Constitutional Tort: Public Law Compensation for the Violation of a Fundamental Right

A constitutional tort is not a tort at all in the private law sense. It is a public law remedy, granted by the Supreme Court under Article 32 or by a High Court under Article 226, against the State, for the violation of a fundamental right, and awarded in the writ jurisdiction without the plaintiff having to file a suit. It developed because the traditional writs were inadequate: a writ of habeas corpus releases a man, but it does not compensate him for the years he has lost, and relegating him to a civil suit meant court fee, delay and a plea of sovereign immunity at the end of it. The Supreme Court answered that the right under Article 21 would otherwise be, as it put it, a hollow declaration.

The problem, the answer, the limit, the three propositions, and where the remedy is granted

1. How the Doctrine Arose

• The problem was that the writ remedies were declaratory and prospective. They could set aside an order, release a detenu or direct an authority to act, but they gave the victim nothing for what he had already suffered.
• A civil suit was theoretically available and practically useless: it required court fee on the amount claimed, took years, and would meet a plea of sovereign immunity based on Kasturi Lal.
• The answer was found in the language of Article 32 itself. It confers the right to move the Supreme Court for the enforcement of the fundamental rights, and empowers the Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate.
• The Court held that a power to enforce carries with it the power to grant the relief that will make the enforcement real, and that where the violation is past and irreversible, compensation may be the only relief that will.

2. The Three Propositions

3. The Limits on the Remedy

• It is not a substitute for the civil suit, and the Court has always said so.
• It is granted where the violation is gross and patent, and where the facts are not seriously in dispute, because the writ jurisdiction is summary and unsuited to the resolution of contested questions of fact.
• It is granted where a suit would be an inadequate remedy, as where the loss is continuing, the petitioner is destitute, or the delay would defeat the relief.
• The sum awarded is frequently described as a palliative rather than as full compensation, and the petitioner is left free to sue for the balance.
• Any amount awarded is adjusted against a decree later obtained in a suit, so there is no double recovery.
• It lies against the State and its instrumentalities, and not against a private person, because the fundamental rights in question are guaranteed against the State.

4. Where the Remedy Is Granted

5. The International Law Element

• Article 9(5) of the International Covenant on Civil and Political Rights provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
• India acceded to the Covenant with a reservation on that article, on the footing that the Indian legal system did not recognise such a right.
• The Supreme Court in Nilabati Behera treated the reservation as of no consequence, because Indian constitutional law, as developed from Rudul Sah onward, already provided the enforceable right that the article requires.
• The Covenant is therefore used as a confirmation of the domestic position rather than as its source, which is the ordinary way in which the Supreme Court draws on international instruments.

6. Why the Liability Is Strict

• A fundamental right is a guarantee by the State, and a guarantee that failed because an officer exceeded his authority has still failed.
• Almost every such violation involves an officer acting beyond his powers. No police manual authorises torture, and no statute permits a custodial death. If acting beyond authority were a defence, the remedy would never be available in the cases that need it most.
• The State is the body that clothed the officer with the power he abused, and it is the body that can train, supervise and discipline him.
• And the State retains its right of indemnity against the officer responsible, which D.K. Basu confirms and which Saheli exercised in terms.

7. The Position Stated Shortly

1. A constitutional tort is a public law remedy in compensation, granted under Article 32 or Article 226 against the State for the violation of a fundamental right.

2. It developed because the traditional writs were declaratory and prospective and gave the victim nothing for what he had already suffered.

3. The power is found in the language of Article 32 itself: the power to enforce a right carries the power to grant the relief that makes the enforcement real.

4. The remedy in public law is distinct from, and in addition to, the private law remedy in damages for the tort constituted by the same facts.

5. Sovereign immunity is no defence to it, being alien to the concept of a guaranteed fundamental right.

6. Liability is strict, and it is no answer that the officer acted beyond his authority, since that is what almost every such violation involves.

7. The remedy is granted where the violation is gross and patent, the facts are not seriously in dispute, and a suit would be an inadequate remedy.

8. The sum awarded is often a palliative rather than full compensation, and is adjusted against any decree later obtained in a suit.

9. Article 9(5) of the ICCPR requires an enforceable right to compensation for unlawful arrest, and India's reservation was treated as of no consequence in Nilabati Behera.

10. The State retains its right of indemnity against the officer responsible.