The French word ‘Tort’ has been derived from the Latin term “Tortum” meaning to twist. It is similar to the English term “wrong”, Roman term “delicit”, and the Sanskrit term “jimha”. In layman’s language, Torts means nothing but the violation of the right of a person. It implies a breach of duty by one person towards another.
Example: I injure the reputation of a person whom in fact, I don’t have the right to do so. This consequently leads to Torts of defamation.
A conscise definition of this branch of law is not possible because the entire branch of law is based on precedents. Moreover, a diverse species of wrong are included under it each having its own peculiar historical origin. Above all, this branch of law is still in the process of development. It is an emerging branch of law whose main aim is to protect the rights of the individual in the light of prevalent standards and moral conscience. Torts is a very popular branch of law in Western countries. But in India, we will all have to still wait for a long period of time to recognise it as a branch of law where we will witness a huge litigation. Moreover, this branch of law is an uncodified law. There is no such enactment or Acts prevalent for tortious liability. It is entirely based on the equitable principles of justice, equity and good conscience. This branch of law is a system of law that enables a person who has suffered harm(plaintiff) by the acts of the another(defendant) to claim unliquidated damages in a civil suit.
POSITION IN ENGLAND
The English law essentially follows a system of common law. The main point of difference between common law system vs civil law system is that in common law, Judicial decisions are binding on both the lower courts and the courts that has laid down the judgement. This is popularly known as “Precedents.” By contrast, in civil law system, it is not necessary that the decisions are binding upon the court. Following the footprints of Roman law, the English system has long been construed on the premises of a closed system of nominate torts such as trespass, battery, conversion etc. Under English law, there are basically three kinds of actions viz.:-
- Real Action: Where the plaintiff can claim the right to recover land, tenements etc.
- Personal Action : Where the plaintiff can claim damages for the injury done to his person or property.
- Mixed Action: It usually partook the nature of both real and personal action.
POSITION IN INDIA
The law of torts in India is not a codified one, rather it is an uncodified law. It is purely founded upon the framework of English common law, which is the product of Judicial decisions. In case of Rajkot Municipal Corporation vs. Manjulben Jayantilal Nakum(AIR 1997 9 SC552), the Court has expressly observed that “in absence of statutory law in regard to tortious liability in India, the common law principles evolved in England may be applied in India to the extent of suitability and applicability to the Indian conditions.” In India, we do not observe much of tortious litigation. The main causes for such low witness of torts cases in India are:-
- Lack of consciousness about one’s rights.
- The spirit of toleration.
- Problem of recognition of action by torts.
- Awarding of very low damages.
In our day-to-day life at various points of time we are subjected to various injuries such as unlawful detention, injury or death of people due to adultared food stuffs, liquor, medicines etc., loss due to power cut, noise and other pollution. We put up without bringing any action in the courts of law. Also in India, we do not have an extensive legislation in torts law. However, an attempt has been made by the legislators to codify certain portions of torts law. Some laws like The Workmen’s Compensation Act, The Employers Liability Act, etc has been enacted. Laws have also been framed relating to defamation, libel etc.
The word torts in itself is a very broad term. The fundamental problem why torts law can never be codified is that if and once a statutory law has been made to regulate this dynamic branch of law, it would simply mean that the doors for the emerging branch of civil wrongs would be shut closed which, in itself, defeats the very purpose of the justice system. Consequently, the rights of the individuals in the light of prevalent standards of morality would stand to be cancelled. In fact, it is a distant dream to bring all the civil wrong under a single umbrella. So, the codification of torts law in India is yet to take place.
Thus, what can be summarily inferred is that it is a new branch of law, a common law development supplemented by codifying statutes including statutes governing damages.
