Constitutional Tort

The remedy is public law, and immunity does not touch it

Facts. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, decided on 24 March 1993. The petitioner's son was taken into police custody and his body was found the next day on a railway track with multiple injuries. The State said he had escaped and been run over by a train. Her letter was treated as a petition under article 32, the Court directed the District Judge to inquire, and the inquiry established that the death was unnatural and caused by injuries inflicted in custody.

Held. A claim in public law for compensation for the contravention of a fundamental right is a remedy available under articles 32 and 226, distinct from and in addition to the private law remedy in tort, and the principle of sovereign immunity does not apply to it. The Court awarded Rs. 1,50,000 to the petitioner, with Rs. 10,000 as costs to the Supreme Court Legal Aid Committee, leaving her free to pursue any other remedy.

Why it matters here. It is the judgment that states the theory: the remedy is not tort at all, it is the enforcement of a right, so the defences that belong to the law of torts do not travel into it.

It protects every person, not only citizens

Facts. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, decided on 28 January 2000. A Bangladeshi national was gang-raped by railway employees at Howrah station. An advocate moved the High Court under article 226 claiming compensation for her, and Rs. 10 lakhs was awarded against the Railways. The Railways argued that the wrong was that of individual employees, that the remedy lay in private law, that the petitioner was a stranger and that the victim was a foreign national.

Held. The appeal was dismissed. The right to life under article 21 is available to every person and not only to a citizen, so a foreign national may enforce it; the employees were performing functions of a commercial character on behalf of the Union, which made the Union liable; a practising advocate could bring the petition in the public interest; and compensation in public law is an appropriate remedy for the violation of a fundamental right.

And the safeguards that make the facts provable

Facts. D.K. Basu v. State of West Bengal, AIR 1997 SC 610, decided on 18 December 1996. A letter drawing attention to deaths in police lock-ups was treated as a writ petition.

Held. Custodial violence and death in a lock-up strike a blow at the rule of law. The Court issued eleven requirements to be followed in every case of arrest and detention until legislation was made, among them that the arresting officers bear accurate visible identification, that a memo of arrest be prepared and attested by a family member or a respectable person of the locality and countersigned by the arrestee, that a friend or relative be informed of the arrest and the place of detention, that the arrestee be examined for injuries at the time of arrest and medically examined every forty-eight hours, and that a police control room record the arrest.

Why it matters here. Compensation is worth nothing if a detention cannot be proved, and these requirements are what put the facts on paper.

The differences from a private law action

A worked example

A young man is picked up by the police, held for six days without being produced before a magistrate, beaten, and released without any charge.

In a suit. He may sue for false imprisonment and battery, prove the detention and the assault, and recover damages after a trial that may take years; the State may plead that the arrest was in the exercise of statutory police powers, on Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039.

In a writ petition. He may move the High Court under article 226 for compensation for the violation of articles 21 and 22, and on Nilabati Behera sovereign immunity is no answer, on Rudul Sah and Bhim Singh compensation may be awarded summarily, and the D.K. Basu requirements will show whether an arrest memo was made and whether he was medically examined.

Both. The public law award is a palliative, and Rudul Sah expressly leaves the ordinary suit open.

What it does NOT mean

It is not a substitute for a suit in every case. It is granted where the violation is gross and the facts are not seriously in dispute.

It is not full compensation. Rudul Sah calls the award a palliative, and the suit remains available.

It is not confined to citizens. Chandrima Das holds that article 21 protects every person.

It is not answered by sovereign immunity. Nilabati Behera holds that the principle does not apply to a public law claim.

Quick revision

1. Constitutional tort: compensation for the violation of a fundamental right, under articles 32 and 226.
2. Rudul Sah v. State of Bihar, AIR 1983 SC 1086: Rs. 30,000 for fourteen years of detention after acquittal; a right without a remedy is a paper guarantee; the award is a palliative.
3. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494: Rs. 50,000 for four days of mala fide detention.
4. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960: a public law remedy distinct from tort; sovereign immunity does not apply; Rs. 1,50,000 awarded.
5. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988: article 21 protects every person; Rs. 10 lakhs upheld against the Railways.
6. D.K. Basu v. State of West Bengal, AIR 1997 SC 610: eleven requirements for every arrest and detention.
7. The private law action survives alongside it.

Test yourself

1. What is a constitutional tort, and how did the remedy develop? It is the violation of a fundamental right by the State or its officers, for which a constitutional court awards compensation in a writ petition. The remedy was created in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, where a man was kept in jail for more than fourteen years after his acquittal; by the hearing he was free, and the Court held that its power under article 32 is not confined to ordering release and that it may award compensation where liberty has been grossly violated, otherwise the right would be a paper guarantee. It was applied in Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, where Rs. 50,000 was awarded for four days of mala fide detention. Its theoretical basis was settled in Nilabati Behera v. State of Orissa, AIR 1993 SC 1960: a claim in public law for the contravention of a fundamental right is distinct from and additional to the private law remedy in tort, and sovereign immunity does not apply to it. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, extended it to every person, citizen or not.

2. How does a constitutional tort differ from an ordinary action in tort? In forum, procedure, defences and measure. It is brought under article 32 or 226 rather than by suit, and is decided summarily on affidavit, often after a judicial inquiry directed by the court, rather than after a full trial. It may be moved by a public-spirited person on behalf of the victim, as in Chandrima Das, where a practising advocate petitioned for a foreign national. Sovereign immunity, which may still be pleaded in a private law action after Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, is no answer at all to it, as Nilabati Behera holds. And the award is a palliative fixed summarily rather than full damages assessed on evidence, which is why Rudul Sah expressly left the injured person free to sue for damages in the ordinary way.

3. What did D.K. Basu decide, and why does it matter to this topic? In D.K. Basu v. State of West Bengal, AIR 1997 SC 610, the Supreme Court treated a letter about deaths in police custody as a writ petition, held that custodial violence strikes at the rule of law, and issued eleven requirements to be followed in every case of arrest and detention until legislation was made. They include accurate visible identification by the arresting officers, an arrest memo attested by a family member or a respectable person of the locality and countersigned by the arrestee, information of the arrest and the place of detention to a friend or relative, examination for injuries at the time of arrest and medical examination every forty-eight hours, and recording of the arrest at a police control room. It matters because the constitutional remedy depends on proof: compensation for an unlawful detention is worth nothing if the detention cannot be established, and these requirements create the record that makes it provable.