Chapter-5

CONSTITUTIONAL TORTS REMEDY

 Chapter-5

CONSTITUTIONAL TORTS REMEDY

‘The Bill of Rights is a list of limitations on what government can do to its

citizens while pursuing its ends. These limitations, which precede all legal

constraints that the government places upon itself, embody the most fundamental

obligations of government. Each of these limitations, which usually viewed from

the citizen’s perspective as a constitutional right, also gives rise to a concomitant

governmental duty not to violate that right in the pursuit of other ends. The breach

of such a constitutional duty by governmental officials can be understood as the

basis for the constitutional tort action.1 Government without constitutional error,

like a world without accidents is impossible....2 Conceptually the government is

the inescapable defendant in a constitutional tort suit; only the government can

abridge constitutional rights.3

A. The United State Experience.

In the United States of America, the constitutional tort is redressed in two

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

i. Section 1983 Remedy.

The relevant provision of Civil Rights Act, 1871 now codified as 42 U.S.C.

Section 1983 (1970) reads as under:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or
other proper proceedings for redress”.

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

for consideration by the Court. The cardinal principle of constitutional tort,

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

provide a supplement to whatever relief might be obtained in state courts, the

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

municipalities. Basing its construction on the statute’s legislative history,6 the

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

The Monroe decision creates difficulties to persons whose constitutional

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

5 “Damage Awards for Constitutional Torts: A Reconsideration After Carey v. Piphus”, 93

Harv. LRev. 966-91 (1980) at 974.

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

meritorious claims.8 9 First, it may be difficult to identify the individual official

responsible for a violation. Second, many officials lack the financial means to pay

substantial judgments. Third, a jury- even when it is convinced that a plaintiffs

constitutional rights have been violated- may be reluctant to award damages

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

individuals constitutional rights, enjoy a good faith defence to section 1983

actions, a defence which increases with the scope of discretion and responsibilities

of the office.

In 1978, the Court overruled Monroe. Monnel v Department of Social

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

government.10 However, even after Monnel, a municipality or state may not be

held liable for damages under section 1983 on the basis of respondeat superior.

Generally, only if a custom or practice of the city, such as inadequate training of

the officers, is substantially responsible for the harm may the city be responsible

8 “Damage Remedies Against Municipalities for Constitutional Violations”, 89 Harv LRev.

922 (1976) at 923.

9 436 U.S. 658 (1978).

10 Christina B. Whitman, supra note 2, at 234.

 188

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

because the court in Monnel held:

“We conclude, therefore, that a local government may not be

sued under (section) 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under sec.
1983”.12

There is no further explanation of why “official policy and custom” might

be an exhaustive description of the ways in which a government can non-

vicariously cause constitutional injuries. In Monnel the Court seemed to be

looking for something parallel to an individuals decision to act, some indication of

will or intent. Those concepts cannot be applied in any obvious way to a

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.

13 Christina B. Whitman, supra note 2 at 237-8.

 189

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

reversed by the Supreme Court.

The Supreme Court cases bearing directly on the scope of constitutional tort

are Parratt v. Taylor,15 Baker v. Me Collan,16 Ingraham v. Wright17 and Paul v.

Davis.18

In Paul v. Davis,19 a police chief seeking to control shoplifting, circulated a

flyer containing photographs of persons arrested for shoplifting and which

5 identified them as “active shoplifters”. The plaintiffs photograph was included in

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

15 451 U.S. 527 (1981).

16 443 U.S. 137 (1979).
17 430 U.S. 651 (1977)
18 424 U.S. 693 (1976).
19
Ibid.
 190

decision of Wisconsin v. Constantineau,20 for the proposition that reputation is an

aspect of constitutional liberty protected by due process clause of the fourteenth

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

In Ingraham v. Wright22 some students of a public school were severely

peddled for misbehavior. They claimed violations of the cruel and unusual

punishments clause of the eighth amendment and deprivations of liberty without

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.

400 U.S. 433, 437 (1971).

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

The plaintiff in Baker v. Me Collan23 had been mistakenly named m an

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

had shown a deprivation of property under the fourteenth amendment, but

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

granting constitutional status to the plaintiffs claim “would almost necessarily

result in turning every alleged injury which may have been inflicted by a state

443 U.S. 137 (1979).

24
451 U.S. 527 (1981).
 192

official... in to a violation of the Fourteenth Amendment”.25 The Court reiused to

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

will preclude constitutional tort appears to limit the scope of constitutional

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

to suits against institutions, where an additional effort to distinguish constitutional

torts has lead to the rejection of vicarious liability.29

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

assert “rights, privileges, or immunities secured by the Constitution or laws

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

conduct must “cause” plaintiff “ to be subjected” to the deprivation of his rights.31

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

remedied in section 1983 litigation, it has often read specific constitutional

provisions to include “state of mind” requirement, to prohibit only government

action taken with a specific improper purpose or attitude.32

In Rochin v. California,33 the defendants had been suspected of selling

narcotics. When confronted by the police he swallowed a number of capsules

Police forcibly extracted them by stomach pumping and produced them as

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

-' See Parratt v. Taylor, 451 U.S. 527, 535 (1981).

32 Christina B. Whitman, supra note 2, at 249-50. For example eighth amendment has been
interpreted to require “callous indifference” in Estelle v. Gamble 429 U.S. 97 (1976) and in
Village ofArrington Heights v. Metropolitan Hous. Dev.Corp., 429 U.S., 252 (1977) the equal
protection clause has been read to require an intention to discriminate”. The decisions of
Washington v. Davis, 426 U.S. 229 (1978), Daniels v. Williams, 106 S.Ct. 662 (1986) and
Davidson v. Cannon 106 S.Ct. 668. (1986) are also to the same effect.

342 U.S. 165 (1952).

34
Ibid, at 169.
 194

the conscience”, which has come to be known as Rochin test. ‘Rochin is right to

focus on the defendant’s conduct in deciding whether constitutional tort should be

available, but the court’s “shock the conscience” test is too vague and subjective to

provide guidance for lower courts deciding particular cases’.36

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

in cases of ‘abuse or ‘misuse of power, or when the defendant’s conduct was

‘severe’,39 ‘reprehensible’40 or egregious’.41 Relying upon Rochin, the Second

Circuit Court permitted a pretrial detainee to maintain a constitutional tort action

for abusive treatment in Johnson v. Glick.42 Here the plaintiff was allegedly

attacked by a correctional official and then denied medical attention. Judge

Friendly, writing for the court declared as under:

“In determining whether the constitutional line has been

crossed, a court must look to such factors as the need for the
application of force, the relationship between the need and the

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

whether force was applied in good faith effort to maintain or restore

discipline or maliciously and sadistically for the very purpose of

causing harm”.43

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

inclination to develop an analytical defence of the standards.44

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

intrusion on the plaintiff is unreasonably disproportionate to the legitimate goal

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

wherein the defendant’s conduct is bad enough to recognise constitutional tort

ii. Constitutional Common Law Remedy {Bivens Actions).

The doctrine of sovereign immunity bars all claims against the United States

Government including those based on constitutional violations unless it consents to

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

acts of its employees in circumstances under which a private person would be

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

investigative or law enforcement officials.49 The Act has provided a series of

exceptions to the governmental liability.50

Although no cause of action exists against the federal Government for

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

Bureau of Narcotics53 in 1971, there is a private right of action against individual

officials for their alleged violations of constitutional guarantees.54 The Court

created55 this cause of action by developing constitutional common law.

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

34 28 U.S.C.s. 1346(b) (1976).

53 403 U.S. 388 (1971) see Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442
U.S. 228 (1979).

54 Supra note 51, at 1707.

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.

56 403 U.S. 388 (1971).

57 John H.W. Hinchcliff, “The Limits of Implied Constitutional Damages Actions: New
Boundaries of Bivens”, 55 N.Y.U.L. Rev. 1238(1980).
 198

fourth amendment is sometimes inconsistent with state trespass laws.58

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

to be free from unreasonable searches and seizures.60

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

authorised monetary damages as no alternative remedy was available. He observed

as under:

“[S]ome form of damages is the only possible remedy for

someone in Bivens’ alleged position. It will be a rare case indeed in
which an individual in Bivens’ position will be able to obviate the
harm by securing injunctive relief form any court... [Ajssuming
Bivens’ innocence of the crime charged, the “exclusionary rule” is
simply irrelevant. For people in Bivens’ shoes, it is damages or
nothing”.62

58 403 U.S. 388(1971) at 394.

59 Ibid., at 410.
60 Ibid., at 390-92.
61 Ibid., at 396.
62 Ibid., at 409-10.
 199

Thus the Court concluded that the fourth amendment creates right rather than just

limitations and that a damages remedy was constitutionally permissible for

violations of those rights. Unlike a Federal Tort Claims Act action against the

federal Government, a Bivens action against individual federal officials arising

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

damages even in the absence of a federal statutory right of action.64

Initially some courts held that a Bivens action may be brought only for

fourth amendment violations. However, the subsequent Supreme Court decisions

have extended the cause of action to violations of other constitutional rights In

Davis v. Passman,65 Congressman Otto Passman dismissed an admittedly capable

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

65 Janell M.Byrd, supra note 51 at 1711.

64 “Damage Remedies Against Municipalities for Constitutional Violations”, supra note 8 at
920.

65 442 U.S. 228 (1979).

 200

violates the due process clause of the Fifth Amendment, the Constitution itself

implies a cause of action and a damages remedy.66

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

immediately transfer him to an outside hospital. In allowing plaintiffs Bivens

action based on a violation of eighth amendment rights, the Court made clear that

victims of unconstitutional behaviour by federal officials are entitled to recover

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)

Congress has provided a statutory alternative that it “explicitly declared to be a

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

This two-step analysis can be better understood by resort to two

constitutional theories-Professor Monaghan’s constitutional common law thesis

and Professor Sager’s underenforcement thesis.70 Professor Monaghan’s

constitutional common law theory71 views certain decisions emanating from

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

later modify or reject constitutional law decisions.

Professor Sager’s underenforcement thesis72 explains why the Court’s

constitutional interpretation need not include a constitutionally required remedy.

Under this thesis, the court, for institutional reasons, underenforces certain

constitutional norms, because the appropriateness and effectiveness of the remedy

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

The constitutional common law theory explains the legitimacy of the

Court’s remedy and the power of the Congress to change that remedy. The under

enforcement theory defines the Courts’ remedy, which is not constitutionally

71 Monaghan, “The Supreme Court, 1974 Term-Foreword: Constitutional Common Law”,

89 Harv. LRev. 1(1975).

72 Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms . 91

Harv. LRev. 1212 (1978).

73 John H.W. Hinchcliff, wore 57 at 124445.

 202

required, as common law. To prevent the plaintiffs right from becoming

precatory, the Court fashions a temporary remedy to accord some relief. Congress,

however, may provide an alternative remedy or eliminate the remedy altogether.74

Thus it is clear that the choice of a Bivens remedy is a constitutional common law

decision.

Several consequences flow from the characterisation of Bivens as a

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

limitations is congressional intent to preclude a damages remedy. Under both

prongs, court must look for congressional statements: under the “equally effective”

prong, a statement that the statute is equally effective; under the “explicit

statement” prong, a statement that the statute is to be a substitute for Bivens. No

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

remedies is undisputed. The Congressional intention requirement places the

Bivens remedy on a higher pedestal than other common law remedies.

446 U.S. 14,1819 (1980).

76
John H.W. Hinchcliff, supra note 57 at 1248.
 203

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

law. The Supreme Court removed an anomaly in law by providing otherwise

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

state and local officials by evolving Bivens remedy.

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.

78 “Remedial Ruling”, A.B.A. Journal, February, 1997, at 32.

 204

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

of such a remedy is needed to deter official misconduct. He wrote: “The point is

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

powers of the state behind those values”.80

iii. Official Immunity- A Limit on the Bivens Actions.

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

immunity as defences to a constitutional violation: “good faith” or “qualified”

immunity, and “absolute” immunity.81

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

to decide the availability of qualified immunity. This two-pronged test asked

whether the official knew or reasonably should have known that her action would

violate the plaintiffs constitutional rights, and whether the official took such

actions with malicious intent.84 This standard was in part‘subjective’.85 To apply

this test, a court had to examine an official’s thought process, which necessarily

raised a question of fact, making summary judgment difficult to obtain.86

The Supreme Court changed the qualified immunity test to a simple

objective standard more suitable for summary judgement in Harlow v

Fitzgerald.87 The Court held that “government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known”.88

83 420 U.S. 308 (1975).

84 Ibid., at 322.
85 Janell M. Byrd, loc cit.
86 Ibid., at 1714.
87 457 U.S. 800 (1982).

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

Absolute immunity is available when a government official is performing a

‘special function’ that requires complete protection from liability. Legislative,

judicial, prosecutorial and presidential functions have been afforded absolute

. go
immunity.

To enable the victims of constitutional violations to recover damages

directly from the government, it is proposed, the sovereign immunity is to be

waived. There are two key reasons for the strong and broad-based support for a

waiver of sovereign immunity: increasing victim compensation and limiting

employee liability to ensure assertive decisionmaking.90 If the government is

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

hindered from vigorously exercising her duties.91

Under an equitable loss spreading and risk allocation analysis, several

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

benefit from government services. Finally, unlike federal employees whose

89 Janell M.Byrd, supra note 51, at 1714-5.

90 Ibid., at 1716.

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

compensation should be placed on the Government and not on the victim.

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

malice or recklessness and injures an individual, she should be held personally

accountable.94 This will accommodate the conflicting interests of damage suits

iv. Measure of Damages:

Damages for violations of constitutional rights have, with few exceptions,

been measured with reference to traditional tort actions. Compensation granted

under 42 U.S.C. sec. 1983 or in Bivens-type actions usually has been limited to

the amount of consequential injury to person or property proven under common

law principles. Victims of unconstitutional conduct at the hands of state or federal

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

paradigm for measuring damages in constitutional violation cases in Carey v.

Phiphus. 96

In Carey, two of the Seventh Circuit ‘remand’ cases were consolidated, for

a pronouncement as to the correct measure of damages in section 1983 cases. The

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

if students’ suspensions were justified, they were entitled to recover “non-

punitive” damages simply because their procedural rights were denied.97

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

broadest level, presumably affecting all constitutional tort actions, Carey

established that compensation for injuries should be the guiding principle of

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

w 435 U.S. 247(1978).

97 Piphus v Carey, 545 F. 2d, 30,31 (7th Cir. 1976).
98 435 U.S. 247 (1978) at 266-67.

99 “Damage Awards for Constitutional Torts: A Reconsideration After Cary v. Piphus ",
supra note 5, at 971.
 209

“complete solution”. Third, addressing the constitutional deprivation before them,

the Court rejected the argument that damages should be presumed to flow from a

violation of procedural due process.

The common law paradigm does not allow damages to be recovered solely

for the loss of a right-even one protected by the Constitution - absent

consequential injury.100 The common law has, however, recognised exceptions in

which no evidence of actual injury is required to justify a substantial compensatory

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

damages are presumed from the wrongful deprivation of it without evidence of

actual loss”. The principle recognized in the voting rights cases has been applied

some times to other constitutional rights.105

But the common law model emphasised by the Supreme Court in Carey is

highly inadequate to vindicate the violated constitutional rights. A victim of

100 Ibid., at 968.

101 Ibid., at 968-69.
102 Gertz v. Robert Wech. Inc., 418 U.S. 323 (1974).
103 Nixon v. Herndon, 273 U.S. 536 (1929.
104 260 F 64 (8th Cir. 1919).
105 In Tatum v. Morton [562 F.2d, 1279 (D.C. Cir. 1977) ], the Court of Appeals for the
District of Columbia Circuit reversed the district courts’ limitation of damages to $100
per plaintiff for violation of the first amendment right to demonstrate peacefully outside
the White House.
 210

unconstitutional conduct does not always suffer “actual injury”. The constitutional

guarantees have an important and paramount dimension irrespective of the

consequential injury for their violation. The sanctity of the constitutional right is

to be preserved by awarding compensation for their violation. Such awards will

deter further violation of those rights.

Therefore, it is suggested that the voting rights model be used to measure

damages in constitutional tort actions. “ An appropriate system for measuring

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

represents an extension of existing legal doctrine, it is consistent with and fulfills

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

coincidental consequential injury. By assuring compensation whenever a violation

occurs it enhances deterrence even when a constitutional violation does not

produce provable actual injury”.106

B. Indian Experience.

i. Constitutionally Conferred Fundamental Rights.

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

preserved, human personality developed, and an effective social and democratic

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

that a Bill of Rights, or Fundamental Rights, as we call them, should be enacted in

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:

“The object of the Fundamental Rights is two-fold. First,

that every citizen must be in a position to claim those rights.
Secondly, they must be binding upon every authority. I shall
presently explain what the word authority means- upon every
authority which has got either the power to make laws or the
power to have discretion vested in it”.111

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.

110 Dr.Ram Rajput, “Fundamental Rights”, in M.Hidayatullah ed. Constitutional l,aw of

India, vol.I, (New Delhi: Arnold -Heinmann, 1984) p. 150.
in
C.A.D. vol.II, 1948-49, p.610.
 212

The Fundamental Rights of the Constitution are, in general, those rights of

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

tradition our Constitution declares certain fundamental rights of the individuals

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

the right to constitutional remedies.

A fundamental right, as defined in the Constitution, differs from a non­

fundamental right in one vital respect; a fundamental right (subject to the

qualifications defined in the Constitution itself) is inviolable, whereas a non-

fundamental right possesses no such characteristic.114 They are limitations on the

11 ?
Granville Austin, The Indian Constitution: Cornerstone ofa Nation, (Oxford: Clarendon
Press, 1966), pp.50-51.

113 Ibid., p.50.

114 M.P.Singh ed., V.N.Shukla’s Constitution of India, 9th ed, 1994, (Lucknow: Eastern
Book Co, 1996), p.A-42.
 213

powers of the legislature as well as the executive.115 They are designed do

discipline the State and review all those actions which threaten or transgress

fundamental rights beyond the permissible limits defined by the Constitution.116

The real enforcement of the right in case of every contravention must also be

possible in the constitutional scheme.117 The mode of redress should 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

of the Constitution itself to enforce these fundamental rights created infavour of

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

violation of a substantive fundamental right.

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

Misuse of power by these employees or their negligence may cause injury to

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

of the state and compensating the victim.119 In case of violation of fundamental

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

fundamental rights of a citizen.

Unfortunately, the law regarding governmental liability for compensation in

India was ‘fossilised’120 in 1861 by B.Peacock, C.J., of the Calcutta Supreme

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

Court in Peninsular and Oriental Steam Navigation Company v. Secretary of State

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

torts of its employees is to be found in Article 300 of the Constitution.122 Though

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

if the fundamental rights did not exist.

ii. New Constitutional Jurisprudence: Birth of Constitutional Tort Remedy.

In the last few years the Supreme Court of India has attempted to evolve an

innovative constitutional jurisprudence based on the necessity to give new

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

swung from one end of absolute unaccountable, non-responsive government with

immunity to the other end in modem times bordering on the total liability of the

responsive, responsible, representative government, irrespective of the juristic

nomenclature of the actions of violations.127 This change in the legal culture

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

fashioning new remedies against arbitrariness and lethargy of governmental

machinery, began to find out wholesome rules of compensation for governmental

|
lawlessness.

The question of liability of the state to award compensation for the

infringement of fundamental rights by the instrumentalities of the state was raised

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,

reimbursement of expenses which he might incur on medical treatment and

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

unauthorised detention offered by the state was unsoundness of mind of the

petitioner. The learned Chief Justice Y.V.Chandrachud, speaking for himself,

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

the petitioner’s fundamental right guaranteed under Article 21 of the Constitution.

A.I.R. 1983 S.C.339.

A.I.R. 1983 S.C. 1086.
133
K.C.Joshi, “Compensation Through Writs: Rudul Sah to Mehta”, (1988) 30 J.l.L.I. 69
 218

The Court ordered an interim compensation of Rs.35,000/- without prejudice to the

rights of agitating for more compensation by way of a civil suit and observed:

“Article 21 which guarantees the right to life and liberty will

be denuded of its significant content if the power of this Court were
limited to passing orders of release from illegal detention. One of the
telling ways in which the violation of that right can reasonably be
prevented and due compliance with the mandate of Article 21
secured, is to mulct its violators in the payment of monetary
compensation... the state must repair the damage done by its officers
to the petitioner’s rights”.134

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

which the State Government had so grossly violated.135

Hitherto it has ban the practice of the Supreme Court to order in habeas

corpus petitions only immediate release of the detenue form unlawful or

unjustified detention and not to order monetary relief in the nature of

compensation.136 For compensation against the government or public officers, the

petitioner had to seek a remedy by instituting a suit in the competent court, which

134 Supra note 131.

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.

136 K.I.Vibhute, “Compensatory Jurisdiction of the Supreme Court- A Critique”, (1986)10

C.U.L.R. 83 at 83-84.
 219

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

instant case involves a new judicial technique to vindicate violation of

fundamental rights.137

Rudul Sah is a path breaking decision imposing on the state the liability to

pay compensation to the victims of its lawlessness.138 This compensatory

jurisprudence indirectly obliterated the much debated distinction between

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

remedies are indispensable to the vindication of fundamental rights.140 The

Supreme Court explained its jurisdiction to award compensation under Article 32

of the Constitution as under:

“... It is true that Article 32 cannot be used as a substitute for

the enforcement of rights and obligations which can be enforced

efficaciously through the ordinary process of courts, civil and

criminal. A money claim has therefore to be agitated in and

adjudicated upon in a suit instituted in a court of lowest grade

competent to try it. But the important question for our consideration

137 Ibid., at 85.

138 P.Leelakrishnan, supra note 127 at 55.
139 P.S.Soman, “Police Atrocities: Liability to Pay Compensation”, (1991) 15 C.U.LR. 455
at 458.
140
Krishnan Venugopal, supra note 125 at 369-70.
 220

is whether in the exercise of its jurisdiction under Article 32, this

Court can pass an order for the payment of money if such an order is
in the nature of compensation consequential upon the deprivation of a
fundamental right. The instant case is illustrative of such cases. The
petitioner was detained illegally in the prison for over fourteen years
after his acquittal in a full-dressed trial.... He contends that he is
entitled to be compensated for his illegal detention and that we ought
to pass an appropriate order for the payment of compensation in this
habeas corpus petitions itself.... We cannot resist this argument”.141

The court also has laid down the contours of this newly found compensatory

remedy.142 Compensation can be awarded only in ‘such cases of gross violation’ of

fundamental right to life and liberty under Article 21. The compensation was not

to be a full compensation or damages (as known in law of torts). It was only in

the nature of interim relief or ‘palliative’ to petitioner. It can be awarded only in

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

functions of state, because he never intended to substitute Article 32 power for

ordinary remedy. 143

Supra note 131.

142 Dr.Anupa V. Thapliyal, “Compensation in Writ Jurisdiction: A Few Basic Questions”.

(1998) 25 Ind. Bar Rev 95 at 97.
145
Ibid.
 221

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

The language of clause (2) of Article 32 appears to be wide enough to

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

remedies to meet the ends ofjustice.146

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

144 K.I.Vibhute, supra note 135, at 85.

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

Court is bound to award compensation if no other effective remedy is available to

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

damages or exemplary costs in Rudul Sah. If it is in the nature of damages

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

officials. The order of compensation passed by us is, ... in the nature of a

palliative”.149 It is respectfully submitted that the observations of the Court that

the compensation awarded is in addition to the remedy to the petitioner through an

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

such circumstances the doctrine of sovereign immunity prevents him from

147 Krishnan Venugopal, supra note 125, at 386.

148 K.I.Vibhute, loc. cit.
149 Supra note 131.
150 Girish, “Compensating the victims of Human Rights Violations - Need for Legislation’
(1998) 22 The Academy Law Review 161 at 174; M.P.Singh, “ Constitutional Liability
of the State: Erosion of Sovereign Immunity”, The Lawyers May 1994, p. 16.
 223

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

“constitutional tort”.153 This or the subsequent cases154 decided failed to create a

sound jurisprudence indicating the basis of the stream of decisions.155

The growth of the concept of constitutional tort was first highlighted at a

workshop on Administrative Law and Adjudication held at Bangalore in December

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

Article 300 of the Constitution is not applicable to cases of violation of

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’

as a shield for violation of these rights when its enforcement in sought.157

In this context, it is relevant to note India’s ratification of the U N. Human

Rights Covenants, 1966. Article 9 para 5 of the Covenant on Civil and Political

Rights, 1966 ensures an enforceable right to compensation in case of unlawful

arrest or detention. It provides: “Anyone who has been the victim of unlawful

arrest or detention shall have an enforceable right to compensation”. While

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

for persons claiming to be victims of unlawful arrest or detention against the

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

arrest/detentions by its enforcement agencies.160 ‘This is permissible judicial

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

to the enforcement of the fundamental rights.162

iii. Growth of Constitutional Torts Remedy.

The principle enunciated in Rudul Sah was destined to evolve into the

compensation jurisprudence of the Court in days to come and ultimately crystallise

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.

162 Rabindra Hazari,“Right to Claim Compensation by Victims of State Negligence",! 1985)

5 The Lawyers 33 at 34.
 226

into the concept of constitutional torts. The Court evolved this concept piecemeal

adopting a case by case approach.

In Devaki Nandan Prasad v. State of Bihar,163 a writ of mandamus was not

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.

Sebastian M.Hongray, a political science student of the Jawaharlal Nehru

University filed a petition seeking the writ of habeas corpus under Article 32.

The Court issued habeas corpus commanding the respondents - Union of India,

State of Mainpur and Commandant, 21 Sikh Regiment - to produce these persons

before it on the specified date. The Court found from the record that the

163 A.I.R. 1983 S.C. 1134,

164 Krishnan Venugopal, supra note 125, at 372.
165
A.I.R. 1984 S.C. 1026.
 227

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:

“Now in the facts and circumstances of the case, we do not

propose to impose neither imprisonment nor any amount as and
by way of fine, but keeping in view the torture, the agony and the
mental oppression through which Mrs.C.Thingkhulia, wife of
Shri. C.Daniel and Mrs.Vangamla, wife of Shri.C.Paul had to pass
and they being the proper applicants, the formal application being
by Sebastian M.Hongray, we direct that as a measure of
exemplary costs as is permissible in such cases, respondents Nos 1
and 2 shall pay Rs.l lakh to each of the aforementioned two
women within a period of four weeks from toady.166

In the circumstances of this case, the award of exemplary costs related more to the

cause of action than any (mis)conduct during the proceedings. In substance it is

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

Ibid., emphasis supplied.

 228

ordinarily awarded to penalise conduct prior to the institution of legal

proceedings.167 However, the judgment could be understood only when we take it

as compensation for violation of fundamental rights to life and personal liberty

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

two unfortunate persons] had to pass”.169

a. Doctrine of Appropriate Cases.

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

blindfolded at the bizarre act of lawlessness but chose to award “monetary

compensation by way of exemplary costs”.171 The court observed:

167 Krishnan Venugopal, loc. cit.

1 AS
Bishnu Prasad Dwivedi, supra note 118, at 102.
169 K.C. Joshi, supra note 132, at 71.

A.I.R. 1986 SC 494.

171
Ibid, at 499.
 229

“When a person comes to us with the complaint that he has been

arrested and imprisoned with mischievous or malicious intent and
that his constitutional and legal rights were invaded, the mischief or
malice and the invasion may not be washed away or wished away
by his being set free. In appropriate cases we have the jurisdiction
to compensate the victim by awarding suitable monetary
compensation. We consider this an appropriate case”.172

The court directed the State of J. & K. to pay Rs.50,000 to Shri Bhim Singh.

It is to be noted that the Court in Bhim Singh advocated the doctrine of

‘appropriate cases’ for awarding monetary compensation for violation of

Fundamental Rights. However, the Court did not elaborate the case which can be

considered as ‘appropriate’ for compensating the victims of state lawlessness.1

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

monetary compensation for its acts of illegal detention of persons in violation of

their rights to life and personal liberty.174

The Supreme Court reiterated the doctrine of ‘appropriate cases in

171?
M.C.Mehta v. Union of India. The Court asserted its right to award

compensation for breach of fundamental rights by ruling that its jurisdiction under

172 Ibid, emphasis supplied.

173 Y.R. Haragopal Reddy, supra note 160.

J *7 *

P.Leelakrishnan, supra note 127, at 58.

175 A.I.R. 1987 SC 1086.
 230

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

articulating illustrations where compensation can be awarded for breach of

fundamental rights.176 According to the Court in Mehta an appropriate case is one

where the infringement of the fundamental right must be gross, patent,

incontrovertible, exfacie glaring and its magnitude must be such so as to shock

the conscience of the court. This articulation of appropriate cases is not a

conclusive one but is inclusive in nature since it is open for the court to consider

each case on its own merits so as to determine the appropriateness to award

monetary compensation to the victims of state violence.177

In both P.U.D.R. v. Police Commissioner, Delhi,178 and Saheli v. Police

Commissioner, Delhi,1 ^compensation was awarded by the Supreme Court for

violation of fundamental rights considering both of them to be appropriate cases

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

appropriate case for awarding compensation, the Court awarded a sum of

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

responsible after due enquiry.

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

180 P.S.Soman, supra note 138, at 460.

181
(1991)2 S.C.C. 373.
 232

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

Courts have awarded compensation under Article 226 of the Constitution.186

182 RavikantPatil v. D.G.P.Maharastra, 1991 Cri.L.J. 2344.

182 Supra note 177.
184 Supra note 178.
185 P.S.Soman, supra note 138, at 461-2.
186 S.Jagannadhrao v. State of Andhra Pradesh, (1989), Andh L.T. 222; ( hath
Ramkondareddy v. State ofAndhra Pradesh, A.I.R. 1989 A.P. 235; R.Gandhi v. Union
of India, A.I.R. 1989 Mad. 205; Lakshmi v. Sub Inspector, 1991 Cri.L.J 2269
(Madras); Susheelamma v. State of Karnataka, 1991 Cri.L.J. 2436 (Karnataka).
Purnima Barua v. Union ofIndia, 1991 Cri.L.J. 2675 (Gauhati); Bacha Bora v. State of
Assam, 1991 Cri.L.J. 2782 (Gauhati), Indrepuri General Stores v. Union of India.
A.I.R. 1992 J.& K. 11; Antony Cheriam v. Union of India, 1992 (1) K.L.T. 73;
P.Gangadhar Pillai v. State of Kerala., A.I.R. 1996 Ker 71; Tabassum Sultana v. State
of U.P., A.I.R. 1997 All 177; Hamid Khan v. State of M.P, A.I.R. 1997 M.P 191;
K.Samikkanu v. Union of India, A.I.R. 1997 Mad 229; S.A.S. Hussain v. Collector of
Kanyakumari District, A.I.R. 1997 Mad. 318; Shanta v. State of Andhra Pradesh.,
A.I.R. 1998 A.P. 51; Kiranbala Dandapat v. Secy., Grid Corpn. Of Orissa Ltd. A I R
1998 Orissa 159; Archana Garg v. Rajpur Road Transport Authority, A.I.R. 1999
Delhi 95; Aheibam Ongbi Leihao Devi v. State of Manipur, A.I.R. 1999 Gau.9;
Punjab C & C Welfare Front v. Union Territory ofChandigrah, A.I.R. 1999 P & If 32:
Shakuntala Sharma v. State of UP., A.I.R. 2000 All 219.
 233

b. Erosion of Sovereign Immunity.

In all these cases neither the earlier judgement in Kasturilal ’s case

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

of the individual, which is obvious from a conspectus of all these

judgments.187 Ever since Rudul Sah, claims for compensation have

become a regular feature under Article 32 as well as under Article 226

and they have been invariably upheld. But it was being done without any

refinement of the principles of liability or form of remedy.188 The

academics felt that unless the Court declared that Kasturilal is no longer

a good law, the payment of compensation for breach of fundamental

rights is viewed as only an ad hoc arrangement.189

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

make certain clarifications in Nilabati Behera v. State of Orissa,190 in view of the

observations made in Rudul Sah that ‘the petitioner could have been relegated to

the ordinary remedy of a suit if his claim to compensation was factually

controversial’ and that ‘Article 32 cannot be used as a substitute for the

enforcement of rights and obligations which can be enforced efficaciously through

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

Court thought it fit to clarify this doubt. The court observed:

“[The observations in Rudul Sah] may tend to raise a doubt

that the remedy under Art.32 could be denied ‘if the claim to
compensation was factually controversial’ and, therefore, optional,
not being a distinct remedy available to the petitioner in addition to
the ordinary processes. The later decisions of this court proceed on
the assumption that monetary compensation can be awarded for
violation of constitutional rights under Art.32 or Art.226 of the
Constitution, but this aspect has not been adverted to. It is, therefore,
necessary to clear this doubt and to indicate the precise nature of this
remedy which is distinct and in addition to the available ordinary
processes, in case of violation of fundamental rights”.191

190 A.I.R. 1993 S.C. 1960.

191
Ibid., 1967.
 235

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

tort and laid down the following proposition:

“It may be mentioned straightway that award of compensation

in a proceeding under Art.32 by this Court or by the High Court
under Art.226 of the Constitution is a remedy available in public law.
based on strict liability for contravention of fundamental rights to
which the principle of sovereign immunity does not apply, even
though it may be available as a defence in private law in an action
based on tort. This is a distinction between the two remedies to be
borne in mind which also indicates the basis on which compensation
is awarded in such proceedings”.192

Relying upon an English precedent193 in support of public and private law

distinction, the Court added:

“[A] claim in public law for compensation for contravention of

human rights and fundamental freedoms, the protection of which is
guaranteed in the Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and such a claim based on
strict liability made by resorting to a constitutional remedy provided
for the enforcement of a fundamental rights is ‘distinct from, and in
addition to the remedy in private law for damages for the tort’
resulting from the contravention of the fundamental rights. The
defence of sovereign immunity being inapplicable, and alien to the

192 Ibid., 1966, emphasis added.

193 Maharaj v. Attorney-General of Trinidad and Tobago, (1978) 3 All E.R. 670.
 236

concept of guarantee of fundamental rights, there can be no question

of such a defence being available in a constitutional remedy. It is this
principle which justifies award of monetary compensation for
contravention of fundamental rights guaranteed by the constitution,
when that is the only practical mode of redress available for the
contravention made by the state or its servants in the purported
exercise of their powers, and enforcement of the fundamental right is
claimed by resort to the remedy in public law under the Constitution
by recourse to Arts. 32 and 226 of the Constitution. This is what was
indicated in Rudul Sah (A.I.R. 1983 S.C. 1086) and is the basis of the
subsequent decisions in which compensation was awarded under
Arts.32 and 226 of the Constitution, for contravention of fundamental
rights”.194

The case of Nilabati Behera came before the Supreme Court by way of

public interest litigation claiming compensation for custodial death of Suman

Behera, a boy of 22 years, contravening Art.21 of the Constitution. The victim

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 mother of the victim.

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

provisions enforceable in India. The Court distinguished its earlier judgement in

Kasturilal’s case as under:

“In this context, it is sufficient to say that the decision of

this Court in Kasturilal (A.I.R. 1965 S.C. 1039) upholding the
State’s plea of sovereign immunity for tortious acts of its servants
is confined to the sphere of liability in tort, which is distinct from
the state’s liability for contravention of fundamental rights to
which the doctrine of sovereign immunity has no application in
the constitutional scheme, and is no defence to the constitutional
remedy under Articles 32 & 226 of the Constitution which enables
award of compensation for contravention of fundamental rights,
when the only practicable mode of enforcement of the
fundamental rights can be the award of compensation. The
decisions of this Court in Rudul Sah (A.I.R. 1983 S.C. 1086) and
others in that line relate to award of compensation for
contravention of fundamental rights, is the constitutional remedy
under Arts.32 and 226 of the Constitution. On the other hand,
Kasturilal related to value of goods seized and not returned to
the owner due to the fault of Government servants, the claim
being of damages for the tort of conversion under the ordinary
 238

process, and not a claim for compensation for violation of

fundamental rights. Kasturilal is, therefore, in-applicable in this
context and distinguishable”.195

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

state in these proceedings is strict.196

Justice Dr.Anand in his concurring opinion emphasised that in case of

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

necessitates developing separate public law procedures as also public law

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

193 Ibid., at 1967-8, emphasis added

M. P.Singh, supra note 187, at 16.

197
Supra note 189, at 1972.
 239

extinguishing human lives if the only relief available was punishment for any

resulting offence or recovery of damages under private law.

The Nilabati Behera decision has been appreciated to be ‘of tremendous

significance’,198 ‘an authoritative pronouncement’,199 and ‘a significant

decision’.200 However, a closer examination of the decision reveals that the

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

committed by public servants while exercising the statutory functions. Another

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

Supreme Court has reiterated its decision in Kasturilal in a modified form-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.

In other words sovereign immunity defence is not applicable to a proceeding under

public law claiming compensation for breach of fundamental rights. The Court in

198 G.L.Wazir, supra note 116.

199 T.Ch.Surya Rao, supra note 186, at 28.

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.

201 T.Ch Surya Rao, supra note 186, at 30.

 240

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

that of no fault or strict liability. Furthermore, it is an accepted defence to the

strict liability that the act is one authorised by statute. Therefore, it is to be

submitted that the strict liability doctrine is not tenable in this case.202

The distinguishing of Kasturilal in Nilabati Behera also does not seem to be

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

made out is only a later invention of the judiciary.203

The principle enunciated in Rudul Sah and reiterated in Nilabati Behera has

been applied in a series of cases; compensation has been awarded to family

members of the persons who were found dead after being taken for interrogation

202 Girish, supra note 148, at 174-5.

203
Ibid., at 175.
 241

by army or police,204 or died in police custody due to torture,205 or due to neglect

of authority in providing medical care in-time,206 due to fellow prisoners

violence,207 or died in fake encounters;208 or died due to negligence or callousness

of authorities.209 Further, compensation has been awarded to those persons who

suffered due to ill-treatment,210 torture,211 forced labour in detention,212 suffered

due to poisonous gas leak,213 or suffered bodily harm214 due to negligence of

nie

authorities, or to those persons who were refused medical treatment at

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.

207 Kewal Pati v. UP. (1995)3 S.C.C. 600.

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

Even though the majority of the cases wherein compensation is awarded

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

Gajanan Vishweshwar Birjur v. India219 provide the illustration. In Assam

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

Gajanan Vishweshwar Birjur, the Supreme Court quashed the order of

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.

Holding that the administrative order violated petitioners fundamental right of

freedom of speech and expression under Article 19 (1) (a), the Court awarded

Rs. 10,000 towards costs of the books.220

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

c. Compensation Awarded in Special Leave Petitions.

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

awarding compensation to the victims of abuse of administrative process, the

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

The Supreme Court decision in State of Haryana v. Smt Santra222 provides an

illustration. In this case, a sterilisation operation was performed on the

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

Supreme Court by special leave.

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

dismissing the appeal observed as under:

“The contention as to the vicarious liability of the state for the negligence of

its officers in performing sterilisation operation cannot be accepted in view of the

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

state on account of medical negligence of a doctor in a government hospital The

theory of sovereign immunity was rejected”.

d. Sovereign Immunity-Not a Defence in Civil Law Proceedings.

An anomalous situation was created by the Supreme Court’s distinction

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

may be available as a defence in private law in an action based on tort. This

distinction does not appear proper. The question of applicability or non­

applicability of doctrine of sovereign immunity should be with reference to the

nature of rights violated and not the form of remedy.223

In this context a highly prognostic decision of the Andhra Pradesh High

Court which was destined to be affirmed by the Supreme Court, is to be

appreciated. The decision was delivered in the case of C.Ramakonda Reddy, v.

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

deceased. The said incident took place, according to plaintiffs, on account of

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

that it is not liable to be sued for damages or compensation, as maintenance of jails

is a sovereign function of the State. The learned subordinate judge accepted the

contention of the state and dismissed the suit.

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

right to life. The court observed:

“Can the fundamental right to life guaranteed by Art.21 be

defeated by pleading the archaic defence of sovereign functions?
Does it mean that the said theory clothes the State with the right
to violate fundamental right to life and liberty, guaranteed by
Art.21? In other words, does the said concept constitute an
exception to Art.21? We think not. Article 21 does not
recognise any exception, and no such exception can be read into
it by reference to cl (1) of Article 300. Where a citizen has been
deprived of his life, or liberty, otherwise than in accordance with
the procedure prescribed by law, it is no answer to say that the
said deprivation was brought about while the officials of the
State were acting in discharge of the sovereign function of the
State.225

225
Ibid., at 247.
 247

Holding that the fundamental rights are sacrosanct, basic, inalienable and

indefeasible, the Court continued:

“The founding-fathers incorporated the exceptions in the Articles

themselves wherever they were found advisable, or appropriate. No
such exception has been incorporated in Art.21, and we are not
prepared to read the archaic concept of immunity of sovereign
functions, incorporated in Art.300 (1), as an exception to Art.21.
True it is that the Constitution must be read as an integrated whole;
but since the right guaranteed by Art.21 is too fundamental and basic
to admit of any compromise, we are not prepared to read any
exception in to it by a process of interpretation. We must presume
that, if the founding-fathers intended to provide any exception, they
would have said so specifically in Part-Ill itself’.226

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

guaranteed by Art.21 can be enforced in such cases.

As expected, an appeal was preferred against the above decision by the

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 of some interest to wait and watch whether the

Supreme Court would like to decide the issue in terms of the

226 Ibid., at 250-1.

227 M.P. Singh, supra note 188, at 16-7.
 248

special nature of the proceedings under Articles 32 and 226 or in

terms of the special position of the fundamental rights. If it
follows the former course it will still be denying easy access to the
courts to the have- nots to claim compensation for the violation of
their fundamental rights at the district level and flooding its own
and/or High Courts’ already unmanageable docket with additional
claims for compensation, some of which may even be factually
controversial. If it follows the latter course then the emphasis
shifts from remedy to substance. In that case, the sovereign
immunity defence is reduced to non-fundamental rights issues
irrespective of the nature of proceedings. This course will
strengthen and widen the enforcement network and mechanism of
the fundamental rights which they richly deserve in view of the
clear mandate of Article 13 as well as of Articles 32 and 226. It
will also not conflict in any way with Kasturilal, though at the
relevant time the appellant in that case could have claimed
violation of his fundamental right to property. Again, it will also
be consistent with the constitutional developments in many other
common law countries some of which are also mentioned in
CRamakonda Reddy and can be easily traced in judicial decisions
and academic writings. Its logic may also be extended to other
constitutional rights which have been put beyond the reach of the
state in the same manner as the fundamental rights”.

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

deserves to be quoted at length:

“Right to life is one of the basic human rights. It is

guaranteed to every person by Art.21 of the Constitution and not
even the State has the authority to violate that right. A prisoner,
be he a convict or undertrial or a detenue, does not cease to be a
human being. Even when lodged in jail, he continues to enjoy all
his fundamental rights including the right to life guaranteed to him
under the Constitution. On being convicted of crime and deprived
of their liberty in accordance with the procedure established by
law, prisoners still retain the residue of constitutional rights.
XXX XXX XXX XXX

Thus, fundamental rights, which also include basic human

rights, continue to be available to a prisoner and those rights
cannot be defeated by pleading the old and archaic defence of
immunity in respect of sovereign acts which has been rejected
several times by this Court.
XXX XXX XXX XXX

228
(2000)5 S.C.C. 712.
 250

This Court, through a stream of cases, has already awarded

compensation to the persons who suffered personal injuries at the
hands of the officers of the Government including police officers

and personnel for their tortious conduct. Though most of these

cases were decided under public law domain, it would not make
any difference as in the instant case, two vital factors, namely,
police negligence as also the Sub-Inspector being in conspiracy
are established as a fact.

Moreover, these decisions... would indicate that so far as

fundamental rights and human rights or human dignity are
concerned, the law has marched ahead like a Pegasus but the
government attitude continues to be conservative and it tries to
defend its action or the tortious action of its officers by raising the
plea of immunityfor sovereign acts or acts of the State which must
fair.229

Holding so the Apex Court dismissed the appeal. Thus, at the end of this path­

breaking decision, compensation can be awarded by the trial courts in suits a

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

There is one more constitutional provision which has a great potential to

enrich the enforcement machinery of fundamental rights. The reference is to

Article 32 (3) which states:

“Without prejudice to the powers conferred on the Supreme

Court by clauses (1) and (2) Parliament may by law empower any
other court to exercise within the local limits of its jurisdiction all or
any of the powers exercisable by the Supreme Court under clause
(2)”.

However, this enabling provision still remains a dead letter. If only Parliament

enacts a legislation endowing the District Courts with human rights jurisdiction, it

will go a long way in protecting and promoting fundamental rights in India in

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

Challa Ramakrishna Reddy

Awarding of compensation in Criminal appeals is another innovation that

needs to be taken notice of. In Jwata Devi v. Bhoop Singh,231 the Supreme Court

awarded compensation to an aged lady for alleged police misbehaviors in a

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

231 A.I.R. 1989 S.C. 1441.

232 Bishunu Prasad Dwivedi, supra note 118, at 107.
 252

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

compensation came to the court’s mind.233 In Daulat Ram v. Haryana,234 the

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

d. An Analysis of the Supreme Court’s Approach.

An important question in the context of creating affirmative remedies,

specifically a new compensatory remedy, for the violation of the fundamental

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?

235 See Dr.Anupa V.Thapliyal,“Compensation in writ jurisdiction^ few Basic Questions’,

(1998) 25 Ind. Bar. Rev. 95, at 102.

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

Mehta explained an appropriate case to be one where infringement of fundamental

rights must be gross, patent, incontrovertible, exfacie glaring and its magnitude

must be such so as to ‘shock the conscience’ of the Court. It is submitted, this

articulation is very subjective.

In its quest to evolve concrete principles of compensation jurisprudences the

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

237 Marbury v. Madison, 54 S. (1 Cranch) 137, 163.

238 Krishnan Venugopal, supra note 117, at 374.
 254

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 requirement of reasoned decision and possibility of review by higher courts.240

The Apex Court has partially achieved this by its revolutionary decision in Challa

27,9 K.C. Joshi, supra note 132, at 77.

240
Girish, supra note 148, at 178.
 255

Ramakriskna Reddy. It released the law of tortuous liability and compensation

from the clutches of the archaic concept of sovereign immunity vis-a-vis the

Fundamental Rights.

Thus much progress has been made in remedying the violation of

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

clear principles. It is desired that without it to the discretion ofjudiciary an express

enforceable right to compensation for violation of fundamental rights be

incorporated in the Constitution at the beginning of the chapter on fundamental

rights in the form of Article 13-A, which shall read as under:

“Article 13-A. Right to Compensation: Any one who has been the

victim of violation of fundamental rights shall have an enforceable

right of compensation.”

Award of compensation at the hands of courts for constitutional violations is

a creative jurisprudence evolved by our courts. However, the criteria adopted by

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,

in the assessment of compensation, the emphasis has to be on the compensatory

not on punitive element, and the quantum of compensation will depend upon the
 256

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

opportunity and evolve an acceptable scientific criteria, based on well accepted

principles, to assess the quantum of compensation. The ‘voting rights model'

canvassed in American jurisprudence may be adopted to measure the damages in

constitutional tort actions, for the victim of an unconstitutional conduct may not

always suffer actual injury.