Doctrine of Constitutional Tort: Evolution And Evaluation

Under the English Common Law the maxim was "The King can do no wrong" and therefore, the King was not liable for the wrongs of its servants. But, in England the position of old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong actually authorised by it or committed by its servants, in the course of their employment. With the increasing functions of State, the Crown Proceedings Act had been passed, now the Crown is liable for a tort committed by its servants just like a private individual. Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which substantially decides the question of liability of State.

The question of tortuous liability of State has raised many interesting debates in juridical arena. In India, there is no legislation, which governs the liability of the State for the torts committed by its servants. It is article 300 of the Constitution of India, 1950, which enumerates the liability of the Union or State in tortious act of the Government.

The Article 300 of the Constitution originated from Section 176 of the Government of India Act, 1935. This could be traced back from the Section 32 of the Government of India Act, 1915, the genesis of which can be found in section 65 of the Government of India Act, 1858. Section 65 of the Government of India Act, 1858 provided "All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company."
It will thus be seen that by the chain of enactment beginning with the Act of 1858, the Government of India and Government of each State are in line of succession of the East India Company. In other words, the liability of the Government is the same as that of the East India Company before, 1858.

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 a State 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 if 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).

The first case, which seriously discussed the question of Sovereign Immunity, is the Pand O Navigation Company V. Secretary of State for India, in this case a piece of iron funnel carried by some workmen for conducting repairs of Government steamer hit the plaintiff horse-driven carriage and got injured. The Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary of State for India- in council for the negligence of the servants employed by the Government of India. The Small Causes Court judge decided that the dockyard servants were negligent, though he expressed some doubt as to whether the plaintiff's coachman had not advanced in the manner that was more than absolutely necessary. He stated the case to the Supreme Court. The Supreme Court delivered a very learned judgement through the Chief Justice. The Supreme Court at Calcutta, speaking through Peackok, CJ held that "the Government will be liable for the actions done by its servants while doing non-sovereign functions but it won't be liable for injuries caused while pursuing sovereign functions.

Similarly in Nobin Chunder Dey V. Secretary of State, the Calcutta High Court gave full effect to the remarks in rejecting the plaintiff's plea for damage against wrongful refusal to him of a licence to sell certain excisable liquours and drugs resulting in the closure of his business on the ground that grant or refusal of a licence was a sovereign function lying beyond the reach of the tortious liability of the State. Since then, the distinction between the sovereign and non-sovereign functions of the State has been the basis of a number of judicial pronouncements.

On the other hand, in Secretary of State V. Hari Bhanji, the court has denied any distinction between sovereign and non-sovereign functions and held that where an act is done under the sanction of municipal law and in the exercise of powers conferred by that law, the fact that it is done in the exercise of sovereign function and is not an act which could possibly be done by a private individual does not oust its justifiability.

Keeping in view of uncertainty of State liability and different judicial pronouncements, the Law Commission in its First Report, 1956 highlighted the need for a comprehensive legislation in the pattern of the Crown Proceedings Act, 1947 to fix up tortious liability of the Government. Based on the Law Commission Report, the Government (Liability in Torts) Bill was presented in the Parliament in the year 1967, but it has not yet become the Law. The bill seeks to define the liability of the Government towards third parties for the wrongs of its servants, agents and independent contractors employed by it.

In this state of affairs, the Rajasthan High Court after holding the State of Rajasthan liable in tort certified the case fit to be taken to the Supreme Court in State of Rajasthan V. Mst. Vidyawati. In this case, a Government Jeep knocked down a pedestrian who died in consequence of accident. Rejecting the appeal by the State of Rajasthan on the ground of Sovereign Immunity, the Court ruled that the State is liable for the tort or wrongs committed by its officials. In this case distinction between sovereign and non-sovereign functions were disregarded, but the court observed that the State would not be responsible for the 'Act of State' under Article 300 of the Constitution. Petitioner Vidyawati was awarded a compensation of Rs. 15000/-. The Supreme Court, in this case, added that in modern times, the State has welfare and socialistic functions and the defence of State immunity based on the old feudalistic notions of justice cannot be sustained.

Again, in Kasturi Lal V. State of U.P. , the Apex court has adopted a pro-people approach. In this case the Police seized some suspected stolen gold from Plaintiff. Later, it was misappropriated by Head Constable of the Police Station who reportedly fled to Pakistan with the Gold. The Supreme Court held that the State is not liable as impugned act is a sovereign activity. The Court did not find the Vidyawati case having decided anything different from this which according to it, had always been the law since P&O Steam Navigation Company case and was consistently followed. The Court expressed its displeasure with this legal position in a welfare state where the activities of the State had enormously increased and asked the State to take necessary legislative steps to remedy the situation on some such lines as the Crown Proceedings Act, 1947 in England. The court also expressed its destress over the plight of the appellant who could not know his position and get any relief.

Thus, the court not only reversed what appeared to be the legal position after Vidyawati case but also reinforced an additional qualification to the State liability by referring to the statutory powers; in a way holding that State is not liable for any torts committed by its servants in the exercise of statutory powers.
Though Kasturi Lal has not been overruled or reconsidered by a constitutional bench of the Supreme Court, great dissatisfaction has been expressed about it in several writings and judicial decisions. Consequently, the court has found escape routes, either by restricting its ratio or by innovating new remedies.

An important decision restricting its ratio is N. Nagendra Rao & Company V. State of A.P. in which the court held the State of Andhra Pradesh liable for the loss caused to the appellant by the negligent exercise of powers by the State officials under the Essential Commodities Act, 1655. The court observed that no civilised system could permit an executive to play with the people of a country and claim to be sovereign. To place the State above the law is unjust and unfair to the citizen. In the modern sense the distinction between sovereign and non-sovereign functions does no exist. The ratio of Kasturi Lal is available to those rare and limited cases where the statutory authority acts as a delegate of such functions for which it cannot be sued in a court of law.

An Evaluation:
Devaki Nandan was the real break through landmark case, through which the Supreme Court laid the cornerstone for the novel concept of the Constitutional Tort and Compensatory Jurisprudence. In this case, the petitioner was dragged for twelve years before allowing his pension. Without much discussion in the judgement, the Apex Court awarded Rs. 25000/- as an exemplary costs for harassing the petitioner. The court felt that harassment is intentional, deliberate and motivated.

In Rudal Shah V. State of Bihar - the petitioner Rudal Shah was detained illegally in prison for more than fourteen years. He filed Habeas Corpus before the court for his immediate release and inter alia prayed for his rehabilitation cost, medical charges and compensation for illegal detention. After his release, the question before the court was "whether in exercise of jurisdiction under Article 32, the court can pass an order for payment of money? Whether such order is in the nature of compensation consequential upon the deprivation of fundamental right? The court answered this query in the affirmative, this affirmation was a real acceleration and giant leap in the compensatory-cum-constitutional tort jurisprudence in our legal history.

The decision of Rudal Shah was important in two respects. Firstly, it held that violation of a constitutional right can give rise to a civil liability enforceable in a civil court and; Secondly, it formulates the bases for a theory of liability under which a violation of the right to personal liberty can give rise to a civil liability. The decision focussed extreme concern to protect and presence the fundamental right of a citizen than sovereign and non-sovereign dichotomy.

The Saheli V. Commissioner of Police was another milestone in the evaluation of compensation jurisprudence in writ courts. The masterpiece judgement in Vidyawati, which was freezed by Kasturi Lal was rightly quoted in this case. The State was held liable for the death of nine year old child by Police assault and beating. Delhi Administration was ordered to pay compensation of Rs. 75000/-. The significance of this case is that firstly, the revival of Vidyawati ratio and Secondly, the Delhi Administration was allowed to recover money from those officers who are held responsible for this incident.

Another landmark judgement was Nilabati Behra V. State of Orissa awarding compensation to the petitioner for the death of her son in police custody, the court held that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to constitutional remedy provided for the enforcement of fundamental right is distinct from and in addition to the remedy in private law damages for tort. The court expressly held that principle of sovereign immunity does not apply to the public law remedies under Article 32 and Article 226 for the enforcement of fundamental rights. Kasturi Lal is confined to private law remedies only.

The distinction between public and private law and the remedies under the two has been emphasised in Common Cause, A Registered Society V. Union of India and Chairman, Railway Board V. Chandrima Das cases. It was held "where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law." It opens up the possibility of development of public law torts which requires different considerations than the private law torts and which is more suitable for State liability in torts.

Concluding Remarks:
In the light of above, it would be worth to mention the observation of Apex court in N.Nagendra Rao Company V. State of AP. The honourable court noted the recommendations of the Law Commission first Report for statutory recognising the liability of the State as had been done in England through the Crown Proceedings Act, 1947 and in the USA through the Federal Torts Claims Act, 1946. It therefore, held that the doctrine of sovereign immunity has no relevance in the present day.

It is unfortunate that the recommendation of the Law Commission made long back in 1956 and the suggestions made by the Supreme Court, have not yet been given effect to. The unsatisfactory state of affairs in this regard is against social justice in a welfare state. In absence of State Liability Legislation, it will be in consonance with social justice demanded by the changed conditions and the concept of welfare state that the courts will follow the recent decision of the Supreme Court rather than Kasturi Lal.

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