History of Tort Law in India and Tort Law in the United States Of America
A tort can be known as that area of law wherein the courts provide remedies of permitting a lawsuit for damages in acknowledgement of a private or civil wrong. In India and the United States Of America, resemblance in law, if any, seems to have been inherited from the legal practices as took place in the British era.
In India, tort law has been only in implementation since towards the end of the British rule. However most of Tort Law has developed in India post the independence in 1947. Tort law in India is, for most part, based on English tort law, which is based on the principle of common law. However, in Hindu Law and Muslim Law, the definition of “tort” holds a much more myopic view than the system of tort law implemented by the British. As per the Hindu and Muslim legal system, punishments for crimes outlined in these systems hold a more important place than compensation for the wrongs. The United States, to this day, still refers to the English principles of common law while civil procedures in the United States have always held compensation of wronged individuals paramount to punishing the perpetrator as its primary purpose.
Tort Law: History in India
Tort law as a concept came to India around the late 1800’s when Sir Henry Maine and Sir James Stephen stressed the need of a tort code in India. It was noted that the presence of torts in India would be a huge blessing as it would aid the legislature curtailing a lot of provisions of the Indian Penal Code. The law of torts in India is still in its embryonic stage as far its development is concerned and where the statutes are codified as well status which decide what is to be done in case of damages. The Indian penal Code also has played a role in criminalizing certain areas of tort law. Also, while formulating India’s Tort law, special attention had been given to India’s Socio-cultural practices as well as certain conditions were made in order in order to apply foreign laws and ideologies in an Indian context. Furthermore, certain statutes have also been created by the legislature to adapt to certain social conditions.
Justice Bhagwati also stated in the case of “ M.C. Mehta v. Union Of India” that, “We (India) 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 India’s colonial period, the courts were instructed by British Acts of Parliament and by Indian enactments to act according to the three principles of justice, equity, and good conscience provided that there was no law already in use, which could have relevant to the case. As far as damages for torts were concerned, the courts mostly referred to the English common law provided it went in hand in hand with the current socio-economic status of the Indian people at the time. Once it seemed to move astray or started to seem unreasonable for Indian conditions, other rules were adapted.
The law of torts in India has developed with the aid of many such cases, such as the Jay Laxmi Salt Works (P) Ltd. V State Of Gujarat, Rudul Shah v. State Of Bihar, Nilabati Behera v. State Of Orissa and most importantly the Bhopal Gas Leak Case. The Bhopal Gas Leak Case was imperative as such that it spawned the concept of Class Action in India, a type of lawsuit that involves a group suing an individual, a group suing another group or an individual suing a group. It also probed the Government to initiate the Bhopal Gas Leak Disaster Act, 1985. Constitutional torts started developing in India around the early 1980’s and found its place in the judicial precedents with the...
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