Rudul Sah v State of Bihar (1983) and Nilabati Behera v State of Orissa (1993)

Between them these two judgments created a wholly new head of liability in Indian law: the constitutional tort. Before 1983 a person wronged by the State had one route — a civil suit for damages, where he would meet limitation, court fees, years of delay, and the plea of sovereign immunity founded on Kasturi Lal. After 1993 he had a second route, and a far better one: a petition to the Supreme Court under Article 32 or to a High Court under Article 226, in which compensation may be awarded as a public-law remedy, on strict liability, with no defence of sovereign immunity.

That is the single most important development in Indian State liability since 1965, and it is the answer to any exam question that asks how the Indian citizen escapes Kasturi Lal.

Learn the division of labour between the two cases. Rudul Sah established that the writ court can award money. Nilabati Behera explained why — by identifying the jurisdiction as public law, distinct from and additional to the private-law action in tort.

Rudul Sah — fourteen years too long

Rudul Sah was tried for the murder of his wife and acquitted by the Court of Sessions at Muzaffarpur, Bihar, on 3 June 1968. The order of acquittal directed his release from jail pending further orders.

He was not released. He remained in Muzaffarpur jail. Nobody, apparently, thought about him again for fourteen years. He was finally let out on 16 October 1982 — more than fourteen years after the court had acquitted him.

Some weeks later he filed a petition in the Supreme Court under Article 32 for a writ of habeas corpus, together with ancillary reliefs: his rehabilitation, medical treatment at State expense, and compensation for his illegal detention.

By the time the petition was heard he was already out, so the habeas corpus prayer was infructuous. What survived was the claim for money. The State's explanation was that Rudul Sah had been found insane at the time of acquittal and was detained until his sanity was restored — an explanation which the Court found wholly unsupported by any material, no medical record or order being produced to justify a detention of fourteen years.

Nilabati Behera — the body on the railway track

Suman Behera was twenty-two. On 1 December 1987 he was taken into police custody by an Assistant Sub-Inspector at the Jeraikela police outpost in Sundargarh district, Orissa, in connection with the investigation of a theft, and was detained there.

The next day — 2 December 1987 — his body was found on a railway track not far from the outpost. It bore multiple injuries.

His mother, Nilabati Behera, wrote a letter to the Supreme Court dated 14 September 1988. The Court treated the letter as a writ petition under Article 32 and took it up as a public interest matter.

The State's defence was that Suman Behera had escaped from custody in the early hours and had been run over by a train. The Court appointed a District Judge to inquire. The medical evidence showed that the injuries could have been caused by blows from a hard blunt object such as a lathi, that they were ante-mortem, and that they were not consistent with a railway accident. The Court found that Suman Behera had died in police custody as a result of the injuries inflicted on him.

1. Can the Supreme Court, in a petition under Article 32, award monetary compensation — or is its power confined to issuing a writ releasing the detenu or quashing the illegal act?
2. If it can, what is the juridical basis of that award, and how does it relate to the ordinary remedy in tort?
3. Is the defence of sovereign immunity available to the State against such a claim?

The objection, taken in Rudul Sah and pressed again in later cases, was a serious one and must be stated fairly. Article 32 confers a jurisdiction to enforce fundamental rights by issuing the prerogative writs. Damages are the classic relief of a civil court, awarded after pleadings, discovery and the examination of witnesses. A writ court proceeds on affidavits. To award damages in a summary proceeding is to decide questions of fact — the extent of injury, the quantum of loss — without the machinery designed for the purpose, and to convert Article 32 into a substitute for a civil suit.

For the petitioners, the answer was that a right without a remedy is not a right. If the only order the Court can pass on finding fourteen years of unlawful imprisonment is "you are free to go", then Article 21 secures nothing.

Rudul Sah. The Court held that it can award compensation in a petition under Article 32, and directed the State of Bihar to pay Rudul Sah a further sum of Rs 30,000, in addition to the sum of Rs 5,000 already ordered to be paid.

Nilabati Behera. The State of Orissa was directed to pay Rs 1,50,000 to the mother, with Rs 10,000 as costs to the Supreme Court Legal Aid Committee. Sovereign immunity was held to be no answer.

Rudul Sah. Article 32 empowers the Supreme Court to award monetary compensation against the State where there has been a gross and patent infringement of a fundamental right, particularly the right to personal liberty under Article 21. The award is not damages in the tortious sense; it is a palliative, and it does not preclude a separate suit for full damages against the State and its erring officials.

Chandrachud CJ's reasoning is short and worth having exactly:

"Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention."

"One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation."

"The refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated."

He was careful about the limits. Article 32, he warned, cannot be used as a substitute for the enforcement of rights which can be enforced efficaciously through the ordinary courts. The jurisdiction is for cases where the violation is gross and the facts are not in serious dispute.

Nilabati Behera. Three propositions, and these are the ones to memorise.

First, the remedy is a public-law remedy, distinct from and in addition to the private-law remedy in tort. As Verma J put it:

"Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort."

The claim "is distinct from, and in addition to, the remedy in private law for damages" for the tort resulting from the contravention.

Second, liability is strict. The State's liability arises from the contravention of the fundamental right itself. The claimant does not have to prove negligence, malice or the identity of the individual wrongdoer; where a person is taken into custody healthy and comes out dead or injured, the burden of explanation lies on the State.

Third, sovereign immunity is not available. It is a defence in private law only; it has no place in a proceeding for enforcement of a fundamental right.

Anand J added the sentence that gets quoted in every essay on the subject:

"The purpose of public law is not only to civilize power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights."

The answer to the "writ courts cannot award damages" objection. The Court did not deny that damages belong to the civil court. It made a different point: the award under Article 32 is not damages at all. Its function is not to compensate fully but to enforce the right — to make the guarantee in Article 21 operative rather than decorative. That is why the sum in Rudul Sah was expressly interim in character, described as a palliative, and why the Court left the petitioner free to sue for the balance. The two remedies sit side by side; the constitutional one is quick and public, the private one is full and slow.

Why the label matters. Once the claim is characterised as public law, three consequences follow automatically. Sovereign immunity, being a private-law doctrine descended from "the King can do no wrong", is irrelevant. The strict-liability basis means the claimant need not identify the individual policeman or prove his state of mind. And the ordinary bars of a civil action — court fees, limitation, the burden of formal proof — do not obstruct the petition.

The custodial-death evidentiary problem. Nilabati Behera addresses the practical reason the constitutional tort was necessary. In a custodial death the only witnesses are the police. The victim's family cannot prove what happened inside the lock-up. Strict liability, coupled with the burden on the State to explain, is the only doctrine that makes the right enforceable at all.

The international-law step. The Court invoked Article 9(5) of the International Covenant on Civil and Political Rights, which India ratified in 1979: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." India had entered a reservation to that clause, on the footing that Indian law did not provide such an enforceable right. The Court's answer was that the reservation had lost its relevance, because by 1993 Indian law — through Rudul Sah and the cases after it — did provide exactly such a right. It is a striking piece of reasoning: the Court used its own case law to dissolve the Government's reservation to a treaty.

Bhim Singh v State of J&K (1985). Bhim Singh, an MLA of Jammu and Kashmir, was arrested by the police while on his way to attend a session of the Legislative Assembly, was not produced before a magistrate as required, and was thereby prevented from attending the House. By the time the petition was heard he had been released, so no writ could issue. The Court awarded him Rs 50,000 as compensation, and observed that "police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to bizarre acts of lawlessness." The case matters because the detention was short and the loss largely dignitary — showing the remedy is not confined to long imprisonment or death.

D.K. Basu v State of West Bengal (1997). The most important sequel. Treating a letter from the Legal Aid Services, West Bengal as a writ petition, the Court reviewed custodial deaths across India and laid down eleven requirements to be followed in all cases of arrest and detention — accurate identification and name tags for the arresting officers; an arrest memo attested by a witness and countersigned by the arrestee; the right of the arrestee to have a friend or relative informed; an entry in the diary at the place of detention; an "Inspection Memo" recording injuries at the time of arrest; medical examination every 48 hours by an approved doctor; copies of documents to the Magistrate; the right to meet a lawyer during interrogation; and a police control room where arrests must be notified within 12 hours. Failure to comply renders the officer liable for departmental action and for contempt. Most of these requirements were later given statutory form in the Criminal Procedure Code by amendment and now appear in the corresponding provisions of the Bharatiya Nagarik Suraksha Sanhita 2023. On liability, D.K. Basu reaffirmed Nilabati Behera: monetary compensation in public law is an appropriate and sometimes the only effective remedy, and sovereign immunity is no defence.

Chairman, Railway Board v Chandrima Das (2000). A Bangladeshi national, Hanuffa Khatoon, was gang-raped by railway employees at the Rail Yatri Niwas at Howrah station. An advocate of the Calcutta High Court petitioned under Article 226. Three objections were taken and all three failed. On maintainability: "Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law." On locus standi: the petition sought wider relief and was in truth a public interest petition. And on the point for which the case is famous — that the victim was a foreign national — the Court held that while Articles 15, 16 and 19 are confined to citizens, Articles 14, 20, 21 and 22 extend to "persons". Hanuffa Khatoon was "entitled to all the constitutional rights available to a citizen so far as 'right to life' was concerned". The High Court's award of Rs 10 lakh was upheld, to be paid through the High Commissioner for Bangladesh. The Court added that Kasturi Lal "cannot be pressed into aid": running the railways is a commercial activity.

Sube Singh v State of Haryana (2006). The corrective. The Court reviewed the whole line and held that compensation in writ jurisdiction is not to be awarded as a matter of course in every allegation of custodial violence. It is appropriate where the violation is patent and incontrovertible — a custodial death, a disappearance, torture established by medical evidence — or where the violation is gross and of a magnitude that shocks the conscience. Where the allegations are disputed and would require detailed evidence to establish, the proper course is to direct an investigation (including by an independent agency) or to relegate the claimant to a civil suit or to the criminal process, rather than to award damages on affidavits.