Minister's Speech A 'Constitutional Tort' If It Leads To Acts Of Officers Harming Persons : Supreme Court

It was noted in the majority judgement that the Law Commission in 1956 had outlined certain principles on which appropriate legislation on the tortious liability of the state would proceed, in its first report on the ‘Liability of the State in Tort’, and that based on the report, a bill known as the Government (Liability in Torts) Bill was introduced in 1967 after the Supreme Court in Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039 recommended a legislative measure on the subject-matter. However, Justice Ramasubramanian observed with dismay, neither did the proposed legislation pass parliamentary muster nor was any effort made subsequently to codify the law on the state’s liability in tort. He said, “Nothing [has] happened in the past 55 years. In such circumstances, courts cannot turn a blind eye but may have to imaginatively fashion the remedy to be provided to persons who suffer injury or loss, without turning them away on the ground that there is no proper legal framework.”

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Having explained the rationale behind the decision, Justice Ramasubramanian then proceeded to answer the question of whether a statement by a minister inconsistent with the rights of a citizen under Part III of the Constitution constituted a violation of such constitutional rights and would be actionable as a constitutional tort, in the affirmative. However, he qualified his answer with an important precondition. 

Justice Nagarathna Dissents

Notably, Justice B.V. Nagarathna took a different stand with respect to the liability of a minister under constitutional tort law for a disparaging or derogatory statement affronting the fundamental rights of a person or a citizen. While her colleagues on the bench held that damages could be sought for such ministerial statements, not made in an official capacity, provided that such a statement resulted in any act or omission by state officers leading to harm or loss, Justice Nagarathna highlighted the practical difficulty of permitting such statements to, as a norm, be challenged before constitutional courts exercising their writ jurisdiction.

After the decisions in Rudul Sah v. State of Bihar, (1983) 4 SCC 141 and Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465, Justice Nagarathna noted, “a public law action seeking monetary compensation for violation of fundamental rights was no longer an action in lieu of a private law claim, but was to serve an independent and more important purpose”. However, it could not be ignored that the decisions to award compensation in such cases proceeded on the basis of lower evidentiary standards. Furthermore, factual disputes also operated on a writ court’s ability to treat a matter as a constitutional tort, even though the Supreme Court has nevertheless awarded monetary compensation in many cases, particularly where the violation of fundamental rights by the state or its instrumentalities is writ large upon the facts. Writ courts, she said, would also feel reluctant to grant relief to litigants seeking damages in a writ petition or a public interest litigation against the state, in light of the alternative civil and criminal remedies available. Justice Nagarathna explained that even though scholars believed that constitutional tort challenged the ability of law to deter socially harmful behaviour of different kinds by forcing the perpetrator to internalise the costs of their actions, since a constitutional tort action imposed the burden of damages on an entity other than the violator of the right, “a doubt has been cast on its effectiveness in serving as a vehicle of corrective justice”. According to her, owing to these reasons, it would not be prudent to treat all cases where a statement made by a public functionary has resulted in harm or loss to a person or citizen, as a constitutional tort. The caveat, she supplied was where the statement is traceable to any affairs of the state or for the protection of the government and embodies the views of the government itself.

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In this connection, Justice Nagarathna also sounded a word of caution against indiscriminately granting monetary compensation as a means for the ‘vindication of fundamental rights’. Central to the determination of a constitutional tort action are the nature of the resultant harm or loss, and the causal connection between the act or omission and the consequent infraction of fundamental rights. “In the absence of a clear, cogent, and comprehensive legal framework based on judicial precedent, which would clarify what harm or injury is actionable as a constitutional tort, such a device is to be resorted to only in cases where there are brutal violations of fundamental rights,” she said. Thus, this remedy was available not as a norm, but only in exceptional circumstances. While the device of constitutional tort has been evolved by jurisprudential labour to tackle ‘particularly extreme and threatening situations’, “it must be borne in mind that the tool of treating an action as a constitutional tort must not be wielded only in instances wherein state lawlessness and indifference to the right to life and personal liberties have caused immense suffering,” she said. Invocation of writ jurisdiction to grant damages, by treating acts and omissions of agencies of the state as constitutional torts, must, she insisted, be an exception rather than a rule. Further, she recommended the promulgation of a proper legal framework to define the acts or omissions amounting to constitutional tort and the manner in which they would be redressed or remedied on the basis of judicial precedent.

In her separate opinion, Justice Nagarathna also differed from the majority of the four judges with respect to the horizontal application of the fundamental rights enshrined in Articles 19 and 21. She said that permitting such constitutionally consecrated rights to operate against private individuals and entities, unless those rights were recognised statutorily as well, would be fraught with practical difficulties. However, she made an exception for the specific case where a writ of habeas corpus is issued against a private person or entity for illegally and arbitrarily detaining the right-holder. She said, “In my humble view, an illegal detention is a violation of Article 21 of the constitution irrespective whether the detention is by the state or by a private person. Therefore, in the context of the remedy of writ of habeas corpus, Article 21 would operate horizontally.”

Furthermore, Justice Nagarathna asserted that the duty of the state under Article 21 was negative inasmuch as it was only required to not deprive a person of their right to life and liberty, except in accordance with the law. Unlike the majority of the judges who decided to impart a positive character to the state’s constitutional duty under the particular article, Justice Nagarathna observed, “This court has not recognised an affirmative duty of the state under Article 21 of the Constitution to protect the rights of a citizen against the threat to the liberty of a citizen by the acts or omission of another citizen or private agency.”

In her part dissent, Justice Nagarathna furthers proposed to hold the government vicariously liable for a statement made by a minister that is traceable to any affairs of the state or for the protection of the government by invoking the principle of collective responsibility, while the other four judges on the Constitution Bench, rejected the contention that vicarious liability could be envisaged in such a situation. Justice Nagarathna, the junior-most judge on the bench, was the lone dissenting voice.

The other reports about the judgment can be read here.

Case Title

Kaushal Kishor v. State of UP | WP (Crl) No. 113/2016

Citation : 2023 LiveLaw (SC) 4

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