Administrative Law Project

Scope of Article 32:

Constitutional torts in India
 Civil Liberties in India
• Pronouncement of the rule of law in the year 1215 through the magna carta
in England
• Import of civil liberties in Indian constitution which did not have much
force during the colonization of India; enforcement through article 32
• Concept of monetary compensation as an integral aspect of the
enforcement mechanism, the same must be read into article 32
• Trace the concept of constitutional torts and compensatory jurisprudence in
India
 Scope of Article 32
Romesh Thapar v State of Madras: “The fundamental right to move to the court is the
cornerstone of the democratic edifice raised by this constitution”
• This right cannot be abrogated, thus in Prem Chand Garg v EC UP, the
furnishing of security for hearing of a petition was struck down
• Territorial application of writ jurisdiction; article 32 v article 142
• Doctrine of laches in the case of Tilokchand Motichand v. HB Munshi
 Rationale behind constitutional torts
• Affirming the plaintiff ’s rights: Unless he is paid damages for the loss,
constitutional rights would be meaningless
• Deterrence of constitutional violations: damages are a more tangible result
which forces the government to transfer funds
• Corrective justice: In cases where the government oversteps its bounds, the
transfer of funds restores the balance
• Vicarious liability: government trains its employees, it is in the best position
to compensate for their misdemeanour.
 Writ compensation in India
• Wordings of Article 32 provide for a wide scope for enforcement of rights
• First propounded in the case of Khatri v State of Bihar: need for forging new
tools and remedies for vindicating the fundamental right to life.
• A new approach adopted in Rudal sah v state of Bihar
• Subsequently reaffirmed in the case of Bhim Singh v. Jammu and Kashmir
 Qualms in the sphere
• Quantum of compensation: There is no uniformity in calculating
compensation. Facts and circumstances taken into consideration
• Determining appropriate case for awarding compensation: Case of gross
violation in the case of Rudal Sah; invalidation in AK Singh’s case
• Personal v state liability: US has a natural concept of state liability which has
not been established in India
Thank You

Adwiteya Grover
15001
Year- III