Torts in India: Dharmic Resignation, Colonial Subjugation, or "Underdevelopment"?

Tort is the area of law where in response to a private or civil wrong or injury the courts provide the remedy of allowing a lawsuit for (usually monetary) damages. Thus, the goal is to restore the victim to his or her former condition. It has been suggested that the law of torts is rather underdeveloped in India, the world's largest democracy. Most of Indian tort law was developed after the British colonization. Yet Hindu law in its various incarnations and evolutions represents the oldest continuous legal system in the world. For several millennia Hinduism was the only religious and legal system in India; in the last millennia it has coexisted with Muslim and Christian legal systems, but it has remained culturally hegemonic and applies to most Indians in some degree today. When we add to the long duration of Hindu law the fact of India's great diversity of culture, language, and even political systems over the ages, the situation appears still more troubling. Moreover, the continued underdevelopment of Indian tort law is surprising given the impressive commitment to both compassion and comprehensiveness embodied in the Indian constitution ratified in 1950 (three years after independence from Britain).

Tort law is said to be a development of the old maxim Ubi jus ibi remedium (Every right needs a remedy). Are Indians simply possessed of fewer rights in this important sphere? What are we to make of this underdevelopment regarding a fundamental question in almost all systems of law—how to make the victim whole, how to provide reparation? Does the explanation lie in some aspect of Indian society or culture?

On a first consideration of tort law in India today, the American observer is likely to be struck by its familiarity. Closer inspection, however, reveals some differences in structure and still more in operation. The Indian legal system is a standard common law democratic system. Law is conducted in English with much the same categories and vocabulary as in England and the United States. There is a written (albeit rather voluminous) constitution and there is judge-made common law. The Indian constitution provides all the fundamental rights found in the U.S. Constitution but encourages greater social and economic justice—understandably, since India is more liberal and poorer. In particular, the language of Article 39 (in the section of articles on "directive principles" or what we would call aspirational rather than enforceable laws) is a tribute to the progressive leaders who fought for India's independence. Thus, in 39(b) we see that the state is exhorted to direct its policy so "that the ownership and control of the material resources of the community are so distributed as best to subserve the common good" and in 39(c) so "that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment." Regrettably there is a gap between these guiding principles and the socioeconomic and legal realities of India. Nonetheless, concern for social justice motivates Indian judges in a way that many Western observers would find surprising if not troubling.

The underdevelopment of torts in India may seem at first glance to be in conflict with the very essence of a common law system. In an important sense there can never be lacunae in any area of law in a common law jurisdiction because, to varying degrees, the common law of England and its former dominions and colonies is available for adoption. India's constitution adopted all existing English law with the proviso of adaptation where necessary. ¹ If new rules or statutes from England are more consonant with the requirements of justice, the Indian courts are allowed to discard older common law rules in their favor. Moreover, a common law judge is entitled (within limits) to generate new law as dictated by equity. Lord Scarman in a British opinion made this...