Is the Law of Torts Codified in India? The Sources of Indian Tort Law, and the Constitutionalisation of the Subject

The answer is no, and it is the starting point for every question about sources. There is no Indian Torts Act, and the statutes that exist deal with particular situations rather than with the subject as a whole. The general law is judge made, and it is found in five places: the English common law as received here, the direction to decide according to justice, equity and good conscience, judicial precedent, statute in the limited fields where the legislature has intervened, and, uniquely to India, the Constitution. The last of these has produced a remedy with no English counterpart: the constitutional tort, in which compensation for the violation of a fundamental right is awarded in a writ petition, and to which sovereign immunity is no answer.

The five sources, the statutes that matter, and why the subject was never codified

1. Why It Was Never Codified

1. One serious attempt was made. In 1882 the Government of India instructed Sir Frederick Pollock to prepare a code of civil wrongs for British India.

2. He completed a draft in 1886, the Indian Civil Wrongs Bill. It defined the general principles, set out general exceptions to liability, and dealt with assault, defamation, wrongs to property, nuisance and negligence.

3. It was never enacted. Pollock recorded in his prefatory note that the Government had not decided whether codification was desirable, and that a considerable majority of the opinions collected from judicial and other officers in India were unfavourable to any action.

4. No general code has been attempted since, and the Law Commission of India has not recommended one.

5. The reasons usually given are that the subject was still developing and a code would freeze it; that a general code would sit awkwardly with the personal laws and with the variety of Indian conditions; and that the courts were managing perfectly well with the common law as filtered through justice, equity and good conscience.

6. So the only definition of a tort in any central Act is the exclusionary one in Section 2(m) of the Limitation Act, 1963: a tort means a civil wrong which is not exclusively the breach of a contract or the breach of a trust.

2. The First Source: English Common Law

• It came in through the courts, not through a statute. The Charters establishing the courts in the Presidency Towns of Calcutta, Madras and Bombay directed them to apply English law, so the English law of torts operated there directly.
• It was never received wholesale. Outside the Presidency Towns it entered only through the direction to decide by justice, equity and good conscience, and even there only so far as it suited Indian conditions.
• Several English rules were refused. The English division of defamation into libel, actionable per se, and slander, actionable only on proof of special damage save in four excepted cases, was not adopted whole in India, where both are ordinarily treated alike in civil proceedings.
• Rules resting on peculiarly English institutions were left behind, including those built on feudal tenure and on the English poor law.
• Today it is persuasive only. Since the Constitution, English decisions have no binding force in India, and their weight depends on their reasoning.

3. The Second Source: Justice, Equity and Good Conscience

• It was a direction to the mofussil courts, applicable where no statute and no personal law governed the question.
• In practice it meant English common law, because that was the body of principle the judges knew, but the words carried a filter with them.
• The filter was applicability. English rules were applied only so far as they were applicable to Indian society and circumstances, which allowed the courts to take what suited and leave the rest.
• It is the source of the Indian differences. Where Indian tort law departs from English law on a point received before independence, the departure can almost always be traced to this phrase.
• It has not disappeared. Where no Indian authority covers a point, the courts still reason from general principle rather than treating English law as automatically applicable.

4. The Third Source: Judicial Precedent

• This is the principal source of the modern law. The general law of torts in India is found in the decisions of the Supreme Court and the High Courts.
• Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
• A High Court decision binds the courts subordinate to it, and is persuasive elsewhere.
• Pre Constitution decisions of the Privy Council and the Federal Court continue to have force until overruled by the Supreme Court.
• English decisions are now persuasive only, and the Supreme Court has more than once declined to follow them where Indian conditions pointed the other way. M.C. Mehta is the plainest example.

5. The Fourth Source: Statute

• These are statutory torts and statutory schemes, not a code. Each occupies a defined field and leaves the general law untouched outside it.
• They supplement the common law; they do not replace it. A claimant under the Motor Vehicles Act may still sue in negligence, and a consumer may still sue in tort.
• The position on motor accidents has changed and is often stated wrongly. Section 164, brought into force on 1 April 2022 by the Motor Vehicles (Amendment) Act, 2019, is now the no fault provision: Rs. 5,00,000 for death and Rs. 2,50,000 for grievous hurt. It replaced the structured formula in the former Section 163A, and the Second Schedule was omitted. Textbooks that still give the older figures under Section 140 are out of date.

6. The Fifth Source: The Constitution

• Constitutionalisation is the most important Indian development in the subject. Where the State violates a fundamental right, the Supreme Court under Article 32 and a High Court under Article 226 may award compensation in the writ proceeding itself.
• Rudul Sah v. State of Bihar, (1983) 4 SCC 141 began the line. A man acquitted in 1968 was kept in jail for fourteen more years; the Court ordered his release and directed compensation, holding that its power under Article 32 extended to a monetary award where that was the only practicable mode of redress.
• Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677 awarded exemplary damages for an unlawful detention that had already ended, applying injuria sine damno in a constitutional setting.
• Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 settled the theory. Compensation in a writ petition is a remedy in public law, distinct from the private law remedy in tort, resting on the strict liability of the State for the violation of a fundamental right, and sovereign immunity is no defence to it.
• D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 laid down the requirements to be followed on arrest and detention, and confirmed the availability of compensation for custodial violence.
• Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 extended the principle to a foreign national, holding that Article 21 protects every person and not only citizens.
• The public law remedy is in addition to, not instead of, the ordinary remedy. The availability of a civil suit does not bar the writ petition, and the compensation awarded in the writ proceeding is ordinarily treated as interim and adjustable against any decree later obtained.

7. Why the Constitutional Route Is Used

8. Should the Subject Be Codified?

9. The Position Stated Shortly

1. The law of torts is not codified in India, and there is no Indian Torts Act.

2. Sir Frederick Pollock, instructed in 1882, completed a draft Civil Wrongs Bill in 1886, and it was never enacted.

3. Section 2(m) of the Limitation Act, 1963 is the only definition of a tort in a central Act, and it defines by exclusion.

4. The five sources are English common law, justice, equity and good conscience, judicial precedent, statute, and the Constitution.

5. English common law entered through the Charters in the Presidency Towns and elsewhere through justice, equity and good conscience, and only so far as it suited Indian conditions.

6. Judicial precedent is now the principal source, and Article 141 makes the law declared by the Supreme Court binding on all courts in India.

7. The statutes are particular schemes and not a code: they supplement the common law and do not replace it.

8. Section 164 of the Motor Vehicles Act, 1988, in force from 1 April 2022, is the current no fault provision, giving Rs. 5,00,000 for death and Rs. 2,50,000 for grievous hurt.

9. Constitutionalisation is the distinctively Indian development: compensation for the violation of a fundamental right, awarded under Article 32 or Article 226.

10. That remedy lies in public law, sovereign immunity is no defence to it, and it is in addition to and not instead of the ordinary remedy in tort.