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Constitutional Tort in India

Updated: Dec 29, 2019

The development of constitutional tort which began in the early eighties and was cemented into judicial precedent in Nilabati Behe Nilabati Behera v State of Orissa (1993, p.373) has profoundly influenced the direction the tort law has taken in the past decade.

It has recognised state liability, and in denuding the defence of sovereign immunity the constitutional tort has taken wide arcs around previously established practices in tort law. Constitutional torts fall under absolute liability. Some of these torts are as follows.

1. Custody Death

The incidence of custodial violence and custody death continues unabated. The experience of courts with cases of custodial violence appears to have moved them to regard complaints with reduced suspicion, and enhanced credulity. There is an increasing regularity in referring cases of custody death to the CBI, since it is not seen as realistic to expect that the police will carry out an unbiased investigation in a matter where the police are themselves in the dock.

The regularity with which cases of custodial violence and death reached the courts has made the courts look for reasons for increasing the credulity and lessening the disbelief, particularly when complaints are made of police violence. The doctrine of res ipsa loquitur (the thing speaks for itself) has been imported into this arena.

And, in Kamla Devi v NCT of Delhi (1970) the Delhi High Court has said: “When a person dies in police custody and the dead body bears telltale marks of violence or the circumstances are such that to indicate foul play, the court acting under Article 226 of the Constitution will be justi?ed in granting monetary relief to the relatives of the victim.”

2. Police Atrocity

Excessive or unwarranted use of force by the police constitutes a ground for seeking relief - both compensatory and asking for investigation and prosecution - from the court.

3. Encounter Killing

The labelling of a person as a member of an extremist organization has provided a shield to the police and armed forces ip cases of encounter killings or in fake encounters. The obstacles to enabling investigation in cases of alleged encounters were also set out in various surveys.

4. Illegal Detention

The casual treatment meted out in matters of liberty has led the courts to direct that compensation be paid to those detained beyond the prescription of the law.

In Hussain v State of Kerala (2000, p.139) a person was accused of an offence under the NDPS Act, 1985. Due to the ineptitude of his counsel, he was wrongfully convicted and sentenced to 10 years in prison and a fine of one lakh.

By the time the Supreme Court heard his appeal, aided by an amicus curiae, he had served five years in jail. Acquitting the appellant, the court, however, said: “In this case, we are not considering the question of awarding compensation to the appellant but he is free to resort to his remedies under law for that purpose”.

5. Disappearances

Cases of disappearances continue to crop up in the courtroom. The disappearance of persons picked up by the armed forces has raised presumptions of the disappeared being dead, unless the armed forces produce the person.

It has also led to presumptions of the armed forces having disappeared the person. Yet, in constitutional tort, the remedy has been limited to directing the payment of compensation as an interim measure.


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