Constitutional Tort doctrine is an innovative jurisprudence developed by the courts. Its existence ensures that the State or its functionaries do not misuse the powers vested in them.

In early years, the conception was that “King can do no wrong”. However with the evolution of democracies, the state started being held responsible for its own acts. As a state typically functions through its agents, states were also held vicariously liable for the wrongs committed by their agents.

What is Vicarious liability?

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.

What is a Constitutional tort?

Constitutional tort is generally a judicial instrument by which the state can be held vicariously liable for the acts of its servants.

If a government official violates the constitutional rights of an individual, then a civil action can lie against him. As the government official is a functionary of the state such wrongs are considered to be committed under the colour of state law. Such civil wrongs are called constitutional tort.

A constitutional tort is a legal tool that allows the state to be held vicariously accountable over the actions of its agents.

Constitutional tort is 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.

Which Article of the Indian Constitution embodies the concept of Constitutional tort?

Article 300 of the Indian Constitution embodies the concept of constitutional tort. It permits the Union and state governments to be sued as juristic persons capable of owning and acquiring property, entering into contracts, bringing legal actions etc.

Article 300 reads as:

(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by 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.

(2) If at the commencement of this Constitution –

(a) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.

An overview of Article 300 provides that first part of the Article relates to the way in which suits and proceedings by or against Government may be instituted. It enacts that Government of India may sue and be sued by the name of the Union of India, a State may sue and be sued by the name of the State.

The Second part provides, inter alia, that the Union of India or a State may sue or be sued in relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted.

The Third part provides that it would be competent to the Parliament or the legislature of State to make appropriate provisions in regard to the topic covered by Article 300(1).

Is there any legislation which specifies the vicarious liability of the state for the torts committed by its servants?

There is no legislation which specifies the vicarious liability of the state for the torts committed by its servants.

Thus it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from. Article 300 gives the right to the public to sue the state.

How the judgments of judiciary has helped in the development of Constitutional tort in India?

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.

Rudal Shah Vs State of Bihar:

This was a case of public Interest Litigation that was filed in the Supreme Court under article 32 of the Constitution. The petition sought the release of Rudal shah from illegal detention and also compensation. Rudal Shah was arrested in 1953 on the charges of murdering his wife. He was later acquitted in 1968. He stayed in prison for 14 years even after his acquittal. The court directed the state to pay 30,000 rupees to the petitioner as compensation.

This is a landmark case in the jurisprudence of state liability. The theory of compensatory jurisprudence evolved in this case for the violation of fundamental rights. It was the first case in which the Supreme Court awarded damages for the infringement of fundamental rights.

The principle established in Rudal Shah established and crystallized the concept of constitutional torts.

Bhim Singh Vs State of J&K:

The petitioner an MLA of J&k was wrongfully detained by the police while he was going to attend the assembly session. As he was not produced before the magistrate within the requisite period he was deprived of his constitutional right to attend the assembly session. There was also an infringement of article 21 of the Constitution. The court in this case directed the state to pay exemplary damages amounting to 50,000 rupees as compensation.

Saheli Vs Commissioner Of Police:

In this case Naresh, a nine year old boy was beaten to death. The state was held liable for the death of the child that occurred due to custodial assault and beating. The court in this case directed the state to pay compensation of 75,000 rupees to the mother of the boy.

Nilabeti Behera Vs State Of Orissa:

The case deals with custodial death of Suman Behera, the son of the petitioner. The person was inflicted injuries during custody which resulted in his death and subsequently was thrown on a railway track. This is also considered to be a case of infringement of fundamental rights. The Supreme Court directed the state to pay a compensation of sum of rupees 1, 50,000 to the petitioner.

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. The “voting right model” of the United States may be adopted for measuring the damages in Constitutional Tort actions to prevent the victim from a legal injury to their rights.

What has been the status of Constitutional tort in India?

Constitutional tort has not seen much of greater significance in India. Only after the major pronouncement of the Supreme Court in the case of Rudal Shah the awareness regarding the theory of compensatory remedy for the infringement of basic rights has seen a frequent growth.