CONSTITUTIONAL

TORT
 TABLE OF CONTENT

◦ 1. Introduction…………………………………………………………………………..3
◦ 2. History & Orgins………………………………………………………….………..4
◦ 3. Articles and Clauses…………………………………………………………….5
◦ 4. Applicability……………………………………………………………………………6
◦ 5. Notable Cases…………………………………………………………………………..9
◦ 6. Conslusion………………………………………………………………………………..11
◦ 7. Bibliography………………………………………………………………………….....12
 Constitutional Tort : Introduction
It’s the legal action to get legal remedy in the form of damages when any of the constitutional rights
are violated. The only exception lying is that it cannot be made liable if the act is done in exercise of
sovereign (government) functions.

◦ It is generally a concept of Vicarious Liability of the state. Here, it all lies on whether the employer,
here the state, is liable for the wrongful acts of its servants during the course of employment. But the
exception that arises here is of sovereign powers, if the act was done in regard to the governmental
functions.

◦ Vicarious liability is the liability that lies upon a person for an act done by someone else. It
comes into play often in master-servant relationships. Constitutional Tort is generally a
judicial instrument by which the state can be held vicariously liable for the acts of its
servants.
Constitutional Tort : History & Orgins
The origin of Constitutional law may be traced back to the time when the common medieval saying of “Res
Non-Potest Peccare” i.e. ‘the king can do no wrong’ (as the king was considered the son of God) started
losing its acceptance in the eyes of the public. After the 18th century, with the advent and emergence of new
democracies and industries, it became important to take acts done with state’s authority under judicial scrutiny
so that, those who suffered from such acts may get justice in due course.

The development of constitutional tort which began in the early eighties and was cemented into judicial
precedent in Nilabati Behera1 has profoundly influenced the direction tort law has taken in the past decade. It is
in recognising state liability, and in denuding the defence of sovereign immunity, that constitutional tort has
taken wide arcs around previously established practices in tort law. Its influence on the recognition of wrongs,
and of the vicarious liability of the state, is in evidence in the cases under survey.

As there is no legislation which specifies the vicarious liability of the state for the torts committed by
its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the
right to file a suit comes from.
Constitutional Tort : Pertaining Articles & Clauses

Article 300:
The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by
the name of the State and may, subject to any provisions which may be made by the Act of Parliament or of the legislature
of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective
affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States
might have sued or been sued if this Constitution had not been enacted.

1. If at the commencement of this Constitution:

1. Custody death: The incidence of custodial violence, and custody death, continues unabated. Delhi and Gauhati High Courts recur
with a disturbing frequency in this section, but cases from Rajasthan, Karnataka, Maharashtra, Uttar Pradesh, West Bengal and Andhra
Pradesh testify to the prevalence of custodial violence across a spectrum of states. In the 18 cases that were located within this
arena of custodial violence, compensation was not denied in any case. The link between custodial violence and
compensation is direct and Nilabati Behera have evidently set at rest any questions there might have been on the payment
of compensation for violation of Article 21 rights
2. Police Atrocity: Excessive, or unwarranted, use of force by the police constitutes a ground for seeking relief – both
compensatory and asking for investigation and prosecution – from the court. In the two cases reported in the period
under survey, the Andhra Pradesh High Court and the Bombay High Court at Aurangabad have deflected the issue from
that of deterring culpability and compensation to recognizing the imperative of investigation. In the Maharashtra case,
the court declined to act since a commission of inquiry had been appointed into the alleged incidents of police violence,
and it considered any intervention at that stage premature. Where it was established that a constable had assaulted a
person in the course of his duty, and that resulted in amputation of a limb, the state was held vicariously liable, and the
doctrine of sovereign immunity was expressly rejected.
Constitutional Tort : Applicability
3. Encounter killing: The labelling of a person as a member of an extremist organization has provided a shield to the
police and armed forces in cases of encounter killings or in fake encounters. The obstacles to enabling investigation in
cases of alleged encounters were set out in an earlier survey.50 An attempt to cover up a death in custody as an
encounter killing of a member of ULFA has since been reported in Gopal Ch. Sarmah v. State of Assam.51 A single
judge of the Gauhati High Court, basing his judgment on a judicial enquiry instituted by the court, gave a lie to the
assertion of death in an encounter, and directed that Rs. 2,50,000 be paid in compensation.

4. Illegal detention: The casual treatment meted out in matters of liberty has led courts to direct that
compensation be paid to these detained beyond the prescription of the law. Free Legal Aid Committee,
Jamshedpur v. State of Bihar55 is a glaring instance of the short shift accorded to both the law, and liberty. In an
agitation by villagers in April 1991 against Icha Kharakai Bandh Yojna, a large number of agitators were
detained under S.107 CrPC. Among them was a girl of about 13 years. It was over a month later that she was
released. Asserting that the remand, being contrary to the express provisions of the law, was illegal and
that it had been in violation of her fundamental right, the court directed that Rs.10,000 be paid to the
girl while holding her “entitled to compensation under the public law in addition to the remedy
available under the private law for the damages for tortious action of the government servant
Constitutional Tort : Applicability
5. Disappearances: Cases of disappearances continue to crop up in the courtroom, coming from the strife torn
years in the Punjab, and from the north eastern states. The disappearance of persons picked up by the armed forces
has raised presumptions of the disappeared being dead, unless the armed forces produce the person. It has also led
to presumptions of the armed forces having disappeared the person. Yet, in constitutional tort, the remedy has been
limited to directing the payment of compensation as an interim measure.73 The Supreme Court, in State of Punjab
v. Vinod Kumar merely paused to explain that no trial court would take a cue about liability of delinquent officers
from the interim compensation award passed, thus emphasising the distance between liability in the realm of civil
remedy of compensation and criminal trial, and the influence the former may have on the latter.
Constitutional Tort : Notable Cases
Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for refusal of Government to
give him licence to sell liquor and drugs, it was held that it was out of sovereign functions of the state and thus, is
out of reach of tortious liability. Since this decision, the distinction between sovereign and non-sovereign
functions is the foremost criteria that are looked into by the courts in their judgements.
Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a pedestrian who eventually
died of an accident. The plea of Sovereign immunity was rejected but it was held that the government cannot be
held liable for the “Act of State” under Article 300. Compensation of Rs. 15000 was given. The Hon’ble Supreme
Court stated that “in the modern era, the liability of State is not limited to Sovereign functions, but is socialistic
and is related to the welfare of the people and thus, the old immunity of State functions is irrelevant”.
Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the Plaintiff. The head
constable later misappropriated the gold and flew with it to Pakistan. The Court did not take account of the
judgement in Vidyawati case and ruled in favour of the State stating that the act was sovereign in nature. It was
held that the law established in P & O Navigation is still good law. The court was not pleased as it could help the
Plaintiff with its ruling. Through this judgement, in addition to disapproving the law in Vidyawati, it was also
added by the Court that the state is not liable when the tort is done in statutory power by its servants.
Constitutional Tort : Notable Cases
P & O Navigation Company v Secretary of State for India– This was the first case in which the Sovereign
immunity of the state was debated. There was a piece of a funnel made up of iron which was being carried by some
workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt.
for damages due to negligence on the part of the servants employed by the govt.

N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is applicable in rare
cases only where the statutory authority to carry out certain functions are delegated. In any civil society, the
state cannot be allowed to play with the rights of the citizens and take the plea of sovereign function and thus,
it cannot be treated above and against the rule of law.

Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the foundation of
new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who has
been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs. 25000
for being harassed by the defendant deliberately.
Constitutional Tort : Conclusion
The concept of Constitutional Tort Law is based on the archaic English law but now has a modern jurisprudence
which states that the state like any other ordinary individual can be sued for the acts of its servants, but also it
makes a clear distinction between the sovereign and the non-sovereign functions of the state.

It may be stated that the doctrine of Constitutional Tort is a creative jurisprudence evolved by the Courts in spite of
the fact that the criteria employed had faced various criticism in the past. The Apex Court must evolve a scientific
criterion for future cases.
 Bibliography
◦ 1. Microsoft Word - CONSTITUTIONAL TORT LAW.docx (manupatra.in)
◦ 2. Tort Law in India (ielrc.org)
◦ 3. Constitutional Tort: The law that deals with Vicarious Liability of the State – iPleaders
◦ 4. Constitutional Tort: The law that deals with Vicarious Liability of the State - iPleaders
 Thanking You

◦ Name: Swami Jagannath Rai