Friday, 1 July 2022

Tasks before Tort Law in a Developing Societies

 Tasks before Tort Law in a Developing Societies

By: Robin Pandey                                                                        Date: 15/03/2022

In a developing societies like India Tort Law operates in a scenario which from the point of view of Tort Law has few prominent features. One, sharp differences in the levels of development (material and social) between different States/regions/towns/localities requires the Tort Law to grapple with the advanced industrial society conflicts and the primitive society conflicts at one and the same time. Two, in view of the large percentage of our population still living below poverty line the issue of use of Tort Law is relevant only for the rest of the population living in the urban areas. Three, large bulk of our rural and urban population relies upon informal rules for reconciling its day to day civil conflicts. Four, the excessive powers enjoyed by the post-Independence State/bureaucracy, a legacy of the colonial State, and the vast range of welfare, trading and policing activities undertaken by the State constitute a potent source of harm and Five, the emergence of the privileged class individuals or corporate entities pose special kinds of threats of direct or consequential harms.

In view of these features of the developing society environment, Tort Law needs to attend to the following tasks: (1) In order to become the basic and universal conflict resolution system Tort Law will have to unify and codify all the rules in operation under the informal conflict resolution systems. This task will require generating a wide- scale acceptance for the formal Tort Law even at the cost of the informal systems. This will be possible only if the Tort Law is rationalized in the light of the common and accepted soci1al values enshrined in the Constitution, and propagated as a significant instrument for augmenting the freedoms and protecting the liberties of the members, whether rich or poor, of our society.

(2) The ordinary citizen is subjected to a variety of harm through Governmental (mainly the bureaucratic and executive limbs) misfeasance and non-feasance. Such misfeasance or non-feasance might arise in the course of trading, welfare or administrative functioning, and be the cause of harm to body, property, reputation, etc. There do exist Torts like the action for false imprisonment, assault, battery, malicious prosecution, etc. for misfeasance is regard to bodily interest and strict liability, negligence end nuisance actions for harms to bodily and property interests, but the strong presumption in favour of the Government and its superior resource position often leaves many such harm unredressed.

Cases like Rudal Sah v. State of Bihar, 1983, Sebastian Hongray v. UOI, 1984 and Bhim Singh v. State of J&K  1986 are judicial illustrations of Governmental misfeasance at its worst. To become meaningful and effective instrument for protecting individual against State lawlessness, Tort Law must be able to provide easy and speedy remedy in such type of situations. Furthermore, there are situations of harms arising out of Governmental non-feasance or inaction i.e. harms suffered in the course of inefficiently handled riots [Bhiwandi riots (1984). Delhi riots (1984), Ahmedabad riots (1985 and 1986)], floods or famines etc., which are not ordinarily redressed/redressible through a Tort action. Why should the Tort Law not be expanded to cover these new grounds that have a vital bearing for the ordinary citizen's interests?

(3) The common Tort victim needs to be protected against the harm potential of yet another special class of tortfeasors like the economically powerful and well organised corporate sector, both national and multi-national genre. The Bhopal disaster has amply highlighted the enormous harm- producing potential of the corporate sector. However, this disaster has brought to light a more important issue relating to actionability of harms. Quite a large number of the victims were hardly in a position to either institute proceedings. or sustain the technical and the long-drawn legal battle that is likely to ensue. It is appropriate that in this case the Government of India as a parent patria instituted a class action on behalf of the victims. But can the technique of class action not become a regular strategy within Tort Law for initiating Tort action on behalf of the large number of resourceless and zealless victims?

(4) There is yet another category of harm associated with the current patterns of trade and business that deserves to be brought within the ambit of Tort liability. Ordinarily Torts involve direct invasion of individual interests. But there are many situations where the invasion is directed against public property or public funds. These situations of harms can be described as victimless Torts. Since the invasion of public property/funds involves incidental invasion of the individual's interest it may not be wrong to suggest that individuals should have a cause of action even in case of victimless Torts. In any case the individuals can urge the State to bring actions against such tortfeasors. 

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