Tort in India

Facts. M.C. Mehta v. Union of India, AIR 1987 SC 1086, decided on 20 December 1986. Oleum gas escaped from a unit of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi. Applications for compensation were made in a public interest petition already pending about the same plant, and the Court had to decide the measure of liability of an enterprise carrying on a hazardous or inherently dangerous industry when an accident in it kills or injures people.

Held. The Court set out the rule in Rylands v. Fletcher, including its requirement of a non-natural use of land and its exceptions, and then declined to apply it. It held that a rule evolved in the nineteenth century, before the industrial developments in question, could not guide a modern economy; that law must grow to meet new situations; and, in terms, that Indian courts cannot allow their judicial thinking to be constricted by the law as it prevails in England or in any other foreign country, because India no longer needs the crutches of a foreign legal order. It laid down that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, is absolutely liable to compensate all those affected by an accident in that activity, and cannot rely on any exception available under Rylands v. Fletcher; and that compensation must be related to the magnitude and capacity of the enterprise so as to deter.

Why it matters here. It is the clearest statement that English tort law is persuasive and not binding, and it is the proof that Indian courts will make their own rule where English law does not fit Indian conditions. Chapter [Absolute Liability] works the rule itself out in full.

The second proof. In Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, the Court described the law of torts as a developing law whose frontiers cannot be strictly barricaded, and worked out the elements of tortious liability in its own terms rather than by citing an English text as authority.

Where Indian statute has taken over

The textbook line that "the law of torts in India is uncodified" is true of the general law and misleading about the practical law. Four statutes on this syllabus impose tortious or quasi-tortious liability by legislation, and between them they cover most of the claims actually made in India.

The Fatal Accidents Act 1855 gave the family of a person killed by a wrongful act an action that the common law refused them. Chapter [Death and the Fatal Accidents Act 1855] works it out.

The Motor Vehicles Act 1988 replaces the common law action for a road accident with a claim before a Claims Tribunal, and section 164 gives compensation of five lakh rupees for a death and two and a half lakh for grievous hurt without the claimant having to plead or prove any wrongful act, neglect or default. Chapters [What a Motor Accident Claim Is] and [Liability without Fault] work it out.

The Consumer Protection Act 2019 gives a purchaser of goods or services a remedy for defect and deficiency before a Commission instead of a suit for damages, and section 2 defines the terms on which it operates. Module IV works it out.

The Public Liability Insurance Act 1991 makes the owner of a hazardous substance liable under section 3 to give relief for death or injury caused by an accident, again with no inquiry into fault. Chapter [The Public Liability Insurance Act 1991] works it out.

And one further Indian development is entirely judge-made: the award of compensation by a constitutional court for the violation of a fundamental right, which chapter [Constitutional Tort] deals with, and which has no English equivalent at all.

A worked example

A tanker belonging to a chemical company overturns in a Mumbai suburb in 2026 and toxic liquid injures forty people. Where does the injured person's lawyer look?

Not in a Torts Act, because there is none.

In the Motor Vehicles Act 1988 first, because the injury arose out of the use of a motor vehicle: a claim lies before the Claims Tribunal under section 166, with the no-fault entitlement under section 164 available immediately.

In the Public Liability Insurance Act 1991 next, because the injury was caused by an accident while handling a hazardous substance: section 3 gives relief without proof of fault, and the owner is required to be insured.

In the common law of negligence and in the rule of absolute liability for anything beyond the statutory figures, because M.C. Mehta v. Union of India, AIR 1987 SC 1086, allows a claim against the enterprise measured by its capacity.

In article 32 or 226 if a public authority's failure caused the escape, because compensation for the infringement of the right to life is available in a writ petition.

Five sources, one accident, no code. That is what "tort in India" means in practice.

Distinctions that carry marks

What it does NOT mean

It does not mean English cases are binding in India. They are persuasive. A High Court that follows an English decision does so because it agrees with it, and the Supreme Court has refused to follow English law when it did not fit.

It does not mean India has no law of torts. It means there is no Torts Act. The law exists in decisions and in the four statutes above, and it is enforced daily.

It does not mean the rule of justice, equity and good conscience is a licence to decide by instinct. It has always been understood as a direction to apply a reasoned rule, and in practice the reasoned rule was usually the English one.

It does not mean codification would be an improvement. The uncodified subject is what allowed the Supreme Court to create absolute liability in a fortnight in 1986. A code would have required an amending Act.

Quick revision

1. The law of torts in India is uncodified and was received from English common law.
2. Presidency towns: English law by Charter. Mofussil: justice, equity and good conscience.
3. Article 372 of the Constitution continues the pre-Constitution law until altered.
4. English decisions are persuasive, not binding, and are applied only so far as they suit Indian conditions.
5. M.C. Mehta v. Union of India, AIR 1987 SC 1086: absolute liability created; India does not need the crutches of a foreign legal order.
6. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: a developing law whose frontiers cannot be barricaded.
7. Statutory inroads: the Fatal Accidents Act 1855, the Motor Vehicles Act 1988 (section 164), the Consumer Protection Act 2019 and the Public Liability Insurance Act 1991 (section 3).
8. Section 2(m) of the Limitation Act 1963 is the only statutory definition of "tort" in Indian law.
9. Constitutional compensation under articles 32 and 226 is an Indian development with no English parallel.

Test yourself

1. Write a note on the law of torts in India. The law of torts in India is uncodified. It came in as English common law, applied by the Presidency courts under their Charters and by the courts outside them under the rule of justice, equity and good conscience, and it is continued today by article 372 of the Constitution, which keeps in force the law in force before the Constitution until it is altered. English decisions are persuasive only, and are followed so far as they suit Indian conditions. Indian courts have departed from them: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court refused to apply the rule in Rylands v. Fletcher and created a rule of absolute liability instead, saying that India no longer needs the crutches of a foreign legal order. Parliament has also intervened for the commonest claims: the Fatal Accidents Act 1855, the Motor Vehicles Act 1988, whose section 164 gives compensation without proof of fault, the Consumer Protection Act 2019 and the Public Liability Insurance Act 1991, whose section 3 does the same for hazardous substances. Section 2(m) of the Limitation Act 1963 supplies the only statutory definition of a tort.

2. Explain the rule of justice, equity and good conscience and its role in the reception of tort law in India. Outside the Presidency towns the courts were directed to decide, where no specific rule of law applied, according to justice, equity and good conscience. Since the judges were trained in English law and no Indian statute covered the field, the rule operated in practice as authority to apply the English common law of torts wherever it appeared reasonable. That is how trespass, nuisance, defamation and negligence became Indian law without any Indian legislature enacting them. The rule was never a licence to decide by instinct: it required a reasoned rule, and it always allowed a court to refuse an English rule that did not suit Indian conditions, which is the seed of the modern position that English decisions are persuasive only.

3. Are English decisions binding on Indian courts in matters of tort? No. They are of persuasive authority. Indian courts follow them where the reasoning is sound and the rule suits Indian conditions, and they decline to follow them where it does not. The clearest example is M.C. Mehta v. Union of India, AIR 1987 SC 1086, in which a Bench of five judges set out the rule in Rylands v. Fletcher, held that a rule evolved in the nineteenth century could not govern a modern industrial economy, said that Indian judicial thinking cannot be constricted by the law as it prevails in England, and laid down a rule of absolute liability which English law does not recognise.

4. "India has no law of torts because it has no Torts Act." Comment. The premise is right and the conclusion is wrong. There is no code of tort law in India, and there is unlikely to be one. But the law exists, first in the common law received here and continued by article 372, second in the decisions of Indian courts which have developed it independently, and third in statutes that impose tortious liability directly: the Fatal Accidents Act 1855, the Motor Vehicles Act 1988, the Consumer Protection Act 2019 and the Public Liability Insurance Act 1991. In terms of the number of claims actually brought in India, the statutory law of torts is far larger than the common law part, because almost every road accident and almost every consumer complaint is a statutory claim.