LAW OF TORTS IN INDIA

Tort had a much narrow conception under regional laws than under English laws. 1 Punishment of
crimes had much more importance than compensation for wrongs. The origin of law of torts is
linked with the establishment of British courts in India.

The first British courts undertaking were in the three presidency towns of Calcutta, madras,
Bombay. The charters which established them also required them to give judgment and sentence
according to justice and right.2

The judges who administered justice in such courts generally relied upon common law and
statutes of England which ought to be suitable taking into consideration the Indian conditions.
This led to the induction of English common and statute law in India at the time so for being
applicable for India. 3

The law of torts, being a part of the common law came into power as in presidencies of Bombay,
madras and Calcutta. It was applied only in courts exercising their common native civil
jurisdiction as differing from appellate jurisdiction.

Regarding other courts in India, express provisions which administer English laws had not been
provided. In absence of any specific law, these courts acted according to the ideals of “justice,
equity and good conscience.”4 This expression as interpreted by the privy council meant “the
ruler of English law if found applicable to Indian law and societies.5

Section 9 of the CPC enabled a civil court to try suits pertaining to civil nature, implying
jurisdiction to apply principles of justice, equity and good conscience as the law of torts. 6 The
courts in India can check the applicability of any English law in the case, whether it is suited to
Indian society and circumstances.7 It can be inferred that the application of English laws as rules
of justice, equity and good conscience has been selected.

1
Ramaswamy Iyer’s, Law of Torts, 7th edition, (1975), pp. 591, 592.
2
Letters Patent(1726)Reign of George 1.
3
Advocate General of Bengal v. Ranee Surnomoye Dossee, (1863) 9 MIA 387 (426, 427).
4
Central Provinces Laws Act 1875, s 6.
5
Waghela Rajsanji v. Shekh Masludin, (1887) 14 IA 89, 96.
6
Union Carbide Corporation v. Union of India, 1988 MPLJ 540
7
Rohtas Industries Ltd. V. Rohtas Industries Staff Union, (1976) 2 SCC 82 (93)
The Indian courts have the power to see the level of abrogation or modification done by the
statute law of England taking into consideration that the English law consist of common law and
statute law.

In case that new statutes of English law replace, modify or abrogate any existing English law,
which is more in resonance with ideals of justice, equity and good conscience, it is up to Indian
courts to accept the new rules of English law or to reject them.8

Based on the above reasoning model are the principles of English module, the law reform
(contributory negligence) act 1945 as been applicable in India despite the absence of the
corresponding act enacted by the Indian parliament.9

DEFAMATION

Every man in India is having a right to have his reputation and public image to be preserved
inviolately. This right of image and public reputation has been acknowledged as an intrinsic and
innate right of any person’s personal security.10It being a jus in rem, a right good against the
entire world. When we compare the degree of suffering occasioned by loss of reputation and
character with loss suffered due to property, the amount of injury caused by the former farely
exceeds the latter.11

This competing interest which is to be balanced by the interest which a person has in his
reputation is the interest every person has in his right to freedom. Defamation not only protects
reputation but also provides defences to the wrong, viz. truth and privilege protect the right to
freedom of speech and expression. No one has therefore been transferred the right which may
cause a loss to the reputation of any other being with mala fide intentions.12.

So we can say that the existing law on defamation is a reasonable restriction on the fundamental
right of freedom of speech and exoression conferred by article 19(1)(a) of the Indian
Constitutionand is saved by Article 1913. People in England have the feeling that the ongoing law

8
Gujrat State Road Transport v. Ramanbhai, (1987) 3 SCC 238
9
Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89
10
Kiran Bedi & Jinder Singh v. Committee of Inquiry, AIR 1989 SC 714, pp. 725, 726
11
De Crespigny v. WEslleley, (1829) 5 Bing 392
12
Dr Gopalaswamy & Another v. N.Raghuvulu Naidu, (2014) 6 CTC 762
13
Seervai,’Constitutional Law of India’ Vol. 1, 3rd Edition p. 495
of defamation is giving too much protection to reputation and is imposing too great a restriction
on the freedom of speech.14

ESSENTIALS OF DEFAMATION

The three essential elements of the tort of defamation are:-

1. The statement has to be false and defamatory in nature.

2. The statement must refer to the plaintiff.
3. The statement must be published or communicated to a third party.
A.) The very first essential of the tort of defamation is the statement has to be defamatory
i.e. which tends to have the capacity to lower the reputation of the plaintiff.
The test to check if a statement is defamatory or not will depend upon how the
right thinking members of the society are likely to take it. Further there is no
factor of intention in the tort of defamation if it is likely to cause a feeling of hatred,
contempt or dislike.
ILLUSTRATION:-
Supposing that A publishes an advertisement in a newspaper which states false
information that the company of his rival B has committed a fraud of an amount of Rs
400000. Now, this is a clear case of defamation as the newspaper is clearly going to
be read by many readers and is sure to be injuring the reputation of B and B’s
company.

NOTE : It is to be kept in mind that mere hasty expression spoken in anger and vulgar abuse to

which no hearer can attribute any set of purpose to injure the character would not

amount to defamation of any person.

B.) In an action for defamation, the plaintiff has the burden to prove that the statement
which is considered to be defamatory has directly or indirectly been referred to him.

14
Weir, Case Book on Torts, 5th edition, p. 435
 If he can reasonably infer that the statement has been targeted towards him, the
defendant would be held liable.
ILLUSTRATION:-
Suppose that a bank XYZ publishes a notice to all its branches, asking them to
refrain themselves from giving loan from people of a specific locality citing the
reason that the people of that locality are regular defaulters. Due to this notice, a
customer of XYZ Bank living in the said locality suffers a loss. Now the customer
can held XYZ Bank liable although it did not directly focus on him.

C.) Publication or communication of a defamatory statement to a third person other than

the plaintiff is one of the most important aspect of convicting any person of
defamation and unless that is done, no action for defamation will lie.
NOTE: However, if a third person wrongfully reads a letter meant for the plaintiff,
then the defendant is not likely to be liable. But if the defamatory object sent or
communicated is likely to be known by third party, there will be a valid
communication and is liable for defamation.