Capacity to sue or be sued

This topic deals with those who can

sue and be sued subject to the
certain limitations
 Convicts and Persons in custody
• Under the English law a convicted person, despite
of his imprisonment, retains all civil rights which
are not taken away expressly or by implication.
• The conviction and sentence by a court and rules
of prison discipline curtails the liberty of a convict
• But subject to that curtailment the court remains
the ultimate custodians of his rights and liberties
in the same manner as they are in respect of other
citizens.
 RAYMOND V. HONEY: HL 4 MAR 1982

• Fact- The defendant, a prison governor had intercepted

a prisoner’s letter to the Crown Office for the purpose of
raising proceedings to have the governor committed for
an alleged contempt of court.
• Held: The governor was in contempt of court. ‘under
English law, a convicted prisoner, in spite of his
imprisonment, retains all civil rights which are not taken
away expressly or by necessary implication .
• there is nothing in the Prison Act 1952 that confers
power to make regulations which would deny, or
interfere with, the right of the respondent, as a prisoner,
to have unimpeded access to a court.
 R v Hull Board of Visitors, ex p St German (No .1) [1979]

• A prison authority imposed sanctions on prisoners following a riot.

• The court discussed the proper limits of imprisonment ‘despite the
deprivation of his general liberty, a prisoner remains invested with
residuary rights appertaining to the nature of his  imprisonment.
• An essential characteristic of the right of a subject is that it carries with it
a right of recourse to the courts unless some statute decrees otherwise.’ 

• The disciplinary decisions of prison Boards of Visitors could be

distinguished from those of prison governors

• The officers were acting judicially in applying such sanctions, therefore we

subject to the jurisdiction of prohibiting (quashing) orders by way of
judicial review
 REGINA V DEPUTY GOVERNOR OF PARKHURST PRISON, EX PARTE HAGUE, WELDON V HOME OFFICE:
HL 24 JUL 1990

• Fact- The prisoner challenged the decision to place him in segregation under
Prison Rule.
• Under rule 43(1) the initial power to segregate was given to ‘the governor’.
• The case arose from the fact that the governor of one prison had purported to
authorise the segregation of a prisoner on his arrival at another prison to which
he was being transferred, as required by an instruction issued by the Home Office.
• Held: The House characterised the Prison Rules as regulatory in character, to the
extent that they dealt with the management, treatment and control of prisoners. 
A prisoner ‘is lawfully committed to a prison and while there is
subject to the Prison Act 1953 and the Prison Rules 1954. His whole
life is regulated by the regime. He has no freedom to do what he
wants, when he wants. His liberty to do anything is governed by
the prison regime.
 Smt Nilabati Behera alias Lalita Behera v State of Orissa and Others (1993)

• The present case deals with the concept of custodial death in India.
• Suman Behera was taken to the police custody in connection with an
investigation of an offence of theft and detained at the police outpost. On
the next day, the petitioner came to know that the dead body of his son
was found at the railyway station. There were multiple injuries on the
body of Suman Behera
• There is a difference between the liability of the state in public law and
the liability of the state in private law for payment of compensation in
action on tort. It may be mentioned straightaway that award of
compensation in a proceeding under Article 32 by this court or by the
High Court under Article 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.
Art. 21 of the Constitution of India – Right to Life and Personal Liberty

• There is a great responsibilities to ensure that

the citizens in its custody is not deprived of his
right to life.
D. Bhuvan Mohan Patnaik & Ors vs State Of
Andhra Pradesh & Ors on 9 September, 1974