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THE CODIFICATION DILEMMA OF THE LAW OF TORTS IN INDIA

INTRODUCTION

In an era where almost every law is codified to avoid confusion, the law of torts in India remains uncodified in its entirety. Tort refers to a civil wrong, it includes various wrongs ranging from defamation to trespass. The law of torts in India was introduced during the colonial era and has been evolving since then. Given that the law of torts was introduced by a colonial power during a colonial era, the task was, to transform it from a foreign law to a law that suits the Indian scenario. The task of molding the law of torts in line with the Indian needs and system is being done by the Indian judiciary and various government organs to ensure its compatibility with the present needs of the system. In India, while the law of torts is not completely codified, neither is it completely neglected[1]. The following enactments are parts of tort law that have been codified in the form of various statutes. These include:- the Cattle Trespass Act,1871[2], Sale of Goods Act,1930[3], Motor Vehicles Act,1988[4], Specific Relief Act,1963[5], Patent Act,1970[6], Copyright Act,1957[7]

ARGUMENTS AGAINST CODIFYING THE LAW OF TORTS

CIVIL WRONG EVOLVES WITH TIME

A civil wrong is a wrong that contravenes societal peace. Every society has evolved in a different manner since time immemorial. The values that individuals would give utmost importance to, may differ depending on the way their own society evolved. There is no full stop to evolution, which means that societal values and rules would keep evolving. When a civil society evolves, so do the wrongs in society. In such a scenario, it is difficult to restrict the law of torts to a certain, specified number of wrongs. The moment a new civil wrong is evolved, the justice delivery systems may fail to do speedy justice, due to absence of the provisions with respect to the new civil wrong in the statutes

CODIFICATION MAY RESTRICT THE SCOPE

The codification of the law of torts may restrict its scope and create boundaries. It may specify civil wrongs which would only qualify as wrongs under tort. The inclusion of new civil wrongs in the list of wrongs constituting a tort may be a tedious procedure thereby delaying justice in the cases relating to such wrongs. In the case of codification, to avoid such delays there should exist prompt machinery which voices the need for the inclusion of such wrongs and which legislates the same after proper research.

CODIFICATION MAY HAMPER THE NATURAL EVOLUTION OF THE LAW OF TORTS

A codified statute may hamper the evolution of the law of torts in a manner that suits the Indian context. In Jay Laxmi Salt Works v State of Gujarat[8], the Hon’ble Supreme Court had observed that the law of torts is founded entirely on morality such that no individual is allowed to harm others with or without intention. Therefore, to class strictly the expanding horizon of tortious liability would be rudimentary. For the development and growth of society, a liberal approach toward tortious liability is required.

ARGUMENTS IN THE FAVOR OF CODIFYING THE LAW OF TORTS

CODIFICATION WILL HELP SPREAD AWARENESS ABOUT THE LEGAL RIGHTS OF INDIVIDUALS IN A CIVIL SOCIETY

How often has one come across individuals reporting instances of public nuisance? How often has a citizen held the state responsible for the delay caused to him because of a state transport machinery’s failure? How often have individuals held others responsible for causing emotional distress? Public nuisance, Negligence, and causing emotional Distress are all torts. Apart from a small part of the population, which is legally educated and willing to exercise their rights and demand justice, the rest of the population is not aware of the various legal remedies available yet! Codification may not ensure the entire population exercising legal rights in the first instance, but it may definitely increase the number of litigations in the field of torts thereby increasing awareness among citizens,

A CODIFIED LAW CAN ALWAYS BE AMENDED!

The question of new wrongs evolving with society can always be answered by the age-old method of bringing in changes in statutes, through amendments! A codified law will bring specificity to the law of tort, avoid confusion, help in better and speedy delivery of justice, and ensure citizens are aware when their legal rights are violated or when they suffer legal damage. There are three elements that must exist to hold a person liable in torts which include[9], Wrongful Act, Legal Damage, Legal Remedy .A codified law will help citizens be aware of what can be classified as a wrongful act, if the said act causes legal damage to them, and if there is a legal remedy available to them. Codification will ease the process of evolution of the law of torts. Codification will not make the law rigid but rather will provide a foundation to build upon. Various amendments may be brought in to ensure each civil wrong constituting a tort is brought within the ambit of the statute.

CODIFICATION LEADS TO CERTAINTY THEREBY BOOSTING THE DEVELOPMENT OF THE LAW OF TORTS IN INDIA

Codification ensures certainty in the field of torts and thereby boosts its development process. Codification may help differentiate between varying degrees of civil wrongs and varying punishments for each of them. This in turn will make the litigation process in the field of torts quicker, and thereby encourage individuals to start recognizing civil wrongs which violate their legal rights or cause them legal damage. Poverty, Illiteracy, and an expensive and dilatory judicial system are major hurdles in the development of the law of torts in India.[10] Codification will help fight the dilatory process in the field of law of tort, and quicker disposal of justice will encourage even the poor and the illiterate to knock on the doors of the judiciary when required. It is only when the population is aware of existing laws will they start following them and reporting its violation. Now, in the absence of a statute, there exists uncertainty about what would amount to a tort and to what extent will it be classified as a violation of a legal right.

CODIFICATION OF THE LAW OF TORTS CREATES BOTH RIGHTS AND DUTIES

As mentioned above, the Copyright Act is a tort law. The codification has helped ensure creators know the rights they have. The creator of works can exercise moral and economic rights. They can report against infringement of their works under the relevant sections. Similarly, individuals who use the works of creators have a duty to take prior permission from the creator.[11] Section 52 of the Copyright act[12] allows the legitimate use of work for purposes like education, and scientific and cultural advancement without the authorization of the author. This shows how codification specifies the extent to which an act would or would not amount to a violation of legal rights. Thus, codification creates both legal rights and duties that bind individuals.

CONCLUSION

While codification is a sine qua non in the context of an evolving Indian society, the onus is on the State machinery to ensure that the loopholes are not exploited. There should exist prompt machinery to correct and modify statutes in case of evolving needs. Codification if it increases the scope of the law and is conducive to evolution, will only do good for the development of the law of torts in India.

Author(s) Name: Sheetal Shivaji Potale (ILS Law College, Pune)

References:

[1] J.N. Pandey, Law of Torts (10th edition, Central Law Publication 2022) 4.

[2] Cattle Trespass Act 1871.

[3] Sale of Goods Act 1930.

[4] Motor Vehicles Act 1988.

[5] Specific Relief Act 1963.

[6] Patent Act 1970.

[7] Copyright Act 1957.

[8] Jay Laxmi Salt Works Ltd v State of Gujrat 1994 SCC (4) 1.

[9] J.N.Pandey (n 1) 13.

[10] J.N.Pandey (n 1) 3.

[11] Ibid.

[12] Copyright Act 1957, s 52.