Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts.King, B. E. (1954). Review of *English Law and the Moral Law* by A. L. Goodhart. The Cambridge Law Journal, 12(2), 242–243. doi:10.1017/S0008197300040219. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.
While Indian tort law is generally derived from English law, there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution, as well as a system of absolute liability for businesses engaged in hazardous activity.
Background
As tort law is similar in nature across common law jurisdictions, courts have readily referred to case law from other common law jurisdictions such as the UK,See J. Kuppanna Chetty, Ambati Ramayya Chetty and Co. v Collector of Anantapur and Ors 1965 (2) ALT 261 at . Australia,See Rattan Lal Mehta v Rajinder Kapoor ACJ 372 at . and CanadaSee Rattan v Rajinder (1996) ACJ 372 at , , and . in addition to domestic precedent. However, attention is given to local norms and conditions, as well as India's distinct constitutional framework in applying foreign precedent. The legislature have also created statutes to provide for certain social conditions. Similar to other common law countries,See Defamation Act 1952 of UK and Civil Liability Act 2002 (NSW) of Australia aspects of tort law have been codified.See Motor Vehicle Act 1988
Certain conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal CodeDefamation and certain areas of negligence are criminalised in the Indian Penal Code, Act No. 45 of 1860 or other criminal legislation. Where a tort also constitutes a criminal offence, its prosecution by the state does not preclude the aggrieved party from seeking a remedy under tort law. The overlap between the two areas of law is a result of the distinct purposes each serves and the nature of the remedies each provides. Tort law aims to hold a tortfeasor accountable and consequently tort actions are brought directly by the aggrieved party in order to seek damages, whereas criminal law aims to punish and deter conduct deemed to be against the interests of society and criminal actions are thus brought by the state and penalties include imprisonment, fines, or execution.
In India, as in the majority of common law jurisdictions, the standard of proof in tort cases is the balance of probabilities as opposed to the reasonable doubt standard used in criminal cases or the preponderance of the evidence standard used in American tort litigation, although the latter is extremely similar in practice to the balance of probabilities standard. Similar to the constitutional presumption of innocence in Indian criminal law, the burden of proof is on the plaintiff in tort actions in India. India, like the majority of common law jurisdictions in Asia and Africa,Jearey, J. (1961). Trial by Jury and Trial with the Aid of Assessors in the Superior Courts of British African Territories: II. Journal of African Law, 5(1), 36-47. doi:10.1017/S0021855300002941) does not permit the use of juries in civil or criminal trials, in direct contrast to America and the Canadian common law provinces which retain civil juries as well as to jurisdictions like England and Wales or New Zealand which permit juries in a limited set of tort actions.
Categories of torts Trespass to the person
A trespass, or offence, to the person is any tort characterised by harming or threatening to harm an individual's body. This category of tort is closely related to criminal law as the grounds giving rise to a claim for each tort in this category generally constitutes grounds for prosecution under the penal code.. In contemporary Indian tort law, there are three torts of this variety:
Assault: While it is typically defined by case law in England or other common law jurisdictions, assault in Indian tort law (and in jurisdictions such as Singapore, Pakistan, Bangladesh, and Malaysia who adopted the Indian penal code at the formation of the Straits Settlements or the dissolution of the British Indian Empire) is based on the definition provided in section 351 of the penal code. In accordance with the penal code, Indian courts have held that to constitute assault it is not necessary that there should be some actual hurt caused. A threat constitutes assault.Rupabati v. Shyama Cut 170. Per section 351, the following criteria constitute assault:The Indian Penal Code Act No. 45 of 1860 s 351. Making of any gesture or preparation by a person in the presence of another. Intention or knowledge of likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use criminal force on him. Battery: The criteria for battery in Indian tort law is equivalent to that of criminal forceThe Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987). defined in Section 350 of the Indian Penal Code: "Whoever intentionally uses force to any person, without that person's consent in order to the committing of any offence or intending by the use of such force he will cause injury, fear, or annoyance to the person to whom the force is used is said to use criminal force to that other".The Indian Penal Code Act No. 45 of 1860 s 350. False imprisonment "is the complete deprivation of his liberty for any time, however short, without lawful cause ... There need not be any actual imprisonment in the ordinary sense."The Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987) at p 34. This tort is roughly equivalent to wrongful confinement under 342 of the penal codeThe Indian Penal Code Act No. 45 of 1860 s 342. and additionally encompasses the more specific conduct related to kidnapping under section 359.The Indian Penal Code Act No. 45 of 1860 s 359. The ingredients of this tort are as follows:'The Law of Tort, P. S. Atchuthen Pillai (Eastern Book Co, 8 Ed, 1987) at pp 34-35. Restraint must be complete. There must be no reasonable condition imposed by occupiers of premises. There must be no reasonable and honest belief which would justify the confinement.
Negligence Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. With regard to negligence, Indian jurisprudence follows the approach stated in Ratanlal & Dhirajlal: The Law of Torts,In the case of Ms Grewal & Anor v Deep Chand Soon & Ors L.R.I. 1289 at , the court held that "negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. ... negligence represents a state of the mind which however is much serious in nature than mere inadvertence. ... whereas inadvertence is a milder form of negligence, negligence by itself means and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow." laying down three elements: A duty of care (i.e. a legal duty to exercise "ordinary care and skill") A violation of the appropriate standard of care Causation (i.e. the violation resulted in injury to the plaintiff's person or property)
The Indian approach to professional negligence requires that any skilled task requires a skilled professional.Jacob Mathew v State of Punjab S.C. 0547, per R.C. Lahoti. Such a professional would be expected to be exercising his skill with reasonable competence.Jacob Mathew v State of Punjab at Professionals may be held liable for negligence on one of two findings: They were not possessed of the requisite skill which he professed to have possessed. They did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for determining whether or not either of the two findings can be made is whether a competent person exercising ordinary skill in that profession would possess or exercise in a similar manner the skill in question. Consequently, it is not necessary for every professional to possess the highest level of expertise in that branch which he practices. Professional opinion is generally accepted, but courts may rule otherwise if they feel that the opinion is "not reasonable or responsible".Vinitha Ashok v Lakshmi Hospital & Ors 4 L.R.I.292 at .
Defamation Defamation law in India largely resembles that of England and Wales. Indian courts have endorsed the defences of absolutePukhraj v State of Rajasthan SCC (Cri) 944. and qualified privilege,Rustom K. Karanjia and Anr v Krishnaraj M.D. Thackersey and Ors. (1970) 72 BOMLR 94. fair comment,‘'Ram Jethmalani Vs. Subramaniam Swamy'’ 2006 (87) DRJ 603. and justification.Santosh Tewari and Ors V State of U.P. and Anr 1996 (20) ACR 808. While statutory law in the United Kingdom provides that, if the defendant is only successful in proving the truth of some of the several charges against him, the defence of justification might still be available if the charges not proved do not materially injure the reputation,Defamation Act, 1952 (England). there is no corresponding provision in India, though it is likely that Indian courts would treat this principle as persuasive precedent.. Recently, incidents of defamation in relation to public figures have attracted public attention.Pattnaik, Aju John 'Defamation Law in India'2 March 2013
In Indian law, there is little distinction between libel and slander and both are actionable per se. In United Kingdom, only libel and certain types of slander are actionable per se.English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd 1 All ER 1. Similarly, while criminal libel in UK was abolished in 2010, both slander and libel remain criminal offences in India and other jurisdictions applying versions of the Indian Penal Code. Consequently, individuals liable for defamation in India are subject not just to damages under tort law but also to imprisonment under criminal law. In addition to damages, courts may also issue an injunction to stop further publication of defamatory material.See Prameela Ravindran v. P. Lakshmikutty Amma A.I.R. 2001 Mad 225 and 'Douglas V Hello! Ltd' (2005) 3 WLR 881.
Economic torts
Economic Torts seek to protect a person in relation to his trade, business or livelihood.
While Indian courts have been reluctant to award damages for the economic torts of simple and unlawful conspiracy as well as inducing breach of contract due to the confused state of the law,Rohtas Industries Ltd. and Anr. V Rohtas Industries Staff Union and Ors 3 SCR 12. damages are regularly awarded for torts affecting economic interests under the conspiracy to injure and courts have referred to English precedent on the matter.Rajlal Sindhi V Kaka & Company, Satna and Anr ILR MP 645.
The courts have been more willing to adopt English precedent in areas such as the tort of deceit,Ellerman & Bucknall Steamship Co. Ltd v Sha Misrimal Bherajee SuppSCR 92. unlawful interference with trade,Gujarat Bottling Co. Ltd. and others vs Coca Cola Company and others 1995 (2) ARBLR 249 (SC). intimidation,Bavisetti Venkata Surya Rao V Respondent: Nandipati Muthayya AIR1964AP382 and malicious falsehoodDabur India Ltd. V Colortek Meghalaya Pvt. Ltd. 2010 (42) PTC 88 (Del). which constitute an intentional attempt to undermine the interests of a specific party.