ForumIAS announcing GS Foundation Program for UPSC CSE 2025-26 from 27th May. Click Here for more information.
Contents
Source: The post is based on an article “The Pee Case: Why India Needs Tort Laws” published in The Times of India on 14th January 2023.
Syllabus: GS 2 – Governance
Relevance: structural problems with Indian laws
News: The article discusses a recent case of misbehavior with a woman in the flight.
What are the issues?
The accused has been booked under IPC provisions Section 354 (assault or criminal force on woman with intent to outrage her modesty), 354A (sexual harassment), 509 (act intended to insult the modesty of a woman), 510 (misconduct in public by a drunken person) and 294 (obscene acts).
The court has also denied the bail on the grounds of outraging the modesty of a woman. However, the offences for which accused has been booked is not appropriate.
Why IPC sections that have been applied on Mishra is not appropriate?
Person has been booked for an offence that is punishable irrespective of the victim (man or woman).
The IPC sections that deal with offences or sexual offences against women misleads the case and there is no evidence at all that Mishra’s act was intended as a sexual offence.
This shows there are structural problems with the Indian laws and judicial practices. The concept of tort law is still underdeveloped in India which misleads these kinds of cases that are less about criminal intentions and much more about negative consequences for the victim.
What is the tort law and how is it applied?
Under tort law, a person who is injured or the aggrieved party is compensated by the payment of damage. The accused is asked for compensation. Tort cases are civil cases.
Tort law can be applied to damages caused to a person’s health, safety, his environment, his property, his economic interests, or his reputation.
The application of tort law needs to be applied through common sense. Every damage caused cannot be considered the grounds for receiving compensation and every case need not be treated as criminal case.
However, most of the Indian laws do not have tort clauses in it.
Why do Indian laws not have tort clauses?
One of the reasons behind excluding the tort clauses is to provide space to the state functionaries. It is an inappropriate established fact in India that the state and its functionaries cannot do wrong or cause damage.
Thus, India’s Parliament never considered a comprehensive tort law which saved the state from paying compensation to victims. It was left for the judiciary to develop a tort jurisprudence.
Moreover, there are some laws in India such as The Environment Protection Act 1986, Prevention of Sexual Harassment at Workplaces Act 2013 and Motor Vehicles Act 2019 which have tortious clauses.
However, building tort into all laws, making it a part of social, governance and legal narratives is missing in India. Some judges have argued for codification of torts, but have not been successful.
Why is there a need to codify tort in India?
If tort is codified in India, cases like Mishra’s can be dealt with more logically and it will also benefit many other victims.
For example, victims of road accidents or those petitioning consumer courts and the complaints related with service providers of government or private.
What can be the way ahead?
India needs to have tort law like the US has Federal Tort Claims Act that compensates individuals who have suffered personal injury, death, or property loss caused by wrongful act of an employee of the federal government.
However, there is a need for the Indian government to properly write the tort laws specifying the kind of liability and standard of proof, and judges must apply their mind and common sense when hearing tort cases.
