📖 Rudul Sah v. State of Bihar, (1983) 4 SCC 141

Facts The petitioner was acquitted by a Sessions Court on 3 June 1968. He was not released. He remained in jail at Muzaffarpur until 16 October 1982, more than fourteen years after his acquittal. The explanation offered was that he had been of unsound mind and required treatment, an explanation the Court found unsupported. He petitioned under Article 32 for his release and for compensation, ancillary relief including medical expenses and rehabilitation.

Held He had already been released by the time of the hearing. The Court awarded Rs 30,000 over and above the Rs 5,000 the State had already paid.

Ratio Article 32 is not confined to the issue of the traditional writs. If the power of the Court were limited to ordering release from illegal detention, the right under Article 21 would be a mere hollow declaration, since the State could violate it and then defeat the remedy by releasing the victim. The Court may therefore award monetary compensation in the writ jurisdiction, as a palliative for the unlawful acts of instrumentalities acting in the name of the public interest, leaving the petitioner free to sue for the balance of his loss.

📖 Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677

Facts The petitioner was a sitting member of the Jammu and Kashmir Legislative Assembly. He was arrested while on his way to attend a session of the Assembly and kept in police custody, with the deliberate object of preventing him from attending. He was not produced before a magistrate within the time required, and the remand orders produced were found to be mechanical or worse.

Held The detention was illegal and malicious. Rs 50,000 was awarded as exemplary costs.

Ratio Where a person's constitutional right under Articles 21 and 22 is invaded by the mischievous or malicious act of a police officer, the Court is not helpless because the victim has since been released. It may grant exemplary compensation to mark the gravity of the invasion, and the fact that the object of the detention was to defeat the exercise of a public function aggravates it.

📖 Nilabati Behera alias Lalita Behera v. State of Orissa, (1993) 2 SCC 746

Facts The petitioner's son, a young man of twenty two, was taken into police custody on 1 December 1987 in connection with the investigation of a theft. His body was found the next day on a railway track with multiple injuries. The police claimed he had escaped from custody and been run over by a train. An inquiry conducted by a District Judge on the Court's direction found that he had died of injuries inflicted while he was in police custody.

Held The State of Orissa was directed to pay Rs 1,50,000 to the mother, and Rs 10,000 to the Supreme Court Legal Aid Committee.

Ratio A claim in public law for compensation for the contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for the enforcement and protection of those rights, and is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention. The defence of sovereign immunity is inapplicable and alien to the concept of the guarantee of fundamental rights, and there can be no question of such a defence being available in the constitutional remedy. Liability in this jurisdiction is based on strict liability for the contravention of the guaranteed right.

📖 D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

Facts The Executive Chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice drawing attention to news reports of deaths in police lock ups and custody. The letter was treated as a writ petition and heard along with a similar communication from Uttar Pradesh.

Held The Court laid down eleven requirements to be followed in all cases of arrest and detention, as preventive measures, and confirmed the availability of compensation.

Ratio Monetary compensation in the public law jurisdiction is an acknowledged and appropriate remedy for the enforcement and protection of the right guaranteed by Article 21, and it is available in addition to the private law remedy in tort and to the punishment of the wrongdoer under the criminal law. The award is made against the State, which has a right of indemnity against the officer actually responsible. The eleven requirements, which include an accurate memo of arrest attested by a witness, information to a relative, an entry in the diary, a medical examination every forty eight hours and an inspection memo of injuries, were directed to be followed until legislative provision was made.

The case

The facts, and what was held

Saheli, A Women's Resources Centre v. Commissioner of Police, Delhi, (1990) 1 SCC 422

A nine year old boy died of injuries caused by a police assault during a landlord's attempt to evict his mother. Rs 75,000 was ordered to be paid by the Delhi Administration, which was given liberty to recover the amount from the officers responsible. Sovereign immunity was rejected on the authority of Vidyawati

People's Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730

A labourer died in police custody at a police station in Delhi. The Court ordered compensation to the family, declining to relegate them to a civil suit

Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465

A Bangladeshi national was gang raped by railway employees in a room at the Yatri Niwas at Howrah station. A writ petition by a practising advocate was held maintainable as public interest litigation. The award of Rs 10 lakh made by the Calcutta High Court was upheld

📖 Manoj Kumar v. Union of India, 2024 INSC 126, decided 21 February 2024

Facts The appellant applied for the post of a primary school teacher at an institute for the physically handicapped. After the advertisement, the institute altered its selection process, dispensing with the interview and applying marking criteria different from those advertised. The appellant challenged the computation of the aggregate marks. The High Court declined to interfere. By the time the matter reached the Supreme Court the institute had closed, so the post could no longer be given to him.

Held The appeal was allowed, the institute's action was found arbitrary, and Rs 1,00,000 was awarded as alternative compensation.

Ratio A writ petition is not to be dismissed on the ground of perceived futility merely because the prayer has become unattainable through the passage of time. The temporal gap between an illegal action and its adjudication is a systemic complexity and not a legal deficiency in the petition. It is incumbent upon the courts to address the injurious consequences arising from arbitrary and illegal actions, and where the direct remedy has become impracticable the court must provide an alternative restitutory measure that acknowledges the harm caused by the abuse of power.

📖 Smita Shrivastava v. State of Madhya Pradesh, 2024 INSC 378, decided 4 May 2024

Facts The appellant had qualified in the Samvida Shala Shikshak Grade III examination held on 31 August 2008. She was denied appointment on the footing that amended rules, made effective from 1 January 2008, rendered her ineligible by reason of her earlier service as an Instructor. The High Court found the denial grossly illegal and arbitrary and nevertheless refused her relief, applying the amended rules retroactively.

Held The appeal was allowed. Appointment was directed within sixty days, and costs of Rs 10 lakh were imposed on the State Government.

Ratio The conduct of the State was characterised as an adamant, arbitrary, mala fide and high handed approach which had subjected the appellant to prolonged litigation. Where a court has found the denial of a right to be grossly illegal and arbitrary, restitutive relief does not become discretionary: the compensatory order answers the misery that the official arbitrariness piled upon the citizen, and a court that recognises the illegality and withholds the relief has left its own finding without effect.

Constitutional tort

Ordinary tort

The forum

The Supreme Court under Article 32, or a High Court under Article 226

A civil court, in a suit

Who may be sued

The State and its instrumentalities

Anybody

The foundation

The violation of a fundamental right

A wrong recognised by the law of torts

Is fault required

No. Liability is strict

Yes, unless the tort is one of strict liability

Is sovereign immunity a defence

No, in terms: Nilabati Behera

It may be, within the residue left by Nagendra Rao

Court fee

None on the amount claimed

Ad valorem

The procedure

Summary, on affidavit, unsuited to seriously disputed facts

A full trial with oral evidence and cross examination

The measure

Frequently a conventional or palliative sum

Full compensation under the established heads

Effect on the other

Does not bar a suit; the sum is adjusted against any decree

Independent, and may be brought for the balance

⚠ Reading the awards as a line rather than as a list

The temptation with these decisions is to fix on the sums, and the sums are the least instructive part of them. What matters is the movement of the underlying idea. Rudul Sah established that a writ court may award money at all, and called the award a palliative because the Court was conscious of doing something new. Bhim Singh showed that the sum may be exemplary where the violation was malicious. Nilabati Behera supplied the theoretical foundation the earlier cases lacked, by separating the public law remedy from the private law action and holding sovereign immunity inapplicable to the first. D.K. Basu turned the remedy from an occasional response into a settled part of the jurisdiction and added preventive directions to it. Chandrima Das extended it to a foreign national and to a commercial undertaking of the State. And Manoj Kumar and Smita Shrivastava have carried it out of custody altogether, into ordinary administrative arbitrariness, where the question is no longer whether a court may compensate but whether it may decline to.