A constitutional tort is a legal tool that allows the state to be held vicariously accountable over the actions of its agents. If any of the civil rights are abused, there is a judicial attempt to obtain a legal redress in the form of damages. The sole difference is that if the act is performed in the execution of sovereign (government) functions, then such actions cannot be held accountable on the government.
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.
State Liability For Constitutional Tort:
The notions of the term “tortious liability of the state” refers to a circumstance in which the government can be held vicariously accountable for the actions of its employees. There are several constitutional clauses pertaining to the State’s tortious responsibility such as Article 294 (b) which makes the Union/state government liable for any contractual obligation. Similarly, Article 300 (l) stipulates that the Indian government or a state may sue or be sued in regard to their respective affairs in the same circumstances that Indian states have sued or been sued in.
The development of judgments carried through differentiating the functions of state official as being sovereign or non-sovereign. Sovereign immunity was discussed elaborately in the case of Peninsular& Oriental Steam Navigation Company v. Secretary of State of India, where the Supreme court inferred that the Government would be accountable for the conduct of its servants while doing non-sovereign tasks, but it will not be responsible for damage inflicted while doing sovereign activities. Thus, tortious liability was exempted in cases where the officials of state or state functionary performed sovereign functions.
The Meaning of Sovereign Function:
In order to understand Constitutional Tort, it is pertinent to understand, what constitutes a Sovereign Function. It was observed in Salaman v. Secretary of State for India (1906) 1 KB 613, 619: 75 LJKB 418: 94 LT 858 that, “An act of State is essentially an exercise of sovereign power and hence cannot be challenged, controlled or interfered with by municipal courts.”
The Hon’ble Supreme Court of India in Agricultural Produce Market Committee v. Ashok Harikuni (2000) 8 SCC 61, summarized the current ratio qua sovereign and non-sovereign function:
“…the dichotomy of sovereign and non-sovereign functions does not really exist — it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case. [N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205: 1994 SCC (Cri) 1609] As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in courts of law…if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case [(1978) 2 SCC 213: 1978 SCC (L&S) 215: (1978) 3 SCR 207] would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come within the purview of the definition of industry; and, not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.”
For the first time in the case of Rudul Sah vs. State of Bihar (1983) 4 SCC 141, The principle & concept of constitutional torts was established and crystallised.
In the case of Rudul Sah vs. State of Bihar (1983) 4 SCC 141, 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 case relates to the unlawful detention of prisoner for fourteen years even after his acquittal which shook the conscience of the Hon’ble Court.
List of cases in which the Hon’ble Supreme Court of India awarded compensation in public law, invoking the principle of constitutional tort, either expressly or impliedly as under:
| S.NO. | CASE NAME | DECISION |
| 1. | Sebastian M. Hongray vs. Union of India (1984) 3 SCC 82 | Two men who were taken for questioning by 21st Sikh Regiment never returned home.When a writ of habeas corpus was filed by a JNU student, this Court directed that the missing men be produced before the Court. This order could not be complied with.Court awarded compensation of Rs.1lacs to the wives of the missing men on account of mental agony suffered by them. |
| 2. | Bhim Singh, MLA vs. State of J&K. (1985) 4 SCC 677 | • An MLA was illegally arrested and detained to prevent him from attending a session of the Jammu & Kashmir State Legislative Assembly. • FIR was registered u/s 153A, IPC and order of remand was obtained from the Magistrate without producing the MLA before Court. • In a writ for habeas corpus filed by his wife, the Court observed that there had been a violation of his fundamental rights under Articles 21 and 22(2) of the Constitution and accordingly directed the State of Jammu and Kashmir to pay Bhim Singh a sum of Rs.50,000/- as compensation. |
| 3. | Peoples’ Union for Democratic Rights vs. State of Bihar & Ors. (1987) 1 SCC 265 | A public interest litigation was filed against the illegal shooting by police officers against members of a peaceful assembly.Several were injured and 21 died (including children) due to this incident.While the State had paid a compensation of Rs.10,000 each to heirs of the deceased, the Court found it insufficient and directed payment of Rs.20,000 to dependants of each deceased and Rs.5,000 to each injuredperson. |
| 4. | Saheli, a Women’s Resources Centre through Ms.Nalini Bhanot & Ors. vs. Commissioner of Police, Delhi Police Headquarters &Ors. (1990) 1 SCC 422 | Two women were forcefully evicted from their homes. The landlord was aided by the SHO and SI in the assault that led to demise of the nine-year-old son of one of the women. The Court awarded compensation of Rs.75,000 to the mother of the deceased child. |
| 5. | Supreme Court Legal Aid Committee through its Hony. Secretary vs. State of Bihar & Ors. (1991) 3 SCC 482 | A person injured in a train robbery, was taken to the nearest hospital by the Police by tying him to the footboard of a vehicle. This led to his death.The Court observed that had timely care been given to the victim he might have been saved. The State of Bihar was directed to payRs.20,000 to the legal heirs of the deceased. |
| 6. | Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) vs. State of Orissa & Ors. (1993) 2 SCC 746 | Petitioner was a mother whose son had died in police custody. The Court directed the State to paycompensation of Rs.1.5 lacs. |
| 7. | Arvinder Singh Baggavs.State of U.P. & Ors. (1994) 6 SCC 565 | A married woman was detained and physically assaulted in a police station with a view to coerce her to implicate herhusband and his family in a case ofabduction and forcible marriage. After taking her statement, her husband and his family were also harassed by the police.The Court observed that the police had exhibitedhigh-handedness and uncivilized behaviour and awarded the woman a compensation of Rs.10,000 and members of her family Rs.5,000 each. |
| 8. | N. Nagendra Rao & Co. vs. State of A.P. (1994) 6 SCC 205 | Appellant was in the business of food grains and fertiliser. On an inspection by the concerned authorities, his stocks were seized.As was the practice, the food grains in custody were sold and the proceeds deposited in the Treasury, but the fertilizers were not dealt with in the samemanner causing great loss to the Petitioner.In a suit for negligence and misfeasance of public authorities, the Court further developed the concept of Constitutional Tort and limited the scope of sovereign immunity. The State was held vicariously liable for the actions of the authorities. |
| 9. | Inder Singh vs. State of Punjab & Ors. (1995) 3 SCC 702 | A Deputy Superintendent of Police along with his subordinates abducted and killed seven persons due to personalvengeance.The Court ordered an inquiry by the CBI. After CBI filed a report, this court directed the State to pay Rs.1.5 lacs to the legal heirs and State to pay costs quantified at Rs.25,000. |
| 10. | Paschim Banga Khet Mazdoor Samity & Ors. vs. State of W.B. & Anr. (1996) 4 SCC 37 | The callous attitude on the part of the medical authorities at various Government-run hospitals in Calcutta in providing treatment to a train accidentvictim was highlighted in this case.The Court directed the State to pay Rs.25,000 for the denial of its constitutional obligations of care. |
| 11. | D.K. Basu vs. State of W.B. (1997) 1 SCC 416 | In a public interest litigation involving incidents of custodial violence in West Bengal, this Court issued guidelines for law enforcement agencies to follow when arresting and detaining any person.The Court also discussed the award of compensation as a remedy for violation of fundamental rights as a punitive measure against State action. |
| 12. | People’s Union for Civil Liberties vs. Union of India& Anr. (1997) 3 SCC 433 | Two persons alleged to be terrorists were killed by the police in a false encounter.The Court directed the State of Manipur to pay Rs.1 lac to the family of the deceased and Rs.10,000 to PUCL for pursuing the case for many years. |
| 13. | Municipal Corporation of Delhi, Delhi vs. Uphaar Tragedy Victims Association& Ors. (2011) 14 SCC 481 | A fire in a cinema hall resulted in injury to over 100 persons and death of 59 cinemagoers. The fire was caused by a transformer installed by Delhi Vidyut Board (DVB). HC had found the Municipal Corporation, Delhi Police, and theDVB responsible for the accident.The Court held only DVB and theatre owner liable to pay compensation in the ratio of 15:85.While doing so, the Court dealt extensively with the concept of Constitutional Tort. |
Conclusion:
It will be clear from the decisions listed in the Table above that the Hon’ble Supreme Court of India has been consistent in invoking Constitutional tort whenever an act of omission and commission on the part of a public functionary, including a Minister, caused harm or loss and 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.
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