaj v Attorney-General of Trinidad and Tobago.

Tort Law In India

In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha, which means crooked was used in ancient Hindu law text in the sense of tortious of fraudulent conduct .[3] However, under the Hindu law and the Muslim law, tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India presently, is mainly the English law of torts which itself is based on the principles of the common law of England. However the Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. In this context, in M.C. Mehta v. Union of India[4], Justice Bhagwati observed-We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence. During British rule, courts in India were enjoined by Acts of Parliament in the UK and by Indian enactments to act according to justice, equity and good conscience if there was no specific rule of enacted law applicable to the dispute in a suit. In regard to suits for damages for torts, courts followed the English common law insofar as it was consonant with justice, equity and good conscience. They departed from it when any of its rules

Page | 3

appeared unreasonable and unsuitable to Indian conditions. An English statute dealing with tort law is not by its own force applicable to India but may be followed here unless it is not accepted for the reason just mentioned.

Tort Law In India Whether Unnecessary

Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural the liberal approach to tortious liability by court would be conducive.- Sahai. J. The observation made by Honble Sahai.J dispels any illusions as to the necessity of the law of torts. His observations also envisage the growth of tort litigationn in India. To fully asses the role played by tort law in a modern society, it would be instructive to turn to the history England during the last three centuries. This is for two reasons firstly, tort litigation in England has grown significantly, making it an interesting study and secondly, the law of torts in India has been largely borrowed from the English law of torts. The outstanding fact of Englands legal history relevant to the present context is the growth of her own tort law from small beginnings to the size and status of a separate branch of law. This was the work of her lawyers and judges who developed the action for damages as a remedy for violations of rights and duties and fashioned it as an instrument for making people adhere to standards of reasonable behaviour and to respect the rights and interests of one another. As a result, the English people benefited by the cultivation of habits of thought and conduct which helps social peace and co-operative effort, inculcated a live sense of individual rights which they do not hesitate to ascertain in courts of law. The necessary corollary of this is the formulation of a large body of rules defining in detail the rights of the individual in relation to others and the conditions in which he can assert them in a court of law. So we have a body of law whose rules have grown and are constantly growing in response to new concepts of rights and duty and new needs and conditions. If it is true to say that the English people attained during this period, a degree of social unity and integration enabling them to achieve phenomenal success in various aspects of their life, activity and welfare, it is difficult to resist the inference that among the many forces and influences that made this possible, was the development of their system of law and justice so as to afford security to the citizen in his life, person, property and rights and interests which he values. An integral and important part of this system is tort law. Evidence of its importance is afforded by the large and growing volume of litigation and case law in actions for torts of various kinds and in particular those of defamation, negligence and nuisance. In deciding these actions English judges and juries have tried to make their decisions sub-serve the purposes already stated. They have taken care to allow claims only when they are just and make their awards of damages serve, on the one hand as a deterrent of wrong doing and on the other, afford satisfaction to parties suffering from injury or loss. The views here stated find support in the almost whole sale adoption of tort law of England along with her other laws by progressive nations like those of the U.S.A, Canada and Australia. Though we have done likewise in borrowing the English law of tort, we have to make a far greater use of it than we do now for making it serve the purposes for which the people of other countries aforesaid have used it. The use made of it in these countries in evidenced

Page | 4

not only by the case law in their courts but also by the continual interest evinced by their lawyers, judges and professors in the development of this branch of law by means of their contributions to the growing volume of literature on it. It is undeniable that we cannot afford to neglect any agency which can help to regulate individual conduct in conformity with the needs of social peace and contentment which are the basic factors on which our plans of national advancement can rest. It is hardly necessary to add that while adopting English rules and theories, we have to make alterations and adaptations of them which are demanded by conditions in India as observed by various Indian Judges[7] and also take note of the great changes in this branch of law that are taking place elsewhere. Therefore it is unnecessary to state that, there is absolutely no scope of doing away with this branch of law. Some may argue that the law of torts merely plays merely a role of a residuary law. However bearing in mind the facts above mentioned it is clear that there is no truth in this argument.

Conclusion
The law of torts in India is definitely not unnecessary but 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.

Page | 5