Chapter II

Tortious Liability of State locating in Constitution of India

State has been defined in Article 12 of the Constitution of India, which
means the union government or provincial government or any other local
authority. The liability of the state for wrongful acts of its employees has assumed
importance in the present context. In democracy, the state performs innumerable
functions for the welfare of its citizens. In the exercise of these functions, any
misuse of power by the government servants may cause injury to person or
property of the citizens. Sometimes even the fundamental rights are attacked.
Such a situation calls for an adequate mechanism for determining the state
liability and compensating the victim. It is, however, strange that the state itself
has not bothered to enact a law for determining the citizens claims against it35.
Indeed, the absence of such a mechanism has put an onerous task on the judges
who have evolved in their own way some principles for meeting the aforesaid
situation. These issues are certainly of great significance for a republican form of
government like ours where sovereign resides in the people. However, it is
submitted that the judicial perception of the problem and rationalization they
have attempted for fixing liability of the state, are far from satisfactory36. The
highest court of the land has ruled that the state is liable to pay compensation to
its citizens for any harm suffered by them due to negligence of police or
bureaucracy. The court observed in explicit terms that since sovereignty now
vests in the people, the state can’t claim any immunity37.

35
Surendra Yadav, State Liability : A new dimension from Rudul Sah, 43 JILI 2001 at 559.
36
Bishnu Prasad Dwivedi, From Sah to Saheli : A new dimension to Government liability,36 JILI 1994 at 99.
37
Faizan Mustafa, Liability for Government lawlessness, AIR 1997 Journal 38.

23
 The law of liability of government for the tortious acts of its employees
acting in the course of their employment as such is found in Article 300 of the
Indian Constitution38. But the framers of this Article, perhaps, were uncertain
about the future and thus deliberately avoided any clear cut rule for the liability in
tort by governmental actions. They left the courts to search themselves from the
monarchial treasure some fanciful immunity , and thereby left the litigants to
gamble in each case without any specific legal principle. The government has also
usually put forth the defence of sovereign immunity whenever compensation
claims for injuries caused to Indian citizens39.

In India, the only provision which deals with the liability of the State is in
Article 300 of the Constitution. This Article refers back to the pre-constitutional
laws like Government of India Act 1935, and it in turn refers to the Section 32 of
the Government of India Act 1915, and Section 65 of the Government of India Act
1858. So the law relating to State liability of India, today deals with pre
constitutional laws in which it is stated that the liability of the State will be like
that of the liability of the East India Company or it imposes the same liability on
the centre and the states as that of the liability of the Dominion and the provinces
before the commencement of the Constitution. So the old archaic principle of
sovereign immunity could be invoked.

In India there is no exclusive legislation dealing with the tortious liability of

State. The First Law Commission of India recommended a legislation on the
subject. The Law Commission after referring the various provisions in the
legislations of other countries had also observed that the old distinction between

38
Alice Jacob, “Vicarious Liability of Government in Torts”, 7 JILI 1965 at 247.
39
Chandra Pal, ‘Compensation for Government Lawlessness’ , Vol. XI 1984 IBR at 57.

24
sovereign and non-sovereign functions or government and non-government
functions should be no longer invoked to determine the liability of the State40. On
the lines of the recommendations of the First law Commission the Government of
India introduced two bills on “The Government Liability in Tort” was first
introduced in Parliament in 1965 but it could not be enacted into law. It was
reintroduced in 196741, neither of which emerged as an Act and certain
modification in the Bill was suggested in 1969 by the joint selection committee of
the Parliament, but the Bill has not been enacted into law so far. Due to the fact
that the Government allowed the Bills to be lapsed on the ground if it was
enacted, it would bring an element of rigidity in the determination of the question
of liability of the Government in tort. Because of this reason, the liability of the
Government in tort at present can be stated to be that, it is based on the tortious
liability of the State that existed during the East India Company rule. The
Commission recommended several times to modify the existing law and
introduced the Bill to amend the law in this regard to make the State liable like
that of ordinary person. Late Dr. Rajendra Prasad President of India took initiative
for considering the Law Ministry of India to amend the law similar to English
Crown Proceedings Act 1947. Even after sixty nine years of Independence no
sincere effort has been made to modify the law relating liability of the State in
torts. Modern views concept is that State is the guardian of the citizens. Now
there is no satisfactory provision to fix the liability of the State in India.

40
First Report of the Law Commission of India “Liability of the State in Tort” (1956).
41
The Government (Liability in Tort) Bill 1967.

25
 The government’s effort in 1967 in introducing the bill on Government
Liability in Tort was a step in the right direction. The proposed bill made the state
liable in the following cases:

(1) Tort committed by an employee while acting in the course of his

business
(2) Tort committed by an employee while acting beyond the course of his
employment if the act was done on behalf of the government and is
ratified by it.
(3) Tort committed by an independent contractor employed by the
government provided-
(a) the government assumes control of the act contracted to be
done,
(b) the government has ratified the tortuous act,
(c) reasonable care is not taken under the circumstances where
though the act is lawful but is of such a nature that it may cause
injury.
(d) the government is under a duty to do the act itself.
(e) the government is under an absolute duty to ensure the safety of
persons or property in the doing of the act contracted to be done
and there has been a failure to comply with that duty.

(4) Where there is breach of common law duties attached to the

ownership, possession, occupation or control of immovable property.

(5) Where the government is in possession of any dangerous thing which

when escapes causes injury.

26
 (6) Where there is breach of duty to the employees which the government
owes by reason of being the employer.

However, the bill had exempted the government from liability in the following
cases:

(1) Acts done by any member of the armed or police force in discharge of
his duties or which are natural consequences thereof, and acts done for the
purpose of training or maintaining the efficiency of the armed forces as also the
acts done for the prevention of breach of peace or damage to the public property.

(2) Acts of state.

(3) Any act done by the President or the Governor in discharge of their
constitutional functions.

(4) Judicial acts and acts done in execution of judicial process or claims
arising from defamation, malicious prosecution or arrest.

(5) Acts done under proclamation issued under the various provisions of
the Constitution.

(6) Any claim arising from the operation of any guarantee law.

(7) Any claim arising in a foreign country.

(8) Any claim arising from injury done by doing an act authorized by law
where such injury is a natural consequence of the act.

27
 (9) Any claim arising from any act for which immunity is provided under the
Telegraph Act, 1885; Indian Post Office Act, 1898 and the Indian Railways Act,
1890.

It is apparent from the above provisions of the bill that the government did
not fully appreciate the significance of governmental accountability in a
democratic welfare state. The escape clauses are so wide that in many cases a
person would find himself without remedy in case of injury to his person or
property. In a democratic welfare state the government must not fight the people
but must have the courtesy to settle disputes outside the court in the best
interests of social justice. Today, the government of India has become the biggest
litigation.

After 1950, the Supreme Court of India in different legal ramifications

interpreted the liability of Government of India in tort in the light of
Constitutional provisions. Hence, the Supreme Court invoked the principles of
human rights jurisprudence and evolved the concepts to compensate the victims
of Government lawlessness. But the principles evolved by the Supreme Court
itself have not been uniformly followed and their applications have varied from
case to case. Even after the commencement of Constitution, in order to
determine the State liability in torts today we have to refer back to the State
liability of East India Company followed during the period of 1858.

2.1. Liability of the East India Company during the British period in 1831

During the reign of the East India Company in 1831, the Supreme Court of
Calcutta was bold enough to reject the plea of exemption from suit raised by the

28
company, on the ground of sovereignty. In Bank of Bengal v United Co42, the suit
was filed by the Bank of Bengal to recover the interest due on the promissory
notes written by the East India Company, to borrow money for the prosecution of
war. Sir Charles Gray and Justice Franks of the Supreme Court of Bengal, clearly
held that the East India Company had no sovereign character to prevent it from
being sued for the recovery of interest on three promissory notes on the basis of
which the company borrowed money for the efficient prosecution of war for
defending and extending the territories of the Crown in India. In the beginning,
the East India Company was engaged only in trading activities and after that by
various characters, it acquired certain legislative and judicial powers.

The Charter Act 1833, vide Section 10 provided that so long as the
possession and Government of the Territories were continued to the said
company all persons and bodies politics would and might have take same suits,
remedies and proceedings legal and equitable, against the said company in
respect of such debt and liabilities as aforesaid and the property vested in the
said company in trust as aforesaid would be subject to the same judgments and
executions, in the same manner and form respectively as if the said property were
hereby continued to the said company to their own use.

Purpose of this Act was to lay down the company’s liability and it concluded
that the company would be liable in an action against it.

The British government took over the administrative control of India from
the East India Company in 185843. This Act transferred the power to rule the
country to her Majesty and also made the Secretary of State in council liable for
42
(1831)1 Begnell’s Report 87 -181.
43
The Government of India Act, 1858.

29
tortious acts of their servants committed in the course of employment. So this
provision was first applied by Justice Peacock in Peninsular Orientation & Steam
Navigation Company case. It is a land mark decision of the Calcutta High Court, in
which whether the company enjoyed the immunity of the crown was considered
by the judge. Actually there was no dispute regarding the maintainability of the
suit of private nature against the State. The doubt was regarding the
maintainability of the suit when the company appeared to have sovereign nature
in British India, and there was some influence of common law over Indian legal
system. This can be seen through the complicity of case laws where the judiciary
applied sovereign immunity and exempted the State from liability but at the same
time certain courts in India were reluctant to apply the principle of sovereign
immunity.

2.1.1. The Government of India Act, 1858

When the Government of India Act 1858 passed, the company was taken
over by the British Crown by providing a Secretary of State in Council for the
administration. So the responsibility for administering India was vested in the
Secretary of State for India. Section 65 of the Act provided as follows-

“All persons and body politic shall and may have take the same suits
remedies and proceedings, legal and equitable against the secretary of State for
India, no substantial change was made on the question of suability of the State”.

So the liability of state came to be assimilated to that of the East India

Company before the takeover. In 1861 the important case of East India Company
came up in which liability of the state had to be determined by applying section
65 of the Government of India Act 1858. To determine the liability of the state,
30
under section 65 of the Government of India Act 1858, it was necessary to
understand the liability of the East India Company. This in turn depended upon
the legal position of the company at that time.

2.1.2. The Government of India Act, 1915

The provision was made in section 32(2) of the Government of India Act
1915 as follows-

“Every person shall have the same remedies against the Secretary of state
in council as he might have had against the East India Company if the Government
of India Act 1858 had not been passed”.

2.1.3. The Government of India Act, 1935

The provision appeared in the Government of India Act 1935 in section

176(1), which is as follows-

“The Federation may sue or be sued by the name of the Federation of India
and a Provincial 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 or made by the Act of the Federal or a Provincial
Legislature enacted by virtue of power conferred on that legislature by this Act,
had not been passed”.

This effort of enacting the Government of India Act 1935 was made during
the pre-independence period with the intent to provide justice to the victims of
state’s unlawful actions.

31
2.2. The liability of the state under the provision of the Constitution of India

The cases that came before the court, with this prevailing confusion, i.e the
provisions for governing liability of State in torts made the Constitution to include
the following provision- Article 300 of the Constitution of India. Article 300 deals
with suits and proceedings-(1) The Government of India may sue or be sued by
the name of the Union of India and the Government of the State may sue or be
sued by the name of the State and may, subject to any provision which may be
made by the 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 like cases as the Dominion of India and the corresponding
Province or the corresponding Indian States might have sued or been sued if this
Constitution had not been enacted, if at the commencement of this Constitution-
a)any legal proceedings are pending to which the Dominion of India is a party, the
Union of India shall be deemed to be substituted for the Dominion in those
proceedings and b)any legal proceedings 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.

After going through Article 300 and its reference back into Government of
India Act 1858 and various cases the test was laid down for determining the
liability of the State. Certain principles emerged out of it. They are

1. The Union of India and the States have the same liability for
being sued in tort committed by their servants which the East India
Company had.

32
 2. The Union of India and the States are liable for damages for
injuries caused by their servants if such injuries would render private
employer liable.
3. The government is not liable for tort committed by its servants
if the act was done in the exercise of sovereign power.
4. Sovereign powers mean powers which can be lawfully
exercised only by a sovereign or by a person by virtue of delegation of
sovereign powers.
5. The Government is vicariously liable for tortious acts of its
servants which have not been committed in the exercise of sovereign
powers.
6. The court is to find out in each case whether the impugned act
was committed in the exercise of delegated sovereign power.
7. No well defined test as to the meaning of sovereign power has
been attempted or can be precisely laid down. Each case must be
decided on its own facts. Functions relating to trade business and
commercial undertakings and to socialistic activities by a welfare State
do not come within the purview of delegated sovereign authority.
8. The sovereign function of the State must necessarily include
the maintenance of the army, various departments of the government
for maintenance of law and order and proper administration of the
country which would include ministry, police and the machinery for
administration of justice.

33
 9. Where the employment in the course of which a tortuous act
is committed is of such a nature that any private individual can engage
in it then such functions are not in the exercise of sovereign power.
10. In determining whether immunity should be allowed or not,
the nature of the act, the transaction in the course of which it is
committed, the nature of the employment of the person committing it
and the occasion for it have all to be cumulatively taken into
consideration.

Article 5344 and 7345 of the Constitution makes it clear that the sovereign
executive power be exercised even in a sphere where there is no legislation. So it
is therefore not correct to contend that unless a function is authorized by a
statute, the government function or act cannot be done in exercise of sovereign
power of the State.

After independence the Supreme Court of India considered the liability of

the state in State of Rajasthan v Vidhyawathi46, is the first post-Constitution case
which laid down case laws on this subject. In this case the question which arose
was whether the state could be held liable for the negligence of the driver of a
jeep owned and maintained by the state. That was a case where the driver of a
government jeep, which was being used by the collector of Udaipur, knocked
down a person walking on the footpath by the side of a public road, who died

44
Article 53 lays down that the executive power of the Union shall be vested in the President and shall be exercised
by him either directly or through officers sub ordinate to him in accordance with the Constitution.
45
Article 73 prescribes the extent of executive power of the Union, Subject to the provision of the Constitution the
executive power of the Union shall extend to matters with respect to which Parliament has power to make law and to
the exercise of such rights authority and jurisdiction as are exercisable by the Government of India by virtue of any
treaty or agreement . The Article itself shows that even if there is no statute in a particular field the executive power
of the Union extends to such matters.
46
AIR 1962 SC 933.

34
three days later. The legal representatives of the deceased sued the state of
Rajasthan and the driver for damages for the tortious act committed by the
driver. The state took the stand that the car was being maintained for the
discharge of official duties of the collector. That is to say for the purpose of
discharging the sovereign powers of the state. Though the accident occurred,
while the car was returning from the workshop, the fact that it was being
maintained in the discharge of sovereign function entitled the state to claim
immunity from liability. The High Court would seem to have taken its stand by the
old distinction developed in P & O that there is a category of cases where no
liability could be fixed on the state for the acts of its servants. The High Court
would seem to have held that maintaining a car for a civil servant would belong to
non-sovereign category attracting liability according to the principles laid down in
the P & O case. 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 and therefore it would be only recognizing the
old established rule, going back to more than 100 years at least, if the vicarious
liability of the state is upheld by the court. Article 300 of the Constitution itself
has saved the right of Parliament or the legislature of a state to enact such law as
it may think fit and proper in this behalf. But so long as the legislature has not
expressed its intention to the contrary, it must be held that the law is what it has
been even since the days of the East India Company.

The appeal was taken to Supreme Court the judgment of C.J Sinha accepted
the judgment of the High Court and dismissed the state appeal. The appeal was
heard by the constitutional Bench comprised of C.J, Sinha, J.L Kapur, M.

35
Hidayatullah and [Link] JJ, the Supreme Court referred to the republican
democratic Constitution of India in which there was no place for an immunity
based on king can do no wrong. Our Constitution established a republican form of
government and one of the objectives is to establish a socialistic state, and there
is no justification in principle, or in public interest, that the state should not be
held liable vicariously for the tortious act of its servant. The Supreme Court has
deliberately departed from the Common Law rule that a civil servant cannot
maintain a suit against the Crown. Viewing the case from the point the Supreme
Court in his judgment held that under the Democratic Republican Constitution of
India, there is no scope for making any claim based on sovereign immunity and
therefore the state of Rajasthan must be liable for the death. State was liable
vicariously for the negligence act committed by its driver on the ground that the
maintaining a car for the collector’s use and it causing damage while returning
from the workshop is not referable to sovereign power therefore the state was
liable. The decision of Supreme Court made an impression that the distinction
between sovereign and non-sovereign for the purpose of liability was abolished
and the government would be liable in all cases except act of state.

In Kasturilal v State of U.P47, Ralia Ram the plaintiff was arrested by the
police officers in U.P on suspicion of possessing stolen property and on search of
such person a large quantity of gold and silver seized from him. The movable
property was taken in the custody of police station until the disposal of the case.
The head constable, who was in charge of the government Malkhana where the
gold was deposited, misappropriated it and he fled to Pakistan. That the plaintiff
whose property had been misappropriated by the state officers due to the
47
AIR 1965 SC 1039.

36
negligence act, brought a suit against the state of U.P for the return of the gold
and silver for the damages for the loss caused to him. It has been told that he can
make no claim against the state on the ground that the power to arrest a person,
to search him and to seize the property found with him was held to be sovereign
function, so the state could not be held liable. The matter was taken to the
Supreme Court from the decision of High Court. The appeal was heard by a
Constitutional Bench comprised of P.B. Gajendragadkar, C.J, K.N Wanchoo,
[Link], Raghubar Dayal and J.R Mudholkar, JJ. In the judgement of C.J,
Gajendragadkar, in dealing with such cases the act of negligence was committed
by the police officers while dealing with the property of Ralia Ram which they had
seized in exercise of their statutory powers. Now, the power to arrest a person, to
search him, and to seize property found with him, are powers conferred on the
specified officers by statute, and in the last analysis, they are powers which can
be properly characterized, as sovereign powers of the state.

Further it was held that the doctrine of immunity which has been borrowed
in India in dealing with the question of the immunity of the state in regard to
claims made against it for tortious acts committed by its servants, was really
based on common law principle which prevailed in England, and that principle has
now been substantially modified by the Crown Proceeding Act. ‘In dealing with
the present appeal, we have ourselves been disturbed by the thought that a
citizen whose property was seized by the process of law, has to be told when he
seeks a remedy in a court of law on the ground that his property has not been
returned to him, that he can make no claim against the state. That we think is not
a very satisfactory position in law. The remedy to cure this position, however lies
in the hands of the legislature. The brief view of Kasturilal case focus on the

37
unsatisfactory state of law, and it has been proved by the above two decided
cases after the post independence period, the present position in India relating to
liability of the state is based on the old distinction between sovereign and non-
sovereign functions enunciated in the days during the East India Company.

It is not fair for a man to be wrongfully deprived of his property without

some means of restitution: that however we do it, “justice” insists that somehow
or other such a man must be recompensed48.

In Nagandra Rao & Co v State of A.P49, the appellant was carrying business
in fertilizers and food grains under the licence issued by the appropriate
authorities. His premises were visited by the police Inspector and huge stocks of
fertilizers, food grains and even non-essential goods were seized under the
Essential Commodities Act. On 29th June 1976 proceeding was terminated in his
favour and the confiscation order was quashed appellant’s licence had been
cancelled. When the appellant went to take delivery Collector directed the
release of goods but it has been delayed so that the goods were spoiled and
decayed in quality and quantity. The Appellant then asked for compensation
which was denied and therefore he filed a suit for recovery of the amount and
then the state claimed sovereign immunity. The trial court decreed the suit and
held that the deterioration of the goods in the custody of the respondents was
not in exercise of sovereign function of the state. The court held that the seizure
of the goods was no doubt in pursuance of statutory obligation but once it was
seized then it was the responsibility of the state government to ensure that the

48
A. R. Blackshield, ‘Tortious liability of government: a jurisprudential case note,’ Vol. 8 1966 JILI
p.646.
49
AIR 1994 SC 2663.

38
goods were maintained in proper conditions but they failed to discharge their
obligation. State filed an appeal before the High Court, the main issue was
regarding the liability of the state in case of negligence of the officers of the state
while discharging their statutory duties. The claim of the appellant was negative
on the ground of sovereign power of the state.

In this case the court made it clarification that in modern sense sovereign
immunity as a defence was never available nor it is available where its officers are
guilty of interfering with the life and liberty of a citizen. In such infringements the
state is vicariously liable and bound constitutionally legally and morally to
compensate. But the shadow of sovereign immunity still haunts because of
absence of any legislation even though this court in Kasturilal had expressed
dissatisfaction on the prevailing state of affairs in which a citizen has no remedy
against negligence of the officers of the state. The old and archaic concept of
sovereign immunity does not survive and sovereignty now vests with the people.
The distinction between sovereign and non-sovereign does not exist. It all
depends on the nature of power and manner of its exercise. Legislative
supremacy under the Constitution arises out of constitutional provisions. The
executive is free to implement and administer the law. The defence available to
the state were for raising armed forces and maintaining it, making peace or war,
foreign affairs, power to acquire and retain territory are functions which are
indicative of external sovereign and are political in nature. No suit under Civil
Procedure Code would lie in respect of it. No legal or political system today can
place the state above law as it is unjust and unfair for a citizen to be deprived of
his property illegally by negligence act of officers of the state without any remedy.

39
 The demarcating line between sovereign and non-sovereign powers for
which no rational basis survives has largely disappeared. Therefore, the functions
such as administration of justice, maintenance of law and order and repression of
crime etc which are among the primary and inalienable functions of a
constitutional government, the state cannot claim any immunity. When a citizen
suffered any damage due to the negligence of the employee of the state the
latter was liable to pay damages and the defence of sovereign immunity would
not absolve it from this liability. Now the application of sovereign immunity is
limited and sovereign and non-sovereign based on any of the rationality, is no
longer allowed to exist.

The court stated that uncertainty of law results in the abuse of judicial
power. The court shall be failing in its duty if it is not brought to the attention of
the appropriate authority that for more than hundred years, the law of vicarious
liability of the state for negligence of its officers has been swinging from one
direction to other. Result of all this has been uncertainty of law, multiplication of
litigation, waste of money of common man and energy and time of the court. First
Law Commission in its report “Government (Liability in Tort) Bill, 1965” was
introduced but it was withdrawn and reintroduced in 1967 with certain
modification suggested in it by the Joint Committee of the Parliament but it
lapsed. And the citizens of the independent nation who are governed by its own
people and Constitution and not by the crown are still faced the problem.
Necessity to enact a law in keeping with the dignity of the country and to remove
the uncertainty, therefore cannot be doubted.

40
2.3. Article 21 and the Role of Compensatory jurisprudence

When the Constitution was drafted constitutional guarantees for protection

of the human rights were incorporated in Part III of the Constitution. It was also
provided that any law or any executive order which was in violation of the
fundamental rights contained in Part III of the Constitution would be void and
liable to be struck down by the court 50. The courts are now empowered to
proceed further and give compensatory relief under the public law jurisdiction
within the constitutional scheme for the wrong done due to the breach of public
duty by the state in not preserving the life and liberty of the citizen51. Award of
compensation for the breach of Article 21 of the Constitution is therefore, not
only to citizen public power but also to assure the citizens that they live under a
legal system, wherein their rights and interests are protected and preserved.
Further the courts have the obligation to satisfy the social aspirations of the
citizens. Public law proceedings serve a different purpose than the private law
proceedings. The primary source of the public law proceedings stems from the
prerogative writs and the order for monetary relief is therefore to be read into
the powers of the Supreme Court under Article 32 and of the High Court under
Article 226 of the Constitution. Hence, the grant of compensation for the violation
of Article 21 is an exercise of the courts under the public law. It is for penalizing
the wrongdoer and fixing the liability for the public wrong on the state which
failed in the discharge of its public duty to protect fundamental human rights of
the citizens. Though there is no express constitutional provision for grant of
compensation when right to life is violated, the Supreme Court has judicially

50
H. R. Khanna, “Human Rights – Dimensions and Challenges”, AIR 1998 Journal 50.
51
Dr. A. Raghunadha Reddy, “Liability of the Government Hospitals and Breach of Right to Life,” AIR 1998
Journal 153.

41
evolved the constitutional remedy by way of compulsion of judicial conscience.
The Supreme Court and High Courts have frequently resorted to the relief of
compensation in writ petitions under Articles 32/226 of the Constitution and thus
developed a new area of compensatory jurisprudence in public law52. Hence, in all
cases of violation of life, liberty, personality and dignity of any citizens by the
wrongful actions of the state officials, the officials shall be liable under the law
like the private individuals and the government shall be subjected to pecuniary
liability. The old theory that the government can not punish itself does not stand
in the modern legal environment of rule of law, supremacy of the Constitution,
judicial review and human rights consciousness53. Let us now trace the
developments in this new area.

Rudul Shah v State of Bihar54, was the one of the cases from which this new
approach started. The petitioner was detained illegally in Ranchi Jail of Bihar for
14 years after his acquittal by a competent court. In this case the petitioner
brought the writ petition before the Bench consisting of Y.V. ChandraChud .C.J,
Amarendra Nath Sen and Ranganath Misra, J.J, he stated that he had already
completed his sentence and the prison officials did not take care to release him.
He was kept in illegal incarceration for many years, illegally detained in jail for a
period of fourteen years on the ground of insanity. But the jailor could not
produce evidence before the court to show that he was insane at the time of
detention. After going through the injustice shown by the jail authorities the court
wanted to rectify it by exercising the power under Article 32 of the Constitution. If

52
Public Interest Litigation, Mamta Rao, Eastern Book co. Lucknow second Edition 2004.
53
Dr. P. Koteswar Rao, ‘Criminal Liability of the State for Violation of Life, Liberty and Dignity: Need for a
Compensatory Legal Policy’, Vol 19 (1&2) 1992 IBR.
54
AIR 1983 SC 1086.

42
courts power under Article 32 was limited to passing an order of release from
unconstitutional detention it would amount to denuding Article 21 of its
significant content. Court further said that one of the effective ways of preventing
violation of Article 21 was to make the violators to pay compensation. The
Supreme Court for the first time set up an important landmark in Indian human
rights jurisprudence by articulating compensatory jurisprudence for infraction of
Article 21 of the Constitution, Since then apex court in a number of cases
awarded monetary compensation. By the habeas corpus petition, the petitioner
asked for his release on grounds of unlawful detention in jail. He also asked for
ancillary relief like rehabilitation, reimbursement of expenditure for medical
treatment and compensation for illegal incarceration. The Supreme Court evolved
a new remedy of providing compensation to the victim of tortuous acts done by
the government during sovereign functions and issued a direction to the state to
pay a sum of Rs. 30,000/- as a compensation for illegal arrest in addition to the Rs.
5000/- already paid by it. The court said that its order of compensation was
palliative in nature and would not preclude the petitioner from bringing a suit for
recovering appropriate damaged from the state and its erring officials.

In this case court clearly expressed that even though our precious rights
guaranteed under Article 21 have been violated by the instrumentalities of the
state, due to their unlawful act in the name of public interest, the only method
available to the court is to apply compensatory justice to the victim. While
nothing in this case that a money claim was ordinarily to be agitated in and
adjudicated upon, in a suit instituted in the lowest court competent to try it,
the court nevertheless held that where It comes to the conclusion that the

43
detention was illegal then to refuse to pass an order of compensation in
favour of the petitioner, the Supreme Court developing a new compensatory
jurisdiction held that ‘In the exercise of its jurisdiction under Article 32 the
Supreme Court can pass an order for the payment of money in the nature of
compensation consequential upon the deprivation of fundamental right of
life and liberty of a petitioner’.

Article 21 which guarantees the right to life and liberty will be

denuded of its significant content if the powers of the Supreme Court were
limited to passing orders of release from illegal detention. One of the ways
in which the violation of that right can be reasonably prevented and due
compliance with the mandate of Article 21 secured its violators in the
payment of monetary compensation. Administrative sclerosis leading to
infringements of fundamental right cannot be corrected by any other
method open to the judiciary to adopt. The right to compensation is some
palliative for the unlawful acts of instrumentalities which act in the name of
public interest and which present for their protection the powers of the
state as a shield. Respect for the rights of individuals is the true bastion of
democracy. Therefore, the state must repair the damage done by its officers
to the petitioners rights.

Following the revolutionary norm of providing compensatory relief to

the victims of violations in Sebastian M. Hongray v Union of India 55, the
petitioner a student of political science in Jawaharlal Nehru University and a
55
AIR 1984 SC 1026.

44
member of Naga community from Manipur, filed a writ petition as to know
the whereabout of the two respectable persons of his village C. Daniel and
C. Paul who according to him were detained by the army personnel on
March 10th, 1982. It was argued that these two persons after being taken
into the army camp under arrest never left the camp and was anxious to
know what had happened to them. Complaints was filed a habeas corpus
petition before the Supreme Court, Bench consisting of D. A. Desai and O.
Chinnappa Reddy J.J, considering the seriousness of the offence, the court
directed to serve notice on February 9th, 1983. When the court called for the
report of the superintendent of police about the action taken against the
complaint by the petitioners, the Government of Manipur claimed privilege
on the ground of public interest. From the evidence it was found that these
two persons were last seen in Phugrei camp on March 11th, 1982. Widows of
these persons had last seen them on March 15th, 1982. The Supreme Court
by a writ of habeas corpus required the Government of India to produce two
persons. The Government eventually failed to produce them expressing its
inability to do so. C.B.I submitted its report of not locating these two
persons. They had a legal obligation to produce those persons who were
taken into custody illegally. There was willful disobedience on the part of
state in not responding to the writ of habeas corpus and misleading the
court that they had left the camp. So it amounted to civil contempt.
According to the court, the civil contempt was punishable with
imprisonment as well as fine. The assertion of the government that the

45
persons left certain camp near, which an army regiment was stationed was
alive, was untenable and incorrect. The Supreme Court held that the
Government would be held guilty of civil contempt because of their willful
disobedience to the writ. The court, keeping in view the torture, agony and
the mental oppression through which the wives of the persons directed to
be produced had to pass, instead of imposing a fine directed that as a
measure of exemplary costs, as is permissible in such cases, the state pay Rs.
1 lakh to each of the aforesaid women.

Clearly visualizing the facts and circumstances of the case it was

observed by the court that they might have met with unnatural death. Who
is individually or collectively the perpetrator of the crime or is responsible
for their disappearance will have to be determined by a proper, thorough
and responsible police administration. The Union of India cannot disown the
responsibility in this behalf. The appropriate mode of enforcing obedience
to a writ of habeas corpus is by committal for contempt. This judgment was
one of the excellent verdicts given by the court without referring to
sovereign immunity. In this case after thorough enquiry was made by the
investigation officers, the court expressed doubt that they might have met
with an unnatural death. If we had a special court with human rights,
involvement of officials in this offence could have been decided and the
liability determined for each person at the trial.

46
 Bhim Singh v State of J & k and others56, is yet another case of judicial
activism whereby the court granted monetary compensation to compensate
the victim. Member of Legislative Assembly of Jammu & Kashmir was
arrested and not produced before the magistrate within the requisite time
and was prevented from attending the session of the Legislative Assembly.
When he was on his way to attend the Assembly he was arrested and taken
to an unknown destination. The writ petition by his wife was to declare his
detention as illegal. His wife challenged the detention and filed a writ of
habeas corpus. He filed an affidavit that he was unlawfully detained in the
lock-up from 10th September to 14th September 1985. The court observed:
when a person comes to the Supreme Court with the complaint that he has
been arrested and imprisoned with mischievous or malicious intent and that
his constitutional and legal rights were invaded, the mischief or malice and
the invasion may not be washed away by his being set free. In appropriate
cases, the court has jurisdiction to compensate the victim by awarding
suitable monetary compensation. The court awarding a compensation of Rs.
50,000/-. The Apex court treated it as a gross violation of fundamental right
under Article 21 and 22. Therefore to safeguard the civil liberties the court
by giving lesson to the state so that their employees do not commit tortuous
acts in the name of sovereignty.

56
AIR 1986 SC 494.

47
 In Peoples Union for Democratic Rights v Police Commissioner, Delhi57,
was another case where in exercise of its jurisdiction under Article 32 of the
Constitution, compensation was awarded to victims for police atrocities
again the state was held liable to pay compensation. In the instant case,
police had collected some people and taken them to the police station for
doing work. When the workers demanded wages they are beaten up by the
police and one succumbed to his injuries. Though the case was examined for
criminal prosecution of the concerned police officers, the family of the
deceased was directed to be paid Rs. 75,000/- as compensation. This is a
clear case of excess by the police, so it also proved that how human rights
violation of the citizen can be committed by the officials indirectly. It
followed that a claim in public law for compensation for contravention of
human rights and fundamental freedoms, the protection of which is
guaranteed in the Constitution. The court referred to the preceding cases
while determining state liability and clarified that there is no need of
distinguishing the function as sovereign and non-sovereign, this is because
of the lack of firmness in law. The court must have power to take action
against the police officials who failed to register the case, when the
complainant approached them.

The Supreme Court in yet another landmark judgment in Delhi

Domestic Working Women’s Forum v Union of India and others58, laid down
broad parameter for assisting the victims of rape. In this case the six
57
AIR 1990 SC 513.
58
(1995)1 SCC 14.

48
domestic servants who were subjected to indecent sexual assault and rape
by seven army personnel while they were in a moving train. A public interest
litigation was brought before the constitutional bench consisting of
[Link], C.J, and [Link] and [Link], J.J. While these
domestic servants were travelling in the Muri Express on 10/02/1993 from
Ranchi to Delhi, some army men came there and began to tease, and later
they were raped by these army men. When the train stopped at the New
Delhi railway station, the army men involved in this alleged crime was
caught. In this case the court expressed that the victims are humiliated by
the police and they faced the traumatic experience and prolonged
psychological stress during the time of trial and it would be worse than the
rape. The court in its innovative judgment, stressed upon the need to set up
a criminal injuries compensation board for the victims. So that the victim
who had suffered substantial financial loss and those who were traumatized
to continue in employment, compensation could be awarded to the victim.
The Criminal Injuries Compensation Board must take into consideration the
loss, pain, suffering, shock, loss from the earning due to pregnancy, and the
expense of the child. At the instance of the petitioners forum, it invoked
under the provisions of Article 32 and 21 of the Constitution.

But in this case the court failed to grant compensation to the victims
of human rights violations. This gross human rights violation was committed
by the army and it was clearly proved beyond doubt. This incident occurred
while they were travelling in the Express train, it shows the negligence of the

49
guard in protecting the travelers from the criminals. If the ordinary principle
of vicarious liability was applied in this case the state would be liable for this
human rights violation. Even though there is no sufficient law to protect the
rights of rape victim, the court would have applied the ordinary vicarious
liability principle to determine the liability of the state.

In Chairman, Railway Board v Mrs Chandrima Das and others59, where

gang rape was committed by the railway employees in building of railway,
namely, Yatri Niwas, on a woman from Bangladesh, it was held that the
Central Government would vicariously be liable to pay compensation to the
victim was brought before the bench consisting of S. Saghir Ahmad and R.P.
Sethi, J.J. In this case Mrs Chandrima Das a practicing advocate filed this
petition under Article 226 of the Constitution against the Chairman, Railway
Board, and others claiming several relief’s including direction to the
respondent to eradicate anti-social and criminal activities at Howrah Railway
Station and claiming compensation to Smt. Khatoon a Bangladeshi National
who was gang raped by the employees in the building of Railways. It was not
an act committed by railway employees in discharge of functions delegated
to them as referable to sovereign powers of government. Running of
Railways is a commercial activity. Establishing Yatri Niwas at various railways
stations to provide lodging and boarding facilities to passengers on payment
of charges is a part of commercial activity of the Union of India and this
activity cannot be equated with the exercise of sovereign powers. The

59
AIR 2000 SC 988.

50
employees of the Union of India, who are deputed to run the Railways, and
to management, including the Railway Stations and Yatri Niwas, are
essential components of the government machinery, which carries on the
commercial activity. If any of such employees commits an act of tort, the
Union Government of which they are the employees can, subject to other
legal requirements being wronged by those employees. It was so when
instant case was under public law domain and not in a suit instituted under
private law domain against persons who, utilizing their official position got a
room, in Yatri Niwas booked in their own name, where the act complained
of was committed.

The train ticket examiner asked her to wait in the ladies waiting room
because of having only a wait listed ticket. On being certified by the lady
attendants engaged on duty at the ladies waiting room, she accompanied
railway staff to Yathri Niwas and then to the rented room where she was
raped by these employees. Clearly visualizing the facts and circumstances of
the case the court awarded a sum of Rs 10 lakhs as compensation. The
question whether the state is bound to protect non-citizens. The court
referred Anwar v State of J & K60, in which it was held that Article 20,21,and
22 are available not only against the citizen but also against the non-citizen
and these are in consonance with the Article 3,7,9 of the Universal
Declaration of Human Rights, 1948. According to which not only the citizen
but also the tourist even though she is a foreigner is entitled to enjoy right

60
AIR 1971 SC 337.

51
to life and so state is under an obligation to protest the life of every citizen
in the country.

In a welfare state, the theory of sovereign power pronounced in

Kasturilal is no longer applicable. If any activity of tort is committed by the
employees, the railways would be vicariously liable for the act. Under Article
226 of the Constitution the High Court has been given power and
jurisdiction to issue appropriate action for the enforcement of the
Fundamental Rights. So the High Court has jurisdiction not only to grant
relief for the breach of enforcement of fundamental rights but also to
enforce any other legal rights including the enforcement of public duties by
public bodies. The matter relates to the violation of the fundamental right or
enforcement of duties by public bodies the remedy would still be available
under public law notwithstanding that a suit could be filed for damages
under private law. It is not a matter of violation of an ordinary right of a
person but the violation of the Fundamental rights which is involved. So the
court directed the Union of India that the amount of compensation shall be
made over to the High Commissioner for Bangladesh in India for payment to
the victim.

In Nilabati Behara v State of Orissa and others 61, the court bench
consisting of J.S. Verma, Dr. [Link] and Venkata Chala, J.J, the Supreme
Court while awarding a compensation of Rs. 1.5 lakh in case of custodial
death of a 22 year old boy observed that defence of sovereign immunity is
61
AIR 1993 SC 1960.

52
not available if there is contravention of human rights and fundamental
freedom by the state and its agencies. In this case, Nilabati’s son was taken
into custody for questioning in connection with a theft case, and thereafter
his dead body found in a railway track. The police stated that he escaped
from custody and was run over by train. Failure of the police to registered a
case regarding the escape from custody shows some doubt on the police
and even the police did not go immediately to the railway track to take over
the dead body. It held that ‘a claim in public law for compensation for
contravention of human rights and fundamental freedom, the protection of
which is guaranteed in the Constitution, is an acknowledged remedy for
enforcement and protection of such rights and such a claim based on strict
liability made by resorting to a constitutional remedy provided for the
enforcement of fundamental right in distinct from, and in addition to the
remedy in private law for damages for the tort resulting from the
contravention of the fundamental rights. The defence of sovereign immunity
being inapplicable to the concept of guarantee of fundamental rights, there
can be no question of such a defence being available in the constitutional
remedy. There is no dispute regarding the liability of the state for payment
of compensation for violation of Article 21.

It is this principle which justified award of monetary compensation for

contravention of fundamental rights guaranteed by the Constitution. When
that is the only practicable mode of redress available for the contravention
made by the state or its powers and enforcement of the fundamental right

53
is claimed by resort to the remedy in public law under the Constitution by
recourse to Article 32 and 226 of the Constitution. Its power of enforcement
imposed a duty to ‘forge new tools’ of which compensation was an
appropriate one. In this case the state failed to provide their innocence, the
death was presumed to have been caused by the state employees. In these
circumstances, it is the duty of the court to compensate the petitioner for
the violation of their guaranteed rights. The refusal of the court to pass an
order of compensation in favour of the petitioner would be like mere lip-
service about fundamental right to liberty. In this situation, if the court
passes an order merely to release an illegally detained person would
amount to denuding the significance of Article 21 which guarantees the right
to life and liberty. The true foundation of democracy rests on the principle
of respecting the rights of every individual. The person detained in custody
already met with death due to the act of the agencies of the state, so it is
necessary to compensate the loss for protecting the fundamental rights of
the citizens. The court began to move away from the defence of sovereign
immunity. When the state officials extinguished the human lives the remedy
must be readily available. The defence of sovereign immunity being
inapplicable and alien to the concept of guarantee of fundamental rights,
there can be no question of such a defence available in the constitutional
remedy. The defence of sovereign immunity should not be applicable
against violation of fundamental right like right to life, liberty and dignity
these basic rights are inherent in nature.

54
 According to Justice Anand the public law remedy must ensure the
rule of law and civilize the public power and protect and preserve the rights
of the citizen and sovereign immunity cannot defeat the claim for the
enforcement of fundamental rights. Arrest and detention without legal
justification or if it is done without just cause and excuse limits the personal
liberty guaranteed under the Constitution. The wrongdoer and the state
must be responsible and accountable if the person taken into custody of
police has been deprived of his life without due process of law. The remedy
under public law is by way of penalizing the wrongdoer and fixing the
liability of the state for the public wrong when it fails in its public duty to
protect the fundamental rights of the citizen. It is this principle which
justifies in awarding monetary compensation for contravention of
fundamental rights guaranteed by the Constitution.

In Saheli, a Women’s Resources Centre v Commissioner of Police,

Delhi62, bench consisting of B. C. Ray and S. Ratnavel Pandian, JJ., The fact
that Kamaleshkumari was a tenant in a rented house, land owner evicted all
persons, Kamaleshkumari succeeded in getting a stay order from the court.
But the landowner attacked her several times, molested her, trespassed into
her house. Then nine year old son came to her rescue, he was also beaten
thrown on the floor and suffered serious injuries and later he died.
Complaint filed by Kamaleshkumari about torture, harassment of the
accused but police was reluctant to register a case. The fact that the child

62
AIR 1990 SC 513.

55
was done to death on account of the beating and assault by the agency of
the sovereign power acting in violation and excess of the power vested in
such agency, the mother is entitled to get compensation for the death of her
son. An action for damages lies for bodily harms, which includes battery,
assault, false imprisonment, physical injuries and death.

in this case Supreme Court in a public interest litigation directed the

state Government to pay Rs. 75,000/- as compensation to the mother,
whose nine year old child died due to beating and assault by Delhi police
officer before the bench consisting of B.C. Ray and S. Ratnavel Pandian J.J,
While fixing the liability the court considered the torture suffered by the
petitioner and her son. Death was also due to torture. The court stated that
its officers infringed a person’s fundamental right given under Article 21 of
the Constitution. Naresh was done to death on account of the beating and
assault by the agency of the sovereign power acting in violation and excess
of the power vested in such agency. The court further observed that in case
of assault, battery and false imprisonment the damages are at large and
represent a mental pain, distress, dignity, violation of liberty and death. This
is a clear case of excess by the police. It also proved that how human rights
violation of the citizen can be committed by the officials indirectly. The court
referred to the preceding cases while determining state liability and clarified
that there is no need of distinguishing the function as sovereign and non-
sovereign, this is because of the lack of firmness in law. In the matter of
liability of the state for torts committed by its employees, it is now the

56
settled law that the state is liable for tortious acts committed by its
employees in the course of their employment. In this case the landlord could
influence the police officials and doctors and could manipulate the post
mortem report and station diary because the local police was involved in
this case. The court must have power to take action against the police
officials who failed to register the case, when the complainant approached
them. The police being the guardian to protect the fundamental rights and if
they act contrary to this principle, the citizens can expect protection only
from the court. It is the duty of the court to take into consideration the
injustice suffered by the victim, to take action against the officials and to
compensate the petitioner for his/her suffering.

Viewing the case from the point of view of the fact the court stated
that, there should be no difficulty in holding that the state should be as
much liable for tort in respect of a tortuous act committed by its servant
within the scope of his employment and functioning as such as any other
employer. The immunity of the crown in the United Kingdom was based on
the old feaudalistic notions of justice, namely, that the king was incapable of
doing a wrong and that he could not be sued in his own courts. In India,
even since the time of the East India Company, the sovereign has been held
liable to be sued in tort or in contract, and the Common law immunity never
operated in India.

57
 Smt. Chiranjit Kaur v Union of India and others 63, the petitioner’s
husband, a commissioned army officer died, in service. Writ petition was
filed to take action against army officers and for claiming compensation, for
the death of a military officer. The petitioner’s husband Mukhbain Singh
suffered from chest pain on diagnosis he was suffering from heart disease.
When his wife reached there she found her husband lying in a make shift
hospital without any life saving treatment and unable to move. She
requested the authorities to give air lift to Ambala or Srinagar military
hospital for proper treatment. But this was refused. Thereafter she found
the burned body of her husband and it was proved that there was gross
negligence on the part of authorities who caused mental torture to the
widow. The authorities did not disclose to her the circumstances under
which her husband had received the burns. She contended that his death
was under mysterious circumstances because he was unable to move then
the question was how he received such burn injuries. When she applied for
getting a copy of the report for submitting an application for family pension
this was refused on the ground of privilege in keeping the confidential
document. Petitioner approached the Supreme Court claiming family
pension. The authorities admitted the fact that the report of death of her
husband being the confidential matters it was not disclosed to her. The case
reveals the irresponsible attitude of the officers.

63
AIR 1994 SC 1491.

58
 After verifying the fact and circumstances of the case the court
concluded that the officer died while in service under mysterious
circumstances and his death is attributable to and aggravated by the military
service. The court therefore, stated that the petitioner is entitled to suitable
compensation as well as to the Special Family Pension and the Children
Allowance according to the relevant Rules from the date of the death of her
husband. The court awarded her compensation of Rs. 6,00,000/- to the wife
and directed that the said amount be paid to her within six weeks from that
day. The court also directed that the arrears of the Special Family Pension
and the Children Allowance be paid to her within eight weeks from that day
with interest at 12% per annum, and directed to pay the costs of the writ
petition which were fixed at Rs. 6,000/, the court under Article 32 held that,
this case is a glaring example of gross negligence and callousness on the part
of the authorities and the consequent mental torment and physical and
financial hardship caused to the widow and the two minor children of an
army officer. The officer died while in service in mysterious circumstances
and his death is attributable to and aggravated by the military service. The
responsibility of his death is prima facie traceable to the act of criminal
omission and commission on the part of the concerned authorities. The
deceased and his family has to suffer gross human rights violation due to the
criminal acts of the other army officers. The court considered the whole plea
of the widow of the victim and grievance and suffering of the victim and
their family for giving justice. While deciding the liability of the state the

59
court could have fixed the liability of the irresponsible officers also. By
providing compensatory relief to such of the people and enhancing the
concept of compensatory jurisprudence in public law.

In next case the petitioner approached the court for granting

compensation in custodial death allegedly committed by the police officials
in Bahlen Balmuchu v State of Bihar64, the fact of the case was three persons
namely Udai Sharma, Wilson Alias Pappu and Jonsin Koro were taken to
custody, in connection with a dacoity and they were subjected to brutal
attack by iron rod resulting in their death. When the complaint filed by the
widow it was not considered by the police officials and no action was taken.
Thereafter they moved the Supreme Court and the concerned officials were
arrested by the order of the court. It was proved that the death was due to
excesses and abuse of power and a criminal case was charged against them.
The accused persons were held guilty and court sentence them to undergo
rigorous imprisonment and of Rs. 20,000/-.

After considering the grievous human rights violation suffered by the

victims due to the act of the police, the case was the contravention of
fundamental right by the state or its agency compensation could be
awarded under section 226 of the Constitution of India. The court directed
to pay compensation to the petitioner and fixed the liability by considering
the loss of her husband, the mental torture, the feeling of loneliness and the
loss of the care and protection of the head of the family calculated the
64
2003 Cri.L.J. 3803.

60
compensation of Rs. 10,00000/-. In the case of threat to fundamental right
due to state atrocities the Supreme Court would be a welcome step to help
and promote justice to the victim and legal heirs.

61