No tort law, only tort rulings—India’s liability framework grew case by case through courts & tribunals

Scope of tort law has grown incrementally but unevenly over decades—often via judicial intervention, not intentional legislative action.

Illustration: Soham Sen | ThePrint

New Delhi: Earlier this month, while ruling that a medical negligence claim can continue against the legal heirs of a deceased doctor, the Supreme Court suggested that Parliament reconsider the scope of tort liability in India.  

A bench of justices J.K. Maheshwari and Atul Chandurkar recommended that policy experts examine whether certain tort claims should survive the death of a defendant and be passed on to their legal heirs.

“We feel that it is appropriate to engage policy experts to debate the need and necessity of expanding scope of Section 306 of the 1925 Act (Indian Succession Act). The policy consideration is best left to the Law Commission to see whether there is a need to have a re-look at these provisions for future.”

The observation reflects a broader pattern in India’s tort law, which has expanded incrementally but unevenly over decades—often through judicial intervention rather than intentional legislative action.

‘Tort’ refers to a situation involving wrongful action, causing verifiable harm, with the latter seeking compensation, usually monetary damages. Medical negligence, where a physician harms a patient, is a common type of tort. So are consumer suits involving injury from a defective product or service, such as a faulty car brake. Civil defamation also counts as a tort.

But unlike the legal systems of many countries, India has no comprehensive codified tort law. Instead, liability is fragmented across a range of laws, categories and tribunal systems.

Motor accident claims go through Motor Accident Claims Tribunals under Motor Vehicles Act. Consumer disputes are heard by consumer commissions under the Consumer Protection Act. Environmental damage claims often go before the National Green Tribunal. Different tort claims are governed by different procedural and substantive rules, creating a patchwork system of specific remedies with little to no universal solutions.

However, some legal experts say this fragmentation has, paradoxically, made compensation more accessible than traditional civil litigation.

“There is a lot of development under consumer law,” says Dr Sushila, Professor and Research Director at Centre for the Study of Consumer Law & Policy, National Law University, Delhi. In contrast, she adds, “we don’t have much traditional tort law”.

She argues that specialised forums emerged largely because ordinary civil courts became too slow and inaccessible for routine compensation claims. “Why go for civil courts? Litigants are waiting for years and years.”

Instead, consumer commissions and other specialised tribunals evolved as quicker alternatives. “This is more consumer-friendly. Consumer law is developing, but it is still better than the civil courts,” she remarks.

SC’s intervention

The Supreme Court itself has repeatedly stepped in to widen the scope of tort liability, where statutory remedies appeared inadequate.

One major intervention came after the 1985 oleum gas leak in Delhi, which had occurred shortly after the infamous Bhopal gas tragedy the previous year. In 1986’s M.C. Mehta vs Union of India, the top court had created the doctrine of “absolute liability” for hazardous industries, dramatically expanding compensation claims for industrial disasters.

The court similarly transformed medical negligence litigation in 1995’s Indian Medical Association vs V.P. Shantha, ruling that patients qualified as “consumers” under the Consumer Protection Act. The judgment shifted such claims away from lengthy civil suits and into consumer commissions.

That framework remains controversial even today. Shri Ram Khanna, chairman of consumer-rights NGO Consumer VOICE, tells ThePrint that private hospitals and doctors continue to resist inclusion under consumer law.

“There is a trade union of private hospitals which has filed a petition in the Supreme Court calling for hospitals and doctors to be excluded from consumer law,” he says. Consumer VOICE has filed an intervention in the case. “We are fighting against the entire medical industry.”

High pendency, even in specialised tribunals

Khanna argues that consumer commissions have fundamentally altered the balance between customers and larger, more powerful institutions, like hospitals and corporations. “It has brought simple citizens rights, which have never been litigated before. The companies have started understanding that if they don’t address grievances, their business will be adversely affected.”

Yet, both Khanna and NLU professor Sushila acknowledge that specialised tribunals meant to provide quicker remedies are themselves increasingly burdened by delays and backlogs—a pendency that accumulates every year. Using government data, the India Justice Report revealed in March that the average case can take up to two years to be resolved.

“In Delhi, no consumer court is able to decide in less than two to three years,” Khanna adds. “It may even take five to six years in complicated courts.”

According to him, the backlog stems largely from businesses refusing to address grievances internally. “They believe eight out of ten people won’t go [to court], and they can deal with the remaining two.”

Consumer VOICE has instead advocated for mandatory complaint-resolution systems for businesses and hospitals, including the implementation of complaint-handling norms under Bureau of Indian Standards (BIS) and International Organisation for Standardisation (ISO), and the appointment of dedicated ombudsmen to oversee the grievance process.

“We have made a suggestion to adopt IS 16677, a complaint-handling standard,” Khanna says. In his view, “at least five out of ten cases will not go to court”, if businesses are required to formally acknowledge and address complaints internally.

Medical negligence remains one of the sharpest faultlines in the system. Khanna criticises the lack of enforceable grievance mechanisms within hospitals, pointing to the failure to operationalise parts of the 2010 Clinical Establishments Act.

“We have made the same demand to the Ministry of Health,” he says, calling for “complaint handling mechanisms at each medical establishment established under the laws of India”.

Prof. Sushila, meanwhile, argues that many problems in consumer tribunals stem not from the legal framework itself, but from weak institutional support.

“Logistical problems are the main problems,” she explains, pointing to severe understaffing at the specialised tribunals. “In some cases, they are hiring their own typists. Even typists are not provided.”

What if the State is the tortfeasor?

Beyond consumer law, the Supreme Court has also expanded tort principles in cases where there was an explicit violation of constitutional guarantees, such as fundamental rights.

In the 1983 Rudul Shah vs State of Bihar case, the court awarded compensation to a man who had remained imprisoned for 14 years despite an acquittal. In the 1993 Nilabati Behera vs State of Orissa, it clarified that violations of fundamental rights could themselves generate compensatory liability against the State.

Still, many scholars argue that torts in which the State is the tortfeasor—the party committing the wrong—remain some of the most difficult to litigate.

“The jurisprudence is not uniform,” says Prof. Sushila.

And Khanna agrees. “We have seen municipalities leave manholes open, so that a man falls and dies. I don’t see any suits being filed, because there is no codification.”

Prof. Sushila points, in particular, to cases in which government-run hospitals attempted to claim sovereign immunity from medical negligence suits. “The State’s vicarious liability still needs codification,” she argues, remarking that sovereign immunity arguments raised by public medical institutions were “the funniest thing you’ll find in case law”.

Isolated interventions

Courts have occasionally attempted to fill the remaining gaps themselves by recognising entirely new categories of liability.

Last year, in the Shelly Mahajan vs Ms Bhanushree Bahl & Anr case, the Delhi High Court upheld a woman’s claim for damages against her husband’s affair partner under the “tort of alienation of affection”—a type of tort largely abandoned in jurisdictions like those in the UK and the US.

The judgment illustrated the distinctly piecemeal nature of Indian tort law: fragmented, heavily judge-driven, and evolving through isolated interventions, rather than systematic legislative reform.

For now, the Supreme Court’s latest observations on extending liability to legal heirs fit squarely within that trajectory, as another incremental expansion in a legal field that continues to grow case by case.

(Edited by Mannat Chugh)