Constitutional Tort in India

In a civilised society where the rule of law prevails, the rights of the people are given utmost importance. And the Indian Constitution, being a socialist, secular democratic republic, provides for fundamental and other rights to natural persons, legal persons, citizens or non-citizens. These rights protect the one residing in the country against unlawful state action. Since every right has a correlative duty, the right granted to the persons living in the country casts a duty on the state that no fundamental right shall be infringed. The transition from the principle of laissez-faire to the welfare state has led to the state’s involvement in various public activities to provide services beneficial to the population. Various state projects are conducted on the field by the servants of the state or agents of the state. Hence, active participation of the government increases the possibility of state liability against the rights infringed by the government’s workers, servants, or employers. Hence, when a right is infringed by the state or agents of the state, the concept of constitutional torts. The word ‘tort’ is derived from the Latin word ‘tortum’, which means something twisted. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.^[i] And, the constitutional torts are committed by the state or agents of the citizen, and the aggrieved party can approach the court to impose liability and attain compensation. Therefore, in this paper, the author shall try to explain the concept of constitutional torts, the rationale behind the evolution of the said tort, and the provision and judicial pronouncement.

MEANING OF THE CONSTITUTIONAL TORT

As discussed above, constitutional torts are the injury or wrong caused by the state or the agents of the state. It is pertinent to understand that agents of the state in this paper signifies about the employers, employees, workers or servants of the state.

A commission of constitutional tort establishes liability on the government to remediate the damage or injury, or wrong caused by anyone working under the colour of the state. In other words, a constitutional tort is a violation of one’s constitutional rights by a government employee^[ii], which establishes a cause of action of vicarious liability against the government. Hence, the question arises of what vicarious liability is. It is a liability imposed on the master due to the torts committed by its servants, thereby establishing a master-servant relationship. For instance, A is an electrician of the State Electricity Authority; while working in a locality A negligently left the electric wire loose across the street. As a result, a child was electrocuted, and serious injury was caused. Hence, this is a case of a constitutional tort committed by the A, who is the servant of the government, thereby establishing a cause of action against the government. Since the meaning of the constitutional tort is clear, it is pertinent to know about the evolution and rationale of constitutional tort.

EVOLUTION AND RATIONALE OF THE CONSTITUTIONAL TORT

The origin of state liability is not a concept of modern times. But surprisingly can be traced back to our old scriptures, i.e. Purana and Smritis, where the law of dharma was given weightage over the sovereign power of the King. Thus, the King was subjected to drama, and his duties must be performed accordingly, leaving no excuse for lawlessness. As discussed above, the population enjoyed the right, and it was the responsibility of the king to ensure no breach of duty. This leaves us with an opinion that the Pre-British time in India is somewhat similar to the present day.

The whole conundrum began with the establishment of the British Raj in India, where the doctrine of “King can do no wrong” was followed by Britishers.  Under this doctrine, there was no state liable for the tortious acts committed by the servants of the government or king at that time. The rationale behind it was to avoid the liability of the crown for the wrongs committed by its servants while discharging their duties.^[iii] Also, with the involvement of the government or state in society, the wrongs committed by its servants were drastically increased, and the liability of the crown increased further. Therefore, to decrease the liability, the Crown consciously decided to provide exemptions and immunities to its officers for their tortious acts.

The Crown, instead of declaring absolute immunity, introduced provisions under The Government of India Act of 1858, 1915 and 1935 to limit the extent of state liability.

For instance, the Government of India Act, 1935 provided as follows:

“176.–(1) The Federation may sue or be sued by Suits and the name of the Federation of India and Provincial Proceedings Government may sue or be sued by the name of the Province, and., without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers PART VII. conferred on that Legislature by this Act, sue or be sued -cony. in relation to their respective affairs in the like cases as the Secretary of State in Council might have sued or been sued if this Act had not been passed. (2) Rules of court may provide that, where the Federation, the Federal Railway Authority, or a Province sue or are sued in the United Kingdom, service of all proceedings may be affected. upon the High Commissioner for India or such other representative in the United Kingdom of the Federation, Authority or Province, as may be specified in the rules.”^[iv]

The above provision reflects the concept of constitutional torts, thereby providing that the state can be sued. But unfortunately, the nature and circumstances from which the state liability is exempted were unclear. Thus, the interpretation was left to the courts to decide. The tortious liability of the state was determined by the demarcation of sovereign functions and non-sovereign functions. But, the answer to what constitutes a sovereign or non-sovereign function was unclear, and the state exempted liability by claiming that the act or omission fell under the category of sovereign function.

The reflection of Article 176 of the Government of India, 1935 in the present day Indian Constitution under Article 300 which shall be decided in the subsequent chapter. Before that, the rationale behind establishing the constitutional tort is also important.

Tort law assures protection of the sacrosanct nature of the citizen’s right by providing compensation to the aggrieved party.  Also, an absolute immunity to the state can have a detrimental effect on society. Hence, it can be said that the constitutional tort is antithetical to the doctrine of “King can do no wrong”. One of the rationales behind the evolution of constitutional tort is to affirm the rights of the citizens, and an aggrieved individual whose constitutional right is infringed by the state must be granted compensation along with an injunction to remediate the past and protection for the future. Hence, it shall ensure that the rights granted to the citizen by the constitution hold value in the eyes of the law and are not futile. Further, the establishment of constitutional torts also provides a deterrent effect on state actions. To avoid the burden of monetary compensation, the government shall actively participate in employing trained men and try to avoid maximum acts or omissions that give rise to state liability.

Another reason that justifies the existence of the constitutional tort is the breach of a social contract.^[v] The constitution of every nation is a social contract entered between the state and the citizens, where the people give up their certain liberties in exchange for welfare services provided by the state. Also, the constitution provides for fundamental rights, the violation of which by servants of the state shall hold the government responsible for compensation. So, one question in mind is why the state or government shall be liable for the wrongs committed by its servant. The answer to it is the relationship between a principal and an employer. The government, as the sole institution, takes responsibility for selecting and training its employees for the government position. Hence, it must be the responsibility of the state to provide better training to the best employees and inculcate the behaviour which must be in consonance with the constitutional rights of the citizens.

Hence, acknowledging the above rationale for the introduction of a constitutional tort, the author shall proceed with the discussion of present provisions and judicial pronouncement related to the constitutional tort.

LEGAL FRAMEWORK OF CONSTITUTIONAL TORTS

As mentioned above, the present-day Constitution in India is similar to the Government of India Act 1935, which provided for tortious liability of the state. Also, the shadows of the colonial doctrine of “the king can do no wrong” still persist in the present act, i.e. the Indian Constitution Act, 1950.

Article 294 and Article 300 provide for state liability against tortious acts or omissions under Chapter III, Part III, the title “Property Contracts, Rights, Liabilities, Obligations and Suits”. Specifically, Article 294(b) of the Indian Constitution^[vi] ensures the transfer of liability of the pre-independent government to the post-independence government. It postulates that the Central Government and the respective State Government of India may be liable for “all rights, liabilities and obligations” arising out of a contractual obligation. Also, the term used “otherwise” in the said clause signifies the inclusion of constitutional torts.

Article 300 of the Indian Constitution is similar to Article 176 of the Government of India Act, 1935. The said article ensures the government can sue or may be sued. It provides as follows: 

“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 and may, subject to any provisions 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.”^[vii]

The second clause of the said article transfers any pending liability before the commencement of the constitution to the present government. Whereas the third clause of the article grants the power to the central government or state government to enact any law relating to Article 300(1).

So, the question arises whether the liability of the state is mandatory or conditional. The answer to it reflects on the term “may be sued” in the above articles, thereby ensuring no mandatory liability. Even the text of constitutional assembly debates nowhere discusses the extent and nature of liability. The debate was restricted to the transfer of pending liabilities before the commencement of the constitution and words used for the article.^[viii] Also, there was no separate enactment, and the vicarious liability of the state was left in the Law of Torts.

Therefore, the lack of conscious drafting of the provision reflects the ambiguity of state liability. To settle this ambiguity, the judiciary’s role came into the picture.

JUDICIAL PRONOUNCEMENTS OVER THE YEARS

Since the ambiguity was prevalent in the legal framework of the constitutional torts with no definite extent and nature of state liability. The judiciary, the guardian of fundamental rights, had to actively participate in deciding the government’s vicarious liability.

In the post-independent era, the Supreme Court dealt with the issue of state liability for the first time in the case of the State of Rajasthan v. Vidhyawati.^[ix] The facts of the case state that a pedestrian was injured by a government servant while driving a government vehicle, thereby causing injuries to the pedestrian. The Supreme Court, in this case, referred back to the judgement of the pre-independence era, i.e. P & O Steam Navigation Co. Case^[x] and held that the Rajasthan government was liable to compensate for the negligence of its servant and had no justification can avoid the responsibility of the state to compensate for the tortious act of its servant.

Unfortunately, the doctrine of “the king can do no wrong” was reflected in the case of Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh^[xi], where the Supreme Court did not distinguish from the case of Vidhyawati and held that gold seized from the plaintiff by the police, and further misappropriation of the god from the police custody does not arise or cast a responsibility on the government to pay for the damage. The rationale of the said decision was the distinction made by the court between sovereign and non-sovereign functions. It is further observed that the tortious act of driving negligently is not a sovereign function performed by the government servant, but the seizure of gold by the police in the present case is a sovereign function. Thus, any tortious act during a discharge of the sovereign duty under the scope of sovereign immunity and the government is not liable to remediate the injured person. The decision of Kasturi Lal was set as a precedent in a number of cases where the state would be liable to compensate for the tort if a private individual could perform the act. For instance, in the case of Shyam Sunder v. the State of Rajasthan,^[xii] it was observed that the death of a sent by the government on the famine relief work would make the state vicariously liable. As the famine relief work could be carried out by the private individual, it could not be considered a sovereign function.

The lack of appropriate distinction between the sovereign and non-sovereign function and various contradictory decisions of the High Courts and Supreme Court itself restricted the scope of constitutional tort. The perfect example of the conundrum was the State of Bombay (Now Gujarat) v Memon Mahomed Haji Hasam^[xiii], where the Supreme Court held that the negligent disposal of the goods and vehicle by the police made the government liable because here, the government was considered as bailee. Hence, the above decision was contrary to the case of Kasturi Lal.  Apart from the above, the Supreme Court is the case of  State of Andhra Pradesh v Challa Ramkrishna Reddy,^[xiv] DK Basu v State of West Bengal,^[xv] Rudul Shah v State of Bihar^[xvi] observed that infringement of a fundamental right by its servant could make the government vicariously liable, and a petition can be brought by the aggrieved person under Article 32 and Article 226 of the Indian Constitution. Also, in the case of Nilabati Behera (Smt.) v State of Orissa,^[xvii] It was observed that sovereign immunity does not apply to the infringement of fundamental rights. Hence, it becomes a clear stance that sovereign immunity is available in the cases of infringement of fundamental rights but not for the other torts.

One of the decisions that provided a ray of hope to the evolving jurisprudence of state liability or constitutional tort was the case of  N. Nagendra Rao & Co. v State of Andhra Pradesh.^[xviii] In this case, the State of Andhra Pradesh was held liable for the loss caused due to the negligent conduct of the officers while returning the seized goods under the Essential Commodities Act, 1955. The Court observed that the officer was negligent in complying with the provisions of the act, and the government must be vicariously liable. Also, the court did not debunk the doctrine of sovereign immunity but opined that the said doctrine has no relevance in today’s time, as the concept of sovereignty itself has undergone a drastic change. And, the distinction between the sovereign and non-sovereign function made no sense to the apex court.

Despite these observations, the decision of Kasturi, being of the larger bench, could not have been overruled. Subsequent to this decision, the Supreme Court has tried to restrict the scope of sovereign immunity. But, the concept of the difference between sovereign and non-sovereign functions still exists and was observed in Vohra Sadik Bhai Raja Bhai v. State of Gujarat & Ors.^[xix] In this case, the compensation to the aggrieved party was granted only after establishing that the act was non-sovereign in nature.

Therefore, from the above discussion of some important case laws, it is clear that the existence of state liability is well settled in the case where the fundamental rights are infringed but unclear related to the other rights.

OBSERVATION AND CONCLUSION

The unclear provisions in the Indian Constitution, lack of legislation relating to state liability, and judicial activism of the courts to decide the extent and nature of liability in different cases make applying constitutional torts difficult. Though it has been observed in decisions that the judges do look down upon the doctrine of sovereign immunity, the concept of demarcation between the sovereign and non-sovereign function is still prevalent when deciding the liability. The immunity to the government in the name of sovereign function defeats the rule of law and presumes that “a king can do no wrong.”

The inconsistencies in the said matter were observed in the First Report of the Law Commission of India in 1956^[xx], and recommendations were made that the extent of the state liability must be the same as private employer liability, subject to a few limitations. Also, the recommendation of the said report led to a draft bill in 1967, but it lapsed due to the dissolution of the Lok Sabha.  Also, in a Consultation Paper, National Commission to Review the Working of the Constitution (2001),^[xxi] It was observed that the state waiving its responsibility to compensate under the covers of sovereign function is unjust to the citizens of the country, and also the judiciary must not follow the old colonial law and judgments to decide the cases in the post-independence era.

Despite these recommendations, no action has been taken by the government to enact new legislation. According to the author, the solution to the long-existing conundrum is the abolition of the distinction between the sovereign and non-sovereign function and new legislation by the government in consonance with the rule of law. Also, the extent of state liability must only be limited to the matters where the court has no jurisdiction, i.e., “administration of justice, maintenance of law and order and repression of crime, which are among the primary and inalienable functions of a constitutional Government.”^[xxii] as observed in the case of N. Nagendra Rao’s case. Lastly, the author shall like to conclude a person’s right holds the most intrinsic value. Therefore, establishing a well-settled constitutional tort shall ensure the trust and harmonious relation between the population and the state.

Arshnit Sandhu is pursuing LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.

Disclaimer:  The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

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^[i] Wex, Definition of Tort, Legal Information Institute.

^[ii]  Id, Definition of the Constitutional Tort.

^[iii] ​​Dr Manisha Banik, Evolution of State Liability in India – A Need of a Progressive Nation, International Journal of Science and Research, ISSN: 2319-7064

^[iv] Article 176 of the Government of India Act, 1935

^[v]  Sushila Rao, ​​Constitutional Rights Violations and Compensatory Jurisprudence in India and U.S.A.: Justifications and Critique, Student Bar Review , 2006, Vol. 18, No. 1 (2006), pp. 93-111

^[vi]  Article 294(b): all rights, liabilities and obligations of the Government of the Dominion of India and of the government of each Governor’s Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State, subject to any adjustment made or to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab.

^[vii] Article 300 of the Indian Constitution Act, 1950

^[viii] Constituent Assembly Of India Debates (Proceedings) – Volume VIII

^[ix] AIR 1962 SC 933

^[x] ​​(1861) 5 Bom. H.C.R. App. I,p.1

^[xi] 1965 AIR 1039

^[xii] ​​1974 AIR 890

^[xiii]  1967 AIR 1885

^[xiv] Criminal Case No.18/1997, judgement dated 26/04/2000.

^[xv] AIR 1997 SC 610

^[xvi] 1983 AIR 1086

^[xvii] 1993 AIR 1960

^[xviii] 1994 AIR 2663

^[xix] (2016) 12 SCC 1

^[xx]https://lawcommissionofindia.nic.in/1-50/Report1.pdf

^[xxi]http://lawmin.nic.in/ncrwc/ncrwcreport.htm

^[xxii] Supra.