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If the plaintiff has a right, “he must of necessity have the means to vindicate and maintain it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy


If the plaintiff has a right, “he must of necessity have the means to vindicate and maintain it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.” [1] The scope and breadth of actions brought against the state to impose state accountability for human rights violations are growing. Furthermore, it is an unambiguous principle of civil and criminal law that anyone who infringes on another’s rights should be punished, with monetary compensation paid in specific circumstances when the victim has been hurt by the infringement. Similarly, in a society controlled by the rule of law and democracy, the State, which performs its functions through a large workforce, is obligated to give monetary compensation when its personnel violates rights, with limited exceptions. The Supreme Court’s establishment of the extraordinary remedy of writ compensation by using its vast powers under Article 32 and Article-226 in unique and legitimate ways exemplifies this approach. The rise of the “Constitutional Tort” in several countries, most notably the United States, is a concrete manifestation of this idea. All claims for damages brought against government personnel for infringing on an individual’s federal constitutional rights in the United States are referred to as “constitutional torts.” In this context, the concept of “basic” rights is meaningless unless the Constitution is interpreted to include some positive remedy in the event of a major violation. When someone’s rights are violated, they can’t be undone, hence the only realistic and effective way to provide palliative care for the victim’s wounds is to compensate them.


The monarch was regarded as a heavenly son in medieval England. As a result, the king’s acts were always seen as fair. As a result, the king had immunity and could not be held accountable. The Crown Proceedings Act of 1947, on the other hand, changed the status of the old Common law maxim in England. Previously, the King could not be prosecuted in tort for wrongs that he or his subordinates had committed while on the job. The Crown Proceedings Act was enacted in response to the development of state powers, making the Crown liable for torts committed by its servants in the same way as a private individual is.


The rest of Europe took a different approach to the issue of government culpability. The king was not immune from compensating his subjects because his first duty was to protect the people and their rights. The king’s main responsibilities included ensuring the safety of people and their property, as well as maintaining a peaceful environment with fair laws. While performing this duty, the king was not exempt from paying remuneration to the general populace. When the king compensates a disgruntled party for stolen goods that the officials are unable to collect, the scenario is evident. Similarly, the Federal Tort Claims Act of 1946[2] defines the criteria that regulate the issue of state liability in the United States. The United States has a written Constitution with a Bill of Rights that includes a section[3] that guarantees due process of law. The aforementioned provision grants the judiciary considerable powers to administer thorough justice and, in suitable cases, monetary compensation. Affirmative remedies, on the other hand, haven’t always been based on the Constitution. There has been a significant inclination to neutralize the effect of constitutional infringement, as in Mapp v. Ohio[4], when it was simply declared that evidence gathered by the state in violation of the Fourteenth Amendment could not be submitted in court. Courts began to evaluate a wide range of constitutional remedies in the mid-twentieth century. The constitutional tort action arose from a series of Supreme Court decisions in which the Court acknowledged that the common law could not adequately regulate the government’s unique power to inflict injuries and established a system in which federal and state officials’ actions that result in personal injury are governed by the Constitution rather than the state common law systems. As a result, the American Bill of Rights is a potent constitutional limitation that can be used to bring a damages case without the approval of the legislature.


The question of a state’s tort liability has produced a host of intriguing legal debates. In India, no law addresses the state’s responsibility for the acts of its servants. Article 300 of the Constitution of India, 1950, enumerates the Union’s or State’s culpability for the government’s tortious activities. The British East India Company’s Acts laid the foundation for constitutional tort in India. Article 300 of the Constitution was created by Section 176 of the Government of India Act, 1935. Articles 32 and 226 of the Constitution entrust the Supreme Court and the High Court with enforcing fundamental rights. “To compel the obedience of the law,” as the name “enforcement” implies. As a result, it appears that this includes not just the redress of individual violations, but also ensuring that rights are not violated in the future without consequence. The Constitution has specifically entrusted the Supreme Court with this responsibility, and it is the “sole arbiter” of the appropriateness of any relief that may be given. Even though traditional writs of relief would be completely insufficient to achieve the goals of Part III, there was little chance of a positive, dynamic remedy being granted under Article 32. It is maintained, however, that a basic reading of Article 32 does not justify this narrow construction.

Even though monetary compensation for violations of fundamental rights is a well-established remedy, courts have limited their ability to provide it. For example, when there are disputed facts and the State denies tortious liability, the courts may refuse to issue a writ of compensation. Several cases demonstrate the Court’s shift from a cautious to an assertive, rights-oriented stance, demonstrating how firmly it established this position. After a series of judicial decisions, the trend has become well-established. Khatri v. State of Bihar[5] was the first case in which the Supreme Court had to deal with the compensation issue. In Devaki Nanda v. State of Bihar[6], a breakthrough was made. The petitioner’s pension had been postponed for twelve years in this case. The petitioner was granted “exemplary costs” for “intentional, deliberate, and motivated” harassment of the petitioner, while no particular rights breach was noted in the ruling. Rudul Sah v. State of Bihar[7], a precedent-setting case, was decided the same year. The petitioner, who had been exonerated by the Court of Sessions but had been incarcerated for fourteen years, filed a habeas corpus petition in which he also sought ancillary relief such as rehabilitation, payment of medical expenditures, and compensation for illegal incarceration. Though the concept of compensating victims of abuses of fundamental rights had a shaky start in Indian constitutional law, it is now widely accepted. It is commonly known that courts can and do award writ compensation for violations of fundamental rights. In addition, when a court awards damages for a violation of Article 21, “it is administering the law of constitutional torts, and as a result, it is not limited by ideas exclusive to common law torts.”


The remedy of writ compensation is still relatively new in India, even though it has been available in the United States since 1961. The American experience demonstrates that the enormous benefits to public tort law’s policy goals – improved recompense for victims, stronger deterrent, renewed vigour in decision-making, and increased legal order integrity – far outweigh any potential negative consequences of these liability proposals. However, in its well-intentioned desire to correct public wrongs through a strategy akin to Constitutional Tort, the judiciary now finds itself without guidance in determining compensation issues for infringement of fundamental rights.

Author(s) Name: Preeti (National Law University, Delhi)


1 Ashby v. White, 92 Eng. Rep. 126, 136 (Holt C.J.)

[2] Federal Tort Claims Act, s-40

[3] “The Constitution of the United States”, Amendment 5

[4] 367 U.S. 943 (1961)

[5] A.I.R. 1981 S.C. 928

[6] A.I.R. 1983 S.C. 1134

[7] A.I.R. 1983 S.C. 1086