Government (Liability in Torts)

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION

WRIT PETITION (CRIMINAL) NO. 113 OF 2016

KAUSHAL KISHOR … PETITIONER(S)

VERSUS

STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION @ (DIARY) NO. 34629 OF 2017

J U D G M E N T

V. RAMASUBRAMANIAN, J.

3. Thereafter, the Constitution Bench, by an order dated

24.10.2019, formulated the following five questions to be decided by

this Court:

“…....

3) Whether the State is under a duty to affirmatively

protect the rights of a citizen under Article 21 of the

Constitution of India even against a threat to the

liberty of a citizen by the acts or omissions of another

citizen or private agency?

4) Can a statement made by a Minister, traceable to

any affairs of State or for protecting the Government,

be attributed vicariously to the Government itself,

especially in view of the principle of Collective

Responsibility?

5) Whether a statement by a Minister, inconsistent

with the rights of a citizen under Part Three of the

Constitution, constitutes a violation of such

constitutional rights and is actionable as

‘Constitutional Tort”? …”

.....

141. A tort is a civil wrong, that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Halsbury’s Law of England states: “Those civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of right imposed or conferred by law rather than by agreement are rights of

action in tort.”

142. If Crown Proceedings Act, 1947 changed the course of the law relating to tort in England, the Federal Tort Claims Act, 1946 changed in America, the course of law relating to the liability of the State for the tortious acts of its servants. Nevertheless, the claims for damages continued to be resisted for a long time both here and elsewhere on the principle of sovereign immunity. It is interesting to note that on the initiative of the President of India, the Law Ministry took up for consideration the question whether legislation on the lines of the Crown Proceedings Act, 1947 of the United Kingdom is needed and if so, to what extent. After the constitution of the Law Commission, the Law Ministry referred the matter to the Commission for consideration and report. In its First Report submitted on 11.5.1956 on “Liability of the State in Tort”, the Law Commission took note of (i) the existing law in India; (ii) law in England; (iii) law in America; (iv) law in Australia; (v) law in France; (vi) rule of statutory construction; and (vii) conclusions and proposals.

143. In Chapter VIII containing the conclusions and proposals, the First Report of the Law Commission suggested: (i) that in the context of a welfare State, it is necessary to establish a just relation between the rights of the individual and the responsibilities of the State; (ii) that when the Constitution was framed, the question to what extent, if any, the Union and the States should be made liable for the tortious acts of their servants or agents was left for future legislation; (iii) that the question of demarcating the line up to which the State should be made liable for the tortious acts, involves a nice balancing of considerations, so as not to unduly restrict the sphere of the activities of the State and at the same time to afford sufficient protection to the citizen; (iv) that it is necessary that the law should, as far as possible, be made certain and definite, instead of leaving it to courts to develop the law according to the views of the judges; and (v) that the old distinction between sovereign and the nonsovereign functions or Governmental and the nonGovernmental functions should no longer be invoked to determine the liability of the State.

144. Paragraph 66 of the First Report of the Law Commission contained the principles on which appropriate legislation should proceed. It will be useful to extract paragraph 66 of the First Report of the Law Commission, to understand the sweep of constitutional tort, as it was conceived within a few years of the adoption of the Constitution. In fact, it has laid down the road map very clearly with lot of foresight. Paragraph 66 reads thus: “66. The following shall be the principles on which legislation should proceed:—

I. Under the general law:

Under the general law of torts i.e., the English Common Law as imported into India on the principle of justice, equity and good conscience, with statutory modifications of that law now in force in India (vide the Principles of General Law, Appendix VI)—

(i) The State as employer should be liable for the torts committed by its employees and agents while acting within the scope of their office or, employment.

(ii) The State as employer should be liable in respect of breach of those duties which a person owes to his employees or agents under the general law by reason of being their employer.

(iii) The State should be liable for torts committed by an independent contractor only in cases referred to in Appendix VI.

(iv) The State also should be liable for torts where a corporation owned or controlled by the State would be liable.

(v) The State should be liable in respect of breach of duties attached under the general law to the ownership, occupation, possession or control of immoveable properly from the moment the State occupies or takes possession or assumes control of the property.

(vi) The State should be subject to the general law liability for injury caused by dangerous things (chattels). In respect of (i) to (vi) the State should be entitled to raise the same defences, which a citizen would be entitled to raise under general law.

II. In respect of duties of care imposed by statute:

(i) If a statute authorises the doing of an act which is in itself injurious, the State should not be liable.

(ii) The State should be liable, without proof of negligence, for breach of a statutory duty imposed on it or its employees which causes damage.

(iii) The State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously, whether or not discretion is involved in the exercise of such duty.

(iv) The State should be liable if in the exercise of the powers conferred upon it or its employees the power is so exercised as to cause nuisance or trespass or the power is exercised negligently or maliciously causing damage.

N.B.—Appendix V shows some of the Acts which contain protection clauses. But under the General Clauses Act a thing is deemed to be done in good faith even if it is done negligently. Therefore, by suitable legislation the protection should be made not to extend to negligent acts however honestly done and for this purpose the relevant clauses in such enactments should be examined.

(v) The State should be subject to the same duties and should have the same rights as a private employer under a statute, whether it is specifically binding on the State or not.

(vi) If an Act negatives or limits the compensation payable to a citizen who suffered damage, coming within the scope of the Act, the liability of the State should be the same as under that Act and the injured person should be entitled only to the remedy, if any, provided under the Act.

III. Miscellaneous:

Patents, Designs and Copyrights: The provisions of Sec. 3 of the Crown Proceedings Act may be

adopted.

IV. General Provisions:

(i) Indemnity and contribution: To enable the State to claim indemnity or contribution, a provision on the lines of Sec. 4 of the Crown Proceedings Act may be adopted.

(ii) Contributory negligence: In England, the Law Reform (Contributory Negligence) Act,1945 was enacted amending the law relating to contributory negligence and in view of the provisions of the Crown Proceedings Act the said Act also binds the Crown. In India, the trend of judicial opinion is in favour of holding that the rule in Merryweather v. Nixan [(1799) 8 T.R. 186] does not apply and that there is no legal impediment to one tortfeasor recovering compensation from another. But the law should not be left in an uncertain state and there should be legislation on the lines of the English Act.

(iii) Appropriate provision should be made while revising the Civil Procedure Code to make it obligatory to implead as party to a suit in which a claim for damages against the State is made, the employee, agent or independent contractor for whose act the State is sought to be made liable. Any claim based on indemnity or contribution by the State may also be settled in such proceeding as all the parties will be before the court.

V. Exceptions:

(i)Acts of State: The defence of “Act of State” should be made available to the State for any act, neglect or default of its servants or agents. “Act of State” means an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owning temporary allegiance, in pursuance of sovereign rights.

(ii) Judicial acts and execution of judicial process:The State shall not be liable for acts done by judicial officers and persons executing warrants and orders of judicial officers in all cases where protection is given to such officers and persons by Sec. 1 of the Judicial Officers Protection Act, 1850.

(iii) Acts done in the exercise of political functions of the State such as acts relating to:

(a) Foreign Affairs (entry 10, List I, Seventh Schedule of the Constitution);

(b) Diplomatic, Consular and trade representation (entry 11);

(d)Participation in international conferences, associations and other bodies and implementing of decisions made

thereat (entry 13);

(e) entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries (entry14);

(f) war and peace (entry 15);

(g) foreign jurisdiction (entry 16);

(h) anything done by the President, Governor or Rajpramukh in the exercise of the following functions: Power of summoning, proroguing and dissolving the Legislature, vetoing of laws and anything done by the President in the exercise of the powers to issue Proclamations under the Constitution;

(i) Acts done under the Trading with the Enemy Act, 1947;

(j) Acts done or omitted to be done under a Proclamation of Emergency when the security of the State is threatened.

(iv) Acts done in relation to the Defence Forces: (a) Combatant activities of the Armed Forces during the time of war; (b) Acts done in the exercise of the powers vested in the Union for the purpose of training or maintaining the efficiency of the Defence Forces;

The statutes relating to these already provide for payment of compensation and the machinery for determining the compensation: See Manoeuvres, Field Firing and Artillery Practice Act, 1948; Seaward Artillery Practice Act, 1949;

(c) The liability of the State for personal injury or death caused by a member of the Armed Forces to another member while on duty shall be restricted in the same manner as in England (Sec. 10 of the Crown Proceedings Act)

(v) Miscellaneous:

(a) any claim arising out of defamation, malicious prosecution and malicious arrest,

(b) any claim arising out of the operation of quarantine law,

(d) foreign torts. (The English provision may be adopted.)”

145. It appears that based on the First Report of the Law Commission, a Bill known as the Government (Liability in Torts) Bill was introduced in 1967, but the same did not become the law. As a consequence, a huge burden was cast on the Courts to develop the law through judicial precedents, some of which we shall see now.

146. The judicial journey actually started off on a right note with the decision in The State of Bihar vs. Abdul Majid112, where a Government servant who was dismissed but later reinstated, filed a suit for recovery of arrears of salary. Though the State raised a defence on the basis of the doctrine of pleasure, this Court rejected the same on the ground that said doctrine based on the Latin

167

phrase “durante bene placito” (during pleasure) has no application

in India. This decision was followed in State of Rajasthan vs. Mst.

Vidhyawati113

, which involved a claim for compensation by the

widow of a person who was fatally knocked down by a jeep owned

and maintained by the State. When sovereign immunity was

pleaded, this Court observed in Vidhyawati (supra): “when the

rule of immunity in favour of the Crown, based on common

law in the United Kingdom has disappeared from the land of

its birth, there is no legal warrant for holding that it has any

validity in this country, particularly after the Constitution.”

147. On the question of the liability of the State, for the tortious

acts of its servants, this Court opined in Vidhyawati, as follows:

“(10) This case also meets the second branch of the

argument that the State cannot be liable for the

tortious acts of its servants, when such servants are

engaged on an activity connected with the affairs of the

State. In this connection it has to be remembered that

under the Constitution we have established a welfare

state, whose functions are not confined only to

maintaining law and order, but extend to engaging in

all activities including industry, public transport, state

trading, to name only a few of them. …”

113 AIR 1962 SC 933

168

148. But despite the decisions in Abdul Majid (supra) and

Vidhyawati, this Court fell into a slippery slope in Kasturi Lal. It

was a case where the partner of a firm dealing in bullion and other

goods was arrested and detained in police custody and the gold and

silver that he was carrying was seized by the police. When he was

released later, the silver was returned but the Head Constable who

effected the arrest misappropriated the gold and fled away to

Pakistan in October, 1947. The suit filed by Kasturi Lal for

recovery of the value of the gold, was resisted on the ground that

this was not a case of negligence of the servants of the State and

that even if negligence was held proved against the police officers

the State could not be held liable. While upholding the contention of

the State, this Court said “if a tortious act is committed by a public

servant and it gives rise to a claim for damages, the question to ask

is: was the tortious act committed by the public servant in discharge

of statutory functions which are referable to, and ultimately based

on, the delegation of the sovereign powers of the State to such public

servant? If the answer is in the affirmative, the action for damages

for loss caused by such tortious act will not lie. On the other hand, if

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the tortious act has been committed by a public servant in discharge

of duties assigned to him not by virtue of the delegation of any

sovereign power, an action for damages would lie. The act of the

public servant committed by him during the course of his employment

is in this category of cases, an act of a servant who might have been

employed by a private individual for the same purpose.”

149. In fact, it was suggested by this Court in Kasturi Lal that

the Legislatures in India should seriously consider making

legislative enactments to regulate and control their claim for

immunity. Before proceeding further with the journey in the

chronological sequence, it must be mentioned that the decision in

Kasturi Lal was diluted to some extent after nearly 30 years which

we shall take note of at the appropriate stage.

150. In Khatri (II) vs. State of Bihar.114, which came to be

popularly known as Bhagalpur blinding case, this Court was dealing

with a brutal incident of Police atrocity which resulted in twentyfour prisoners being blinded. Though an opportunity was provided

114 (1981) 1 SCC 627

170

to this Court to signal the arrival of Constitutional tort in the said

case and though the petitioners sought compensation for the

violation of their Article 21 right, this Court simply postponed the

decision to a future date by holding that they are issues of the

gravest Constitutional importance, involving the exploration of new

dimension of the right to life and personal liberty.

151. But within a couple of years, another opportunity arose in

Rudul Sah (supra), which related to the unlawful detention of a

prisoner for fourteen years even after his acquittal. This shook the

conscience of this Court. Therefore, this Court awarded

compensation in an arbitrary sum of money, even while reserving

the right of the petitioner to bring a suit for recovery of appropriate

damages. This Court said that the order of compensation passed by

this Court was in the nature of palliative. When it is suggested by

the State that the appropriate remedy would be only to file a suit for

damages, this Court said that by refusing to order anything

(towards compensation), this Court would be doing mere lipservice

to the fundamental right to liberty and that one of the telling ways

171

in which the violation of the right by the State can be reasonably

prevented, is to mulct its violators with monetary compensation.

152. After Rudul Sah, there was no looking back. Instead of

providing elaborate details, we think it is sufficient to provide in a

tabular form, details of the cases where this Court awarded

compensation in public law, invoking the principle of constitutional

tort, either expressly or impliedly.

Sr.

No.

Case Laws Decision

1. Sebastian M.Hongray vs.

Union of India

(1984) 3 SCC 82

 Two men who were taken for questioning

by 21st Sikh Regiment never returned

home.

 When a writ of habeas corpus was filed

by a JNU student, this Court directed

that the missing men be produced before

the Court. This order could not be

complied with.

 Court awarded compensation of Rs.1lac

to the wives of the missing men on

account of mental agony suffered by

them.

2. Bhim Singh, MLA vs. State

of J&K.

(1985) 4 SCC 677

 An MLA was illegally arrested and

detained to prevent him from attending a

session of the Jammu & Kashmir State

Legislative Assembly.

 FIR was registered u/s 153A, IPC and

order of remand was obtained from the

Magistrate without producing the MLA

before Court.

 In a writ for habeas corpus filed by his

wife, this Court observed that there had

been a violation of his fundamental rights

under Articles 21 and 22(2) of the

Constitution and accordingly directed the

State of Jammu and Kashmir to pay

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Bhim Singh a sum of Rs.50,000/ as

compensation.

3. Peoples’ Union for

Democratic Rights vs. State

of Bihar &Ors.

(1987) 1 SCC 265

 A public interest litigation was filed

against the illegal shooting by police

officers against members of a peaceful

assembly.

 Several were injured and 21 died

(including children) due to this incident.

 While the State had paid a compensation

of Rs.10,000 each to heirs of the

deceased, this Court found it insufficient

and directed payment of Rs.20,000 to

dependants of each deceased and

Rs.5,000 to each injured person.

4. Saheli, a Women’s Resources

Centre through Ms. Nalini

Bhanot & Ors. vs.

Commissioner of Police,

Delhi Police Headquarters &

Ors.

(1990) 1 SCC 422

 Two women were forcefully evicted from

their homes. The landlord was aided by

the SHO and SI in the assault that led to

demise of the nineyearold son of one of

the women.

 This Court awarded compensation of

Rs.75,000 to the mother of the deceased

child.

5. Supreme Court Legal Aid

Committee through its

Hony. Secretary vs. State of

Bihar & Ors.

(1991) 3 SCC 482

 A person injured in a train robbery, was

taken to the nearest hospital by the

Police by tying him to the footboard of a

vehicle. This led to his death.

 This Court observed that had timely care

been given to the victim he might have

been saved.

 The State of Bihar was directed to pay

Rs.20,000 to the legal heirs of the

deceased.

6. Nilabati Behera (Smt.) alias

Lalita Behera (Through the

Supreme Court Legal Aid

Committee) vs. State of

Orissa & Ors.

(1993) 2 SCC 746

 Petitioner was a mother whose son had

died in police custody.

 This Court directed the State to pay

compensation of Rs.1.5 lacs.

7. Arvinder Singh Bagga vs.

State of U.P. & Ors.

(1994) 6 SCC 565

 A married woman was detained and

physically assaulted in a police station

with a view to coerce her to implicate her

husband and his family in a case of

abduction and forcible marriage.

 After taking her statement, her husband

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and his family were also harassed by the

police.

 This Court observed that the police had

exhibited highhandedness and

uncivilized behaviour and awarded the

woman a compensation of Rs.10,000 and

members of her family Rs.5,000 each.

8. N. Nagendra Rao & Co. vs.

State of A.P.

(1994) 6 SCC 205

 Appellant was in the business of food

grains and fertiliser. On an inspection by

the concerned authorities, his stocks

were seized.

 As was the practice, the food grains in

custody were sold and the proceeds

deposited in the Treasury, but the

fertilisers were not dealt with in the same

manner causing great loss to the

Petitioner.

 In a suit for negligence and misfeasance

of public authorities, this Court further

developed the concept of Constitutional

Tort and limited the scope of sovereign

immunity laid down in Kasturilal. The

State was held vicariously liable for the

actions of the authorities.

9. Inder Singh vs. State of

Punjab & Ors.

(1995) 3 SCC 702

 A Deputy Superintendent of Police along

with his subordinates abducted and

killed seven persons due to personal

vengeance.

 This Court ordered an inquiry by the

CBI.After CBI filed a report, this court

directed the State to pay Rs.1.5 lacs to

the legal heirs (to be recovered from guilty

policemen later) and State to pay costs

quantified at Rs.25,000.

10. Paschim Banga Khet

Mazdoor Samity & Ors. vs.

State of W.B. & Anr.

(1996) 4 SCC 37

 The callous attitude on the part of the

medical authorities at various

Governmentrun hospitals in Calcutta in

providing treatment to a train accident

victim was highlighted in this case.

 This Court directed the State to pay

Rs.25,000 for the denial of its

constitutional obligations of care.

174

11. D.K. Basu vs. State of W.B.

(1997) 1 SCC 416

 In a public interest litigation involving

incidents of custodial violence in West

Bengal, this Court issued guidelines for

law enforcement agencies to follow when

arresting and detaining any person.

 This Court also discussed the award of

compensation as a remedy for violation of

fundamental rights as a punitive

measure against State action.

12. People’s Union for Civil

Liberties vs. Union of India

& Anr.

(1997) 3 SCC 433

 Two persons alleged to be terrorists were

killed by the police in a false encounter.

 This Court directed the State of Manipur

to pay Rs.1 lac to the family of the

deceased and Rs.10,000 to PUCL for

pursuing the case for many years.

13. Municipal Corporation of

Delhi, Delhi vs. Uphaar

Tragedy Victims Association

& Ors.

(2011) 14 SCC 481

 A fire in a cinema hall resulted in injury

to over 100 persons and death of 59

cinemagoers.



 The fire was caused by a transformer

installed by Delhi Vidyut Board (DVB).

 HC had found the Municipal Corporation,

Delhi Police, and the DVB responsible for

the accident.

 This Court held only DVB and theatre

owner liable to pay compensation in the

ratio of 15:85.

 While doing so, this Court dealt

extensively with the concept of

Constitutional Tort.

153. It will be clear from the decisions listed in the Table above

that this Court and the High Courts have been consistent in

invoking Constitutional tort whenever an act of omission and

commission on the part of a public functionary, including a

Minister, caused harm or loss. But as rightly pointed out by the

learned Attorney General in his note, the matter preeminently

175

deserves a proper legal framework so that the principles and

procedure are coherently set out without leaving the matter open

ended or vague. In fact, the First Report of the Law Commission

submitted a draft bill way back in 1956. This Court recommended a

legislative measure in Kasturi Lal in 1965 and a bill called

Government (Liability in Torts) Bill was introduced in 1967. But

nothing happened in the past 55 years. In such circumstances,

courts cannot turn a blind eye but may have to imaginatively

fashion the remedy to be provided to persons who suffer injury or

loss, without turning them away on the ground that there is no

proper legal frame work.

154. Therefore, our answer to Question No. 5 is as follows:

“A mere statement made by a Minister, inconsistent with the

rights of a citizen under PartIII of the Constitution, may not

constitute a violation of the constitutional rights and become

actionable as Constitutional tort. But if as a consequence of

such a statement, any act of omission or commission is done

176

by the officers resulting in harm or loss to a person/citizen,

then the same may be actionable as a constitutional tort”.

112 AIR 1954 SC 245

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