Tortious liability:

Tortious liability:

49. In India, the government can be held liable for tortious acts of its servants and can be ordered to be paid compensation to the persons suffering as a result of the legal wrong. Article 294(b) of the Constitution declares that the liability of the Union Government or the State Government may arise “out of any contract or otherwise”. The word otherwise implies that the said liability may arise for tortious acts as well. Article 300 enables institution of appropriate proceedings against the government for enforcing such liability.

50. Even prior to the commencement of the Constitution, the liability of the Government for tortious acts of its servants or agents were recognised vide Peninsular & Oriental Steam Navigation Co. vs. Secy. Of State, (1868-69) 5 Bom HCR APP 1. After the commencement of the Constitution, there have been several cases in which the Union 110 of India and State Governments were held liable for tortious acts of their employees, servants and agents. All those cases were not necessarily by invoking the writ jurisdiction of the Supreme Court and the High Courts. Though, the Government is liable for tortious acts of its officers, servants or employees, normally, such liability cannot be enforced by a Writ Court. An aggrieved party has the right to approach the competent court or authority to seek damages or compensation in accordance with the law of the land.

51. But if fundamental rights have been violated, and if the court is satisfied that the grievance of the petitioner is well founded, it may grant the relief by enforcing a person’s fundamental right. Such relief may be in the form of monetary compensation/damages. Instances of such cases are Rudul Sah vs. State of Bihar, (1983) 4 SCC 141; Sebastian M. Hongray vs. Union of India, (1984) 3 SCC 82; Bhim Singh vs. State of J&K, (1985) 4 SCC 677; People’s Union for Democratic Rights vs. Police Commissioner, (1989) 4 SCC 730; Saheli vs. Commissioner of Police, (1990) 1 SCC 422; State of Maharashtra vs. Ravikant S. Patil, (1991) 2 SCC 373; Kumari vs. State of Tamil Nadu, (1992) 2 SCC 223; Shakuntala Devi vs. Delhi Electric Supply Undertaking, (1995) 2 SCC 369; Tamil Nadu Electricity Board vs. Sumanth, (2000) 4 SCC 543; Railway Board vs. Chandrima Das, (2000) 2 SCC 465. 111 52. Article 21 has played a significant role in shaping the law on tortious liability of the Government. This Court has asserted that the concept of sovereign function, which acts as an exception to attracting tortious liability, ends where Article 21 begins. Therefore, this Court has been willing to defend life and liberty of persons against state lawlessness by holding that where Article 21 is violated, the State has to pay compensation and the concept of sovereign function does not prevail in this area. 53. This proposition may be specifically traced to early PILs, which began in India in the 1980s, primarily in cases where officials of the State, such as prison officials had mistreated prisoners. The focus of the first phase of PIL in India was on exposure of repression by the agencies of the state, notably the police, prison, and other custodial authorities. These early PILs were essentially Constitutional tort actions which concerned allegations of violation of protected fundamental rights, as a result of acts or omissions on the part of officials of the State. Therefore, Constitutional law and tort law came to be merged by this Court under the rubric of PIL, and this Court began allowing successful petitioners to recover monetary damages from the State for infraction of their fundamental rights. In such cases, there may have been statutory rights of persons also which would then be an enunciation of an aspect of Fundamental Rights particularly under Article 21 of the Constitution. 112 54. In Rudul Sah vs. State of Bihar, (1983) 4 SCC 141, Y.V. Chandrachud, CJ., gave further momentum to fundamental rights to combat state lawlessness by granting cash compensation to a victim of unlawful incarceration for fourteen years. It is to be noticed that His Lordship, in the said case, took note of the dilemma in allowing a litigant to seek damages in a writ petition/PIL action against the State. His Lordship noted that this could have the effect of ordinary civil action being circumvented on a routine basis, by invoking writ jurisdiction of the High Courts and the Supreme Court as an alternative to ordinary civil action. However, it was recognized that granting such remedies would enhance the legitimacy of the vehicle of PIL. Therefore, this Court in Rudul Sah ultimately chose to grant monetary damages, in order to ‘mulct’ the violators, as well as to offer a ‘palliative’ for victims. Subsequent to the decision in Rudul Sah, compensatory relief has been granted as a means to ‘civilize public power’ in several cases involving abrogation of Fundamental Rights, [See for instance, Sabastian M. Hongray vs. Union of India, A.I.R. 1984 SC 1026; Bhim Singh, MLA vs. State of Jammu and Kashmir, A.I.R. 1986 SC 494.] 55. In Nilabati Behera vs. State of Orissa, (1993) 2 SCC 746, this Court observed that the award of compensation in a proceeding under Article 32 or Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights. In respect of such actions, the doctrine of sovereign immunity 113 does not apply, though it may be available as a defence in a private law in an action based on tort. Drawing a distinction between proceedings under the private and public law, it was observed that a public law proceeding may serve a different purpose than a private law proceeding. Public law proceedings are based on the concept of strict liability for contravention of guarantee basic and indivisible rights of the citizens by the State. The purpose of public law is not only to civilise governmental power and but also to assure the citizens that they live under a legal system which gains to protect their interest and preserve their rights. Therefore, when the court moulds the relief by granting compensation, in proceedings under Article 32 and Article 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under public law by way of employing elements of the law of torts and fixing the liability on the State which has been negligent and has failed in its public duty to protect the fundamental rights of the citizens. The payment of compensation under such cases is not to be understood as it is generally understood in a civil action for damages under private law, but in the broader sense of providing relief by ordering monetary amounts to be paid for the wrong done due to breach of public duty which would have the effect of violation of fundamental rights of citizens. Such grant of damages in exercise of a writ jurisdiction by the constitutional courts is independent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort. Therefore, a suit may be instituted in a competent court 114 of law or proceedings may be initiated to prosecute the offender under the penal law. 56. Though, in D.K.Basu vs. State of West Bengal, (1997) 1 SCC 416 monetary compensation was granted, in Hindustan Paper Corporation Ltd. vs. Ananta Bhattacharjee, (2004) 6 SCC 213 this Court cautioned that a direction to pay compensation under Article 226 of the Constitution is permissible as a public law remedy and resorted to only when there is a violation by the State or its agents acting in official capacity of the fundamental right guaranteed by Article 21 of the Constitution, and not otherwise. It was further observed that it is not every violation of the provisions of the Constitution or a statute which would enable the court to direct grant of compensation. The power of the court to grant compensation in public law is limited. Therefore, normally in case of tortious liability, the person aggrieved has to approach a civil court for ventilating his grievances and he cannot invoke the writ jurisdiction of the Supreme Court or a High Court. However, if the duty breached is of a public nature or there is violation or breach or infringement of a fundamental right by an act or omission on the part of the authority, it is open to the party who has suffered a “legal wrong” to invoke the jurisdiction of the Supreme Court or a High Court by instituting the writ petition. In that case, the court, in exercise of its extraordinary jurisdiction and discretion judiciously may grant relief to the person wronged without relegating him to avail a remedy, 115 otherwise available to him under private law having regard to the facts and circumstances of the particular case. 57. In Chairman, Railway Board vs. Chandrima Das, (2000) 2 SCC 465, this Court was presented with an appeal against an order of the Calcutta High Court in a writ petition filed by a civil rights lawyer on behalf of a foreign national-victim of rape, allegedly committed by railway employees at a government-owned railway station. The events in question happened when the employees were off duty, but were present at the premises owned and operated by the Government (Railways) . The writ petition was filed against the employer, in addition to initiating criminal proceedings against the individuals. A specific prayer was made in the writ petition for monetary compensation for the victim, payable by the Government, alleging that its failure to protect the victim and prevent the crime, had violated the victim’s fundamental right. The High Court awarded a sum of Rs. 10 Lakhs as compensation to the victim of rape, as it was of the opinion that the offence was committed at the building (Rail Yatri Niwas) belonging to the Railways and was perpetrated by the Railway employees. An appeal against the said judgment was preferred before this Court. 58. This Court dismissed the appeal holding that where public functionaries are involved and the matter relates to violation of Fundamental Rights, or the enforcement of public duties, the remedy would be available under public law, notwithstanding that a suit could 116 be filed under private law, for damages. Since the crime of rape amounted to a violation of the victim’s right to life under Article 21 of the Constitution, this Court concluded that a public law remedy was wholly appropriate. 59. The decisions in Rudul Sah and Chandrima Das establish that a public law action seeking monetary compensation for violation of fundamental rights was no longer an action in lieu of a private law claim, but was to serve an independent and more important purpose. However, it cannot be ignored that the decisions of Courts to award compensation in such cases, proceed on the basis of lower evidentiary standards, as noted by this Court in Kumari vs. State of Tamil Nadu, (1992) 2 SCC 223. 60. In Tamil Nadu Electricity Board vs. Sumathi Das, (2000) 4 SCC 543, this Court held that exercise of writ jurisdiction would be inappropriate where there were disputed questions of fact that required proof through substantial evidence. However, it has been clarified that the restriction applied only to the higher judiciary’s writ jurisdiction under Articles 32 and 226, and that it did not restrain this Court’s power to address the matter under Article 142, which allows this Court to pass any order ‘necessary for doing complete justice in any cause or matter.’ Therefore, this Court has recognised that factual disputes could operate as a limit on the Courts’ ability to treat a matter as being 117 actionable as a Constitutional tort but has nevertheless awarded monetary compensation in certain cases possibly having regard to the glaring facts of those cases by exercising power under Article 142 of the Constitution. 61. Scholarly views suggest that the concept of Constitutional tort challenges the ability of law to deter socially harmful behaviour of different kinds, by forcing the perpetrator to internalise the costs of their actions. However, in case of a Constitutional tort action, the entity saddled with the cost, is not the same as the entity who is to be deterred. This absurdity is stated to be threatening to the corrective justice idea that tort law embodies. In other words, an actor’s direct ability to alter the injury-causing behaviour is critical to the foundation of tort law. However, given that an action of Constitutional tort imposes the burden of damages on an entity, other than the violator of the right, a doubt has been cast on its effectiveness in serving as a vehicle of corrective justice. 62. In light of the aforesaid discussion, it is observed that it is not prudent to treat all cases where a statement made by a public functionary resulting in harm or loss to a person/citizen, as a constitutional tort. Regard must be had in every case to the nature of resultant harm or loss. Further, it is to be noted that even the cases cited hereinabove have permitted treating an act or omission as a constitutional tort only where there has been an infraction of 118 fundamental right as a direct result of such act or omission. Therefore the causal connection between the act or omission and the resultant infraction of fundamental rights, is central to any determination of an action of constitutional tort. 63. In Delhi Jal Board vs. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568, this Court refused to entertain a matter against an interim order passed by the Delhi High Court in a writ petition, whereby the Petitioner Board had been directed to deposit compensation in favour of the family of a sewerage worker who had died while performing his duties. Dismissing the case, this Court held that since the deceased had died due to insensitivity on the part of the State apparatus, to the safety and wellbeing of its employees, the State would be liable to pay compensation to the family of the deceased. This Court invoked Article 142 of the Constitution to enhance the amount of compensation payable. 64. At this juncture, it may be apposite to sound a word of caution as regards the approach of the Courts in granting monetary compensation as a means for vindication of fundamental rights. It is to be noted that in the absence of a clear, cogent and comprehensive legal framework based on judicial precedent, which would clarify what harm or injury is actionable as a constitutional tort, such a device is to be resorted to only in cases where there are brutal violations of fundamental rights, such as the violations that were involved in Rudul 119 Sah and Chandrima Das. This Court has acknowledged such a view in Sebastian M. Hongray, by noting that compensation was being awarded in the said case having regard to “torture, the agony and the mental oppression” which the family of the victim therein had to endure due his death by an encounter. Similarly, this Court, in Bhim Singh stated that the compensation was awarded by taking note of the “bizzare acts” of police lawlessness. As already highlighted, compensation was awarded in Delhi Jal Board, by exercising power under Article 142. Thus, the remedy provided is on a case to case basis on an evolution of the concept of constitutional tort through judicial dicta. 65. While it is true that the Courts must mould their tools to deal with particularly extreme and threatening situations, and the device of a ‘constitutional tort’ has evolved through such an exercise, it must be borne in mind that the tool of treating an action as a constitutional tort must not be wielded only in instances wherein state lawlessness and indifference to the right to life and personal liberties have caused immense suffering. The law would have to evolve in this regard, in respect of violation of other Fundamental Rights apart from issuance of the prerogative writs. 66. Therefore, it is observed that presently invocation of writ jurisdiction to grant damages, by treating acts and omissions of agencies of the State as Constitutional torts, must be an exception 120 rather than a rule. The remedy before a competent court or under criminal law is, in any case available as per the existing legal framework