TABLE OF CONTENTS CHAPTER 1 1

TABLE OF CONTENTS
CHAPTER 1
1.1 INTRODUCTION……………………………………………………………………………3
1.2 AIMS AND OBJECTIVES…………………………………………………………………..3
1.3 RESEARCH METHODOLGY………………………………………………………………3
1.4 RESEARCH QUESTIONS…………………………………………………………………3
1.5 CHAPTERISATION………………………………………………………………………..3
CHAPTER 2
2.1 HISTORY OF CONSTITUTIONAL TORT………………………………………………4
2.2 HISTORY OF CONSTITUTIONAL TORT IN INDIA…………………………………..4
CHAPTER 3
3.1 REASON BEHIND THE DEVELOPMENT OF CONSTITUTIONAL TORT…………..4
3.2 DEVELOPMENT OF CONSTITUTIONAL TORT THROUGH MAJOR JUDGMENT…5
CHAPTER 4
4.1 CONSTITUTIONAL TORT IN AMERICAN JURISDICTION…………………………..7
4.2 CONSTITUTIONAL TORT IN OTHER JURISDICTIONS………………………………7
CHAPTER 5
5.1 CONCLUSION……………………………………………………………………………8
5.2 BIBLIOGRAPHY…………………………………………………………………………9

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CHAPTER 1
1.1 INTRODUCTION:
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.
1.2 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. It also compares the development of constitutional torts in India with other jurisdictions and its jurisprudential approach towards it.
1.3 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.
1.4 RESEARCH QUESTIONS:
1. What are the essential reasons that led to the development of constitutional torts?
2. Can tortious liability arise as a result of infringement of rights in the constitution?
1.5 CHAPTERISATION:
The paper consists of five chapters including introduction and conclusion. Chapter one deals with introduction. Chapter two deals with the tracing back of history that led to the development of constitutional tort in India. Chapter three basically deals with the development of constitutional torts through a series of major landmark Supreme Court judgments. Chapter four deals with the comparison of constitutional torts with different jurisdictions. Chapter five deals with conclusion.

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CHAPTER 2
2.1 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.
2.2 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.
CHAPTER 3
3.1 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.
3.2 DEVELOPMENT OF CONSTITUTIONAL TORT THROUGH MAJOR JUDGMENTS:
RUDAL SHAH VS STATE OF BIHAR:
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:
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:
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:
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:
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:
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:
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.

CHAPTER 4
4.1. CONSTITUTIONAL TORT IN AMERICAN JURISDICTION:
The action for constitutional torts against the state lies in 42 of USCS of 1983. This allows for action against the government employees for damages for the violation of the federal constitutional right. A major landmark decision of the Supreme Court in this regard is Monroe vs Pope . In this case the police officers broke the apartment of Monroe. The police escorted Monroe to the police quarters and interrogated about the charges of a murder for about ten hours. The police did not have a warrant for arrest and refused Monroe’s permission to call his attorney.
It was observed by the court that the civil rights of the person were infringed when the state violated the due process of law. The court in this case held that “a plaintiff whose constitutional rights have been infringed by one acting under the state can bring a federal cause of action under section 1983 even where the state provides an adequate remedy”.
4.2 CONSTITUTIONAL TORT IN OTHER JURISDICTIONS:
ENGLAND
In England before the enactment of the Crown Proceedings Act the king cannot be sued in courts. The Crown Proceedings Act came into existence in the year 1947. Thus the tortious immunity to the crown was abolished in 1947. The state liability in England also exists for the breach of human rights.
GERMANY
Article 19 of the German Constitution states that “anyone who is in violated of his/ her rights by acts or omissions of the German Public Authority has the right to judicial remedy”. Article 4 describes the liability of the state for the tortious acts of its agents. The German courts observed that the right to effective remedy or compensation can only be claimed in connection of a infringement of basic right of the individual conferred by the law.

ITALY
In Italy the compensations or claims based on the violations of human rights enshrined in the constitution is primarily in criminal and administrative law. Thus the legal basis for compensation is to be found in administrative law.
SLOVENIA AND POLAND
In Slovenia the right to be compensated for damage caused by the unlawful actions of the public authorities for the infringement of fundamental rights is considered to be a human right in itself. In Poland the right to compensation as a matter of constitutional protection can be sought with respect to article 77(1) of the Polish constitution. The compensation is sought after a constitutional complaint is made in a constitutional court.
CANADA
The Charter of Rights and Freedoms which was enacted in the year 1982 is a part of the Canadian Constitution. It provides for the enforcement of civil rights against the government entities. The court provides for damages for the infringement of human rights if the court considers it as appropriate and just for the circumstance. In Canada there are also various human rights tribunals established which may award monetary compensation only when it proves to be just and appropriate.
CHAPTER 5
5.1 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.
5.2 BIBLIOGRAPHY:
BOOKS:
1. Law of Torts, RK Bangia
2. The Law of Torts, MN Shukla
WEBSITES:
1. www.blog.ipleaders.in
2. www.lawyerservices.in
LEGAL DATABASE:
1. www.indiankanoon.org
2. www.manupatrafast.com
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.