TORT 110 Ordinary Tort and the Constitutional Tort Two Routes to Compensation — Law of Torts Notes for Judiciary

Ordinary Tort and the Constitutional Tort: Two Routes to Compensation for the Same Injury

A constitutional tort is not a species of tort. It is public law relief granted in the writ jurisdiction for the violation of a fundamental right, and the label is a convenience rather than a classification. The same facts, a man beaten in police custody, a prisoner held after his sentence expired, a child blinded by an untreated condition in a government hospital, will support an action in tort and a petition under Article 32 or Article 226 at the same time. The differences between the two routes are procedural, evidentiary and jurisprudential, and they decide which is worth bringing and in what order.

1. How the Jurisdiction Arose

The problem it was created to solve was Kasturilal. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, gold seized by the police and negligently allowed to disappear was held irrecoverable from the State, because the seizure was an exercise of a sovereign power. The result was widely regarded as unjust, and the law of torts as it then stood offered no way around it: TORT 051.
Rudul Sah v. State of Bihar was the turning point. A man was kept in jail for over fourteen years after his acquittal. The Supreme Court held that Article 32 was not confined to a declaration or a release, and awarded compensation in the writ petition itself, describing it as a palliative and leaving the petitioner free to sue.
Nilabati Behera v. State of Orissa settled the principle. Compensation under Article 32 or 226 rests on a public law liability which is distinct from private law liability in tort, and to that public law liability sovereign immunity is no defence at all.
D.K. Basu v. State of West Bengal carried it further, laying down the custodial safeguards and confirming that compensation for custodial violence is a remedy available in the writ jurisdiction as of course.

2. The Comparison

	An action in tort	A constitutional tort
The right violated	A private right recognised by the law of torts	A fundamental right, ordinarily Article 21, and sometimes 14, 19 or 22
The forum	A civil court of ordinary original jurisdiction	The Supreme Court under Article 32 or a High Court under Article 226
The proceeding	A suit, with pleadings, issues and a trial	A writ petition, decided on affidavits
Fault	Must ordinarily be proved	Need not be proved. The violation of the right is the wrong
Sovereign immunity	Survives for the primary and inalienable functions	No defence whatever
Vicarious liability	Must be established on ordinary principles	The State answers directly for the violation
Court fee	Ad valorem on the amount claimed	A fixed fee. No ad valorem fee
Limitation	The Schedule to the Limitation Act, 1963	No article applies, but unexplained delay may defeat the petition
Speed	Years, and often many of them	Months
The measure	Full compensation on established heads, assessed at trial	Frequently interim or palliative, though substantial awards are made
Disputed facts	Resolved by evidence	A serious factual dispute may cause the court to relegate the petitioner to a suit

3. The Relationship Between the Two

The public law remedy is additional and not alternative. The existence of a remedy in tort is not a reason to refuse relief under Article 32 or 226, and the grant of relief there does not bar a suit.
What is awarded in the writ jurisdiction is adjusted against whatever the suit afterwards yields, so that there is no double recovery. The public law award operates as a payment on account.
The order of proceeding is therefore usually the writ first, for the declaration, the directions and an immediate payment, with a suit following where the quantum requires a trial.
The writ route fails in three situations: where no fundamental right is engaged, as in an ordinary negligence claim against a private party or even against the State where no right under Part III is involved; where the facts are genuinely and seriously disputed, since affidavits cannot resolve a contest of that kind; and where the claim is in substance a money claim dressed up as a rights claim, which the courts decline to entertain.

4. What the Public Law Remedy Actually Rests On

It is not vicarious liability. The State is not answering because its servant committed a tort in the course of his employment. It is answering because a right guaranteed against the State has been violated, and the Constitution which guarantees the right must be taken to supply the means of enforcing it.
That is why fault need not be proved. The question is not whether anybody was careless but whether the right was violated.
And that is why immunity has no place. An immunity which protects the State from a claim in tort cannot protect it from a claim founded on the Constitution, since the immunity is a rule of the law of torts and the Constitution is above it.
The compensation is not purely private. It serves to vindicate the right and to deter its repetition, and the Court has described awards under this head as having a punitive element in appropriate cases, as in the exemplary award made for environmental despoliation in M.C. Mehta v. Kamal Nath.
The State's right of recovery from the erring officer is ordinarily preserved, so that the burden may be placed where it belongs.

5. Where the Constitutional Tort Is Used

The situation	Why the writ route is taken
Custodial death, torture and illegal detention	Sovereign immunity would otherwise be pleaded; the facts are within the authorities' knowledge; and speed matters to the family
Detention beyond the sentence, or after acquittal	The violation is documentary and admits of no dispute, so affidavits suffice
Police inaction or excess	A fundamental right is engaged and a civil suit against the State is slow and expensive
Failures in government hospitals and institutions	Article 21 covers the right to health care, and the ad valorem fee on a large claim is avoided
Environmental harm	The polluter pays principle and absolute liability are applied directly, and continuing directions can be made
Disappearance, encounter deaths and mass violations	Only a constitutional court can combine compensation with structural directions

6. What the Writ Jurisdiction Cannot Do

It cannot try a disputed question of fact, and a respondent who raises a genuine factual defence supported by material will often succeed in having the petitioner sent to a civil court.
It does not ordinarily assess damages head by head, with a full enquiry into future loss, medical evidence and multipliers, which is the business of a trial.
It does not lie against a private wrongdoer in the ordinary case, the fundamental rights in question being guaranteed against the State.
It does not reach a claim where no Part III right is engaged, however meritorious the claim may be in tort.
And it is discretionary. Delay, suppression, an alternative remedy actually pursued, or conduct disentitling the petitioner may all lead to a refusal of relief that a civil court would have had to grant.

⚠ Why the constitutional tort did not make the law of torts redundant

It is tempting to conclude from the growth of this jurisdiction that the ordinary action against the State has become obsolete, and among litigants that conclusion is very nearly correct: almost nobody now files a suit for custodial violence. But the constitutional remedy is structurally incapable of doing everything the suit did. It is discretionary where the suit was a matter of right. It is confined to violations of fundamental rights, so the citizen injured by ordinary governmental carelessness, a municipal lorry, a falling tree, a collapsing culvert, is outside it altogether unless he can bring his case within Article 21, which not every such case will bear. It resolves no disputed fact, so the very cases in which the State has a real defence are the cases it cannot decide. And it assesses compensation summarily, which serves a bereaved family needing money now but does not serve a paraplegic claimant whose future care has to be costed over forty years. The two remedies are therefore complements and not substitutes: the writ supplies speed, the declaration and the removal of immunity, and the suit supplies the trial and the full measure. A practitioner who treats the writ as the only route will eventually meet the case that needs a trial, and one who ignores it will spend years establishing what the writ court would have assumed.

7. The Position Stated Shortly

1. A constitutional tort is public law relief for the violation of a fundamental right, and not a species of tort at all.

2. The jurisdiction grew out of the injustice of Kasturilal, was established in Rudul Sah, and was placed on principle in Nilabati Behera.

3. The liability is a public law liability distinct from liability in tort, and sovereign immunity is no defence to it.

4. Fault need not be proved, because the question is whether the right was violated and not whether anyone was careless.

5. The forum is the Supreme Court under Article 32 or a High Court under Article 226, the proceeding is on affidavits, and no ad valorem fee is payable.

6. No article of limitation applies, but unexplained delay may defeat the petition, the jurisdiction being discretionary.

7. The public law remedy is additional and not alternative, and what is awarded is adjusted against whatever a later suit yields.

8. The writ route fails where no fundamental right is engaged, where the facts are seriously disputed, or where the claim is a money claim in disguise.

9. It is used chiefly for custodial violence and illegal detention, failures in public institutions, environmental harm and mass violations.

10. It has not made the ordinary action redundant, because it is discretionary, confined to Part III, unable to try disputed facts, and summary in its assessment.