Application Of Principles of Tort Law In Implementing Art. 21
- shrey singh
- Mar 6, 2020
- 24 min read
INTRODUCTION
An area of tort that developed in India which differs from the UK is the availability of constitutional torts. Creating constitutional torts is a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle. The tort was further entrenched when the court allowed compensation to be awarded as “a remedy available in public law; based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defense in private law in an action based on tort”. This approach is vastly different from the approach taken in UK as compensation for damages is not an available public law remedy.
General Principles of Constitutional Tort
Of late, certain authors of public law as well as tort law have coined the term “constitutional tort”,
(a) Clerk and Lindsell on ‘Torts’; 18th Edn. Sweet and Maxwell Ltd, 2000
(b) ‘Torture as Tort’ by Graig Scott; HART Publishing, Oxford – Portland/ Oregon, 2001
(c) ‘Torts: Personal injury litigation’ by William P. Statsky; 4th Edn. (2001),
by their analysis of the cases decided by the Public Law Courts like High Courts and Supreme Court where compensation was awarded in public law for violation of basic human rights and civil rights to life and liberty. It is necessary to briefly refer to the concept of tort and Constitutional tort to understand the public law remedy of compensation for violation of right to life and liberty. Tort is a civil wrong that causes injury for other damages for which the local system deems it just to provide remedy for compensation. The conduct may be both crime and tort in which event redress is to be sought in different form. The criminal law aims at vindicating the public wrong whereas tort law aims at vindicating private civil wrong and as observed by ‘William P. Statsky’, tort law aims at four purposes; peace, deterrence, restoration and justice. What is a constitutional tort and what is the relationship between tort and public law ?
William P. Statsky defines this as “the phrase constitutional tort refers to a special cause of action that arises when someone is deprived of federal civil rights…….and to deprive someone of federal civil rights under colour of State law can be what is called the constitutional tort.”
Every breach of constitutional law or every failure to discharge constitutional obligation does not give rise to a constitutional tort. Indeed, Clerk and Lindsell on ‘Torts’ observed that the extent to which the law of torts should operate to hold public authorities accountable for their dealings with private citizens is in a state of flux. It was further observed “…Public authorities enjoy no general immunity in tort nor are they subject to any system of law akin to droit administratif in France.”The problems arise when the alleged tortious conduct arises out of a public authority’s conduct of its public obligations and the exercise of the statutory powers enjoyed to fulfill those obligations. Should public authorities be liable in tort for poor Government, be it inadequate education for local children, inept inspection of building works or inequitable distribution of healthcare resources? Claims for breach of statutory duty have generally failed. The learned authors dedicated one entire Chapter (Chapter 12) to public law aspects of tort and a separate sub-chapter is devoted to constitutional torts.
Torts like battery, assault, false imprisonment by police officers and other investigating agencies are constitutional torts, because, public authorities are involved in all these torts. Species of tort, that is, trespass to person is relatable to right to life and liberty and whenever a person is subjected to tort of trespass, like battery, assault and false imprisonment etc., the Government official as well as the State are vicariously liable for damages. In that view of the matter, in an action for constitutional tort the respondents can plead the same defences as are available in an action for tort. The defense of official immunity in common law torts is also available in an action for constitutional tort. One such defence is action taken under the law made by Indian Legislature. The same, however, will not be available to an official, if they did not act on tort while performing official functions under the law during the course of their employment and they acted maliciously and not in good faith.
PRE CONSTITUTIONAL POSITION
Several important judicial decisions dealing with the liability of the State in tort were pronounced in India in the period before the Constitution; and we propose to refer to a few of them, confining ourselves to the most important of those decisions.
The Calcutta view: P & O Case
A consideration of the pre-Constitution cases (as to Government’s liability in tort) begins with the a judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. V. Secretary of State. The case was actually reported as an Appendix to one of the Bombay High Court Reports – 5 B. H. C. R. App. P. 1. A servant of the plaintiff-company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused by negligence of the servants of the Government. For the loss caused by the accident, the plaintiff claimed damages against the Secretary of State for India. Sir Barnes Peacock C. J. (of the Supreme Court) observed that the doctrine that the “King can done wrong”, had not application to the East India Company. The company would have been liable in such cases and the Secretary of State was thereafter also liable (He was interpreting section 65, Government of India Act, 1858, which equated the liability of the Secretary of State for India with that of the East India Company). On this holding, it was not necessary for Peacock C.J. to discuss the distinction between sovereign and non-sovereign functions. But he made a distinction between the two and observed, that if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy property as prize.
The doctrine of immunity for acts done in the exercise of “sovereign functions”, enunciated in the P & O case, was applied by the Calcutta High Court in Nobin Chander Dey V. Secretary of State, (1873) ILR 1 Cal. 1. In that case, the plaintiff contended that the Government had made a contract with him for the issue of a licence for the sale ofganja and had committed breach of the contract. The High Court held as under:
(i) On the evidence, no breach of contract had been proved.
(ii) Even if there was a contract, the act was done in exercise of sovereign power and, therefore it was not actionable. The High Court expressly followed the P & O ruling (discussed supra).
The Madras and Allahabad high courts reiterated the same stand
In Secretary of State Vs. Hari Bhanji[1], , the Madras High Court held that State immunity was confined to acts of State.The Madras High Court re-iterated this view in Ross Vs. Secretary of State[2].The Allahabad High Court took a similar view in Kishanchand Vs. Secretary of State[3].
However, in Secretary of State Vs. Cockraft[4], making or repairing a military road was held to be a sovereign function and the Government was held to be not liable, for the negligence of its servants in the stacking of gravel on a road resulting in a carriage accident injuring the plaintiff. (The more liberal approach of Hari Bhanji was thus slightly modified).
EVOLUTION OF COMPENSATORY JURISPRUDENCE IN VIOLATION OF ARTICLE 21
Devaki Nandan was the real breakthrough landmark case, through which the Supreme Court laid the cornerstone for the novel concept of the Constitutional Tort and Compensatory Jurisprudence. In this case, the petitioner was dragged for twelve years before allowing his pension. Without much discussion in the judgment, the Apex Court awarded Rs. 25000/- as an exemplary costs for harassing the petitioner. The court felt that harassment is intentional, deliberate and motivated.
The liability of the State for tortous acts of its servants has for some time posed immense difficulties. Even though the concept is recognized in all jurisdictions, yet the doctrine of sovereign immunity was interposed to deny the liability of the state. However, in the event of state donning various activities for the welfare of its citizens, the immunity rule has been diluted by the judicial reasoning in upholding the liability of state for tortious acts of its employees.
A tort is generally viewed as the breach of a duty owed to the public in general (as distinguished form a duty owed to an individual). In India we do not have a legislation which deals with the liability of State for tortious liability of its servants. The vicarious liability of Union of India and the State Govt. for the tortious acts of its employees is regulated by Art. 300 of the Constitution of India. [5] However, the Supreme Court has also enunciated the concept of ‘constitutional tort’. A constitutional tort occurs, when an act or omission violates a constitutional right, particularly, a Fundamental Right. In cases of relief on account of Fundamental Right violations, the Courts applying ‘constitutional tort’ doctrine have done away with some of the doctrines generally applicable in law of torts that make liability dependent on fault. Some of these doctrines have created controversies” e.g. state liability for acts committed in the course of ‘sovereign’ functions[6]. The Supreme Court of India has also accorded recognition to what may be called the ‘tort of misfeasance’ in public office, where Union Ministers were ordered to pay damages to the State for malafide official action amounting to abuse of power.[7]
R.M Sahai, J., has finally laid down the entire concept of tortious liability of state at rest in N. Nagender Rao and Company v State of Andhra Pradesh.[8] The Court held
“….No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural changes in the society. No legal or political system today can place the state above the law…. From sincerity, efficiency and dignity of state as a juristic person, propounded in nineteenth century as sound sociological basis for state immunity the circle has gone round and the emphasis is now more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic state protection and place the state or the government on the path with any other juristic legal entity. Any watertight compartmentalisation of the functions of the state as “sovereign and non sovereign” or “governmental of non governmental” is not sound. It is contrary to modern jurisprudential thinking. The need of the state to have extra ordinary powers can’t be doubted but with the conceptual change in the statutory powers being statuary duty for the sake of the society and the people the claim of the common man or ordinary citizen cant be thrown out merely because it was done by an officer of the state even tough it was against law and negligent. Needs of the state, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare state is not shaken….In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital.”
AWARD OF COMPENSATION
The Supreme Court by interpreting Art.32 of the Constitution has innovated new methods, techniques and strategies for purposes of securing the enforcement of Fundamental Rights of the individuals. The purpose of such an activist interpretation is to entrench rule of law and to secure the sacrosanct nature and inalienability of the fundamental human rights. However, as we shall see later, the Supreme Court and even the High Courts have put “ right to life and liberty” on a higher pedestal than other Fundamental Rights.
The powers under Art.32 are not subject to any limitations, except the ones self imposed by the Court.[9] Judicial review has also been held to be part of the basic structure of the Constitution.[10] The powers under the said article have been used by the Court for preventing as well as remedying the infringement of Right to Life under Art. 21. The Court has evolved the award of monetary compensation as one of the means of remedying encroachment of Fundamental Rights as well as providing relief to the victims of said violation. This remedy, it may be mentioned is provided in the International Covenant on Civil and Political Rights[11] that has been relied upon by the Court in some of its decisions, as we shall see later.
Before 1983 the Court refused to award such compensation under Art.32 for violation of right to life under Art. 21. In such a scenario, the victim had to file a civil suit under the ordinary law of torts for claiming compensation, which by all means was dilatory and time consuming and subject to other statutory limitations. The Court for the first time in Khatri v. State of Bihar[12](infamously known as Bhagalpur Blinding Case) considered the issue of award of monetary compensation to the victim of violation of right to life and liberty by the State. Speaking for the Court, Bhagwati, J. stated:
“Why should the Court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious Fundamental Right to life and personal liberty?”[13]
An important question considered by the Court in Khatri was, would the state be liable to pay compensation for the acts of its servants outside the scope of their power and authority affecting the life or personal liberty of a person and infringing Art.21 of the Constitution? The Court answered the question in affirmative, saying that otherwise Art.21 would be reduced to a nullity, a mere rope of sand. This way if the officer of the State is acting according to law, there will be no violation of Art.21, and if he were acting without the authority of law, the State would be able to contend that it is not responsible for his actions and therefore there is no violation of Art. 21. This case also interposed new dimensions of the constituency of the right to life and personal liberty, which has over the years been continued by the Court.[14]
Even though in Khatri, the Court did not award compensation to the victims of violation, but the Court upheld the doctrine that the Supreme Court under Art.32 and the High Courts under Art.226 can award compensation in the event of infringement of Fundamental Right to life and liberty. It is because of the reasons that the Supreme Court and High Courts under their writ jurisdiction have the powers to issue appropriate orders for remedying the situation.
Rudul Sah v. State of Bihar[15] is a landmark decision in compensatory jurisprudence evolved by the Court. The State and its machinery illegally incarcerated the petitioner in jail for 14 years, even after his acquittal by a criminal court, demonstrating absolute administrative laxity and scant respect for life and liberty. The Court in a habeas corpus petition awarded damages against the State for breach of petitioners’ right of personal liberty. The Court observed that the instant case revealed “a sordid and disturbing state of affairs” for which the State was accountable. Taking an activist rather than a traditional approach, in which the Court would have released the petitioner with liberty to file a suit for compensation against the state, the Court awarded compensation in favour of the petitioner. The Court stated, “Not doing so would be doing a mere lip service to the Fundamental Right to liberty which the State Government has so grossly violated”. The Court further observed:
“One of the telling ways in which the violation of the right can reasonably be prevented and due compliance with the mandate of Art.21 secured, is to indict the violators in the payment of monetary compensation…The right to compensation is some palliative to the unlawful acts of the instrumentalities of the State which act in the name of public interest and which present for their protection the powers of the State as a shield…”[16]
It is submitted that had the Court allowed legal technicalities to prevail; it would have amounted to surrendering its powers to State’s lawlessness, conveying indifference to the personal liberty of the peoples and their sufferings. It would also have conveyed a message that the gross violations of life and liberties go un-punished. Judicial response to human rights cannot be blunted by legal jugglery, as rightly stated by the Supreme Court.[17]
Again in Sebastian M.Hongray v. Union of India,[18] a habeas corpus petition was filed to produce the two missing persons before the Supreme Court. The persons having been taken away by army officers went missing mysteriously. The Government failed to produce them and asserted that they left the military camp alive. The Court found this assertion untenable and incorrect. It came to a conclusion that they were not alive and had met an unnatural death. The Supreme Court keeping in view the torture, agony and mental oppression, through which the wives of these persons had to pass, directed the Government to pay Rupees One Lakh as a measure of exemplary cost to each of the two women. It also directed that a complaint should be filed under Cr. P.C. to take actions against persons responsible for what prima facie appeared to be a case of murder. The Court used the term exemplary costs and not the term exemplary damages. The award of exemplary costs is permissible in such cases. The Court also did not cite any precedents nor did it support its findings on any jurisprudential doctrines. The object of awarding such costs, in our opinion is reflecting both a deterrent policy and a relief to the victims of such gross violations of life and liberty of persons.
Bhim Singh v. State of J&K[19] involved illegal detention of the petitioner, who was a member of legislative assembly of Jammu and Kashmir. The police officers obtained remand orders from the executive magistrate and the sub-judge without production of the petitioner before them. The law required such production before the magistrate. He was detained with malicious intent, and thus deprived of his right to attend the session of the Assembly. The Court found that there was gross violation of the petitioner’s constitutional rights under Art. 21 & 22 of the Constitution . The Court opined that the deprivation of constitutional rights might not be washed away by mere release of the petitioner. It further observed that in appropriate cases the Court has the power to compensate the victim by awarding suitable monetary compensation. It directed the State of J&K to pay the petitioner a sum of Rupees 50,000. It may be noted here that unlike Rudul Shah where the compensation was an interim measure and in the form of exemplary costs, in Bhim Singh the award was to compensate the victim, even though in the form of exemplary costs. It is to be noted that the Court relied on Rudul Shah and Sebastian to substantiate its order of award of compensation.
Nilabati Behera v. State of Orissa [20]seems to have firmly settled the issue of award of compensation as a measure of enforcement of Fundamental Rights. This case involved the death in public custody. It is for the first time that the Court acknowledged the award of compensation as a remedy under public law in contradiction to private law claim. It also held that the concept of sovereign immunity is not applicable in cases of violation of the right to life and liberty guaranteed by Art.21 of the Constitution. The Court observed:
“The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation as exemplary damages, in proceedings under Art.32 by this Court or under Art.226 by the High Courts, for established infringement of indefeasible right guaranteed under Art.21 of the Constitution, is a remedy available under public law and is based upon strict liability for contravention of the guaranteed basic and indefeasible rights of the citizens. The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system, which aims to protect their interest and preserve their rights. Therefore when the Court moulds the relief by granting “compensation” in proceedings under Arts.32 or 226 of the Constitution seeking enforcement or protection of Fundamental Rights, it does so under the public law by way of penalizing the wrong doer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the Fundamental Rights of the citizens. The payment of compensation is to be understood in the broader sense of providing relief by an order of making “amends” under the public law for the wrong done due to breach of public duty, of not protecting the Fundamental Rights of the citizen. The compensation is in the nature of “exemplary damages” awarded against the wrongdoer for the breach of its public law duty, and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law”.[21]
It is for the first time that a clear principle and philosophy underlying the doctrine of award of compensation for violation of Fundamental Right to life can be discerned. The distinction between the remedy of damages under the private law, where sovereign immunity is available, and the public law of compensation, where it is not available, indicates the basis of award of compensation as a remedy. The Court introduced strict liability in public law claims pertaining to Fundamental Rights and particularly the right to life and liberty.[22]
The doctrine of sovereign immunity was again relied on by the State in denying its liability of payment of compensation to the victim of violation of Fundamental Right of life and liberty. In State of Andhra Pradesh v. Challa Ramakrishna Reddy[23] where the respondents were in judicial custody, some persons entered the jail premises and hurled bombs, thus killing one of them. The suit for damages of the respondents was decreed by the High Court. The State argued in the appeal before the Supreme Court that the suit for compensation was not maintainable, as the establishment and maintenance of prisons was a sovereign function. The Court speaking through S.Sagir Ahmad, J. observed: “that right to life is one of the basic human rights of a prisoner, be he a convict or an under trial or a detenu does not cease to be a human being. Claiming sovereign immunity cannot defeat a prisoner’s Fundamental Right”. The Court dismissed the appeal and upheld the decree of the High Court awarding compensation to the dependants of the deceased. It is significant to note here that the Court in exercise of its appellate jurisdiction discussed, considered and relied upon the cases of award of compensation under public law remedy under Art.32 of the Constitution.
In D.K.Basu v. State of west Bengal,[24] compensatory jurisprudence was firmly approved as a measure relevant to the protection of right to life in India. It also invoked reimbursement of the compensation money from the erring State officials who were found guilty of the violation of human rights. The Court discussed extensively the law pertaining to claim of compensation against the State for the wrong of police officers depriving citizen’s rights under Art.21 of the Constitution. The Court examined in detail the issues relating to torture, custodial violence and deaths in lock ups, along with the liability of State to compensate the victims of such wrongs. It also discussed the accountability of police officers to reimburse the State. A.S.Anand, C.J. speaking for the Court issued mandatory guidelines for the police officers and other investigating officials in all cases of arrest and detention till legal provisions are made in that behalf by the competent legislature. With reference to the vicarious liability of the State he discussed the punitive provisions of Indian Penal Code, 1860 and lamented the inadequacy of these provisions to repair the wrong done to the victim. He further observed:
“… That a mere prosecution of the police officers or declaration of his action being invalid does not by itself provide any meaningful remedy to a person whose Fundamental Rights to life have been infringed. According to him, the civil action for damages is a long drawn and cumbersome judicial process. Hence, where the infringement of Fundamental Rights is established the Court must proceed further and give compensatory relief to the victim. The compensation shall not be by way of damages as in a civil action but by way of compensation under the public law jurisdiction, wherein the State is made liable to pay compensation as it has committed a breach of public duty of protecting the Fundamental Right to life of citizen…. the claim of the citizens for compensation is based on the principle of strict liability, to which the defence of sovereign immunity is not available…the citizens must receive the compensation from the State, which in turn shall be indemnified by the wrong doer.”[25]
The Court reiterated that the award of compensation for established invasion of Fundamental Rights of citizens under public law jurisdiction, in addition to traditional remedy under the law of tort. Secondly, The Court did not accept the reservation, which the Govt. of India had attached to Art.9 (5) of International Covenant on Civil and Political Covenant (1966).[26]
Once the Court firmly established the award of compensation as a measure of enforcement of Fundamental Right to life and liberty, it did apply this measure to violations of other Fundamental Rights also. Thus in Common Cause v. Union of India,[27] the Court while referring to the law in England, stated:
“There is therefore, not much of a difference between the powers of the Court exercised here in this country under Art.32 or Art.226 and those exercised in England for judicial review. Public law remedies are available in both the countries and the courts can award damages against public authorities to compensate for the loss or injury caused to the plaintiff/petitioner, provided the case involves, in this country, the violation of Fundamental Rights by the government or other public authorities or their action was wholly arbitrary or oppressive in violation of Art.14 or in breach of statutory duty and is not purely a private matter directed against a private individual.”
Reiterating the same theme in Chairman, Railaway Board and Ors, v. Chandrima Das[28] and others, the Supreme Court held that the public law remedies have also been extended to the realm of tort. It was a case of gang rape of a Bangladeshi national by the employees of the Indian Railways in a room at Yatri Niwas at Howrah Station. These employees managed the Yatri Niwas. The Government contended that it could not be held liable under the law of torts, as the offence was not committed during the course of official duty. However, the Court did not accept this argument and stated as under:
“The employees of the Union of India, who are deputed to run the railways and to manage the establishment, including the railway stations and the yatri niwas, are essential components of the government machinery which carries on the commercial activity. If any of such employees commits an act of tort, the Union government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees”.
This case is noteworthy for two important reasons; firstly the Court stated the need of reading the principles of international covenants into the domestic jurisprudence for purposes of effective implementation of human rights. Secondly, the Court held that even a non-citizen could claim compensation for violation of Art.21 of the Constitution. The Court ruled:
‘‘Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens…As a national of another country, she could not be subjected to a treatment which was below dignity nor could she be subjected to physical violence at the hands of Government employees who outraged her modesty. The right available to her under Art.21 was thus violated. Consequently, the State was under a constitutional liability to pay compensation to her”.
It would appear that the Court has extended the compensatory principles to violations of any Fundamental Right and entitling the victim to compensation. However, this has not been accepted in later formulations of the Court. Thus in Hindustan Paper Corporation Ltd. v. Ananta Bhattacharjee[29] the Court stated:
“Public law remedy for the purpose of grant of compensation can be resorted to only when the Fundamental Right of a citizen under Art.21 of the Constitution is violated and not otherwise. It is not every violation of the provisions of the Constitution or a statute, which would enable the court to direct grant of compensation. The power of Court of judicial review to grant compensation in public law remedy is limited”.
A perusal of the Apex Court decisions discussed above reflects that the relief of compensation is a judicial innovation in the inherent powers of the Court. Since the award of compensation by the Court is not consistent, it follows that the remedy is discretionary in nature, as we noted earlier. Considering this, it cannot be stated with firmness that the right to claim compensation in India has settled as a Fundamental remedial right. However, it has a cascading effect in greater evolution of human rights protections at the level of judiciary. Moreover, as seen above the Court has awarded compensation, when the violation occurred under Art.21.concerning rights to life and liberty. The Court has thus impressed upon the State to take these rights seriously and seizing any opportunity to pronounce itself upon such violations of rights to life and liberty. As a matter of fact, post emergency, the Court has truthfully and courageously embarked upon a journey towards sensitizing Indian legal order towards greater Human Rights protection programs. However, in our submission, the Indian legal order has still to go a long way in assuring each individual about the sanctity of his individual Human Rights, despite bolder attempts by the Indian Supreme Court.
In Janaki Amma v. Union Of India[30], following principles were laid down by the court:
(i) Torts like assault, battery, and false imprisonment which are trespass to person by Police Officer and investigating agencies which are not authorized under law are Constitutional Torts.
(ii) Awarding of compensation is public law remedy and available in a claim for deprivation of life and liberty alone. The compensation awarded is for the pecuniary and non-pecuniary loss suffered by the person due to illegal detention/imprisonment and is given to recompense for the inconvenience and distress suffered by the person.
(iii) The order of compensation is in the nature of palliative and is passed to mulct the violators of the fundamental rights in payment of monetary compensation.
(iv) When a person is arrested and imprisoned with malicious intention his constitutional and legal rights are said to be invaded. The malice and invasion of the right is not washed away by setting the person free and in appropriate cases the Court has jurisdiction to award compensation to the victim.
(v) The public law remedy of monetarily compensating the violation of fundamental rights is part of the constitutional scheme based on strict liability for such contravention of rights and therefore the principle of sovereign immunity does not apply as it applies in private law.
(vi) Judicially evolved right to compensation in public law is available for breach of public duty by the State of not protecting the fundamental right, but it is given for infringement of inalienable right to life and by way of applying balm to the wounds of the deceased family.
(vii) For the tortious acts of the Government Officers and Police Officers, the State is liable to pay compensation for violation of fundamental rights to life and liberty
(viii) The order for awarding compensation need not be in the coercive form. It can be by way of declaration of the right of the person to be paid by the Government certain amount to be assessed by the Court. This is especially so in a case where fundamental right to property is breached in violation of law.
CONCLUSION
Over the years, it has become clear that Courts are heavily relying on the Constitution, Bill of rights, and even international norms to protect and enforce rule of law. They are equally using their powers and new strategies and tools to restrict parliamentary and executive autonomy, so that it conforms to constitutional norms, particularly relating to fundamental human rights. The interdependence between judicial conscience and reasoning has equally led to greater concerns being shown about rights by the Courts. The Supreme Court of India is not an exception to this legal compass.
The Supreme Court has enlarged the scope and protection of the fundamental human rights guaranteed under the Constitution, as analysed above. It has devised new tools to promote a right-based administration. The Public Interest Litigation has been an important strategy towards increasing access of people to the Court. It has also helped the Court to address violations of fundamental human rights in India and give appropriate relief. The Court has visualised the award of compensation as an important methodology not only to redress the violation but also as a deterrent. Consequently, it has awarded compensation to the victims of violation of Fundamental Right to life and liberty. This is so even though the Constitution of India does not expressly provide for a right to compensation unlike other legal systems. Nor is there any legislation, which deals with such compensatory relief in case of infringement of Fundamental Right to life, unlike other common law and continental jurisdictions. Despite this the Court has awarded compensation, exercising its inherent power to do complete justice and awarding appropriate relief under Art.32. In the initial phase of evolution of compensatory relief, the Court did not offer any firm jurisprudential basis for such a remedy. It used different terminology like exemplary costs, and exemplary damages. However, the Court later relied on Constitutional tort theory to justify the award of compensation. The Supreme Court has taken a view that a claim in public law for compensation is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of Fundamental Rights. The Court has also relied on Art.9 (5) of international Covenant on Civil and Political Rights, 1966, while justifying the award of compensation under Art.32 of the Constitution. This is despite India having put a reservation to Art.9 of the Covenant, stating that the reservation has lost its importance.
In a welfare state the State must strive to establish just relations between the rights of the individual and the responsibilities of the state. The award of compensation as a remedial measure has been established by interpretative techniques of the Supreme Court, even though the Court has not been consistent in awarding the same. The award of compensation by the Court has evolved as a discretionary relief, even though it has emphasized justifications for such a relief. In our submission, the compensatory relief serves both deterrent as well as restitutive purposes. It is pertinent to note that despite many objections to the Courts awarding compensation as a remedy for violation of fundamental human rights, the Courts have leaned in favour of compensating the individuals for injuries suffered at the hands of State and its employees. It is submitted that preventing and remedying injury to an individual is the bedrock of many constitutional protections. Also the Court’s attention is focussed towards establishing constitutional rights so that individuals are protected from State lawlessness. Such an approach is warranted for establishment of astute constitutionalism and rights conscious and accountable executive. . Indeed, such individual protection would have been considerably enhanced, had this right to compensation been made an enforceable right in India also.
REFERENCE
[1] (1882) ILR 5 Mad. 273
[2] AIR 1915 Mad. 434
[3] (1881), ILR 2 All 829
[4] AIR 1915 Mad 993, ILR 39 Mad. 35
[5]According to Supreme Court Art. 300 confers juristic personality on the State, and therefore State can be held liable for acts of its employees. See e.g. State of Rajasthan v. Vidyawati, AIR 1962 SC 933 See Infra note 75 and the accompanying text.
[6] Nilabati Behera v State of Orrisa (1993) 2SCC 746. Kasturilal Raliaram Jain v. State of U.P. AIR 1965 SC 1039 made a distinction between “sovereign and non-sovereign functions” of the State being exercised by the officers of the State. The liability of the State was only confined in non-sovereign functions only, thus effectively undoing State of Rajasthan v.Vidyawati AIR 1962 SC 933 which did not accept any justification for not holding the State liable for the tortious acts of its servants. For a comparative analysis of the doctrine of sovereign immunity, See A. Raghunadha Reddy, “Reparation of the Wrong: Problems and Perspectives”, 46 Indian Journal Of International Law (2006) No 4,572-585
[7] Common Cause v Union of India (1996) 8 SCALE 127, 130.
[8] AIR 1994 SC 2663
[9] Seervai, Supra note 15
[10] L.Chandra Kumarv. Union of India, AIR 1997 SC 1125 See also, Subhash v. Union of India AIR 1991 SC 63: Shri Kumar v. Union of India, 1992(2) SCC 428
[11] Art.9 (5) International Covenant on Civil and Political Rights 1966.The Court has also relied on international treaties and covenants for protection of Fundamental Rights. See e.g. Vishaka v.State of Rajasthan AIR 1997 SC 3011, Delhi Domestic Working Womens Forum v. Union of India (1995) 1 SCC 14
[12] AIR 1981 SC 928 at 1068
[13] Id at 930
[14] Ibid. Lokur, Supra note, 66, See also Sunil Batra v. Delhi Administration AIR 1978 SC 1675, Indian Council for Enviro-legal Action v. Union of India AIR 1996 SC 1446, M.C.Mehta v. Union of India AIR 2004 SC 4016, Vishakha v. State of Rajasthan AIR 1997 SC 3011, P.U.D.R. v. State of Bihar AIR 1987 SC 355
[15] AIR 1983 SC 1086
[16] Id at 1089
[17] Bhupinder Sharma v. State of Himachal Pradesh 2003(8) SCC 551
[18] AIR 1984 SC 1026, See also Nilabati Behara v.State of Orissa, Infra note 89
[19] AIR 1986 SC 494, at 499
[20] (1993) 2 SCC 746
[21] Id, paras 10& 17
[22] Lokur Supra note 66 at 43.
[23] AIR 2000 SC 2083
[24]( 1997) 1 SCC 416, Also See In Re Death of Sawinder Singh Grover 1995 Supp(4) SCC 450 wherein the deceased died in the custody of Directorate of Enforcement and the Union of India was made to pay ex-gratia payment of Rupees 200,000/ to the widow of the deceased as an interim measure.
[25] Id para 44 & 54
[26] Id para 46
[27] (1999) 6 SCC 667
[28] AIR 2000 SC 988
[29] ( 2004) 6SCC 213
[30] 2004 (1) ALD 19
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