Approach of Courts Towards Torts in Public Law

Introduction

“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal...”. The subject of study is essentially an interface between the substantive fundamental rights guaranteed by the Constitution (public law) and the private law remedy of compensation. The fundamental rationale for this is to uphold the sanctity of the fundamental rights guaranteed by the Constitution. With the increasing responsibility of carrying out the various welfare obligations being entrusted to the executive and the various administrative bodies, it becomes imperative to develop safeguards and remedies in case of failure of these safeguards. Conventionally, the judiciary only issued the appropriate writ in cases of violation of fundamental rights. However, with time, the judiciary developed a new remedy in the form of compensation in writ petitions.

In this paper, I seek to argue for the development of a consistent jurisprudence to govern torts in public law. I will also seek to justify the development of this new jurisprudence by the Supreme Court. Keeping this in mind, the paper first seeks to explain the rationale for granting of compensation by courts in writ petitions. The next part seeks to explain the constitutional basis of grant of such compensation. The last section of the paper seeks to explore the inconsistencies manifest in the compensatory jurisprudence in relation to constitutional infractions.

Rationale for Government Liability in Public Law

Justice Bhagwati first raised the question of compensation of the violation of the right to life and liberty of the citizens. In Khatri v State of Bihar, she 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”. However, she didn’t proceed to lay down the law of the land and instead, proceeded to direct the government to meet certain expenses of the petitioners as an interim measure. The question further came up for consideration before her in Sant Bir v State of Bihar and Veena Sethi v State of Bihar. However, she again left the question open. Nonetheless, the need for new and innovative solutions had however been recognized.

The landmark case with respect to new jurisprudence developed by the judiciary is Rudul Shah v State of Bihar. In this case, the petitioner had filed a habeus corpus petition as he had been illegally detained for fourteen years even after acquittal by the sessions court. Even if the writ was issued by the supreme court, it would have served no purpose as he had been actually released before the petition was actually heard by the court. However, in addition to the issuance of the writ, the petitioner had also asked for compensation for the violation of his fundamental right to life and liberty. Instead of doing mere lip-service to the fundamental right to liberty, the Court chose to give effect to its content. The court saw the compensation as a deterrent for the government and a way to secure due compliance with the mandate of Article 21. In Bhim Singh v State of Jammu and Kashmir, the Court commented that when a person has been illegally detained with malicious intent and his constitutional and legal rights are violated, “the mischief or malice and the invasion may not be washed away or wished away by his being set free”.

Deterrence is a major reason for the grant of such compensation. Damages have a tangible effect upon the management of funds by the government. They inevitably coerce the government to either increase the taxes or cut the costs. Such pressures will act as an incentive for the government to avoid such liability through measures like selection of competent employees, providing them quality training, better supervision and an internal system to ensure their accountability. An unmentioned reason for the development of this remedy in public law is the underdeveloped nature of the private law remedies in India. Conventionally, the higher judiciary had shown reluctance to entertain claims for compensation through writ petitions. The civil procedure was thought to be the right recourse for obtaining such compensation, the rationale being that such cases inevitably raised complex questions of fact which the courts were unwilling to decide in writ petitions. However, tort claims under civil law have generally proved to be unrewarding for the individuals due to the development of artificial distinctions among the activities of the State, protecting it from liability towards the theoretical sovereign. Therefore, the courts developed a new remedy in the form of compensation in writ petitions. In Nilabati Behera v State of Orissa, the Court clarified the law on granting of compensation in writ petitions. The court clarifying the law stated: “…‘a claim in public law for compensation’ for contravention of human rights and fundamental freedoms, 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 forthe enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right.” The court stated that the defence of sovereign immunity is inapplicable to the public law remedy. It noted that such an approach is justified when this is the only practicable mode of redress available to the aggrieved.

Legal Basis for Compensation in Writ Petitions

There isn’t any express statutory authority that confers the power on the higher judiciary to grant compensation in writ petitions. Conventionally, the supreme court has interpreted Article 32 to exclude any positive remedy like compensation. However, it is submitted that this a very artificial and narrow view of Article 32 and the Article by itself permits much broader powers to the Supreme Court.

Article 32(2) gives the apex court the power to issue any order, direction or writ which may be required for the enforcement of fundamental rights guaranteed under Part III of the Constitution. Article 32(1) places the duty of enforcement of fundamental rights upon the Supreme Court. The literal connotation of “enforcement” is “compelling the observance of law.” Such an interpretation would place the duty upon the Supreme Court to not only address and provide redressal of particular violations, but also to prevent the future violations. The Supreme Court has been given complete discretion to issue the appropriate remedy. The Supreme Court also has the power, under Article 142, to pass such decree or make such order as is necessary for doing complete justice in the cause or matter pending before it. The High Court also has the power to issue appropriate remedy in cases of fundamental rights violations under Article 226, though there is no provision equivalent to Article 142 with respect to the High Courts.

Support for this jurisprudence developed by the Courts can also be found in international conventions and foreign jurisdictions. Article 5(5) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that “everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation”. Even the International Covenant on Civil and Political Rights of 1966 provides for enforceable right to compensation in cases of unlawful arrest or detention. Notably, India is a signatory to this Covenant. However, while signing it, India had expressed a reservation to the said Article stating that compensation in these cases would be governed by Article 22 of the Constitution and that there is no such enforceable right of compensation in the Indian legal system. In D.K. Basu v Union of India, the Supreme Court observed that this reservation expressed by the government had lost its relevance in light of the new jurisprudence developed by the Court.

Support can also be drawn from the concept of “constitutional tort” in the United States. Similar to India, the Supreme Court in the US felt that the common law was not adequate to govern breach of the rights guaranteed by the Constitution. Instead, a system was developed where the Constitution governs the actions of the government officials. The violation of the constitutional rights of an individual is in itself a ground for federal cause of action, which is supplementary to any relief granted through tort law.

With respect to the topic at hand, the Chief Justice in State v Ryan remarked that it was definitely the intention of the legislature that the fundamental rights were being guaranteed to the people and the Courts have wide range of powers as the custodian of these rights. In Maharaj v Attorney General of Trinidad and Tobago, the Court remarked that compensation in public law may at times be the only way of redressal when the liberty of an individual is taken away. In New Zealand, compensation was granted to the aggrieved on violation of the Bill of Rights by referring to authorities worldwide including the Nilabati Behera case.

Inconsistencies in Compensatory Jurisprudence

Quantum of Compensation

The Court had always been hesitant to grant compensation through exercise of powers conferred under Article 32. This led to ambivalent statements of law on what remedy was being granted. In Devaki Nandan Prasad v State of Bihar, exemplary costs were granted, while in Rudul Shah, the Court presented a very distorted picture. First of all, there was little rationalization as to why “damages” were awarded instead of “exemplary costs”. Even these were termed a mere palliative, which seems contrary to the spirit of the judgement read as a whole. The Court went back on this in the Sebastian Hongray case and provided “exemplary cost” even though the reason for awarding such costs was “the torture, the agony and the mental oppression” through which the wives of the dead army men had to go through. The reasons suggested something more in the nature of “compensation” or “damages”. The Court still seemed to be wary of awarding “compensation” in writ petitions. In Bhim Singh, the Court finally state in clear terms that it had “the right to award monetary compensation by way of exemplary costs or otherwise”. The position on this aspect is fairly well settled.

Once the issue of the nature of the payment is addressed, the next question concerns the quantum of such compensation. Generally, courts have not rationalized the amount of compensation that they have granted. For instance, neither in Rudul Shah nor Devaki Nandan is there any justification of the amount of compensation. The compensation is bound to vary depending upon the specific fact situations. For instance, in Nilabati Behera, the age of the deceased and his monthly income was taken into account. Certain fact specific reasoning cannot be applied uniformly to all cases. However, at least some rationalization of the amount of compensation granted needs to be done in every case. Additionally, as far as possible, some broad framework needs to be developed in order to control the discretion of the judges.

Determination of “Appropriate” Cases for grant of Compensation

It is also important to lay down a uniform and implementable criteria for determining which cases are fit for the grant of compensation. While earlier cases mostly identified the actions of the State as grossly violative of fundamental rights, the Supreme Court finally laid down a criteria for determining “appropriate cases”. It stated that: “The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts.” However, even after such a precedent, the courts have chosen to provide compensation without any rationalization in some cases. In fact, in A.K. Singh v. Uttarakhand Jan Morcha, the Supreme Court had to strike down the award of compensation given by the High Court which was arrived at without “any attempt to discuss the relevant questions which are to be answered for fixing liability of compensation and for quantification of the amount of compensation.” The decision resulted in substantial loss to the State exchequer. In cases where the facts are in dispute, the Courts will be reluctant to look to grant compensation and will generally relegate the matter to the civil courts.

Personal or State Liability

Another issue that arises is who will pay the compensation. There seems to be no rigid pattern among the various decisions.in Rudul shah, the Court stated that the State may have recourse against the erring officers. It is submitted that generally, under the principle of socialisation of compensation, the State should be made liable for the acts of its employees. This system will resemble a system of insurance. This further ensures that the affected persons get adequate compensation from the funds of the State. In appropriate cases, the Courts may allow the State to recover the money from the erring officials. This system will ensure that the officials are not made personally liable for certain unintentional violations of the rights of individuals, allowing them to perform their duties without fear. It also ensures that the officials are held accountable for malicious, gross violations of these rights.

Conclusion

In this paper, I have attempted to argue for the need to develop a consistent jurisprudence to govern torts in public law. There is no legislation to guide the judiciary in the process of granting compensation in writ petitions. In fact, the competence of the Courts to grant compensation has also been questioned by administrative law scholars. Even the Courts have either not given sufficient reasoning or given varying justifications on certain important questions that have been raised in these cases. In order to bring predictability and consistency in reasoning and to prevent justice from being dependent on fortune, there needs to be clear exposition of law on the inconsistencies highlighted in this paper. Otherwise, the courts wouldn’t be able to administer complete justice, which was the purpose of the development of this new jurisprudence.