B.C. NIRMAL, B. Sc, LL.M, PhD (Law), former VICE CHANCELLOR,National University of Study and Research in Law, Ranchi- 835215Jharkhand. Former Professor, Head & Dean, Law School, BHU
THE LAW of tort has been evolving through centuries, and each passing year
adds to its existing c... more THE LAW of tort has been evolving through centuries, and each passing year adds to its existing corpus. Traceable to a time when the penal law was not the law of crimes, it was law of wrongs1 or, to use a more technical term, tort, it developed in a time when the states were not sufficiently organised to have a centralised prosecuting authority, and the task of punishing the wrongful conduct was left to private individuals.2As it is said, tort law was a form of legalised self-help. Tort law in its present form owes much to the rigours of judicial minds that have over the years toiled hard to put in place a series of doctrines and principles that form the foundation of the edifice of tort law.4 That being so, judicial pronouncements occupy a primal place in the realm of law of tort, and it is a matter of great significance to be aware of what the courts have said on a particular question of tortious liability. The year under review brings to fore some of the important judgments of the Supreme Court and the high courts that have either added to tort law jurisprudence in India or have at last reiterated or applied the time-tested principles of tort law in the context of Indian cases.
Tort LawVol. LVII] 619
* Former Vice-chancellor, National University of Study and Research in Law... more Tort LawVol. LVII] 619 * Former Vice-chancellor, National University of Study and Research in Law, Ranchi, and Former Dean, Faculty of Law, Banaras Hindu University. The author acknowledges the research assistance provided by Rabindra Kr. Pathak, Assistant Professor, NUSRL, Ranchi. 1 M Stuart Madden, “Tort Law Through Time And Culture: Themes of Economic Efficiency” in M Stuart Madden (ed) Exploring Tort Law 12 (Cambridge University Press, 2005). 2 Matthew D. Adler, “Corrective Justice and Liability for Global Warming” 155 U. Pa. L. Rev. 1859 (2007). 3 Hanoch Sheinman, “Tort Law and Corrective Justice” 22 Law and Philosophy 21(2003). 4 “A draft code of torts for India was prepared by Sir Frederick Pollock but it was never enacted into law.” See, M C Setalvad, The Common Law in India 110 (London, Steven and Sons Limited, 1960). 5 Per Krishna Iyer, J in Rohatas Industries Limited v. Rohats Industries Staff Union, AIR 1976 SC 425. LAW OF TORT B C Nirmal* I INTRODUCTION TORT LAW represents a society’s revealed truth as to the behaviours it wishes to encourage and the behaviours it wishes to discourage. The sphere of tort law is getting wider as a result of the felt necessities of the prevailing times, more so in areas such as climate change that requires a revisitation to the foundational idea of corrective justice, an idea so essential to understand the working of tort law. However, as regards tort law in India, based upon Common Law and largely uncodified, this law has evolved keeping in view the ‘local conditions’ as it was believed that we cannot incorporate English torts without any adaptation into Indian law. This process of evolution and adaptation rests upon the contribution made by way of judicial pronouncements. The ‘survey’ seeks to map the growth of tort law each year taking into the account the judgments of the Supreme Court and the high courts that contribute to its growth. This year’s survey explores some of the important judgments that need to be discussed in order to understand and appreciate the incremental growth that has taken place in tort law.
Public international law has gradually and significantly
become an essential part of legal educat... more Public international law has gradually and significantly become an essential part of legal education in the preceding few decades reflecting its ever-widening sphere and impact. The growing significance is also an indicator1 of the ways international law and relations have evolved and developed in the late twentieth and twenty first century. The world today is a far cry from what it used to be decades ago, more so because of the advent of globalisation, consequent growth in international trade, globalisation of economy, worldwide human rights movement, and momentous advancements in technology. The rapidity with which imperceptible and epochal changes have engulfed human life has had its own indelible imprint upon the growth of international law and the same has begun to find reflection in ways adopted to teach international law. Besides the traditional bifurcation of international law into public international law and private international law, there are many other areas of study that today remain subsumed under the rubric of international law.
Research is a systematic and organized academic enterprise aimed at the advancement of knowledge ... more Research is a systematic and organized academic enterprise aimed at the advancement of knowledge through the establishment of new facts in any branch of knowledge.
Based on the experience of the author as Vice Chancellor of a National Law University, this paper... more Based on the experience of the author as Vice Chancellor of a National Law University, this paper supplements and compliments the author's paper- 'Legal Education in India: Problems and Challenges', already available on Academia.edu
The paper rraces ln detail juvenile justice rarv fiom the perspective of intemational law' as app... more The paper rraces ln detail juvenile justice rarv fiom the perspective of intemational law' as applicable ir India. The.e is a grorring need to understanrl the evolution of norms and procedure as regards juvenile justice in the realm of hrernal lau' such norms are traceabre to , hori of conventions and Rures that seek to lav down body of nbrmative srandards to prorecr the righrs ortrr"l,rrr.rir"T:j.ff#;; of juvenile justice jurisprudenc" *-orrld remain incomprere if it is not preceded by an in-deprh analysis of normari'e framervork under inremationar ,r;;'Jr;,;.*r"l :; juvenile justice i,, India owes to a great degree to such normati'e standards as is reflected in judicial pronouncemenrs of the Supreme Court and legislati'e enactmenrs.
Violence against women is a global phenomenon. It touches all aspects of women's live from the ho... more Violence against women is a global phenomenon. It touches all aspects of women's live from the home to the work place to the street and is detrimental to development and incompatible with basis human dignity. Although violence against women prevents them from enjoying the benefits of human rights and fundamental freedom little attention has been paid to it and other issues associated with women's rights by the mainstream UN human rights organizations until recently. The state of affairs stood such because of the narrow focus of the international human rights low and traditional conceptions of state responsibility. The global campaign for the recognition of women's rights as human rights , however ,challenged the underlying assumptions of the concept of human rights and created a global consensus in favour of the integration integration of the equal status and rights of women with the mainstream activity of the united nations in the field of human rights. In consequence, women's rights have recently gained recognition as human rights and violence against women is today seen as a violation of the same for which states are accountable under international human rights low.
2 A total of 40 million are internally displaced people, 3.1 million asylum seekers, 68.5 million... more 2 A total of 40 million are internally displaced people, 3.1 million asylum seekers, 68.5 million forcibly displaced people worldwide, 1,02,800 refugees resettled in 138 countries, 85% of the world's displaced people are in developing countries-Syrian Arab Republic,
The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over wa... more The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over war crimes committed in the Palestinian territories. The ruling was delivered by a pre-trial chamber of three ICC judges. This ruling was a result of the Palestinian Authority gaining formal membership of ICC in 2015, and the fact that the Palestine Authority had referred the situation to the court. According to the ruling, it is not only Israelis and the Israel Defence Forces who could be potentially prosecuted for war crimes, but also Palestinians and groups like Hamas, that have been accused of targeting Palestinian civilians, including using them as human shields. Israel, which is not a member of the ICC, maintained that the court has no jurisdiction over the area in question. However, the court ruled that its jurisdiction do extend to the West Bank, Gaza and East Jerusalem. At the same time, the ruling clarified that the decision does not imply any attempt to determine Palestinian statehood. It is in this backdrop, an attempt is made to first, appraise the role of ICC in closing the gap of accountability for international crimes, and secondly, grapple with the perennial and thorny issue of Palestine's statehood and in this backdrop to offer some of the reflections on the nature of the international law and the influence of world politics on it. The paper concludes that the decision is pragmatic, historic and futuristic.
Concept of Statehood Under International Law: Understanding in the Light of Situation in Palestine
SSRN Electronic Journal
The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over wa... more The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over war crimes committed in the Palestinian territories. The ruling was delivered by a pre-trial chamber of three ICC judges. This ruling was a result of the Palestinian Authority gaining formal membership of ICC in 2015, and the fact that the Palestine Authority had referred the situation to the court. According to the ruling, it is not only Israelis and the Israel Defence Forces who could be potentially prosecuted for war crimes, but also Palestinians and groups like Hamas, that have been accused of targeting Palestinian civilians, including using them as human shields. Israel, which is not a member of the ICC, maintained that the court has no jurisdiction over the area in question. However, the court ruled that its jurisdiction do extend to the West Bank, Gaza and East Jerusalem. At the same time, the ruling clarified that the decision does not imply any attempt to determine Palestinian statehood. It is in this backdrop, an attempt is made to first, appraise the role of ICC in closing the gap of accountability for international crimes, and secondly, grapple with the perennial and thorny issue of Palestine’s statehood and in this backdrop to offer some of the reflections on the nature of the international law and the influence of world politics on it. The paper concludes that the decision is pragmatic, historic and futuristic.
Translating Contexts, Transforming Cultures: A Bengali Adaptation of Mahesh Elkunchwar's Vāḍā Cirebandī
Sanglap: Journal of Literary and Cultural Inquiry, 2018
The concept of translation is usually limited within the frontiers of languages, often conceived ... more The concept of translation is usually limited within the frontiers of languages, often conceived as words and phrases. It restricts the diverse possibilities of going beyond textual translation to analyze contextualtranslation, or "transcontextualization". This argument attempts to realize a (normally) unrealizable perspective on translation through Sohag Sen's Bengali adaptation of Mahesh Elkunchwar's play Vāḍā Cirebandī (The Old-Stone Mansion, 1985), an adaptation which encompasses both the text and its context(s). The criticism of colonial legacies in postcolonial India, as unraveled through the rural-urban divide in this play, does not portray identical obstacles and grievances in Elkunchwar's Maharashtra and Sohag Sen's Bengal. Keeping different contexts in mind, this paper will elaborate the manifold ways in which transcreation/transcontextualization exposes the problem of generalized textual representations. It will also reflect upon the diverse ways...
ISIL Yearbook of International Humanitarian and Refugee Law, 2018
This article adopts a phenomenological approach to test the strengths and weaknesses of internati... more This article adopts a phenomenological approach to test the strengths and weaknesses of international refugee law by undertaking a case study of the nature and extent of India's compliance with the relevant international law in the case of Rohingya refugees. Although essentially written from an India specific context, this article takes on broader significance by critically examining the existing international norms related to international refugee protection and durable solutions to the refugee problems and by contextualizing them in reference to Rohingya in India and suggesting which one of three available options-local integration, resettlement, and voluntary repatriation will be a viable mechanism to resolve the Rohingya controversy. As Rohingyas are not only a distinct historical and ethnic persecuted minority, they are stateless too. For this reason, the penultimate part of the study deals with statelessness in some detail. The last leg of this study purports to be *
The paper convincingly argues that having deeply rooted in the cultural and civilisational ethos ... more The paper convincingly argues that having deeply rooted in the cultural and civilisational ethos of India of more than four thousand years, inclusive secularism is an entirely indigenous Indian concept, which has successfully united all casts, religions and ideological manifestations. It is only an external human value, but has also been recognised by the Supreme Court as a basic feature of the Indian Constitution. Although with the ascendency of hindutva forces to power, India has become a de facto hindu rastra, as a result of which the novel concept of secularism is been pilloried by the right wing forces.
THE LAW of tort has been evolving through centuries, and each passing year
adds to its existing c... more THE LAW of tort has been evolving through centuries, and each passing year adds to its existing corpus. Traceable to a time when the penal law was not the law of crimes, it was law of wrongs1 or, to use a more technical term, tort, it developed in a time when the states were not sufficiently organised to have a centralised prosecuting authority, and the task of punishing the wrongful conduct was left to private individuals.2As it is said, tort law was a form of legalised self-help. Tort law in its present form owes much to the rigours of judicial minds that have over the years toiled hard to put in place a series of doctrines and principles that form the foundation of the edifice of tort law.4 That being so, judicial pronouncements occupy a primal place in the realm of law of tort, and it is a matter of great significance to be aware of what the courts have said on a particular question of tortious liability. The year under review brings to fore some of the important judgments of the Supreme Court and the high courts that have either added to tort law jurisprudence in India or have at last reiterated or applied the time-tested principles of tort law in the context of Indian cases.
Tort LawVol. LVII] 619
* Former Vice-chancellor, National University of Study and Research in Law... more Tort LawVol. LVII] 619 * Former Vice-chancellor, National University of Study and Research in Law, Ranchi, and Former Dean, Faculty of Law, Banaras Hindu University. The author acknowledges the research assistance provided by Rabindra Kr. Pathak, Assistant Professor, NUSRL, Ranchi. 1 M Stuart Madden, “Tort Law Through Time And Culture: Themes of Economic Efficiency” in M Stuart Madden (ed) Exploring Tort Law 12 (Cambridge University Press, 2005). 2 Matthew D. Adler, “Corrective Justice and Liability for Global Warming” 155 U. Pa. L. Rev. 1859 (2007). 3 Hanoch Sheinman, “Tort Law and Corrective Justice” 22 Law and Philosophy 21(2003). 4 “A draft code of torts for India was prepared by Sir Frederick Pollock but it was never enacted into law.” See, M C Setalvad, The Common Law in India 110 (London, Steven and Sons Limited, 1960). 5 Per Krishna Iyer, J in Rohatas Industries Limited v. Rohats Industries Staff Union, AIR 1976 SC 425. LAW OF TORT B C Nirmal* I INTRODUCTION TORT LAW represents a society’s revealed truth as to the behaviours it wishes to encourage and the behaviours it wishes to discourage. The sphere of tort law is getting wider as a result of the felt necessities of the prevailing times, more so in areas such as climate change that requires a revisitation to the foundational idea of corrective justice, an idea so essential to understand the working of tort law. However, as regards tort law in India, based upon Common Law and largely uncodified, this law has evolved keeping in view the ‘local conditions’ as it was believed that we cannot incorporate English torts without any adaptation into Indian law. This process of evolution and adaptation rests upon the contribution made by way of judicial pronouncements. The ‘survey’ seeks to map the growth of tort law each year taking into the account the judgments of the Supreme Court and the high courts that contribute to its growth. This year’s survey explores some of the important judgments that need to be discussed in order to understand and appreciate the incremental growth that has taken place in tort law.
Public international law has gradually and significantly
become an essential part of legal educat... more Public international law has gradually and significantly become an essential part of legal education in the preceding few decades reflecting its ever-widening sphere and impact. The growing significance is also an indicator1 of the ways international law and relations have evolved and developed in the late twentieth and twenty first century. The world today is a far cry from what it used to be decades ago, more so because of the advent of globalisation, consequent growth in international trade, globalisation of economy, worldwide human rights movement, and momentous advancements in technology. The rapidity with which imperceptible and epochal changes have engulfed human life has had its own indelible imprint upon the growth of international law and the same has begun to find reflection in ways adopted to teach international law. Besides the traditional bifurcation of international law into public international law and private international law, there are many other areas of study that today remain subsumed under the rubric of international law.
Research is a systematic and organized academic enterprise aimed at the advancement of knowledge ... more Research is a systematic and organized academic enterprise aimed at the advancement of knowledge through the establishment of new facts in any branch of knowledge.
Based on the experience of the author as Vice Chancellor of a National Law University, this paper... more Based on the experience of the author as Vice Chancellor of a National Law University, this paper supplements and compliments the author's paper- 'Legal Education in India: Problems and Challenges', already available on Academia.edu
The paper rraces ln detail juvenile justice rarv fiom the perspective of intemational law' as app... more The paper rraces ln detail juvenile justice rarv fiom the perspective of intemational law' as applicable ir India. The.e is a grorring need to understanrl the evolution of norms and procedure as regards juvenile justice in the realm of hrernal lau' such norms are traceabre to , hori of conventions and Rures that seek to lav down body of nbrmative srandards to prorecr the righrs ortrr"l,rrr.rir"T:j.ff#;; of juvenile justice jurisprudenc" *-orrld remain incomprere if it is not preceded by an in-deprh analysis of normari'e framervork under inremationar ,r;;'Jr;,;.*r"l :; juvenile justice i,, India owes to a great degree to such normati'e standards as is reflected in judicial pronouncemenrs of the Supreme Court and legislati'e enactmenrs.
Violence against women is a global phenomenon. It touches all aspects of women's live from the ho... more Violence against women is a global phenomenon. It touches all aspects of women's live from the home to the work place to the street and is detrimental to development and incompatible with basis human dignity. Although violence against women prevents them from enjoying the benefits of human rights and fundamental freedom little attention has been paid to it and other issues associated with women's rights by the mainstream UN human rights organizations until recently. The state of affairs stood such because of the narrow focus of the international human rights low and traditional conceptions of state responsibility. The global campaign for the recognition of women's rights as human rights , however ,challenged the underlying assumptions of the concept of human rights and created a global consensus in favour of the integration integration of the equal status and rights of women with the mainstream activity of the united nations in the field of human rights. In consequence, women's rights have recently gained recognition as human rights and violence against women is today seen as a violation of the same for which states are accountable under international human rights low.
2 A total of 40 million are internally displaced people, 3.1 million asylum seekers, 68.5 million... more 2 A total of 40 million are internally displaced people, 3.1 million asylum seekers, 68.5 million forcibly displaced people worldwide, 1,02,800 refugees resettled in 138 countries, 85% of the world's displaced people are in developing countries-Syrian Arab Republic,
The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over wa... more The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over war crimes committed in the Palestinian territories. The ruling was delivered by a pre-trial chamber of three ICC judges. This ruling was a result of the Palestinian Authority gaining formal membership of ICC in 2015, and the fact that the Palestine Authority had referred the situation to the court. According to the ruling, it is not only Israelis and the Israel Defence Forces who could be potentially prosecuted for war crimes, but also Palestinians and groups like Hamas, that have been accused of targeting Palestinian civilians, including using them as human shields. Israel, which is not a member of the ICC, maintained that the court has no jurisdiction over the area in question. However, the court ruled that its jurisdiction do extend to the West Bank, Gaza and East Jerusalem. At the same time, the ruling clarified that the decision does not imply any attempt to determine Palestinian statehood. It is in this backdrop, an attempt is made to first, appraise the role of ICC in closing the gap of accountability for international crimes, and secondly, grapple with the perennial and thorny issue of Palestine's statehood and in this backdrop to offer some of the reflections on the nature of the international law and the influence of world politics on it. The paper concludes that the decision is pragmatic, historic and futuristic.
Concept of Statehood Under International Law: Understanding in the Light of Situation in Palestine
SSRN Electronic Journal
The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over wa... more The International Criminal Court (ICC) on February 5, 2021 said that ICC has jurisdiction over war crimes committed in the Palestinian territories. The ruling was delivered by a pre-trial chamber of three ICC judges. This ruling was a result of the Palestinian Authority gaining formal membership of ICC in 2015, and the fact that the Palestine Authority had referred the situation to the court. According to the ruling, it is not only Israelis and the Israel Defence Forces who could be potentially prosecuted for war crimes, but also Palestinians and groups like Hamas, that have been accused of targeting Palestinian civilians, including using them as human shields. Israel, which is not a member of the ICC, maintained that the court has no jurisdiction over the area in question. However, the court ruled that its jurisdiction do extend to the West Bank, Gaza and East Jerusalem. At the same time, the ruling clarified that the decision does not imply any attempt to determine Palestinian statehood. It is in this backdrop, an attempt is made to first, appraise the role of ICC in closing the gap of accountability for international crimes, and secondly, grapple with the perennial and thorny issue of Palestine’s statehood and in this backdrop to offer some of the reflections on the nature of the international law and the influence of world politics on it. The paper concludes that the decision is pragmatic, historic and futuristic.
Translating Contexts, Transforming Cultures: A Bengali Adaptation of Mahesh Elkunchwar's Vāḍā Cirebandī
Sanglap: Journal of Literary and Cultural Inquiry, 2018
The concept of translation is usually limited within the frontiers of languages, often conceived ... more The concept of translation is usually limited within the frontiers of languages, often conceived as words and phrases. It restricts the diverse possibilities of going beyond textual translation to analyze contextualtranslation, or "transcontextualization". This argument attempts to realize a (normally) unrealizable perspective on translation through Sohag Sen's Bengali adaptation of Mahesh Elkunchwar's play Vāḍā Cirebandī (The Old-Stone Mansion, 1985), an adaptation which encompasses both the text and its context(s). The criticism of colonial legacies in postcolonial India, as unraveled through the rural-urban divide in this play, does not portray identical obstacles and grievances in Elkunchwar's Maharashtra and Sohag Sen's Bengal. Keeping different contexts in mind, this paper will elaborate the manifold ways in which transcreation/transcontextualization exposes the problem of generalized textual representations. It will also reflect upon the diverse ways...
ISIL Yearbook of International Humanitarian and Refugee Law, 2018
This article adopts a phenomenological approach to test the strengths and weaknesses of internati... more This article adopts a phenomenological approach to test the strengths and weaknesses of international refugee law by undertaking a case study of the nature and extent of India's compliance with the relevant international law in the case of Rohingya refugees. Although essentially written from an India specific context, this article takes on broader significance by critically examining the existing international norms related to international refugee protection and durable solutions to the refugee problems and by contextualizing them in reference to Rohingya in India and suggesting which one of three available options-local integration, resettlement, and voluntary repatriation will be a viable mechanism to resolve the Rohingya controversy. As Rohingyas are not only a distinct historical and ethnic persecuted minority, they are stateless too. For this reason, the penultimate part of the study deals with statelessness in some detail. The last leg of this study purports to be *
The paper convincingly argues that having deeply rooted in the cultural and civilisational ethos ... more The paper convincingly argues that having deeply rooted in the cultural and civilisational ethos of India of more than four thousand years, inclusive secularism is an entirely indigenous Indian concept, which has successfully united all casts, religions and ideological manifestations. It is only an external human value, but has also been recognised by the Supreme Court as a basic feature of the Indian Constitution. Although with the ascendency of hindutva forces to power, India has become a de facto hindu rastra, as a result of which the novel concept of secularism is been pilloried by the right wing forces.
Methodology refers to the way we approach a problem to obtain its solution which may also mean th... more Methodology refers to the way we approach a problem to obtain its solution which may also mean the way we conduct the research. A successful legal research will start with the understanding that research is a process.Diierent kinds of research or researches done under diierent disciplines are bound to use diierent methodolo-gies, yet the basic approach towards research remains the same. The approach adopted in the research has deep impact upon the ndings and the solutions ooered by the research.In an attempt to bring various perspectives, dimensions, and applications of research in law together, the present volume 'Legal Research and Methodology (Perspectives, Process and Practice)' divides the subject into three parts viz. Perspectives on Legal Research, Process of Research, and Research Methodology: Practical Applications. The text is compiled in a sequence so that it meets the requirements of students, researchers and practitioners alike who often have highly varying degree of research experience and expertise. In its twenty nine chapters the book covers an extensive range of issues which make it a distinctive contribution in the eld of law and research in law. The purpose of the book is to present contributions which show the realistic picture of the nuances of legal research. A lot has been written on the subject in past, however, collection of thoughts on various perspectives in addition to the general aspects of methodology was missing. The third part of the book gives prominence to the practical aspects of the diierent dimensions of the research methodology. The division of the book in the three parts serves a clear purpose of guiding any researcher through his or her research viz. explaining the perspective and approach to be adopted, research process to be followed and nally presenting the work in the form of writing the research outcomes. The present book promises to fullll the demand for a comprehensive work on legal research methodology adopting an interdisciplinary perspective to be used by students of post-graduation, research scholars, teachers as well as practitioners.
INTERPRETATION IS an integral aspect of the working of law, more so in modern times and in common... more INTERPRETATION IS an integral aspect of the working of law, more so in modern times and in common law countries where judges play a pivotal role in the process of making and unmaking of law through judicial pronouncements. According to Owen Fish, “Interpretation, whether it be in the law or literary domains, is neither a wholly discretionary nor a wholly mechanical activity. It is a dynamic interaction between reader and text, and meaning the product of that interaction. It is an activity that affords a proper recognition of both the subjective and objective dimensions of human experience; and for that reason, has emerged in recent decades as an attractive method for studying all social activity.”
Law has seen a dramatic increase in the levels of knowledge and understanding that students bring... more Law has seen a dramatic increase in the levels of knowledge and understanding that students bring with them as they start ....
THE BOOK under review is a collection of essays written by some of the eminent scholars in the fi... more THE BOOK under review is a collection of essays written by some of the eminent scholars in the field of constitutional law in honour of Prof. Upendra Baxi, who is a great scholar of international repute in the field of constitutional law, jurisprudence and human rights law. The admirably erudite corpus of Baxi 1 produced over the years has contributed a great deal towards the making, unmaking and remaking of constitutional jurisprudence in India. His journey as an academician is, in many ways, reflective of the journey of Indian constitution as he has been writing, with critical tone, on the ways judiciary and the legislature have performed their constitutionally assigned functions inviting criticism and, on occasions, accolades as well. 2 In
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Papers by B.C. Nirmal
adds to its existing corpus. Traceable to a time when the penal law was not the law of crimes, it was law of wrongs1 or, to use a more technical term, tort, it developed in a time when the states were not sufficiently organised to have a centralised prosecuting authority, and the task of punishing the wrongful conduct was left to private individuals.2As it is said, tort law was a form of legalised self-help. Tort law in its present form owes much to the rigours of judicial minds that have over the years toiled hard to put in place a series of doctrines and principles that form the foundation of the edifice of tort law.4 That being so, judicial pronouncements occupy a primal place in the realm of law of tort, and it is a matter of great significance to be aware of what the courts have said on a particular question of tortious liability. The year under review brings to fore some of the important judgments of the Supreme Court and the high courts that have either added to tort law jurisprudence in India or have at last reiterated or applied the time-tested principles of tort law in the context of Indian cases.
* Former Vice-chancellor, National University of Study and Research in Law, Ranchi, and
Former Dean, Faculty of Law, Banaras Hindu University. The author acknowledges the research
assistance provided by Rabindra Kr. Pathak, Assistant Professor, NUSRL, Ranchi.
1 M Stuart Madden, “Tort Law Through Time And Culture: Themes of Economic Efficiency”
in M Stuart Madden (ed) Exploring Tort Law 12 (Cambridge University Press, 2005).
2 Matthew D. Adler, “Corrective Justice and Liability for Global Warming” 155 U. Pa. L. Rev.
1859 (2007).
3 Hanoch Sheinman, “Tort Law and Corrective Justice” 22 Law and Philosophy 21(2003).
4 “A draft code of torts for India was prepared by Sir Frederick Pollock but it was never enacted
into law.” See, M C Setalvad, The Common Law in India 110 (London, Steven and Sons
Limited, 1960).
5 Per Krishna Iyer, J in Rohatas Industries Limited v. Rohats Industries Staff Union, AIR 1976
SC 425.
LAW OF TORT
B C Nirmal*
I INTRODUCTION
TORT LAW represents a society’s revealed truth as to the behaviours it wishes to encourage and the behaviours it wishes to discourage. The sphere of tort law is getting wider as a result of the felt necessities of the prevailing times, more so in areas such as climate change that requires a revisitation to the foundational idea of corrective justice, an idea so essential to understand the working of tort law. However, as regards tort law in India, based upon Common Law and largely uncodified, this law has evolved keeping in view the ‘local conditions’ as it was believed that we cannot incorporate English torts without any adaptation into Indian law. This process of evolution and adaptation rests upon the contribution made by way of judicial pronouncements. The ‘survey’ seeks to map the growth of tort law each year taking into the account the judgments of the Supreme Court and the high courts that contribute to its growth. This year’s survey explores some of the important judgments that need to be discussed in order to understand and appreciate the incremental growth that has taken place in tort law.
become an essential part of legal education in the preceding few
decades reflecting its ever-widening sphere and impact. The
growing significance is also an indicator1 of the ways international
law and relations have evolved and developed in the late twentieth
and twenty first century. The world today is a far cry from what it
used to be decades ago, more so because of the advent of
globalisation, consequent growth in international trade,
globalisation of economy, worldwide human rights movement, and
momentous advancements in technology. The rapidity with which
imperceptible and epochal changes have engulfed human life has
had its own indelible imprint upon the growth of international law
and the same has begun to find reflection in ways adopted to teach
international law. Besides the traditional bifurcation of
international law into public international law and private
international law, there are many other areas of study that today
remain subsumed under the rubric of international law.
adds to its existing corpus. Traceable to a time when the penal law was not the law of crimes, it was law of wrongs1 or, to use a more technical term, tort, it developed in a time when the states were not sufficiently organised to have a centralised prosecuting authority, and the task of punishing the wrongful conduct was left to private individuals.2As it is said, tort law was a form of legalised self-help. Tort law in its present form owes much to the rigours of judicial minds that have over the years toiled hard to put in place a series of doctrines and principles that form the foundation of the edifice of tort law.4 That being so, judicial pronouncements occupy a primal place in the realm of law of tort, and it is a matter of great significance to be aware of what the courts have said on a particular question of tortious liability. The year under review brings to fore some of the important judgments of the Supreme Court and the high courts that have either added to tort law jurisprudence in India or have at last reiterated or applied the time-tested principles of tort law in the context of Indian cases.
* Former Vice-chancellor, National University of Study and Research in Law, Ranchi, and
Former Dean, Faculty of Law, Banaras Hindu University. The author acknowledges the research
assistance provided by Rabindra Kr. Pathak, Assistant Professor, NUSRL, Ranchi.
1 M Stuart Madden, “Tort Law Through Time And Culture: Themes of Economic Efficiency”
in M Stuart Madden (ed) Exploring Tort Law 12 (Cambridge University Press, 2005).
2 Matthew D. Adler, “Corrective Justice and Liability for Global Warming” 155 U. Pa. L. Rev.
1859 (2007).
3 Hanoch Sheinman, “Tort Law and Corrective Justice” 22 Law and Philosophy 21(2003).
4 “A draft code of torts for India was prepared by Sir Frederick Pollock but it was never enacted
into law.” See, M C Setalvad, The Common Law in India 110 (London, Steven and Sons
Limited, 1960).
5 Per Krishna Iyer, J in Rohatas Industries Limited v. Rohats Industries Staff Union, AIR 1976
SC 425.
LAW OF TORT
B C Nirmal*
I INTRODUCTION
TORT LAW represents a society’s revealed truth as to the behaviours it wishes to encourage and the behaviours it wishes to discourage. The sphere of tort law is getting wider as a result of the felt necessities of the prevailing times, more so in areas such as climate change that requires a revisitation to the foundational idea of corrective justice, an idea so essential to understand the working of tort law. However, as regards tort law in India, based upon Common Law and largely uncodified, this law has evolved keeping in view the ‘local conditions’ as it was believed that we cannot incorporate English torts without any adaptation into Indian law. This process of evolution and adaptation rests upon the contribution made by way of judicial pronouncements. The ‘survey’ seeks to map the growth of tort law each year taking into the account the judgments of the Supreme Court and the high courts that contribute to its growth. This year’s survey explores some of the important judgments that need to be discussed in order to understand and appreciate the incremental growth that has taken place in tort law.
become an essential part of legal education in the preceding few
decades reflecting its ever-widening sphere and impact. The
growing significance is also an indicator1 of the ways international
law and relations have evolved and developed in the late twentieth
and twenty first century. The world today is a far cry from what it
used to be decades ago, more so because of the advent of
globalisation, consequent growth in international trade,
globalisation of economy, worldwide human rights movement, and
momentous advancements in technology. The rapidity with which
imperceptible and epochal changes have engulfed human life has
had its own indelible imprint upon the growth of international law
and the same has begun to find reflection in ways adopted to teach
international law. Besides the traditional bifurcation of
international law into public international law and private
international law, there are many other areas of study that today
remain subsumed under the rubric of international law.