India should adopt a tort law to strengthen its delivery of justice

Punitive damages, fundamental to legal structures across many developed and developing nations alike, serve as a formidable deterrent against wrongdoings and a means to uphold justice and accountability. Levied over and above the actual damages incurred by victims, they are regularly imposed in cases of egregious negligence. Nations like the US, China, Australia, Canada and the UK utilize this legal provision, reinforcing a practice of accountability.

However, in stark contrast, India presents a lagging picture. The concept of punitive damages remains relatively alien to Indian jurisprudence, which has conventionally been inclined towards compensatory damages that are mostly symbolic. However, they are touted to cover the victim’s actual loss. Absence of a comprehensive law of torts in India, coupled with an inconsistent pattern of ruling on damages alone, muddies the waters.

Instances of collapsing structures, rampaging dogs and people inflicting harm on others frequently dominate our local headlines. Regardless of the perpetrator’s status, be it a businessman, government employee or a regular individual, it is often the common man who bears the brunt of misconduct or negligence. This pressing reality underscores the need for enhanced legal provisions to protect the most vulnerable among us and ensure justice is served.

Such legislation would ensure parties, including government entities, are held accountable for negligent actions. Establishing comprehensive law of torts would amplify expectations of civic responsibility and foster greater trust in the legal mechanisms that safeguard society. Inconsistent rulings on punitive damages by Indian courts in major incidents like the Uphaar cinema fire accident, compared to the Morbi bridge collapse, highlight a significant legal incongruity. While the Gujarat high court decreed an interim compensation of ₹10 lakh for the deceased and ₹2 lakh for the injured in the Morbi case, the compensation awarded in preceding cases was not alike. Despite a death count of over 3,000 in the Bhopal gas tragedy, compensation stood at just $470 million. The Uphaar cinema case saw a paltry ₹25 lakh awarded, despite 59 fatalities and over 100 injuries. This disparity in rulings, coupled with an absence of clear legislative guidance, creates a perplexing precedent and underscores the pressing need for a robust, standardized law of torts in India. It will streamline the legal landscape, providing a consistent approach to all civil wrongs, leading to better risk management and efficient use of resources. Its deterrent effect, deterring negligence and rash public behaviour, fosters safer practices in various sectors, thus protecting society on the whole. It also champions fairness, helping equalize the power dynamics between individuals and influential entities.

Unfortunately, this law never made its way into India’s legal system. Despite the British introduction of common law in the 18th century and the comprehensive codification of criminal, commercial and procedural laws by 1882, tort law remained uncodified, standing as the only major field without a legal framework. The fourth law commission in 1879 emphasized the importance of having a torts law in India, leading Frederick Pollock to draft a Law of Torts for India in 1886 (bit.ly/3omHreI). However, this draft never progressed to legislative action. Even after independence in 1947, numerous reports continued to advocate for the establishment of such a law in the country.

Multiple committees and commissions have emphasized the necessity of implementing such a law in India, particularly concerning the liability of the state in tort cases. The First Law Commission of India’s first report in April 1956 outlined proposals for legislation regarding the liability of the state 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 . The consultation paper for the National Commission to Review the Working of the Indian Constitution (bit.ly/42V62WR) that had dealt with the issue of torts also makes an interesting read. To cite it: “The present state of the law relating to liability of the State in tort in India, it is apparent that the law is neither just in its substance, nor satisfactory in its form. It denies relief to citizens injured by a wrongful act of the State, on the basis of the exercise of sovereign functions…. A political organisation which is set up to protect its citizens and to promote their welfare, should, as a rule, accept legal liability for its wrongful acts, rather them denounce such liability."

Irrespective of that, once a law of torts is introduced in India, it would be crucial to invest in the comprehensive training of legal practitioners, including both lawyers and judges, to handle tort cases competently. The reality is that courts generally exhibit a reluctance to award punitive damages. While the Supreme Court and a few high courts have recently imposed punitive damages in certain cases, they have also reduced damages in others, demonstrating variability in applying this principle.

Such decisions, often heavily influenced by case specifics and judges’ interpretations, unfortunately, do not solidify precedent, as not every victim can escalate their cases to higher courts. Therefore, it is of paramount importance to enact a law of torts that extends its jurisdiction to subordinate courts. This move would democratize access to justice, ensuring that punitive damages aren’t a privilege reserved for a select few, but a right accessible to all victims of civil wrongs.

Bibek Debroy, Aditya Sinha & Bikashita Choudhury are, respectively, chairman, additional private secretary (policy and research), and young professional at the Economic Advisory Council to the Prime Minister.