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11 - Chapter 5 PDF
11 - Chapter 5 PDF
citizens while pursuing its ends. These limitations, which precede all legal
constraints that the government places upon itself, embody the most fundamental
governmental duty not to violate that right in the pursuit of other ends. The breach
basis for the constitutional tort action.1 Government without constitutional error,
the inescapable defendant in a constitutional tort suit; only the government can
ways. One, a statutory cause of action is available under section 1983 of the Civil
Rights Act of 1871. Second, the remedy based on common law principles.
1 Roberta M.Kania, “A Theory of Negligence for Constitutional Torts”, 92 Yale L.J. 683-
705 (1983) at 696-7.
2 Christina B. Whitman, “Government Responsibility for Constitutional Torts”, 85 Mich
LRev. 225 (1986) at 229.
3 Roberta M.Kania, supra note 1 at 697.
185
The relevant provision of Civil Rights Act, 1871 now codified as 42 U.S.C.
Despite enactment of the Civil Rights Act in 1871, section 1983 lay dormant
almost for a century. Then in the 1961 case of Monroe v. Pape,4 the section came
established in Monroe is that an injured person can sue in federal court under
section 1983 even if state law provides a remedy for the government conduct of
which he complains. In this case the plaintiff brought a constitutional tort action
against several policemen who had broken into plaintiffs’ home without a warrant
and forced them to stand naked while the officers ransacked the house. One of the
plaintiffs was taken to the police station and interrogated for ten hours before
being released. He was never charged with a crime. The defendants’ conduct
violated the state law as well as the dictates of fourth amendment. The Court held
4 365 U.S. 167 (1961), overruled in part, Monnel v. Department ofSocial Services, 436
U.S. 658 (1978).
186
that the state officials could not avoid liability by asserting that their actions were
also illegal under state law. In making clear that section 1983 was created to
Monroe decision opened the door for the explosion of civil litigation.5 The Court
also ruled that section 1983 can not be used to impose liability upon
court concluded that the word “person” which defines the class of defendants
suable under section 1983 could not have been “used in this particular Act to
include [municipalities]”.7
rights have been violated by local officials in obtaining redress for their injuries.
While section 1983 provides a federal right of action for damages against state and
local officials, practical and legal obstacles to recovery may thwart many
6 The Civil Rights Act of 1871 was directed primarily at the tide of organised violence
beingperpetrated in the South by the Ku Klux Klan and other private groups against
blacks and Republicans. Federal action was thought necessaiy because for any reason,
state laws might not be enforced and the claims of citizens to the enjoyment of rights,
privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by
the state agencies. Thus, sec. 1983 imposed civil liability upon persons acting under
color of state law.
7
365 U.S. at 188-91.
187
responsible for a violation. Second, many officials lack the financial means to pay
against an official who is perceived to be under legal attack for doing what he
thought to be his job. Finally, local officials, even when they have violated
actions, a defence which increases with the scope of discretion and responsibilities
of the office.
Serviced held for the first time that constitutional tort actions could be brought
against municipal corporations. Monnel, then, was the first case in which the
Court struggled explicitly with the question: when is a wrong “done by” a
held liable for damages under section 1983 on the basis of respondeat superior.
the officers, is substantially responsible for the harm may the city be responsible
Likewise supervisory law enforcement officials generally may not be held liable
for the acts of subordinates solely on the basis of respondeat superior.11 This is so
government, though formal, written policies may come close enough to the
expressions of individual will to make the analogy seem possible and attractive.13
11 “Police Liability for negligent Failure to Prevent Crime”, 94 Harv.LRev. 821 (1981) in
foot note 31 at 829.
12 436 U.S. at 694.
In City of Oklahoma City v. Tuttle,14 Tuttle was shot and killed by a city
police officer who had been called to the scene of a robbery in progress. His
widow sued the officer and the city for depriving her husband of life without due
process of law and for using excessive force. At trial she prevailed against the city
but not against the officer. The verdict was affirmed by the court of appeals but
The Supreme Court cases bearing directly on the scope of constitutional tort
Davis.18
that. He had been arrested but never convicted, or even tried for shoplifting. He
sought damages for harm to reputation relying on the earlier Supreme Court
471 U.S. 808 (1985). Subsequently in Pembaur v. City of Cincinatti [ 106 S.Ct. 1292
(1986) ]the Court held that a single issue of explicit decision making by an official in a
relatively high municipal position could establish “policy”. It established that MonnePs
reference to “policy” does not imply that the plaintiff must establish a pattern of recurring
or repeated conduct. Christina B. Whitman, supra note 2 at 243
amendment. The Court, rejecting his claim, ruled that reputation, standing alone,
is not an aspect of constitutional liberty protected by the due process clause of the
fourteenth amendment The opinion of the Court itself indicates why it strained to
limit the reach of its prior decisions. Paul presented allegations of defamation that
would ordinarily be brought as a common law tort in state court. The plaintiff
was able to frame his claim as a constitutional tort only because the defendant was
a state actor.21
peddled for misbehavior. They claimed violations of the cruel and unusual
the due process of law. Rejecting the claim the court ruled that the eighth
amendment does not apply to public schools. The court held that the tort remedies
for excessive corporal punishment provided by the state provided the due process
of law.
21 Michael Wells & Thomas A. Eaton, “Substantive Due Process and the Scope of
Constitutional Torts”, 18 Ga. L. Rev. 201 (1984) at 206.
22
430 U.S. 651 (1977).
191
arrest warrant. As a result he spent several days in jail. The Court rejected his
constitutional tort claim because the arrest was made pursuant to a constitutionally
valid warrant. The court distinguished constitutional tort from common law false
imprisonment and stressed that the plaintiff may have a good claim under a tort-
law analysis, but that would not be enough for a constitutional claim.
In the famous case of Parratt v. Taylor,24 the plaintiff was a prison inmate,
whose hobby kit, ordered through the mail, was lost at some point between its
arrival at the prison and his release from segregation. He sued the warden and the
prison hobby manager, alleging that they had deprived him of his property without
due process of law and seeking damages that reflected the value of the lost kit The
lower court accepted that the defendant’s negligence deprived the plaintiff of
property without due process of law. The Supreme Court agreed that the plaintiff
nonetheless denied his claim because he had not shown that the deprivation was
without due process of law. Relying on Ingraham and Paul the Court held that
result in turning every alleged injury which may have been inflicted by a state
make the due process clause a “fount of tort law to be superimposed”26 on state
systems. The holding in Parratt that the existence of “adequate”27 state remedies
protection provided to life, liberty, and property interests. ‘But the extent to which
Parratt has that effect depends on what the Court decides adequate state remedies
include’.28
The endeavour to differentiate constitutional tort from ordinary tort has lead
to the requirement that the wrong be somehow more egregious than the ordinary
tort in suits against individual defendants. That requirement has been carried over
Facial examination of section 1983 has lead the Supreme Court to declare
that a constitutional tort claim has three necessary elements.30 The plaintiff must
the defendant must be acting “under colour” of state law; and the defendant’s
25
Ibid., at 544.
26
Ibid,
27
Ibid.
28
Michael Wells & Thomas A Eaton, supra note 21, at 212-3.
29
Christina B. Whitman, supra note 2, at 248.
iO
Roberta M.Kania, supra note 1, at 689.
193
The statute, as the Court has understood, provides a remedy for wrongs defined
elsewhere; it does not establish substantive requirements of its own. But when the
court has looked elsewhere for the definition of those wrongs sought to be
evidence. The Supreme Court, reversing the conviction, held that the
government’s conduct violated the due process clause because forced stomach
pumping “offend[ed] those cannons of decency and fairness which express the
notions of justice of English-speaking peoples even toward those charged with the
most heinous offences”.34 The Court said that the government’s conduct “shocks
the conscience”, which has come to be known as Rochin test. ‘Rochin is right to
available, but the court’s “shock the conscience” test is too vague and subjective to
When the Supreme Court has failed to address the issue of availability of
constitutional tort squarely, the standards adopted by the lower courts are often as
vague as Rochin test. Courts have held that constitutional tort should be available
■jn -50
for abusive treatment in Johnson v. Glick.42 Here the plaintiff was allegedly
35 Ibid., at 172.
36 Micheal Wells & Thomas A. Eton, supra note 21, at 234-5.
37 Williams v. Kelley, 624 F.2d, 695, 697. [ 5th Cir. 1980]
38 Tefft v. Seward, 689 F. 2d, 637, 639 n.l (6th Cir. 1982).
39 Smith v. Hill, 510 F.Supp 767, 772 (D.Utah 1981).
40 Rutledge v. Arizona Bd of Regents, 660 F.2d, 1345, 1352 (9th Cir. 1981).
Hull v. City ofDuncanville, 678 F.2d, 582,584 (5th Cir. 1981).
42
481 F. 2d, 1028 (2nd Cir. 1973).
195
amount of force that was used, the extent of injury inflicted, and
The problem with the opinion is that Judge Friendly does not explain how he got
from the “shock the conscience” test of Rochin to those more specific standards.
As a result, the merits of the Glick approach can easily be overlooked by courts
that lack Judge Friendly’s intuitive perception and do not have the time or
It is proposed that the Supreme Court should abandon Parratt, begin again
with Rochin as its leading case, and use the concepts of recklessness, motive,
disproportion, and control to decide scope cases45 These are the factors that
distinguish tort claims that warrant constitutional protection from those that do
not.46 Four specific standards are proposed for resolving the boundary issue and it
is argued that the Constitutional tort should be available:47 (1) when the defendant
acts with an impermissible motive or illwill toward the plaintiff, (2) when his
that intrusion serves, (3) when the defendant’s recklessness causes injury to a
43 Ibid., at 1033.
44 Michael Wells & Thomas A. Eton, supra note 21, at 237.
45 Ibid., at 257.
Ibid.
47
Ibid., at 236 -7.
196
plaintiff under substantial control by the state, or (4) when a defendant recklessly
harms a plaintiff not under state supervision. These standards identify cases
The doctrine of sovereign immunity bars all claims against the United States
it. The fact that the doctrine is unjust and impractical led the Congress gradually
to waive the immunity and consent to suit in certain areas. Finally in 1946 the
Congress removed the bar to suits against the federal government for negligent
liable by passing the Federal Tort Claims Act.48 This Act was amended in 1974
to allow suits against the federal Government for intentional torts of its
violating a constitutional right,51 such a claim is actionable under the Federal Tort
Claims Act if it can be framed as a negligent or intentional tort under the terms of
48 28 U.S.C. (1976).
49 28 U.S.C. s. 2680(h) (1976).
50 28 U.S.C. s. 2680 (1976).
51 See Janell M.Byrd, “Rejecting Absolute Immunity for Federal Officials”,71 Cal.L Rev.
1707 (1983) at 1707-10.
197
the law of the state where the act occurred.52 However, under a line of Supreme
Court cases beginning with Bivens v. Six Unknown Named Agents of Federal
In Bivens,56 the plaintiff Bivens alleged that federal narcotics agents had
violated his fourth amendment rights by entering his house, searching it, arresting
him and subjecting him to a strip search subsequent to arrest, without a warrant or
a probable cause and using unreasonable force. Equitable relief was of no help to
Bivens.57 Since the conduct was unlikely to recur, an injunction would have been
useless, and the exclusionary rule was inapplicable because no charges were filed.
Resort to state tort law was inadequate, for the privacy interest protected by the
55 It may fairly be assumed that the founding fathers did not contemplate a new species of
constitutional tort. There is evidence that the transgression of a government officer was
regarded as a trespass, in accordance with the vocabulary and outlook of the common
law... Thus, the constitution was to be implemented in accordance with the remedial
institutions of the common law; and common law, it seemed, was peculiarly within the
province of the state. But it does not follow that the state was necessarily master of the
action in trespass founded upon unconstitutional behaviour. Alfred Hill, “Constitutional
Remedies”, 69 Harv.LR. 1109 (1969) at 1132.
Ultimately, for Bivens, it was “damages or nothing”.59 The Court rejected the
argument of the agents that the fourth amendment merely defined the scope of
their authority and declared that it was a guarantee to citizens of an absolute right
Although the fourth amendment does not provide for an award of damages
explicitly, the Court in Bivens stated, “it is... well settled that where legal rights
have been invaded, and a federal statute provides for a general right to sue for such
invasion, federal courts may use any available remedy to make good the wrong
done”.61 In his concurring opinion Justice Harlan explained that the Court
as under:
Thus the Court concluded that the fourth amendment creates right rather than just
violations of those rights. Unlike a Federal Tort Claims Act action against the
form a constitutional violation is not confined by the limits of state tort law63
Bivens was the first case in which the Court definitively established that plaintiffs
whose constitutional rights have been violated have a federal right of action for
Initially some courts held that a Bivens action may be brought only for
woman who had been understudy to his administrative assistant, because Passman
believed the position should have been filled by a man. Ms. Davis sought
damages for violation of her rights under the equal protection component of the
fifth amendment’s due process clause. The Court held that when an official
violates the due process clause of the Fifth Amendment, the Constitution itself
In Carlson v. Green,67 the scope of Bivens action was clearly stated. In this
case, the plaintiffs son, while incarcerated in federal prison, suffered an asthma
attack and died due to inadequate medical facilities and failure of the officials to
action based on a violation of eighth amendment rights, the Court made clear that
damages from those officials unless defendants establish that (1) special factors in
the case counsel hesitation in the absence of affirmative action by Congress, or (2)
substitute for recovery directly under the Constitution and viewed as equally
effective”.68 The Court concluded that none of these limitations applied to the case
on hand.
In developing Bivens action, the court utilized a two-step analysis. The first
step was to recognize plaintiffs constitutional right and the judicial power to
protect it; the second was to determine that a damage remedy was appropriate69
66 Ibid., at 242.
67 446 U.S. 14 (1980).
68 Ibid., at 18-19.
69 John H.W. Hinchcliff, supra note 57 at 1243.
201
constitutional issues as based on, but not required by, the Constitution. These
decisions form federal common law. As with all common law, the Congress can
Under this thesis, the court, for institutional reasons, underenforces certain
involve policy questions that Congress is better able to resolve. Therefore, the
Court refrains from grounding the source of the remedy in the Constitution itself.73
Court’s remedy and the power of the Congress to change that remedy. The under
precatory, the Court fashions a temporary remedy to accord some relief. Congress,
Thus it is clear that the choice of a Bivens remedy is a constitutional common law
decision.
constitutional law decision. In Carlson, the Court stated that Bivens actions will
be precluded if a court finds (1) an explicit statement that the statute is a substitute,
and (2) that Congress viewed the statute as equally effective.75 The core of these
prongs, court must look for congressional statements: under the “equally effective”
prong, a statement that the statute is equally effective; under the “explicit
explicit statement is required on the part of the legislature to modify common law
in other areas. The power of the Congress to modify common law rights and
The significance of the Bivens remedy lies in the fact that (1) the availability
of individual liability and punitive damages against the defendant make it more
effective deterrent than the Federal Tort Claims Act, (2) the Federal Tort Claims
Act allows suit only if the state in which the constitutional tort occurred would
allow it, where as the Bivens action is governed by uniform constitutional common
unprotected victims of unconstitutional federal action the same remedy that section
1983 of the Civil Rights Act of 1871 provides victims of similar conduct by the
At the same time it is interesting to note that at least in ten77 states the courts
have allowed or endorsed the concept of damage awards for state constitutional
violations.78 The New York Court of Appeal, one of the most influential state
tribunals in the United States, conceded the right of citizens to sue the state for
damages in the event their state constitutional rights are violated on Nov 19, 1997
in the case of Brown v. New York State, No. 180, when it reinstated a class action
suit on behalf of about 300 blacks. They were systematically interrogated by police
after an elderly woman was assaulted at knife point in upstate Oneonta in 1992.
Because the victim could only identify her assailant as a black man, police first
77 The States in which Courts have allowed damage awards for state constitutional
violations are Arizona, California, Florida, Illinois, Maryland, Massachusetts,
New Jersey, New York, North Carolina and Wisconsin.
questioned every black student at the Oneonta Branch of the state University
system. Then they interrogated every non-white male found in and around the city
over a five-day period. No one was ever charged with the crime.79
Judge Richard Simons, who wrote the majority opinion said, the recognition
that no government can sustain itself, much less flourish, unless it affirms and
reinforces the fundamental values that define it by placing the moral and coercive
The judicially created law of official immunity limits the ability of a Bivens
plaintiff to recover damages from an official. An official can assert two types of
The Supreme Court established immunity for federal officials who act in
good faith in the case of Butz v. Economou*1 This was to prevent the threat of
80 ibid.
81 Janell M.Byrd, supra note 51, at 1713.
82 438 U.S. 478 (1978). The Court in Butz reasoned that the rationale it had used to
establish qualified immunity for state officials in suits under 42 U.S.C. s. 1983 in Scheuer
v. Rhodes, 410 U.S. 232 (1974), were equally available to federal officials sued for
constitutional violations.
205
liability from decreasing the official’s willingness to execute the duties with
decisiveness and the judgement required by the public good. The test of Wood v.
o1
Strickland, applicable to state officials in section 1983 actions was used initially
whether the official knew or reasonably should have known that her action would
violate the plaintiffs constitutional rights, and whether the official took such
this test, a court had to examine an official’s thought process, which necessarily
functions generally are shielded from liability for civil damages insofar as their
88 Butz v. Economou, 438 U.S. 478 (1978); Eastland v. United States Servicemen's Fund.
421 U.S. 491 (1975); Pierson v. Ray, 386 U.S. 547,554 (1967); Imbler v. Pachtman.
424 U.S. 409 (1976); Nixon v. Fitzgerald, 457 U.S. 731 (1982).
206
waived. There are two key reasons for the strong and broad-based support for a
liable for compensating the victim for a constitutional violation that stems from sun
official’s good faith mistake, then the official will neither be treated unfairly nor be
factors support allocating risk of loss to the Government.92 First, the Government
has control over its employees and can best prevent any wrongdoing by them
Second, the Government can equitably spread the costs of providing its services,
including the cost of compensating injury, among the members of the public, who
Ibid.
92
Ibid., at 1716-17.
207
salaries are often too modest to satisfy judgements, the government is able to pay
compensation awards to victims. Thus, the risk of injury and the burden of
It is fair that an official not be liable for her honest and reasonable mistakes;
personal liability would not deter further wrongdoing and might tend to inhibit the
official from taking decisive action in the future.93 When an employee acts out of
under 42 U.S.C. sec. 1983 or in Bivens-type actions usually has been limited to
officers generally have been unable to collect substantial damages for the loss of
the constitutional right itself.95 The Supreme Court approved the common law
93 Ibid., at 1718.
94 Ibid., at 1730.
95 “Damages Awards for Constitutional Tort: A Reconsideration After Corey v. Piphus'\
supra note 5, at 966.
208
Phiphus. 96
In Carey, two of the Seventh Circuit ‘remand’ cases were consolidated, for
cases involved suspension of high school students without hearing. When they
brought section 1983 actions, the district court held that they had been suspended
without procedural due process but declined to award any damages absent proof of
“actual injury”. The Seventh Circuit Court of Appeals reversed and held that even
The Supreme Court reversed, stating that ordinary tort principles applied
and only a nominal award of one dollar could be granted.98 Justice Powell s
opinion for an undivided Court made three important statements.99 First, at the
damage awards. Second, Carey established that the common law of torts is to be
the starting point for damage inquiries under section 1983, but not necessarily the
99 “Damage Awards for Constitutional Torts: A Reconsideration After Cary v. Piphus ",
supra note 5, at 971.
209
the Court rejected the argument that damages should be presumed to flow from a
The common law paradigm does not allow damages to be recovered solely
award.101 The defamation cases102 and voting rights cases103 are the examples
Even though election results would not have been affected by the plaintiffs vote,
the right to vote as the Court in Wayne v. Venable104 put it is, “ so valuable that
actual loss”. The principle recognized in the voting rights cases has been applied
But the common law model emphasised by the Supreme Court in Carey is
unconstitutional conduct does not always suffer “actual injury”. The constitutional
consequential injury for their violation. The sanctity of the constitutional right is
constitutional violations requires sensitivity to the rights that have been abridged
and the need for deterrence. Although the broader use of the voting rights model
the purposes of the civil rights acts. By providing substantial compensation for the
inherent value of the right violated it redresses the primary deprivation rather than
B. Indian Experience.
Since the 17th century, if not earlier, human thinking has been veering round
to the theory that man has certain essential, basic, natural and inalienable rights or
106
“Damage Awards for Constitutional Torts: A Reconsideration After Carey v. Piphw\
supra note 5 at 985.
211
freedoms and it is the function of the state, in order that human liberty may be
life promoted, to recognise these rights and freedoms and allow them a free
1 f!7
play. The historical and political developments in India made it inevitable that
our Constitution.108 Part III of the Constitution of India embodies the fundamental
rights. It has been aptly observed that the enshrining of these rights makes our
constitution sublime.109 The rights embedded in this part are ensured as effective
guarantees against the State action.110 It is pertinent here to note the observations
of Dr.B.R.Ambedkar, which clearly reflect the object and purpose of Part III of the
Constitution. He said:
107 M.P.Jain, Indian Constitutional Law, 4th ed., (Nagpur: Wadhwa & Co., 1999) p.457.
108 H.M.Seervai, Constitutional Law of India, 4th ed., vol. I, ( Delhi: Universal Book
Traders, 1997) p.349.
109 A.K.Gopalan v. State ofMadras, A.I.R. 1950S.C.27.
the citizens, or those negative obligations of the State not to encroach on individual
liberty, that have become well-known since the late eighteenth century and since
the drafting of the Bill of Rights of the American Constitution-for the Indians, no
less than other peoples, became heir to this liberal tradition.112 In keeping with this
And they were included in the Constitution in the hope and expectation that one
day the tree of true liberty would bloom in India.113 These fundamental rights are
divided into six parts; the right to equality, the right to freedom, the right against
exploitation, the right to freedom of religion, cultural and educational rights and
11 ?
Granville Austin, The Indian Constitution: Cornerstone ofa Nation, (Oxford: Clarendon
Press, 1966), pp.50-51.
114 M.P.Singh ed., V.N.Shukla’s Constitution of India, 9th ed, 1994, (Lucknow: Eastern
Book Co, 1996), p.A-42.
213
discipline the State and review all those actions which threaten or transgress
The real enforcement of the right in case of every contravention must also be
appropriate in the facts of the case. Therefore, the constitution makers created a
special jurisdiction under Article 32, provision for which was made under Part III
the individual. In view of this background, there is every reason to believe that
the fundamental rights were intended to be real and effective limitations on state
power.118 The Supreme Court and High Courts are under duty to grant relief for
1,5 In several parts in the Constitution duties to make certain provisions for the benefit of
the citizens are imposed on the State in terms which bestow rights upon the citizens
and, unless some contrary provisions appear in the Constitution, the Constitution must
be deemed to have created a remedy for the enforcement of these rights. If follows
that, where the right is one guaranteed by the Constitution, it is against the State that the
remedy must be sought if there has been a failure to discharge the constitutional
obligation imposed”, observes Walsh J., in Byrne v. Ireland [(1979) IR 241],
116 B.P.Jeewan Reddy & Rajeev Dhavan, “The Jurisprudence of Human Rights” in David
M.Beaty ed. Human Rights and Judicial Review: A comparative perspective,
(London: Martinus NijhofFPub.,1994) p.178.
1,7 G.L Wazir, “Right to Compensation Under Public Law in India: A Basic Human Right
and an International Commitment”, Legal News & Views, Julyl997, p. 15.
118 Krishnan Venugopal, “A New Dimension to the Liability of the State Under Article 32”
(1984) 11 Ind. Bar. Rev. 369, at 375.
214
However, all over the globe now-a-days the aim of any government is to
establish a welfare state. The transformation in the nature of state is from the
police state with the traditional triple function of protecting against external
danger, internal maintenance of law and order and administration of justice, to that
of a welfare state. This has resulted in the expansion of powers and functions of
the state in all spheres of the administration. In this context, the question of state
liability for wrongful acts of its employees has assumed considerable significance
persons or property of the citizen and involve even an assault on his fundamental
rights. Such a situation calls for an adequate mechanism for determining liability
rights of citizens by its servants or agencies, what should be the extent of liability
of state? Whether the state is liable to compensate or not? In short, the question is
whether state can be sued for tort if the state is responsible for violation of
119 Bishnu Prasad Dwivedi,, “ From Sah to Saheli : A New Dimension to Government
Liability”, 36 J.I.L.I. 99 (1994).
120
Chandra Pal, “Compensational for Government Lawlessness”, (1984) 11 Ind. Bar Rev
57 at 58.
215
for India.111 Deciding this case, Chief Justice Peacock laid down that the state will
not be liable if the damage was done while performing its primary sovereign
functions. In independent India, the law relating to governmental liability for the
the constitution empowers the Parliament or State legislature to pass laws, yet no
law is passed except by the State of Kerala.123 The doctrine of sovereign immunity
was accepted in independent India because of the refer back approach of Article
300 in Kasturilal v. State of U.P.124 in spite of the rational discordant note struck in
the case of State of Rajasthan v. Vidyawati.125 The government has also usually
put forth the defence of sovereign immunity whenever compensation claims for
injuries caused to the citizens by the governmental agencies have been pressed, as
In the last few years the Supreme Court of India has attempted to evolve an
121
5 Bom. H.C. R. Appendix ‘A’
122
See Ch III back reference.
123 The Kerala ToM (Miscellaneous Provisions) Act, 1976 [ Act 8 of 1977],
124
A.I.R. 1965 S.C. 1039.
125
A.I.R. 1962 S.C. 933.
216
meaning to fundamental rights of the masses of our country.126 The pendulum has
immunity to the other end in modem times bordering on the total liability of the
requires rejection of the old doctrines and creation of new doctrines. Under a
controlling Constitution like ours, the state has a legal duty to protect the rights
that are guaranteed therein and therefore it must compensate if it violates the
rights.128 Despite early reluctance, the Supreme Court, in its great effort of
before the Supreme Court for the first time in Khatri v. State of Bihar ,30and again
126 Krishnan Venugopal, “A New Dimension to the Liability of the State under Article 32",
(1984) 11 Ind. Bar. Rev. 399.
127
Dr.P.Koteswar Rao, “Criminal Liability of the State for violation of Life, Liberty and
Dignity : Need for a Compensatory Legal Policy”, (1992) 19 Ind. Bar. Rev. 91 at 97
128 P.Leelakrishnan, “Compensation for Governmental Lawlessness”, (1992) 16 CA'A..R.
52, at 54.
129
Ibid
130
A.I.R. 1981 S.C. 928.
217
in Veena Sethi v. State of Bihar. 131 However, the Court did not answer the
question in both these cases and addressed itself to this in Rudul Sah v. State of
Bihar.132
Rudul Sah depicted a sordid state of affairs of Bihar jail administration, rhe
petitioner was acquitted by the Court of Sessions in June 1968, but released from
the prison after more than 14 years in October, 1988 after a habeas corpus petition
was filed in the Supreme Court under Article 32. In this petition, he prayed for his
release from illegal detention as well as for ancillary reliefs such as rehabilitation,
compensation for his illegal incarceration. The government informed the Court
that the petitioner had already been released, when the petition was taken up for
hearing. Under the general rule, the petition became infructuous.133 However, the
Court issued notice to the government regarding ancillary reliefs including the
claim of compensation for illegal detention. The only justification for the
A.N.Sen and Ranganath Misra, J.J., disbelieved the story of insanity and felt that
the illegal detention for such a long period constituted a flagrant infringement of
rights of agitating for more compensation by way of a civil suit and observed:
The court further opined that the refusal to pass an order of compensation in favour
of the petitioner will be doing mere lip service to his fundamental right to liberty
Hitherto it has ban the practice of the Supreme Court to order in habeas
petitioner had to seek a remedy by instituting a suit in the competent court, which
135 Ibid., at 1089 From this observation of the Court it is evident that the state will be
vicariously liable to pay damages to the victims of unlawful arrest/ detentions by its
enforcement agencies; see K. Narayana Rao, “Right to compensation for unlawful
detentions in India”, (Editorial Comment) (1986) 26 I.J.I.L. 516.
will first have to decide the question of sovereign and non-sovereign function
before awarding damages. The approach adopted by the Supreme Court in the
fundamental rights.137
Rudul Sah is a path breaking decision imposing on the state the liability to
sovereign and non-sovereign functions for the purpose of state liability.139 The
implications of the decision are far-reaching for the Court has served notice that it
will create new remedies in its original jurisdiction under Article 32, where such
The court also has laid down the contours of this newly found compensatory
fundamental right to life and liberty under Article 21. The compensation was not
such cases where the claim was ‘not factually controversial’. The compensation
under Article 32 cannot be made a substitute for ordinary suits. In Rudul Sah,
Chandrachud C.J., did not refer to the argument of immunity for sovereign
One may argue that the highest Court of the land, and guarantor of the
fundamental rights is quite competent to forge new tools and to devise new
remedies, if traditional ones appear inadequate and ineffective. But the authority,
justification and appropriateness of such new tools and new remedies require due
consideration.144
permit the Court to undertake the task of adjusting the relief to the necessity for
redressing the wrong done to the rights of the individual.145 More conclusive
evidence of the wide powers conferred on the Supreme Court lies in clause (1) of
Article 142 which provides for the enforcement of any decree or order that the
Supreme Court may pass so as to do complete justice between the parties in any
cause or matter pending before it. These two Articles read together empower the
Supreme Court to formulate new legal doctrines, forge new tools and devise new
The rationale for awarding compensation under Article 32 for the violation
of a fundamental right is that the right in question has been violated by the
executive whose sworn duty it is to uphold the right. The duty of the Supreme
145 Article 32 (2) reads: The Supreme Court shall have power to issue directions, or orders
or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any of
the rights conferred by this part.
146
K.I.Vibhute, loc .cit.
222
Court here being to safeguard the fundamental right and effectively enforce it, the
the petitioner to adequately redress the invasion of his constitutional rights, and if
i 47
the remedy sought is within the powers granted to it by clause (2) of Article 32.
However, it is not clear from the judgement whether the Court has awarded
questions of sovereign and non-sovereign function and liability of the state for the
wrongful acts of its servants should have been discussed and decided. i48 It was
observed by the Court that: “This order will not preclude the petitioner from
bringing a suit to recover appropriate damages from the state and its erring
ordinary civil court is wrong since as the law exists the petitioner has got no
remedy under the law of tort to be enforced through an ordinary court of law. 150 In
enforcing his remedy.151 The judgement makes no mention of Article 300 or the
relevant judicial precedents.152 But it is clear from Rudul Sah that the Court has
not overruled earlier decisions as it was neither called upon to determine sovereign
and non-sovereign functions nor to apply law laid down in earlier judicial
opinions. Unfortunately, the Court was not able to size up and fully utilize the
new and breath-taking concept to which it was giving birth: the concept of the
132 The omission poses a set of questions.Does it imply that violation of fundamental rights
guaranteed by Part III of the Constitution does not attract Article 300? Does it
impliedly overrule earlier decisions of the Court in which determination of sovereign
and non-sovereign function has been treated as a condition precedent to determine
liability of State. Does it amount to judicial recognition of the recommendations of the
Law Commission of India that the distinction between ‘sovereign’ and ‘non-sovereign’
function be done away with to determine the liability of the State, see, K.I.Vibhute,
op.cit., at 86.
153 Raju Ramachandran, “Constitutional Tort’, The Lawyers, April 1998 at 16.
154 The decisions are; Sebstian M.Hongray v. Union of India, A.I.R.1984 S.C.1026; Devaki
Nanadan Prasad v. State of Bihar, A.I.R. 1983 S.C. 1134; Bhim Singh v. State of
Jammu and Kashmir, A.I.R. 1986 S.C. 493; Peoples Union for Democratic Rights t .
State of Bihar, A.IR. 1987 S.C. 355; MC. Mehta v. Union of India, A.I.R. 1987 S C
1086, Peoples Union for Democratic Rights v. Police Commissioner (1989) 4 S.C C
730; Saheli: A Women Resource Centre v. Commissioner ofPolice Delhi A.I.R. 1990
S.C. 513; State of Mahastra v. Ravikanth Patil, (1991) 2 S.C.C. 373 ; Supreme Court
Legal Aid Committee v. State of Bihar, (1991)3 S.C.C. 482; Union Carbide
Corporation v. Union ofIndia, A.I.R. 1992 S.C. 248.
155
Girish, loc.cit.
224
1987, by the Bar Council of India Trust and the National Law School of India
University, Bangalore. Had the true and full import of this concept been
adequately appreciated, Rudul Sah could have got complete relief from the Writ
Court.156
The approach of the Supreme Court in Rudul Sah, impliedly suggests that
fundamental rights though the Court has used the word ‘damages’ in the instant
case. A plausible explanation for the approach of the Supreme Court could be that
the fundamental rights, which are guaranteed against ‘State’, are in the form of
limitations over ‘State action’ and hence State cannot plead ‘sovereign immunity’
Rights Covenants, 1966. Article 9 para 5 of the Covenant on Civil and Political
arrest or detention. It provides: “Anyone who has been the victim of unlawful
acceding to this Covenant in 1979 the Government of India declared, inter aha,
156 Raju Ramachandran, /oc. c//;Award of Compensation while exercising writ jurisdiction
was advocated by some eminent jurists before Rudul Sah was decided by the Apex
Court. See A.G. Noorani, “Compensating the wronged”, (1983) 18 Eco & Pol. Weekly
336 (10); I.P. Massey , “Dialectics of Sovereign Immunity and Dynamics of Welfare
Society: Need for an Independent Public Law of Tort”, (1984) 26 J.I.L.I. 145-159
157
K.I.Vibhute, loc. cit.
225
that “under the Indian Legal System, there is no enforceable right to compensation
State”.158 But this is the assumption of the executive. The judiciary considers it
otherwise.159 The decision of the apex court in Rudul Sah makes it evident that
the state will be vicariously liable to pay damages to the victims of unlawful
legislation. Rudul Sah dictum is the best illustration of a judge made change in the
law’.161 The Supreme Court thus gave notice that it reserves the right to create
new remedies in its original jurisdiction under Article 32, which are indispensable
The principle enunciated in Rudul Sah was destined to evolve into the
158 For the text of the Declarations, see (1980) 201.J.I.L. pp 118-9.
159 K.Narayana Rao, “Right to Compensation for Unlawful Detention in India”, (editorial
comment) (1986) 26 I.J.I.L. 516.
161 Prof. Y.R.Haragopal Reddy, “Compensation to the Victims of State Lawlessness New
Tends”, Paper presented at the Second Biennial Conference of the Indian Society of
Victiomlogy held from 4th to 6th Oct, 1996, at National Law School of India University.
Bangalore; G.L.Wazir, “Right to Compensation under Public Law in India; A Basic
Human Right and an International Commitment”, Legal News & Views, July 1997
p.13.
into the concept of constitutional torts. The Court evolved this concept piecemeal
carried out by the government for 12 years and the petitioner, after running from
pillar to post, ultimately approached the Supreme Court under article 32. The
government had not paid the arrears of salary due to him as per an earlier
judgement. The Court issued another writ of mandamus directing the government
to carry out its orders. It also awarded damages to him for the “intentional,
deliberate and motivated” harassment by the officers. There was no prayer for
damages in the petition. The Court quantified this amount at Rs.25,000 and
qualified the damages as “exemplary costs”. While such an order may be justified
I
here on the ground of non-compliance with the orders of the Court, the situation
was not quite the same in Sebastian Hongray v. Union of India. In this case,
two persons were whisked away by the 21st Sikh Regiment were found missing.
University filed a petition seeking the writ of habeas corpus under Article 32.
The Court issued habeas corpus commanding the respondents - Union of India,
before it on the specified date. The Court found from the record that the
respondents had misled it and thus committed a wilful disobedience of its writs It
treated this as a civil contempt under section 2 (b) of the Contempt of Courts Act,
1971. The consequences of civil contempt are imprisonment as well as fine. The
Court imposed neither of them and instead awarded rupees one lakh each in the
form of ‘exemplary costs’ to the wives of two individuals who had disappeared
after being taken into custody. The observation of the Court in this regard is
reproduced below:
In the circumstances of this case, the award of exemplary costs related more to the
submitted, the principles which govern the award of cost have not been correctly
applied in the case of exemplary costs because it can logically be awarded against
a party only for misconduct during the proceedings before the court and is not
This was really payment of compensation, for the costs were awarded “in view of
the torture, the agony and the mental oppression through which the [wives of the
In Bhim Singh v. State of J. & K.170 the Supreme Court became more
articulate when they had to examine the question of detention of a member of the
Legislative Assembly. The sole object of illegal detention as found by the Court
was to prevent him from attending the session of the House. His wife filed a
habeas corpus petition under Article 32. The Court held that the detention was a
gross violation of the right under Articles 21 & 22 (1). The member was already
set at liberty when the judgement was delivered. Still the Court could not sit
The court directed the State of J. & K. to pay Rs.50,000 to Shri Bhim Singh.
Fundamental Rights. However, the Court did not elaborate the case which can be
The trinity of the Supreme Court cases - Rudul Sah, Sebastian and Bhim
Singh - set the law in motion by recognizing the responsibility of the state to pay
compensation for breach of fundamental rights by ruling that its jurisdiction under
Article 32 is both preventive and remedial and that the remedial relief may include
the power to award compensation in ‘appropriate cases’. Unlike Bhim Singh, the
Mehta Court made a modest attempt to explain the doctrine of appropriate cases by
conclusive one but is inclusive in nature since it is open for the court to consider
In the first case police had taken ten persons to the police station to do some work
On demand of wages they were beaten and one of them succumbed to his injures.
A woman was stripped and thrashed. Others were beaten up seriously. Describing
this as ‘unfortunate’ the Court directed the Delhi Administration to pay a sum of
________________________ «
176 Y.R.Haragopal Reddy, supra note 160.
177 Ibid.
178 (1989) 4 S.C.C. 730.
179
A.I.R. 1990 S.C. 513.
231
Rs.50,000/- to the family of the deceased, Rs.500/- to the woman whose modesty
had been outraged and also a sum of Rs.25/- each to those eight persons who were
seriously beaten up by the police. In this case the Court took a slight departure
from the earlier position and asserted that the government can recover the amount
paid as compensation from the salaries of those officials who were found guilty
after the investigation and enquiry.180 In Saheli, a woman was dragged and beaten
by the police at the instigation of the owner of her flat, they threw her nine-year-
old son to the ground. The son died subsequently. Describing this as an
Rs.75,000/- compensation to the family of the deceased boy. Following the dicta
in P.U.D.R., the court also directed that the Delhi Administration may take steps
for recovering the amount so paid from the police officers who will be found
In State ofMaharastra v. Ravi Kant S. Patil,181 the Supreme Court recognised the
role of the High Courts in awarding compensation. A person was handcuffed and
paraded in the streets without any justifiable reason. The Bombay High Court awarded
Rs. 10,000/- as compensation for violation of fundamental rights of the petitioner aid
ordered that the compensation should be paid personally by the concerned police officer
and directed the state government to make an entry in the official service record of the
police officer to the effect that he has been found guilty of violation of fundamental
rights of an undertrial prisoner.182 On appeal the Supreme Court endorsed the decision of
the High Court except vesting of liability to pay compensations in the police officer
responsible and making of entry in the service records. The Court observed that the
police officer acted only as an official and even assuming that he exceeded his limits he
cannot be made personally liable to pay compensation to the victim. This attitude of the
Supreme Court is a retrograde one. It shows a departure from P.U.D.R183 and Saheli‘H4
where recovery of the amount of compensation from the officers concerned was
authorised by the Court185 It may be noted that the Court recognised the role of the
High Courts in awarding compensation. There are several illustrious cases wherein High
has been referred to nor any principle contra thereto has been enunciated,
except recognising the right of the victim to claim damages against the
State for the tortious acts of the public servant affecting life and liberty
and they have been invariably upheld. But it was being done without any
academics felt that unless the Court declared that Kasturilal is no longer
187 T.Ch. Surya Rao, “Doctrine of Sovereign Immunity - Need for Legislation”, Legal
News & Views. July 1986 p.26 at 28.
188 M.P.Singh, “Constitutional Liability of the State. Erosion of Sovereign Immunity”. The
Lawyers, May 1994, p.15.
189 Y.R.Haragopal Reddy, supra note 160; Prof.P.K.Tripathi maintained that if what the
Court awarded was in the nature of damages, then it should have discussed and decided
the main issue of state liability for the wrongful act of its servants along with relevant
judicial decisions, because of finding on this issue was imperative for the award of
damages. See P.K.Tripathi, “Article 32 and the Compensation conundrum: Rudual Sah
v. State ofBihar”, (1984) 2 S.C.C. (Jour) p.5l.
234
After a decade from Rudul Sah, the Supreme Court found it necessary to
observations made in Rudul Sah that ‘the petitioner could have been relegated to
the ordinary process’. Because these observations raise a doubt that the remedy
under Article 32 may not be available if the claim was factually controversial, the
The Court distinguished the liability of the state for violation of the fundamental
rights from the liability in private law for payment of compensation in action on
The case of Nilabati Behera came before the Supreme Court by way of
was taken in police custody and he was found dead the next day on the railway
track without being released from custody and his unnatural death was caused by
multiple injuries sustained by him. The Court inferred that the fatal injuries were
inflicted on the deceased in police custody resulting in his death for which the
State of Orissa was responsible and liable. An inquiry by the District Judge also
had shown that it was a case of custodial death. On the facts of the case, the Court
194
Supra note 189, at 1969.
237
directed the State of Orissa to pay Rs. 1,50,000/- as compensation to the petitioner
The Court in the course of its reasoning made reference to Art. 9(5) of the
International Covenant on Civil and Political Rights, 1966, which has direct
impact on the Indian legal system since there is no enabling Act making its
From the above cited portions of the judgement the following propositions
emerge: (a) award of compensation under Articles 32 and 226 is a public law
remedy distinct from private law action in tort; (b) the distinction between the two
kinds of remedies is also the basis for compensation; (c) the principle of sovereign
immunity does not apply to the public law remedies; and (d) the liability of the
fundamental rights, particularly Article 21, the ‘duty of care on the part of the State
is strict and admits of no exceptions’ and public law remedies which ensure the
rule of law and civilize public power must also protect and preserve the rights of
the citizens. ‘Law’, he said, ‘is in the process of development and the process
principles’.197
The Court buttressed these propositions with reference to its powers and
obligations under Articles 32 and 142 and to the possibility of state officials
extinguishing human lives if the only relief available was punishment for any
doctrine of sovereign immunity has not become obsolete, but it is very much
available as a defence though not in the cases of public law remedy based on strict
liability for contravention of fundamental rights, but in cases of other tortious acts
significant factor which need be mentioned here is that the dictum of Kasturilal is
neither overruled nor set aside and has only been distinguished.201 Hence the
modification being that in the case of violation of fundamental rights of the citizen
by the tortious acts of the public servants committed while discharging the
statutory functions delegated to them under a statute, the State is vicariously liable.
public law claiming compensation for breach of fundamental rights. The Court in
200 M.S.V.Srinivas, “Compensation under Arts.32 and 226 for Violation of Human Right s
and Fundamental Freedoms”, A. I. R. 1997 (Jour) p.167.
the course of its reasoning makes out that awarding of compensation as a public
law remedy is ‘based on strict liability’. The strict liability arises where there is no
fault on the part of the defendants. In Nilabati Behera, it is evident that the
Government servants committed the wrong, and hence, the law applicable is not
submitted that the strict liability doctrine is not tenable in this case.202
appropriate. The argument that in Nilabati Behera it was a writ for violation of
fundamental rights whereas in Kasturilal, the suit was for the recovery of amount
as compensation for the loss of property, is not sound since at the time when
Kasturilal was decided, right to property was a fundamental right under Art. 31 of
the Constitution and the Court has not made out any such distinction as to ordinary
civil suit or writ for enforcing of fundamental rights. Therefore, the distinction
The principle enunciated in Rudul Sah and reiterated in Nilabati Behera has
members of the persons who were found dead after being taken for interrogation
204 Postsangbam Naingol Thokehom v. General Officer Commanding, (1997) 7 S.C.C. 725,
People's Union for Civil Liberties v. Union ofIndia, A.I.R. 1997 S.C. 1203 ; Punjab &
Haryana Bar Association v. State ofPunjab, (1996) 3 S.C. J. 87.
205 Saheli v. Commissioner ofPolice, A.I.R. 1990 S.C. 513; Nilabati Behera v. Orissa,
A.I.R. 1993 S.C. 1960.
206 Supreme Court Legal Aid Committee v. Bihar, (1991) 3 S.C.C. 482; Charanjeet Kaur
v. India, (1994) 2 S.C.C. 1.
208 Inder Singh v. Punjab, (1995) 3 S.C.C. 702; R.S. Sodhi v. UP. (1994) Supp (l)S.C C.
142.
Kumari v. T.N., (1992) 2 S.C.C. 233; Shakuntala Devi v. Delhi Electric Supply, (1995)
2 S.C.C. 369.
210 Arvider Singh Bagga v. State of UP., A.I.R. 1995 S.C. 117.
211 D.K.Basu v. State ofW.B. , A.I.R. 1997 S.C. 610.
212 Peoples Union for Democratic Rights v. Police Commissioner, (1989) 4 S.C.C. 730
213 M.C.Mehtav. India, (1987)1 S.C.C. 395.
214 A.SMittalv. UP., (1989)3 S.C.C. 223.
215 Harvinder Chaudhary v. India, (1996) 8 S.C.C. 80.
242
government hospital,216 or to the family of those who died due to negligence of the
government doctor.217
relate to rights under Arts.21 and 22, compensation is also awarded for violation of
other fundamental rights. The cases of Assam Sillimite Ltd. v. India218 and
Sillimite Ltd, the Supreme Court held that the petitioner company, whose lease for
sillimite was cancelled without giving him a hearing, was entitled to compensation
as his fundamental rights to do business under Article. 19 (1) (g) was violated In
confiscation of certain books which were imported by the petitioner. The Court
held that the concerned authority did not apply his mind to the question how the
books belonged to the prohibited category under section 111 of the Customs Act.
freedom of speech and expression under Article 19 (1) (a), the Court awarded
216 Paschim Bangal Khet Mazdoor Samity v. State ofW.B., J.T. 1996 (2) S.C. 43.
2,7 Achutrao Haribau Khodwa v. State of Maharastra, J.T. 1996 (2) S.C. 624.
218 (1990)3 S.C.C.182.
219 (1994)5 S.C.C. 550.
220 For the compensation for loss suffered in his business, he was asked to go to ordinary
civil court, as the Supreme Court did not have necessary data to calculate the loss
suffered. In the Kerela Case of P.Gangadhara Pillai v. State of Kerala (A.I.R. 1996
Ker. 71), the petitioner’s hotel was ransacked in a mob attack causing damage to
property. Police had sufficient warning of the likelihood of an attack by rioters. It was
held that the States failure to prevent the loss resulted in infringement of petitioner's
rights under Article 19 (1) (g) and the State was held liable.
243
A criticism was levelled against the Supreme Court by the academics for
awarding compensation only while exercising jurisdiction under Art.32 and not
under Article 136 where appeals on special leave are heard. It was argued that, in
jurisdiction under Article 136 is as appropriate as, if not more appropriate than, the
jurisdiction under Article 32.221 The criticism no more holds water in view of the
fact that the Apex Court has awarded compensation in special leave petitions also
respondent, a labourer woman and a certificate to that effect was also given to her,
under the signature of the medical officer. The sterilisation operation failed and
the respondent gave birth to a child. The respondent filed a suit for recovery of
Rs.2 lakhs as damages for medical negligence, which was decreed for a sum of
Rs.54,000/- with interest. Two appeals were filed. Both the appeals-one filed by
the state and the other by the respondent-were dismissed. The state approached the
The State contended that the sterilisation operation performed upon the
respondent, was done carefully and there was no negligence on the part of the
j'y s
~ P.Leelakrishnan, supra note 127, at 60.
222 1 (2000) C.P.J. 53 (S.C.).
244
doctor who performed that operation. It was further pleaded that the respondent
had herself put her thumb impression on a paper containing a recital that in case
the operation was not successful, she would not claim any damages. It was
pleaded that she was estopped from raising the plea of negligence or from claiming
damages. The state also contended that the negligence of the medical officer in
performing the unsuccessful sterilisation operation would not bind the state
government and the state government would not be liable vicariously for any
damages to the respondent. The Supreme Court rejected these contentions and
“The contention as to the vicarious liability of the state for the negligence of
law settled by this Court in N.Nagendra Rao v. Union of India and Ors, AIR 1994
SC 2663; Common Cause, A Regd. Society v. Union ofIndia & Ors, AIR 1999 SC
2979; and Achutrao Haribhau Khodwa & Ors v. State of Maharastra & 05,1996
ACJ 505. The last case, which related to the fallout of a sterilisation operation,
deals, like the two previous cases, with the question of vicarious liability of the
between public Law remedy or Constitutional remedy and Private Law remedy or
245
Civil Law remedy in Nilabati Behera. The Court in that case had observed that
award of compensation under Arts.32 and 226 was a remedy available under
public law and the principle of sovereign immunity did not apply to it, while it
State of A.P.224. In this case the Plaintiffs (appellants) were the sons and wife of
Late Challa Chinnappa Reddy. The deceased and the 1st plaintiff were accused,
arrested and remanded to judicial custody. They were lodged in cell no. 7 of sub
jail of Koila Kuntla. On the night of 5/6 May, 1977 at about 3.30 a.m., some
miscreants gained entry into the sub-jail, hurled bombs into cell no.7 and killed the
malfeasance and misfeasance of the defendant State and its subordinate officials in
guarding the jail premises even after appraising the authorities of danger to their
223
G.I.S. Sandhu, “Monetary Compensation for violation of Human Rights Its
Developments and Prospects in India” in B.P. Singh Sehgal (ed), Human Right in India:
Problems and Perspectives, (New Delhi: Deep & Deep Pub. 1995). P.414.
224
A.I.R. 1989 A.P. 235.
246
lives. The loss of the deceased being grievous and fatal to the prospects of his
children and family, the damage suffered by them was estimated at Rs.10 lakhs.
The State denied its liability for any damages and contended amongst other things
is a sovereign function of the State. The learned subordinate judge accepted the
On appeal the Andhra Pradesh High Court held that the sovereign immunity
is no bar to a private law suit for compensation for the violation of the fundamental
225
Ibid., at 247.
247
Holding that the fundamental rights are sacrosanct, basic, inalienable and
Observing so, the court allowed the appeal and decreed the suit in a sum of
Rs. 1,44,000/- and said that this is the only mode in which the right to life
State of A.P. to the Supreme Court. When the appeal was pending Prof.M.P.Singh
wrote as under which reflects the curiosity of the academics in the matter. He
wrote:
It is interesting to note that the view taken by the Andhra Pradesh High
Court has been approved by the Supreme Court in the landmark judgement of
249
State of A.P. v. Challa Ramakrishna Reddy?2* The Court held that the maxim
‘King can do no wrong’ or that the Crown is not answerable in tort has no place in
Indian jurisprudence where the power vests, not in the Crown, but in the people
who elect their representatives to run the government, which has to act in
accordance with the provisions of the Constitution and would be answerable to the
people for any violation thereof. The Court went on to observe as under which
228
(2000)5 S.C.C. 712.
250
Holding so the Apex Court dismissed the appeal. Thus, at the end of this path
civil law or private law remedy - for violation of fundamental rights. This
vindicates the fundamental rights of millions of have-nots who do not have where
withals to approach the High Courts and Supreme Court to avail the public law
remedy.
229
Ibid., at 723-4,726 & 727 emphasis supplied.
251
However, this enabling provision still remains a dead letter. If only Parliament
enacts a legislation endowing the District Courts with human rights jurisdiction, it
general and personal liberty in particulars.230 Till then the trial courts can achieve
the result by following the path shown by the Supreme Court in State of A.P v
needs to be taken notice of. In Jwata Devi v. Bhoop Singh,231 the Supreme Court
criminal appeal which reached the court under article 136. The power of the Court
in making such orders could of course, be justified under Art. 142.232 However, the
230 K.Narayana Rao, supra note 157 at 518. See also G.L. Wazir, supra note 116, at 15-6
Court has stopped sometimes at the traditional boundaries of disposing appeals and
has confined itself to the penal aspect of the offences; no idea of rendering
Supreme Court in appeal acquitted appellants and reversed the order of one year
rigurous imprisonment imposed by the Sessions Judge under the Arms Act. The
Court held the state liable to pay compensation of Rs.5,000/- to the appellants.2’5
rights would be whether the rights in question actually do form a substantive basis
for such course: of action.236 Can it be said about the Indian Constitution to put a
little differently- what Chief Justice John Marshall of the United States Supreme
Court believed was the position with reference to the Constitution of the United
States of America, namely, that “the Government of the United States has been
Gauri Shankar Sharma v. State of U.P., A.I.R. 1990 S.C. 709, State of Maharastra v.
Chandraprakash Kewalchand Jain, A.I.R. 1990 S.C. 658.
234 (1996)11 S.C.C. 711; This case raises certain basic questions: 1. Can the State be made
liable in the cases where a person in acquitted? 2. Should the persons concerned not be
required to prove in a separate civil suit that there was malicious prosecution?
236
Krishnan Venugopal, supra note, 117 at 373.
253
emphatically termed a government of laws and not of man”, and that “it will
certainly cease to deserve this high appellation if the laws furnished no remedy for
the violation of vested legal rights”.237 Certainly the Court in Rudul Sah was of
this opinion wherein a two-track approach in discernible; while on the one hand
the Court wishes to afford “some palliative” to the petitioner in the form of a "right
to compensation”, it desires at the same time to penalise for their unlawful acts
“those instrumentalities which act in the name of public interest and which present
for their protection, the powers of the State as a shield”.238 The court awarded
compensation for “gross violation” of right under Art.21. In Devaki Nandan. the
Court awarded costs for “deliberate, motivated and intentional harassment” of the
petitioner by the officers of the state. Later the Court invented the doctrine of
‘appropriate cases’ through Sebastian Hongray and Bhim Singh and ultimately in
rights must be gross, patent, incontrovertible, exfacie glaring and its magnitude
Court ultimately brought in the ‘public law’ and ‘private law’ remedy distinction
in the case of Nilabati Behera and awarded compensation on the basis of ‘strict
liability’ for constitutional torts holding that the defence of sovereign immunity is
not available in public law domain. However, in this case, factually the state was
not made liable on “no fault basis”; an opportunity was given to the state to
explain and fault was found with the state of blatant disregard of law. ft is
submitted that the principle of strict liability should not be invoked against public
bodies and the Court must follow the doctrine of ‘appropriate cases’ wherein
‘fault’ principle in implicit In U.S.A. also, the principle of strict liability has not
been generally applied against public bodies- which is obvious from the analysis of
the cases undertaken at the beginning of this chapter. Of course the doctrine of
‘appropriate cases’ as spelt out by the court retains the element of subjectivity
This is natural.239 Another aspect is that since the development of law is based on
public law for the violation of Fundamental Rights, where judicial discretion plays
a major role, the Court fails to produce any jurisprudence as to the liability of the
State. The better course the Court could have adopted is by overruling the
unfortunate law, which is a creation of the judiciary so that the remedy can be
obtained from the lowest court as envisaged in a common law system so that any
error in judgement can be cured since the judiciary is more accountable through
The Apex Court has partially achieved this by its revolutionary decision in Challa
from the clutches of the archaic concept of sovereign immunity vis-a-vis the
Fundamental Rights.
fundamental rights form Rudul Sah to Challa Ramkrishna Reddy through Nilabati
Behera. However, it is not a happy state of affair in the absence of concrete and
“Article 13-A. Right to Compensation: Any one who has been the
right of compensation.”
the courts in quantifying the compensation has been subjected to varied criticism.
Much talk has been made by the Supreme Court in D.K.Basu about awarding of
compensation for the infringement of fundamental rights, but failed to lay down a
definite criterion in determining the compensation. The Court went on to say that,
not on punitive element, and the quantum of compensation will depend upon the
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peculiar facts of each case and no straight-jacket formula can be evolved in that
behalf. It is submitted that the Apex Court must seize the earliest possible
constitutional tort actions, for the victim of an unconstitutional conduct may not