India should adopt a tort law to strengthen its justice delivery

Punitive damages, fundamental to legal structures in many developed and developing countries alike, serve as a formidable deterrent against wrongdoing and a means of upholding justice and accountability. Levied over and above the actual damages suffered by the victim, they are routinely levied in cases of gross negligence. Nations such as the US, China, Australia, Canada and the UK make use of this legal provision, reinforcing the practice of accountability.

However, in contrast, India presents a regressive picture. The concept of punitive damages is relatively alien to Indian jurisprudence, which has traditionally been inclined towards compensatory damages which are mostly symbolic. However, they are asked to cover the actual loss of the victim. The absence of a comprehensive law of torts in India, coupled with an inconsistent pattern of ruling on damages alone, muddies the waters.

Collapsed structures, trampling by dogs and people doing harm to others often fill our local headlines. Whatever may be the status of the offender, whether he is a businessman, a government servant or a regular individual, it is often the common man who bears the brunt of the misconduct or negligence. This grim reality underlines the need to enhance legal provisions to protect the most vulnerable among us and ensure justice.

Such legislation would ensure that parties including government entities are held accountable for negligent acts. The establishment of a comprehensive law of torts would raise expectations of civil accountability and instill greater confidence in the legal mechanisms that protect society. The inconsistent rulings on punitive damages by Indian courts in major incidents such as the Uphaar cinema fire accident, compared to the Morbi bridge collapse, highlight a significant legal inconsistency. While the Gujarat High Court awarded interim compensation 10 lakh for the deceased and 2 lakhs for the injured in the Morbi incident, the compensation given in previous cases was not the same. Despite the death of over 3,000 people in the Bhopal gas tragedy, the compensation was just $470 million. Negligence seen in Uphaar Cinema case 25 lakh award despite 59 deaths and over 100 injuries. This disparity in decisions, combined with the absence of clear legislative guidance, sets a puzzling precedent and underlines the need for a strong, standardized law on torts in India. It will streamline the legal landscape, provide a consistent approach to all civil wrongs, leading to better risk management and efficient use of resources. Its deterrent effect, preventing reckless and rash public behaviour, promotes safe practices in various fields, thus protecting the whole society. It also supports fairness, helping to equalize power dynamics between individuals and influential institutions.

Unfortunately, this law never made its way into the legal system of India. Despite the introduction of common law by the British in the 18th century and extensive codification of criminal, commercial and procedural laws by 1882, tort law remained uncodified, standing as the only major area without a legal framework. The Fourth Law Commission in 1879 emphasized the importance of tort law in India, leading Frederick Pollock to draft the Tort Law for India in 1886 (bit.ly/3omHreI). However, this draft never advanced to legislative action. Even after independence in 1947, several reports continued to advocating the establishment of such a law in the country.

Several committees and commissions have emphasized the need to introduce such a law in India, particularly with regard to state liability in tort cases. In April 1956, the First Report of the First Law Commission of India outlined proposals for law regarding state liability in tort cases. Although an actual draft bill was not included, a bill based on the report was introduced in the Lok Sabha in 1967 and referred to a joint committee. Unfortunately, due to the dissolution of the Lok Sabha in 1971, the bill was not passed and has not been revived since then. The consultation paper for the National Commission to Review the Working of the Indian Constitution (bit.ly/42V62WR), which dealt with the issue of tort, also makes an interesting study. To quote this: “The present state of the law relating to State liability in tort in India, it is clear that the law is neither in its substance, nor satisfactory in its form. It is based on the exercise of sovereign functions , denies relief to citizens injured by a wrongful act of the state….a political organization established to protect and promote the welfare of its citizens, as a rule, for its own wrongdoings should accept legal liability, rather they should condemn such liability.”

Nevertheless, once the law of tort is enacted in India, it will be important to invest in comprehensive training of legal practitioners, including both lawyers and judges, to handle tort cases competently. The reality is that courts generally display a reluctance to award punitive damages. While the Supreme Court and some high courts have recently imposed punitive damages in some cases, they have reduced damages in others, demonstrating variability in applying this principle.

Such decisions, often heavily influenced by the particularities of the case and the interpretations of the judges, unfortunately, do not set precedent, as not every victim can escalate their cases to higher courts. Therefore, it is of paramount importance that a law of torts be made which extends its jurisdiction to subordinate courts. The move will democratize access to justice, ensuring that punitive damages are not a privilege reserved for a select few, but a right accessible to all victims of civil wrongs.

Bibek Debroy, Aditya Sinha and Bikashita Chowdhary are the Chairman, Additional Private Secretary (Policy and Research), and Young Professionals in the Prime Minister’s Economic Advisory Council, respectively.

Updated: May 24, 2023, 01:49 AM IST