The basis of tortious liability is the violation of duty primarily fixed by law. The aggrieved party under tort can always seek damages for the infringement of their rights. The damages may be compensatory and nominal. A new concept of constitutional tort has seen a major development in India in which the in which the damages can be sought for the infringement of the fundamental rights guaranteed in Part III of the constitution. In India the courts have started to provide compensation despite also declaring the action of the state void. The legal liability of the state basically arises when the basic human rights provided by the Constitution is infringed.

Aims and objectives:
The research paper aims to analyse the development of constitutional torts through a series of major landmark judgments. It also aims to analyse the liability of the state in case of constitutional torts.

Research methodology:
The doctrinal method of research is used in the research of this paper. Sources such as books, legal databases and articles have also been referred.

History of Constitutional Tort:
The Latin maxim Res Non Potest Peccare means the king can do no wrong. In medieval England the king was considered to be a son of god. Therefore the acts of the king were always considered to render justice. Thus the king enjoyed immunity and he cannot be held liable. The state liability in rest of the Europe was quite different. The king was not immune to provide compensation to his people as his primary duty was to protect the people and their rights.

The stand on the interpretation of the maxim in England changed during the years. The Crown Proceedings Act was enacted in the year 1947 which makes the state liable for the tort committed by its servants. Similarly in America the Federal Torts Claims Act was enacted to make the state liable.

History Of Constitutional Tort In India:
In India the history of constitutional tort can be traced back to the Acts enacted by the British East India Company. It initially found a place in Section 65 of the Government of India Act of 1858. This was further inherited in the section 176 of Government of India Act of 1935. Thus section 176 formed the basis and article 300 of the Constitution of India emerged from this. Article 300 of the constitution provides for the suits and proceedings to be instituted against the state in the name of Union of India. The tortious liability of the state thus arises from the vicarious liability of its servant in performance of non- sovereign functions.

Reason Behind The Development Of Constitutional Tort:
The legal liability of the state arises if there the state exceeds its power or there is an infringement of rights guaranteed in part III of the constitution. The liability of the state is two -fold. The state becomes liable for the protection of rights and therefore any act that infringes the rights is declared void. On the other hand the state has a duty to compensate the victim. The rationale behind this is that it is established that the victim can be effectively reimbursed only through compensation for its breach of duty. The courts are the guardian of constitutional rights and to uphold the constitution. Thus the scope of constitutional torts depends on the scope of remedy and the scope of fundamental rights.

The court can quash an order of detention and arrest of a person if it is not according to the law. Then arose a question as to whether the court can award compensation to one who had suffered detention and harm at the hands of the state. There also arose a question as to whether the aggrieved person shall have recourse to the civil courts to claim such compensation.

This for the first time was raised in the case of Khetri v. State of Bihar[1] which is also known as the Bhagalpur blinding case. In this case the police authorities blinded the prisoners. The counsel for the prisoners argued that it was a violation of right to life and personal liberty and it can only be done according to the procedure established by law. The court in this case discussed whether compensation can be granted to the violation of right under article 21.

Justice Bhagwati in this case observed:
“Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty?”

The court observed that such an act was not only a legal problem but also an inhuman act. The court directed the state to provide medical relief to the victims at the state cost. The state was also directed to provide housing to the victims in a blind home at the cost of state.

Development Of Constitutional Tort Through Major Judgments:
Rudal Shah Vs State Of Bihar:[2]
This was a case of public Interest Litigation that was filed in the Supreme Court under article 32 of the Constitution. The petition sought the release of Rudal shah from illegal detention and also compensation. Rudal Shah was arrested in 1953 on the charges of murdering his wife. He was later acquitted in 1968. He stayed in prison even for 14 years even after his acquittal. The court directed the state to pay 30,000 rupees to the petitioner as compensation.

This is a landmark case in the jurisprudence of state liability. The theory of compensatory jurisprudence evolved in this case for the violation of fundamental rights. It was the first case in the Supreme Court awarded damages for the infringement of fundamental rights. The court observed “the right to compensation is palliative for the lawful acts of instrumentalities which act in the name of public interest and which present for their protection, the powers of state as a shield”.

Bhim Singh Vs State Of J&K:[3]
The petitioner is an MLA of J&k was wrongfully detained by the police while he was going to attend the assembly session. As he was not produced before the magistrate within the requisite period he was deprived of his constitutional right to attend the assembly session. There was also an infringement of article 21 of the Constitution. The court in this case directed the state to pay exemplary damages amounting to 50,000 rupees as compensation.

Saheli Vs Commissioner Of Police:[4]
In this case Naresh, a nine year old boy was beaten to death. The state was held liable for the death of the child that occurred due to custodial assault and beating. The court in this case directed the state to pay compensation of 75,000 rupees to the mother of the boy. The court in this case suspended the interpretation of common law torts but interpreted it with respect to constitutional tort law.

Nilabeti Behera Vs State Of Orissa:[5]
The case deals with custodial death of Suman Behera, the son of the petitioner. The person was inflicted injuries during custody which resulted in his death and subsequently was thrown on a railway track. This is also considered to be a case of infringement of fundamental rights. The Supreme Court directed the state to pay a compensation of sum of rupees 1, 50,000 to the petitioner.

Sebastian M Hongray Vs Union Of India:[6]
The Supreme Court presumed that the two members might have died in army custody and by considering it as an irreparable loss to the family and an infringement of article 21 of the constitution the court directed for the award of compensation for the act done by public servants in the performance of sovereign functions.

Ao Leihao Devi Vs State Of Manipur:[7]
The Guwahati High Court directed to award a compensation of 1,50,0000 rupees to the wife of the victim who was shot dead by the Rifles men when he refused to stop the jeep at a check post. Thus the concept of sovereign immunity becomes inapplicable in the case of violation of human rights.

Devaki Nandan Prasad Vs State Of Bihar:[8]
The petitioner was in search for his hard earned pension for 16 years. Even after a period of 12 years the court issued a mandamus directing the state to pay the pension the petitioner did not his seek his pension from the State. The court in this case directed the state to pay exemplary damages of rupees 25,000 to the petitioner.

Conclusion
Thus constitutional tort provides for the compensation most probably exemplary damages awarded to the victim in case of infringement of constitutional rights. Article 300 may be applied to make the state liable for its tortious acts. Constitutional tort has not seen much of greater significance in India. Only after the major pronouncement of the Supreme Court in the case of Rudal Shah the awareness regarding the theory of compensatory remedy for the infringement of basic rights has seen a frequent growth.

Law is never static and it is dynamic to encounter the problems that arise as a matter of conflict between the state and the people. The jurisprudential approach of law must seek to redress the conflicts in a modern growing society. Though there is no much of awareness regarding the way of redressal through tort law in India the way of redressal through tort law is more feasible as it has a wider scope and ambit. Thus constitutional tort remains as one best ways of redressal for the infringement of basic rights.

Bibliography:
Books:

1. Law of Torts, RK Bangia
2. The Law of Torts, MN Shukla

Articles:

1. Damages for the infringement of human rights: a comparative analysis, Ewa Baginska, general report, 2015.
2. Monetary compensation for administrative wrongs, SN Jain.
3. Compensation on Breach of fundamental Rights, Parmindra Dadhich.
4. Constitutional Tort law, Muskan Rathore

End-Notes:

1. AIR 1981 SC 928
2. Rudal Shah vs. State of Bihar (1983) 4 SCC 141
3. Bhim Singh vs. state of J&K AIR 1986 SC 494
4. Saheli vs. Commissioner of Police 1990 AIR 513
5. Nilabeti Behera vs. State of Orissa AIR 1993 SC 1960
6. Sebastian M Hongray vs. Union Of India AIR 1984 SC 1020
7. AO Leihao Devi vs. State of Manipur AIR 1999 Gau 9
8. Devaki Nandan Prasad vs. State of Bihar 1983 AIR 1184

Written By: Anuroopa D