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Constitutional Torts, Dr Vinod Surana

The responsibility that an individual bears for the actions of another is known as vicarious liability. It’s a common theme in master-servant partnerships. In general, a constitutional tort is a legal tool that allows the state to be held vicariously accountable over the actions of its agents.

If any of the civil rights are abused, there is a judicial attempt to obtain a legal redress in the form of damages. The sole difference is that if the act is performed in the execution of sovereign (government) functions, then such actions cannot be held accountable on the government.

State Liability For Constitutional Torts

The notions of the term “tortious liability of the state” refers to a circumstance in which the government can be held vicariously accountable for the actions of its employees. There are several constitutional clauses pertaining to the State’s tortious responsibility such as Article 294 (b) which makes the Union/state government liable for any contractual obligation. Similarly, Article 300 (l) stipulates that the Indian government or a state may sue or be sued in regard to their respective affairs in the same circumstances that Indian states have sued or been sued in.

The development of judgments carried through differentiating the functions of state official as being sovereign or non-sovereign. Sovereign immunity was discussed elaborately in the case of Peninsular& Oriental Steam Navigation Company v. Secretary of State of India[1], where the Supreme court inferred that the Government would be accountable for the conduct of its servants while doing non-sovereign tasks, but it will not be responsible for damage inflicted while doing sovereign activities. Thus, tortious liability was exempted in cases where the officials of state or state functionary performed sovereign functions.[2]

If private individuals such as truck drivers were involved in any car crash or collision, then the State can be held responsible provided, that the private individual was not performing any sovereign function.[3] Individuals have sought tortious liability for negligence and breach of functions against police officials and been granted compensation for the loss suffered.[4]

Interpretation of Constitutional Rights

The Indian judiciary has interpreted constitutional rights vis-à-vis reasonableness in many cases. Some judicial decisions discussing the same are produced below:

  • Subramanian Swamy v. Union of India[5]: The Supreme Court observed that: “when a law limits a constitutional right which many laws do, such limitation is constitutional if it is proportional. The law imposing restriction is proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary.”
  • Mohd. Hanif Quareshi v. State of Bihar[6]: “reasonableness is examined in an objective manner from the standpoint of the interest of the general public and not from the point of view of the person upon whom the restrictions are imposed or abstract considerations.” This position was reiterated in many other decisions[7].

The Meaning of Sovereign Function

In order to understand Constitutional Tort, it is pertinent to understand, what constitutes a Sovereign Function. It was observed in Salaman v. Secretary of State for India[8]that, “An act of State is essentially an exercise of sovereign power and hence cannot be challenged, controlled or interfered with by municipal courts.” The definition of sovereign function was also discussed in the decision of Viscount Canterbury v. Attorney General[9]wherein the crown was not held liable for the personal negligence of commissioners.

In Federated State School Teachers’ Assn. of Australia v. State of Victoria[10], the distinction between sovereign and non-sovereign functions was categorized as regal (legislative power and the power to implement laws) and non-regal functions (state functions akin to a private company).

In Shyam Sunder v. State of Rajasthan[11], famine work was held to be sovereign function and State was not held liable.

The Supreme Court in the decisions of Martin Ltd v. Corpn of Calcutta[12] and Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh[13] upheld sovereign immunity and gave primacy to powers emanating from statutory provisions.

Finally, the Supreme Court in Agricultural Produce Market Committee v. Ashok Harikuni[14], summarized the current ratio qua sovereign and non-sovereign function:

“…the dichotomy of sovereign and non-sovereign functions does not really exist — it would all depend on the nature of the power and manner of its exercise, as observed in para 23 of Nagendra Rao case. [N. Nagendra Rao & Co. v. State of A.P., (1994) 6 SCC 205: 1994 SCC (Cri) 1609] As per the decision in this case, one of the tests to determine whether the executive function is sovereign in nature is to find out whether the State is answerable for such action in courts of law…if we were to extend the concept of sovereign function to include all welfare activities as contended on behalf of the appellants, the ratio in Bangalore Water Supply case [(1978) 2 SCC 213: 1978 SCC (L&S) 215: (1978) 3 SCR 207] would get eroded, and substantially. We would demur to do so on the face of what was stated in the aforesaid case according to which except the strictly understood sovereign function, welfare activities of the State would come within the purview of the definition of industry; and, not only this, even within the wider circle of sovereign function, there may be an inner circle encompassing some units which could be considered as industry if substantially severable.”

Immunity of State

Before the constitution came into force, in Secy of State v. A Cockcraft[15], the court held that making or repairing a military road was held to be sovereign function and the Government was held to be not liable for the negligence of its servants.

In Kasturi Lal v. State of U.P.[16], the Supreme Court held that the State is not liable if the wrongful act was committed by its employees “in exercise of delegated sovereign power”. The subsequent decisions of the Supreme Court have narrowed down the scope and sphere of sovereign immunity.

The Supreme Court in Nilabati Behera v. State of Orissa[17], differentiated Kasturilal’s ratio of upholding the State’s plea of sovereign immunity for tortious acts of its servants. The Court in Nilabati held that the defense under Kasturi Lal was only confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme.

The Supreme Court in Common Cause, a Registered Society vs. Union of India[18], the Supreme Court held that no civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The Supreme Court also found that the ratio of in Kasturilal’s case has been criticized by many, and has not been followed consistently by the Supreme Court in subsequent decisions, therefore, much of its efficacy as a binding precedent has been eroded.

In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening)[19], Lord Bingham of Cornhill observed:

“30. … A state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of State Immunity.

“31. … It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it.

In Dalehite v. United States[20], the United States Supreme Court held that the rigor of immunity had been shaken.

State Liability Through Case Laws

Misfeasance of Public Authority

The Supreme Court in CWT v. Suresh Seth[21], held that a liability in law ordinarily arises out of an act of commission or an act of omission and the extent of that liability is ordinarily measured according to the law in force at the time of such completion.

In Union Carbide Corporation and Ors. v. Union of India and Ors.[22], the Supreme Court stated that “we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future…… there is no reason why we should hesitate to evolve such principle of liability.”

In Henly v. Lyme Corpn.[23], at 107, it was held that “Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer.”

In the Jamshed Hormusji Wadia Case[24], the Court held that “the State’s actions and the actions of its agencies/instrumentalities must be for the public good, achieving the objects for which they exist and should not be arbitrary or capricious.”

In Lucknow Development Authority v. N.K. Gupta[25], the Supreme Court stated that the arbitrary actions of government servants amounted to “misfeasance in public office” which is a part of law of tort.

In Shivsagar Tiwari v. Union of India[26], two principles were formulated; first the misuse of power by a public official is actionable in tort. Second compensation as a remedy will follow.

Death or Injury to Civilians

When the matter pertains to death/injury to civilians, the courts have time and again rejected the defense of sovereign immunity and held the State vicariously liable[27].

In the case of Rudul Shah vs. State of Bihar[28],the doctrine of compensatory jurisprudence was developed. The court observed that “The right to restitution is palliative for the legal actions of instrumentalities acting in the name of public interest and presenting the forces of the state as a shield for their protection,”

  • Punishment under constitutional torts & damages grant to victims

Typically victims of Constitutional Torts are given compensation. There have been many instances, when compensation has been granted to victims of Constitutional Torts[29]. Sometimes punishments or penalties are also imposed upon negligent officers. Certain vehicles were confiscated by customs officials and disposed of due to police carelessness in the case of State of Bombay v Memon Mahomed Haji Hasam. [30]The Supreme Court ruled that the state government was accountable for tortious conduct committed by public officials and further imposed a penalty or suspension for such negligent officers.

  • Sovereign state duty & constitutional torts

In certain cases, liability derives from an act of commission or negligence, and the scope of the liability is determined by the statute in effect at the time of completion. But for the application of sovereign duty, when the act or omission is done by a government servant or with a color of office, the State will be held liable. The State will be held accountable as per the legal maxim, quifacit per aliumfacit per s, he who acts through another does the act himself. Even the maxim Actus servi, in iisqubuseopraejuscommuniteradhibitaets, actus domini habetur, the act of the servant in those things in which he is employed is considered the act of the master places accountability on the State for the action of its servants. Several judicial decisions such as Assam Sillimite Ltd. v. India[31] and Gajanan VishweshwarBirjur v. India[32], ChallaRamkonda Reddy v. State of AP[33]the courts assessed the Constitutional tort against the principles of natural justice and the fundamental rights.

In the case of Joginder Kaur v. The Punjab State and Ors.[34] it was observed that: “In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.”In N Nagendra Rao’s case[35], the Supreme Court held that the State is vicariously liable and bound, constitutionally, legally and morally, to compensate and indemnify the wronged person. In Saheli, a Women’s Resources Centre v. Commissioner of Police[36], the nine-year-old son of the petitioner was beaten and died of his injuries as inflicted by the police acting on behest of the landlord. The compensation was Rs. 75,000 (about 7 lakhs today). Also, misfeasance in public office, being a part of law also makes public servants liable in damages for deliberate, malicious or injurious wrongful activities. Similar penalties were awarded in a number of decisions[37].

Public Nuisance and State Accountability

In the case of Bhim Singh v. State of Jammu &Kashmir[38], the court directed the state to pay exemplary damages amounting to 50,000 rupees as compensation. Similar decision was rendered in the case of Sebastian M Hongray v. Union of India[39]wherein two members of the family were assumed to have died while in army custody.

Even recently the Supreme Court in S. Nambi Narayana v. Siby Mathews and Ors.[40], held that the manner of prosecution was malicious and infringed upon the dignity and liberty of the appellant’s human right. In this case, the appellant was forced to undergo extreme humiliation and the court held that this situation warranted public remedy of grant of compensation as Art 21 was violated. The Supreme Court ordered compensation to the tune of Rs. 50 lakhs.

And with regard to arbitrary actions of state official and ministers, the apex court brought out calculated efforts. The Supreme Court formulated two principles; first the misuse of power by a public official as an actionable cause in tort. And Secondly, compensation as a remedy to follow in such cases.[41]The court held that as the abuse of public authority did have troubling effects, the State will be liable. These judgements helped crystallize that the State will be liable for the acts and omissions of its servants.

In conclusion, from these examples, we can measure the Indian Supreme Court’s evolution and see if it has always favored a welfare state. Despite the fact that the criteria used have been criticized in the past, the Constitutional Tort doctrine is an innovative jurisprudence developed by the courts.

Claim For and Calculation of Damages Under Constitutional Tort

In several cases, the Supreme Court has ruled that the State was held liable for activities by public workers that violated fundamental rights including public workers’ tortious behaviour. In such cases, the proper recourse was to file a petition under Article 32 or Article 226. Thus, vicarious liability of the State can arise under these statutes for tortious acts or omissions of its employees in the course of their employment[42]

The decision of Privy Council in Maharaj v. Attorney-General of Trinidad and Tobago (No. 2)[43], is useful in the context of compensation. It was held in this decision that an order for payment of compensation, when a right protected had been contravened, is clearly a form of ‘redress’ which a person is entitled to claim under Section 6, and may well be ‘the only practicable form of redress’.

The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions.[44]

Conclusion

From the above narration, one can see that the Indian Supreme Court has always leaned in favour of a welfare state. After the constitution came into force, individual and public-spirited person were able to approach the Apex Court praying for remedies for the wrongs suffered as the hands of the State. The principle of sovereign immunity was rejected by the Court time and again. The Constitution itself granted citizens the right to approach the Court. Hence wrong by a government servant can be attributable to the State and can be compensated also.

By Dr Vinod Surana, Managing Partner & CEO, Surana & Surana International Attorneys.Views are personal.

[1] (1861) 5 Bom HCR App A.

[2]Kasturilal v. State of Uttar Pradesh, AIR 1965 SC 1039.

[3] Union of India v. Savita Sharma (1979).

[4] Khatri v. State of Bihar,(1981) 1 SCC 627.

[7]M.R.F. Ltd. v. State of Kerala (1998) 8 SCC 227: 1999 SCC (L&S) 1]; Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353: (2016) 4 Scale 478]

[8] (1906) 1 KB 613, 619: 75 LJKB 418: 94 LT 858.

[10] (1928-29) 41 CLR 569, 585.

[22] [1991] 4 S.C.C. 584.

[27]State of Rajasthan v. Vidhyawati, AIR 1962 SC 933;Pushpa Thakur v. Union of India AIR 1986 SC 1199.

[29]Vadodara Municipal Corporation v. Purshottam V.Murjani; United Insurance Co. Ltd. V. Bindu and Ors. (2009) INSC 222; AchutraoHaribhaniKhodwa v. State of Maharashtra AIR 1996 SC 2377.

[32] 23 (1992) 3 SCC 637 24 (1994) 5 SCC 550

[34] 1996 ACJ 193, (1995) 109 PLR 117

[35] N. Nagendra Rao v. State of AP, AIR 1994 SC 2663.

[37]Chairman, Railway Board v. Chandrima Das; C. Chinnathambi and Ors. v. State of Tamil Nadu and Ors 2001 WLR 174; Shubhalakshmi v. State of Tamil Nadu 2010 (1) MLJ 1300; S. Vijayshankar v. State of Tamil Nadu W.P. No. 9267 of 2017.

[41]Shivsagar Tiwari v. Union of India, (1996) 6 SCC 558.

[42] State of Maharashtra v.KanchanalakVijasinciShirke (1995), Civil Appeal No. 7564 of 1995.

[44]Rudul Sah, Bhim Singh vs. State of Jammu & Kashmir (1985) 4 SCC 577, People’s Union for Democratic Rights vs. State of Bihar, AIR 1987 SC 355; People’s Union for Democratic Rights Thru. Its Secy. vs. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730; Saheli, A Woman’s Resources Centre vs. Commissioner of Police, Delhi (1990) 1 SCC 422; Arvinder Singh Bagga vs. State of U.P. (1994) 6 SCC 565; P. Rathinam vs. Union of India (1989) Supp. 2 SCC 716; In Re: Death of Sawinder Singh Grower (1995) Supp. (4) SCC(1989) 4 SCC 730; Saheli, A Woman’s Resources Centre vs. Commissioner of Police, Delhi (1990) 1 SCC 422; Arvinder Singh Bagga vs. State of U.P. (1994) 6 SCC 565; P. Rathinam vs. Union of India(1989) Supp. 2 SCC 716; In Re: Death of Sawinder Singh Grower (1995) Supp. (4) SCC 450; Inder Singh vs. State of Punjab (1995) 3 SCC 702; D.K. Basu vs. State of West Bengal (1997) 1 SCC 416.

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