Fault Lines: Tort Law as Cultural Practice

By David M. Engel; Michael McCann | Go to book overview

CHAPTER THREE
India's Tort Deficit
Sketch for a Historical Portrait

MARC GALANTER


The Not-Quite Arrival of Tort Law

Doctrinally, India appears to have a tort law modeled on that of England, with some local modifications and statutory supplements. But this is deceptive. The history of tort in India is quite distinctive. The British brought the common law to India in the eighteenth century; in the quarter century following the 1857 revolt, the legal system was rationalized and systematized. A unified hierarchy of courts was established in each region. A series of codes, based on English law and applicable throughout British India, was adopted (Acharyya 1914; Galanter 1968; Stokes 1887). By 1882 there was virtually complete codification of all fields of criminal, commercial, and procedural law; tort was the only major field of law left uncodified.

The need for a tort code was urged by Sir Henry Maine, Sir James Stephen, and the Fourth Law Commission which reported in 1879. An Indian Civil Wrongs Bill, drafted by Sir Frederick Pollock in 1886, at the instance of the Government of India, was never taken up for legislative action (Jain 1966, 658). Looking back from 1914 in a magisterial account of codification, a distinguished advocate found the failure to enact a code “inexplicable” (Acharyya 1914, 306). But a decade later the Civil Justice Committee 1924–25, noting that the matter “had been under consideration for some years,” observed that “there is no branch of law which is more free from blame of contributing to the law's delays” (Government of India 1925, 535–36), In 1872, Stephen had asserted that “a good law of torts

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