Escolar Documentos
Profissional Documentos
Cultura Documentos
Constitutional tort doctrine is incoherent at the most basic level. Some government
defendants are automatically liable in money damages for any violation of constitutional
rights. Others are completely immune from damages liability, no matter how egregious
the misconduct or malicious the motivation. Still others have a qualified protection
against liability that comes close to a rule of negligence. There is no justification for such
disparate treatment.
Aim
The aim of my project topic i.e. constitutional tort is to understand the importance of
constitutional tort in india,law related to it and reasons which led to the development of
such laws in india,it's historical background and also the provisions in our constitution
which deals with such torts.
Research questions and hypothesis
Which are the provisions of constitution that deals with constitutional torts?
What remedies do these laws provide against such torts?
What's the historical background?
Tentative chapterization
Introduction
Theories which support constitutional tort in india
Development of article 21 in the human rights perspective
Criminal justification by the constitutional courts
Reasons which led to the idea of constitutional torts
Development of constitutional torts
Tort under the constitution: article 300
Conclusion
Research methodology
[1] AIR 1962 SC 933
[2] AIR 1965 SC 1039
The research methodology adopted in this project report is Doctrinal Method i.e. the
sources of data are legal and appellate court decisions and it is concerned with analysis of
the legal doctrine and how it has been developed and applied.
Content
Introduction
Theories which support constitutional tort in india
Development of article 21 in the human rights perspective
Criminal justification by the constitutional courts
Reasons which led to the idea of constitutional torts
Development of constitutional torts
Tort under the constitution: article 300
Conclusion
Introduction
Constitutional torts are legal actions to pursue damages for violations of constitutional
rights. The essential basis of tort is the violation of a duty fixed by law. The interest worthy of
protection is recognized in tort law, through the judicial recognition of the concerned interest"' or
through legislative enactment. The violation of duty is thus recognized by law. Examples include
suing a police officer for use of excessive force, suing a school administrator for
wrongfully expelling a student, or suing a prison warden for unconstitutional conditions
of confinement. Constitutional tort doctrine is incoherent at the most basic level. Some
government defendants are automatically liable in money damages for any violation of
constitutional rights. Others are completely immune from damages liability, no matter
how egregious the misconduct or malicious the motivation. Still others have a qualified
protection against liability that comes close to a rule of negligence. There is no
justification for such disparate treatment.The essence of fundamnental rights is to put a
limitation on the legislature and executive in relation to the interest of the individual. If
[1] AIR 1962 SC 933
[2] AIR 1965 SC 1039
the State were to exceed the limit so fixed ant1 encroach upon the interest protected by
fundamental rights, there is a violation of a Constitutional duty by the state. If the
disability on the State and the immunity of the citizen are ignored, the protection of the
interest through the Constitutional norms is made meaningless. When an . interest so
protected by fundamental rights is thus violated, the Constitution provides for a redressal
of grievance involved by approaching the High Court and Supreme Court by invoking the
Writ Jurisdiction. Though according to the original notion of Writs, they were concerned
only with the validity of the decision making process and not with the merits of a
violation by a State agency, the courts in India started giving some compensation in
addition to declaring the action of the state invalid by relying on the flexible pluaseology
used in the constitution This welcome development has added the category of
'Constitutional Tort to protect the interests of the people.
eliminate those acts .The courts are the guardian of those rights and have to uphold the
Constitution. So the accountability of the Judges are not only towards their conscience
but also to the people upon whom the sovereignty vests. From this it can be concluded
that the courts are bound not only to protect and guard the basic rights of the people but
also to declare the acts as invalid and compensate the victim for the violation of
guaranteed rights.
expression 'due process of law' as used by the U.S. Constitution could only mean State
nude laws. So it was held that Article 19 and 2 1 are mutually exclusive and hence the
reasonability test as applied in Article 19 is not to be applied in Article 2 1.
The judiciary could promote human rights jurisprudence in the area of personal liberty by
recognizing and including more and more rights in its writ jurisdiction. With the
application of dynamic constitutional jurisprudence, the court can quash an order of
detention and arrest if it is not according to law. Then the question arose whether the
court can award compensation to the one who had already suffered detention and bodily
harm at the hands of the state or whether they have the recourse to the civil court for
getting ordinary remedy available from there.
[1] AIR 1962 SC 933
[2] AIR 1965 SC 1039
Any way for the first time an issue of constitutional importance and deprivation of right
to life or personal liberty guaranteed under Article 2 1 and the compensation to the victim
of police excesses was raised in the important case popularly known as Bhagalpur
blinding case. In Khhetri 1, Sate of bihar the police authorities had blinded certain
prisoners and the counsel for the blinded P prisoners asserted a constitutional right to get
compensation for the damage caused by police excesses. This raised an important
constitutional question that when the state deprive the right to life and personal liberty of
a person it can be done only according to the procedure established by law. Then the
Supreme Court got an opportunity to think as to what relief could be given for the
violation of constitutional rights. Can the court grant relief for the violation of Article 21?
Or what relief can the court give for the violation of Constitutional right?
The question arose whether the state was liable to compensate for the violation of their
fundamental right under Article 21 of the constitution as the Prisoners were deprived of
their eyesight by the police officers who were government servants acting on behalf of
the government and so the court directed .the state of Bihar to provide them the best
treatment at state cost. Thus all the blinded prisoners were sent to the All India Medical
Sciences, New Delhi to be provided with medical relief to the victim at the state cost. The
state was directed to meet the expense of housing of these men in a blind home at Delhi.
due to hazardous industry. Custodial violence In this portion the study is concentrated
with the application of constitutional torts in case of atrocities of the enforcement
agencies. The torture in custody flouts the basic rights of the citizens recognized by our
constitution. Although there is no provision in the Constitution prohibiting cruel, inhuman
and degrading punishment or treatment the court has evolved this right from other
provisions of the Constitution namely Article 21 in conjunction with Article 18". The
human rights violation includes custodial death disappearance, torture, arrest and illegal
detention.
Torts under The Constitution: Article 300
Article 300 (1) provides that the Government of India may be sued in relation to its
affairs in the like case as the Dominion of India, subject to any law which may be made
by Act of Parliament. The Parliament has not made any law and therefore the question
has to be determined as to whether the suit would lie against the Dominion of India
before the Constitution came into force. Thus, so long as the Parliament or the State
Legislaturedo not enact a law on the point, the legal position in this respect is the same as
existed before the commencement of the Constitution.
Before present Constitution came into force the East India Company, and after
Government of India Act, 1858, which transferred the Government of India to Her
Majesty with its rights and liabilities, the Secretary of State Council were liable for the
tortuous acts of their servants committed in the course of their enjoyment.
The Supreme Court held that the Secretary of State for India was liable for the damages
caused by the negligence of Government servants, because the negligent act was not done
in the exercise of a sovereign function. The Court drew a distinction between acts done in
exercise of "sovereign power" and acts done in the exercise of "non-sovereign power"
that is, acts done in the conduct of undertakings which might be carried on by private
personindividuals without having such power.
In State of Rajasthan v. Vidyawati[1], the driver of a jeep owned and maintained by the
State of Rajasthan for the official use of the Collector of a district, drove it rashly and
negligently while bringing it back from the workshop after repairs and knocked down
[1] AIR 1962 SC 933
[2] AIR 1965 SC 1039
apedestrian and fatally injured him. As a result of the injuries the pedestrian died. His
widow sued the State of Rajasthan for damages. The Supreme Court held that the
Statewas liable and awarded damages. The accident took place while the driver was
bringing it back from the workshop to the Collector's residence. It cannot be said that he
was employed on a task which was based on delegation of sovereign or governmental
powers of the State. His act was not an act in the exercise of a sovereign function. The
Court said that the employment of driver of a jeep car for the use of a civil servant was an
activity which was not connected in any manner with the sovereign power of the State at
all.
The Court approved the distinction made in Steam Navigation Company's case between
the sovereign function, and the non-sovereign function of the State. However, Sinha, C.
J., made an important observation in Vidyawati's case.
In India ever since the time of 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. In
Kasturi Lai v. State U. P[2]. a person was taken into custody on suspicion of being in
possession of stolen property and taken to police station. His property including certain
quantity of gold and silver was taken out from him and kept in the Malkhana till the
disposal of the case. The gold and silver was misappropriated by a police constable who
fled to Pakistan. The appellant sued the State of Uttar Pradesh for return of the gold and
silver, and in the alternative claimed damages for loss caused by negligence of the Meerut
police. The State contended that no liability would accrue for acts committed by a public
servant where such acts were related to the exercise of sovereign power of the State. The
Supreme Court held that the State was not liable. In the Judgment Chief Justice Gajendra
gadkar said that "If a tortuous act committed by a public servant gives rise to a claim for
damages, the question to ask is, was the tortuous act committed by a public servant in
discharge of statutory functions which are referable to, and ultimately based on the
delegation of the sovereign powers of the State to such public servant. If the answer is in
the affirmative the action for damages will not lie. On the other hand, if the tortious act
has been committed by a public servant in the discharge of duties assigned to him not by
virtue of the delegation of any sovereign powers, an action for damages would lie." The
Court held that the tortious act of the police officers was committed by them in discharge
[1] AIR 1962 SC 933
[2] AIR 1965 SC 1039
of sovereign powers and the State was therefore not liable for the damages caused to the
appellant.
Conclusion:
The rule of liability of the State for torts of its servants as laid down in the Steam
Navigation's case is very out-moded. In the modern age when the activities of the State
have vastly increased, it is very difficult to draw a distinction between sovereign and nonsovereign functions of the State. The increased activities of the State have made a deep
impact on all facts of an individual's life, and therefore, the liability of the State should
accordingly be made co-extensive with its modern role of a welfare State and not be
confined to the era of individualism.Thus the right to life includes physical and mental
health. The right to life embraces not only physical existence but requires the quality of
life . There are several other rights which have been held to be part of the right to life.
They are right to go abroad, right to privacy, right against solitary confinement, right to
legal aid, right to speedy trial right against hanging, right against the delayed prosecution,
right against custodial violence, right against public speaking, right to doctors assistance,
right to shelter etc. Any way the Supreme Court began to recognize several rights as
fundamental rights by interpreting Article 21 of the Constitution.
Bibleography
http://shodhganga.inflibnet.ac.in/
http://www.law.harvard.edu/
http://www.ielrc.org/
http://www.ielrc.org/
http://digitalcommons.law.uga.edu/
Books
[1] AIR 1962 SC 933
[2] AIR 1965 SC 1039