constitutional tort

When State agents violate Article 21, as in custodial death or illegal detention, the Supreme Court under Article 32 and High Courts under Article 226 can award monetary compensation directly. This is a public law remedy, separate from a civil suit for damages in tort. Sovereign immunity, which may limit private law claims against the State, is no defence to it.

The compensation is not a full assessment of damages. It does not bar a civil suit, though any amount awarded in the writ may be adjusted against damages in the suit. The State is liable for its servants' acts and may recover from the officers responsible.

Example

Since the son died in police custody, his mother may seek compensation by way of constitutional tort under Article 32, and the State cannot plead sovereign immunity.

In Indian law

• Articles 21, 32 and 226, Constitution of India
• Nilabati Behera v. State of Orissa, 1993 INSC 113: compensation for custodial death; sovereign immunity no defence in public law

See also

sovereign immunity · right to life and personal liberty · writ · vicarious liability

Read more in the study notes

• Government contracts and state liability: the administrative-law angle (Administrative Law)
• State liability in tort and contract (Constitutional Law II)
• Compensation jurisprudence: public law damages for violation of fundamental rights (Indian Constitutional Law - New Challenges)
• Law-making: the legislature, the executive and the judiciary (Interpretation of Statutes and Principles of Legislation)
• Reform of justice delivery: legal aid, Lok Adalats, ADR, Gram Nyayalayas, PIL and plea bargaining (Law and Social Transformation in India)
• The Constitution of India and Human Rights (Law of Intellectual Property Rights, Human Rights and Environment)