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Report No. 277

B. Private Law Remedy

4.22 The private law remedy for errant acts of State officials exists in the form of a civil suit against the State for monetary damages. The Supreme Court has time and again emphasised the above discussed Constitutional remedy of a claim based on strict liability of the State being distinct from and in addition to the remedy available in private law for damages on account of tortious acts of public servants68 - especially negligence by a public servant in the course of employment.

4.23 The question of tortious liability of the state was examined in the State of Rajasthan v. Vidyawati Mst.69, the case regarded as the precursor of a new trend in the area of State liability; where the Supreme Court held that the State was vicariously liable for the rash and negligent acts of a driver of a State official car that fatally injured a pedestrian. Rejecting the State's plea of exercise of sovereign powers/defence of sovereign immunity, the Supreme Court laid down the proposition that the government would be liable to pay damages for the negligence of its employees if the negligence was "such as would render an ordinary employer liable".

4.24 This broadened scope of the State's liability was, however, later curtailed by the Supreme Court in the case of Kasturi Lal Ralia Ram Jain v. State of U.P.;70 where in a suit filed against the State of Uttar Pradesh seeking damages for the gold ornaments lost because of the negligence of the police officials, the Supreme Court applied the principle of sovereign immunity, observing that the government was not liable to pay damages because the police officers were performing a sovereign function. The police in exercise of sovereign power has immunity from tortious liability; a stark contrast from judicial pronouncements under public law, where the defence of sovereign immunity was rendered inapplicable in cases of police misconduct.71

4.25 Nevertheless, civil/money suits is also a remedy for holding the State accountable by payment of monetary damages. For instance, in cases of malicious prosecution, such as in State of Bihar v. Rameshwar Prasad Baidya & Anr.72, where criminal proceedings were initiated against an accused for the purpose of harassing him, the Court held the State liable to pay damages to the accused person for his malicious prosecution by the State employees.

At the same time, there is a plethora of such civil suits where the function of maintaining law and order, since performed only by the State or its delegates, has been held to be a sovereign function, rendering the State to not be liable for consequences ensuing therefrom.73 The Law Commission also looked into the scope of immunity of the government for the tortious acts of its employees in its 1st Report on 'Liability of State in Tort' (1956); and recommended that "the old distinction between sovereign and nonsovereign functions should no longer be invoked to determine the liability of the State."

4.26 Though there are these alternate remedies, a review of the precedent shows that with respect to illegal detention, wrongful incarceration, and police/other investigating agencies' misconduct, public law remedy under Articles 32 and 226 has been resorted to more heavily than the remedy of civil suits. One of the reasons being that the foregoing actions also entail violation of fundamental rights for which this is the Constitutional remedy, that also tends to be speedier compared to ordinary civil proceedings. Further, the Constitutional Courts have also on various occasions emphasised public law remedy as the remedy for calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the remedy by way of a civil suit or criminal proceedings.74

4.27 The Apex Court distinguishing public law proceedings from private law proceedings in D. K. Basu (supra) held that public law proceedings serve a different purpose i.e. to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interest shall be protected and preserved. Constitutional remedy for the established violation of the fundamental rights under Article 21 is for fixing the liability for the public wrong on the State, which in the first place failed in the discharge of its public duty to protect the fundamental rights of the citizen.

4.28 Further, 'damages' pursuant to a civil action are different from 'compensation' under Article 32 or Article 226, because the former is dependent on the rights available under the private law in an action based on tort, while the latter is compensation in the nature of exemplary damages. It is giving relief by way of making 'monetary amends' for the wrong done due to breach of public duty of protecting the fundamental rights of a citizen.(i) Code of Criminal Procedure, 1973

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