Tort law, as defined by legal experts and academics, is a body of law that addresses and provides remedies for civil wrongs, not arising out of contractual obligations, a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to individuals, a body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief to persons who have suffered harm from the wrongful acts of others. The other definition is damage, injury or a wrongful act done willfully, negligently or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought. Legislation governing wrongful acts is yet another definition.. The four areas of torts are: negligence,, intentional interference, absolute liability and strict liability.

When we go through Indian statute books, we come across protection clauses in most of the laws stipulating that no action by way of litigation or otherwise can be taken against the state and its officials for actions taken in good faith while administering such laws. Such clauses, generally speaking, infringe sovereign fundamental rights of WE THE PEOPLE ……, who have given unto themselves the Constitution of India. The Government in our Constitutional system of rule of law based governance derives power from WE THE PEOPLE……, who are the ultimate sovereign masters. In fact, such clauses in our statutes are antithesis to the letter and spirit of the Constitution in the Republic of India. Protection clauses in laws, both civil and criminal, are repugnant to the dignity, honour and fundamental rights of the people of India, given the lack of desired ethics and objectivity among the personnel who man our system of governance. Built-in prejudices, arrogance of authority, insensitivity of those in the state apparatus towards the general public, colourable exercise of power, caste prejudices, parochialism, communalism, brutish, oppressive and ruthless repressive conduct of police and security forces make such protective shields for officials and organs of state, militate against the very democratic frame.

Laws that provide that a suit shall not lie against the Government for anything done or intended to be done and protect action taken in good faith under a particular enactment are: section 84 of the Information Technology Act, 2000, section 37 of the Drugs and Cosmetics Act, 1940, section 88 of the Chit Funds Act, 1982, section 22 of the Insurance (Regulation and Development) Act, 1999, section 88 0f the Narcotic Drugs and Psychotropic Substances Act, 1985, section 18 of the National Security Act, 1980, section 38 of the Protection of Human Rights Act, 1993, immunity under the Indian Telegraph Act, 1885, the Indian Post Office Act, 1898, to quote a few examples, do not fit in the scheme of the Constitution of India and are, therefore, violative of the people's fundamental rights including their fundamental right to life and personal liberty. Such protective clauses are vestiges of the colonial era and do not fit in the independent modern democratic India in the 21st Century, which has Government of the people, by the people and for the people.. Such laws also dilute the very accountability of the Government, thus hindering a meaningful democracy and the very process of development.

Government's shield in favour of protection clauses is that they have stood the test of time. Any tampering with the principle underlying them may unsettle the existing position and expose the authorities under the laws to unnecessary litigation and may dampen the initiative. Besides, the General Clauses Act postulates that a thing is deemed to be done in good faith, even if done negligently. Protection clauses in all enactments need to be given a re-look and amended suitably in order not to extend to negligent and willfully commissioned acts however honestly done. In this connection, it is necessary to point out if an act is performed by a statutory authority in keeping with a law and where a statutory function is discharged consistent with the statute, such acts can never give rise to a tort. Situation may, however, arise where an authority purporting to act in discharge of his statutory functions, actually acts outside his statutory authority and causes injury resulting in loss or damage in such cases, the state is liable in tort.

Tort, as defined by Oxford Dictionary, is a wrongful act or an infringement of a right (other than under contract) leading to legal liability . It, therefore, boils down to the fact that if laws however exceptional cross legal limits, redress in tort should not be barred. In this context, state has to be held liable in tort. For example, if a Government servant, say an AIR/DD news announcer, purporting to act in his official capacity, commits the tort of defamation, there is no reason why the state should not be liable in tort. Similarly, if a Government official acting as a delegate to an international conference abroad commits a wrongful act while purporting to discharge official functions, there is no reason why the Government should be excluded merely because the locus of the tort is not in India. It proves beyond doubt that there is no discernible rationale to justify protection clauses in our laws. Added to this, parameter of protection clauses especially actions in good faith need to be defined and codified to avoid their breach and excesses. And now the scope of tort law's application spreads everyday. Statutory torts also spread across work place, health and safety laws, and health and safety. Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought. In short, law of torts is derived from a combination of common law principles.

Law of Tort needs to be enacted at the earliest so that in the event of violation of fundamental rights of the citizens, it should not be open to the state to plead the defence of sovereign functions or to plead the protection of protective clauses . As it is fundamental human rights of our people are violated with impunity by the state authorities, be it custodial death, custodial rape, harassment of innocent citizens in framed up and false cases or otherwise, evil effect of corruption in Government organs, judiciary, such misdemeanor and deviant actions are sought to be protected under the actions in good faith, so much for WE THE PEOPLE……., who fend for themselves as there is no remedy in the form of accountability. Hence, the need for a law of tort. Tort achieves a variety of aims to compensate individuals injured by the risky business and private wrongs. Law of tort allows an innocent victim of a careless or negligent driver to sue the negligent driver for damages. Law of tort also governs liability for breach of an official duty.

Even after more than 50 years of the commencement of the Constitution of India, no law under Article 300, which provides for law of torts, has so far been enacted, rendering our rule of law based system of democratic governance a total sham and façade.

Presently, remedy to citizens against tortious acts of the officials of the state including judiciary lies in Article 226 writ petitions before the High Courts and Article 32 before the Supreme Court of India. Article 300 of the Constitution needs to be amended to provide for liability of the state for tortious acts and specify tortious acts for which state shall not be liable.

The Law Commission of India in its very first report on the Liability of State in Tort, headed by eminent jurist M.C. Setalvad, had recommended such a legislation. Accordingly, a Bill based on this report was introduced in the Lok Sabha by the Government of Mrs. Indira Gandhi in 1967, which was referred to a Joint Committee that lapsed with the dissolution of the Lok Sabha in 1971. It was never revived thereafter

Unless protective clauses in various laws are amended and a law on tort including liability of state in tort are enacted there will never be a meaningful democracy with abundance of human rights in India. As stated by Benjamin Cardozo in his book, 'The Growth of Law', 'the inn that shelters for the night is not the journey's end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth'. One hopes the Government of India will consider enactment of such a law to increase every body's accountability in all walks of our lives so as to improve human rights and productivity of the people of India.#