This article has been written by Ravi Shankar Pandey. He is a 1st-year law student from Dr. Ram Manohar Lohia National Law University, Lucknow. In this article, he explains the development of Constitutional tort in India, its origin and application under the purview of some landmark judgments.
Vicarious liability is the liability that lies upon a person for an act done by someone else. It comes into play often in master-servant relationships. Constitutional Tort is generally a judicial instrument by which the state can be held vicariously liable for the acts of its servants.
It’s the legal action to get legal remedy in the form of damages when any of the constitutional rights are violated. The only exception lying is that it cannot be made liable if the act is done in exercise of sovereign (government) functions.
The origin of Constitutional law may be traced back to the time when the common medieval saying of “Res Non-Potest Peccare” i.e. ‘the king can do no wrong’ (as the king was considered the son of God) started losing its acceptance in the eyes of the public. After the 18th century, with the advent and emergence of new democracies and industries, it became important to take acts done with state’s authority under judicial scrutiny so that, those who suffered from such acts may get justice in due course.
Evolution in India
As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from.
Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.” 
As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.
Suits and Proceedings 
(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by the Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution,
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.
A general reading of part 1 of the Article tells about suing the state and other dominions by their name in the same way as they have been if the constitution had not been enacted. Part 2 talks about pending legal proceedings against the state and provides to substitute dominion of India with Union of India and province with Indian State respectively in clauses (a) and (b).
Landmark judgements on Constitutional Tort
- P & O Navigation Company v Secretary of State for India– This was the first case in which the Sovereign immunity of the state was debated. There was a piece of a funnel made up of iron which was being carried by some workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for damages due to negligence on the part of the servants employed by the govt.
Held- “The Government cannot be held liable when the injuries are caused while carrying out sovereign functions but is liable when the acts of the servants are non-sovereign functions”.
- Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for refusal of Government to give him licence to sell liquor and drugs, it was held that it was out of sovereign functions of the state and thus, is out of reach of tortious liability. Since this decision, the distinction between sovereign and non-sovereign functions is the foremost criteria that are looked into by the courts in their judgements.
- Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a pedestrian who eventually died of an accident. The plea of Sovereign immunity was rejected but it was held that the government cannot be held liable for the “Act of State” under Article 300. Compensation of Rs. 15000 was given. The Hon’ble Supreme Court stated that “in the modern era, the liability of State is not limited to Sovereign functions, but is socialistic and is related to the welfare of the people and thus, the old immunity of State functions is irrelevant”.
- Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the Plaintiff. The head constable later misappropriated the gold and flew with it to Pakistan. The Court did not take account of the judgement in Vidyawati case and ruled in favour of the State stating that the act was sovereign in nature. It was held that the law established in P & O Navigation is still good law. The court was not pleased as it could help the Plaintiff with its ruling. Through this judgement, in addition to disapproving the law in Vidyawati, it was also added by the Court that the state is not liable when the tort is done in statutory power by its servants.
- N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is applicable in rare cases only where the statutory authority to carry out certain functions are delegated. In any civil society, the state cannot be allowed to play with the rights of the citizens and take the plea of sovereign function and thus, it cannot be treated above and against the rule of law.
- Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the foundation of new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who has been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs. 25000 for being harassed by the defendant deliberately.
- Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost. The question presented before the Apex court was whether the court can award monetary damages under its jurisdiction as given in Article 32 or not.
The court gave the answer in affirmative by stating that monetary damages under article 32 may be granted and thus gave a judgement that proved to be a giant leap in the cases involving both constitutional tort and compensation.
The judgement formulated two landmark rules by holding that:
- Civil liability can arise when constitutional rights are violated.
- Civil liability can also emerge when there is a violation of personal liberty.
- Saheli v Commissioner of Police– In this judgement, the ratio in Vidyawati was revisited and upheld by its application. When a child died by police assault and beating, the compensation of Rs. 75000 was granted and the Delhi Administration was allowed to recover the same from the officials which were responsible for the incident.
- Common Cause, A registered society v Union of India– In this judgement, the court ruled that when there is a violation of fundamental rights of the person, the remedy for him is available under public law despite the fact that there is an optional remedy in private law also. The distinction between damages and remedies given in private and public law were evaluated and this judgement opened the way for the development and growth of public law torts increasing State’s liability.
Growth of remedy under Constitutional Tort
The principle established in Rudal Shah established and crystallized the concept of constitutional torts. The court did not follow a rapid formulation of law but instead stick to the case by the case evolution as per the need. In Sebastian Hongray v Union of India, when two persons whisked away by the Sikh regiment were found missing, a writ petition of habeas corpus was filed by a JNU student under Article 22. The court issued a command to the respondents i.e. UOI, State of Manipur and Commandant, Sikh Regiment. In the events followed in the course of the inquiry, the Court discovered that the respondents misled the inquiry and committed wilful disobedience. In the subsequent judgement, the Court awarded the exemplary damage of 1 lakh each to the wives of both the individuals who had disappeared after they were taken into custody, ignoring the common consequences of imprisonment and fine in such circumstances.
The doctrine of constitutional tort has grown in many steps. Some of the established principles are as follows:
1. Doctrine to Entertain Appropriate Cases
The court in Bhim Singh v State of J & K states that the court will entertain only appropriate cases but it did not elaborate more on the qualification criteria for a case to be called as an appropriate case. The case was related to the illegal detention of an MLA so that he cannot attend the proceedings of the house. His wife filed a writ of habeas corpus under Article 32 of the constitution.
- The decision of detention was held violative of Article 21 along with Article 22 (1). Although at the time of judgement the MLA was free, still the court chose to grant exemplary damage by monetarily compensating. The court observed, “when a person comes to us for the remedy for violation of his constitutional and legal rights, and the court finds it as an appropriate case, it may award exemplary damages”.And, the court awarded Rs. 50000 to Bhim Singh.
The trinity of cases i.e. Rudal Shah, Sebastian Hongray and Bhim Singh ensured state’s liability for compensating a person who is illegally detained by it thus, violating his right to life and personal liberty.
- In MC Mehta, there was a reiteration of appropriate cases doctrine but in more elaborative manner, the court stated that “an appropriate case may be considered as a case when there is a gross and potent infringement of a person’s right in a manner whose magnitude may shock the court”. In addition, it was stated, “the decision of qualification of a case as appropriate or not is inclusive and not conclusive and the court is free to decide on the question based on the facts and circumstances of each case separately based on its merit”.
- The role of High Courts in awarding compensation was recognised by the Apex Court in the case of State of Maharashtra v Ravi Kant S Patil where a person was paraded on the street with handcuffs without any justification, the Court awarded compensation of Rs. 10000 by the police officer himself and directed the government to make an entry into the policemen’s service record that he violated a person’s right without any valid justification. However, in appeal, the Apex Court upheld the judgement but ordered the government to compensate instead of compensation from the officer himself and also directed to avoid making an entry in the official records. This was a contrary step from the law in Saheli v Commissioner of Police when the recovery was allowed by the officer himself. However, in this case, HC’s role under Article 226 for providing compensation was recognised and helped the High Courts to enjoy the authority vested in them for providing damages in future.
2. Constitutional Tort and the end to Sovereign Immunity
Although, with the cases like Bhim Singh and Rudal Shah the law of constitutional tort was evolving, the Courts did not take recourse to the law in Kasturi Lal. The decision in Kasturi Lal was neither reiterated nor overruled.
The claim of damages in every case of infringement of fundamental rights was obvious in every judgement, but there was no refinement of the doctrine of fixing the liability or dealing with the provision of remedy. There was a demand by legal scholars that unless the law in Kasturi Lal is discussed, the arrangement of providing compensation in breach of fundamental right will only be understood as a provision on an ad-hoc basis.
- The Hon’ble SC in the case of Nilabati Behera v State of Orissa clarified the law after passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came before SC through PIL and was related to the custodial death of a 22-year-old boy whose body was discovered lying on the railway track on the day after he was sent for police custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In addition, there were many observations made by the court. Some of those are as follows:
- The Court clarified the observations in Rudal Shah that “a remedy under Article 32 or 226 may be denied if the claim presented before the court is controversial in facts and that monetary claims are allowed under Article 32 and 226”. The Court stated, “the remedy under both the articles is precise and available in all the cases distinctively, in addition to an alternate remedy, if there is a violation of fundamental right”.
- The liability under private law and liability of state under violation of fundamental rights by the State was distinguished and the Court observed “even though the defence of sovereign immunity and exceptions to strict liability may apply in cases dealing under private law, they are not applicable when the case is relating to infringement of rights by the State under public law. The award of compensation is a recognised remedy under Article 32 and 226 and the Court must remember the distinction while entertaining both types of cases”.
- The provision of compensation from the State in the event of an infringement of fundamental rights is an inherent remedy under the constitution. The question of sovereign immunity is not even a question to ask by the State to prevent itself from providing damages to the victim and is alien to the idea of guaranteeing fundamental rights to every citizen of the country.
In addition, it is the only practical mode available for remedying the victim and thus it provides a justification for exemplary damages in monetary form. The court further stated, “the enforcement of fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal Shah and thus, it provides a basis for subsequent decisions”.
- Even though in the majority of cases which deal with constitution tort, the remedy has been provided for infringement of article 20 and 21, there are some exceptions too. In the cases of Assam Sillimite Ltd. v. India and Gajanan Vishweshwar Birjur v. India, there was a violation of other fundamental rights.
- In Assam Sillimite case, the compensation was provided for infringement of article 19(1)(g). The dispute was over the cancellation of the lease without giving any chance of hearing. The act was also not in line with the principle of natural justice.
In Gajanan Vishweshwar case, the honourable Supreme Court quashed the order of seizure of some books, when the concerned authority was not able to provide a satisfactory answer on grounds of confiscation under section 111 of the Customs Act. Rs. 10000 was awarded as compensation as the act of administration was held to be resulting in violation of petitioner’s right under article 19 (1)(a) of the Indian Constitution.
3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)
Supreme court faced heavy criticism for awarding damages under article 32 but not under article 136. It was argued that a plea for compensation under article 136, if not higher in merit, is at equal footing with that of article 32.
However, this was not always a case. In State of Haryana v Smt. Santra, when the sterilization failed and the woman gave birth to a baby, the suit for compensation was allowed as an SLP and the Supreme Court rejected the defence of sovereign immunity.
The Court held ” the contention regarding vicarious liability of the doctor of the government hospital cannot be accepted as a case of negligence on the part of the doctor only. As the operation was done in a government hospital, the theory of sovereign immunity is not applicable”.
The court also referred to the cases of N. Nagendra Rao v Union of India, Common Cause, and Achutrao Khodwa which was related to sterilization operation.
4. Defence of Sovereign immunity in Civil Law Proceedings
The apex Court differentiated the remedy under public law, civil law and private law in the landmark judgement of Nilabeti Behera. It was concluded that although the defence of sovereign immunity applies to cases of private law such as tort, it does not apply to compensation resulting under Articles 32 and 226.
The case of C. Ramakonda Reddy v State of AP may be considered as a landmark judgement in this regard. The High Court of Andhra Pradesh pronounced a highly prognostic verdict in this case which was later affirmed by the Supreme Court. In this case, due to the negligence of the prison authority, one of the accused died due to the entry of an outsider into the jail premises which planted a bomb in order to kill the deceased, one of the accused person.
The incident took place due to misfeasance and malfeasance of the defendants i.e. the State. The damage to the plaintiff was calculated to be Rs. 10 lakhs. Subsequently, the State denied its liability and contended that it is not to be sued for its sovereign functions which were, in this case, the maintenance of the jail. The judgement was declared in State’s favour.
In the appeal, the HC observed, “the right to life cannot be defeated by the archaic defence of sovereign functions and when the person is denied his right to life and liberty, it is not a valid argument that the deprivation was due to the state carrying out its sovereign functions.”
Observing the facts, the Court awarded the compensation of Rs. 1.44 lakh and stated that it is the only way to enforce Article 21 in such cases. On the later stage, the judgement of the High Court was affirmed by the Apex Court and the appeal was dismissed.
5. Supreme Court’s approach on Constitutional Tort Issues
The Apex Court always took recourse to the extent of enforcement of fundamental rights in order to answer on the remedy for the constitutional tort. The analysis was divided on the substantive basis of the compensation if there is a gross violation of the fundamental rights. As Chief Justice of the United States John Marshall remarked ” the Government of the United States has been always witnessed as the government of laws and not of man”, in India also the same was the case when the government’s using constitutional provisions and by applying the defence of sovereign immunity kept on violating the fundamental rights.
The court in Rudal Shah opined ” the plaintiff has the right to compensation if there is a violation of their fundamental rights along with penalizing the authorities which acting in the name of public interest, use their powers as a shield to prevent themselves from scrutiny.
At a later stage, after awarding compensation in Devki Nandan case for deliberate and motivated harassment of the plaintiff, the court established the doctrine of appropriate cases in Sebastian Hungry and Bhim Singh. Subsequently, in MC Mehta, the complete doctrine of Constitutional Tort was established along with the introduction of deep pocket theory.
However, due to the sole focus of law formation on public law and judicial pronouncements, it is hard to find a jurisprudence of further developments. Thus, there was an attempt to incorporate a separate clause under Article 13 as 13A coming just before the fundamental rights dealing with the right to compensation for violation of fundamental rights. It was suggested that this will help in increasing the liability and act in consonance with Article 32.
Ultimately, the award of damages by the hands of the judiciary is indeed a creative concept introduced in India but fails at certain stages due to the absence of well-defined criteria.
While concluding, it may be stated that the doctrine of Constitutional Tort is a creative jurisprudence evolved by the Courts in spite of the fact that the criteria employed had faced various criticism in the past. The Apex Court must evolve a scientific criterion for future cases. The “voting right model” of the United States may be adopted for measuring the damages in Constitutional Tort actions to prevent the victim from a legal injury to their rights.