Constitutional Tort

In one line

A constitutional court may order the State to pay compensation for violating a fundamental right, and sovereign immunity is no answer to it.

In the wording a student can write in an exam: a constitutional tort is the violation of a fundamental right by the State or its officers, for which the Supreme Court under article 32 and the High Courts under article 226 may award compensation as a public law remedy; the remedy is distinct from and additional to the private law action in tort, it is granted summarily in a writ petition without a suit, the defence of sovereign immunity does not apply to it, and it is available to every person and not only to citizens.

How the remedy was made

Facts. Rudul Sah v. State of Bihar, AIR 1983 SC 1086, decided on 1 August 1983. Rudul Sah was acquitted by the Court of Sessions at Muzaffarpur on 3 June 1968 and was kept in jail until 16 October 1982, more than fourteen years after his acquittal. He petitioned under article 32 for release and for compensation.

Held. He had been released before the hearing, so the prayer for release did not survive. The Court held that its power under article 32 is not confined to issuing a writ of release, and that it may award compensation where the right to liberty has been grossly violated, because otherwise the right would be reduced to a paper guarantee. It directed the State to pay Rs. 30,000 in addition to a sum already paid, described the award as a palliative, and left him free to sue for damages in the ordinary way.

Why it matters here. It is the origin. Everything that follows is an application of the reasoning that a right without an effective remedy is not a right, which chapter [Ubi Jus Ibi Remedium] states as a maxim.

Facts. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, decided on 22 November 1985. A member of the Legislative Assembly was arrested at three in the morning while travelling to attend a session and was kept in custody from the tenth to the fourteenth of September without being produced before the Executive Magistrate on the eleventh or the Sub Judge on the thirteenth, remand orders having been obtained at their residences after office hours.

Held. The police had acted deliberately and mala fide, and there was a gross violation of articles 21 and 22(2). Since he was already at liberty no order of release was needed, but the Court held that it had jurisdiction to compensate the victim by awarding monetary compensation, and directed the State to pay Rs. 50,000.