In a short but significant judgment delivered on August 28, Additional District Judge Jitendra Mishra at the Patiala House Courts, Delhi awarded damages of Rs. 2 lakhs to Lokendra Singh Bati, a businessman based in Noida, who sued the Ministry of External Affairs and Ministry of Home Affairs for wrongly impounding his passport at the airport. Mr. Bati was due to board an international flight to Dubai, on the grounds that there was a police case filed against him and that his name appeared on the ‘Look out Circular’ (LoC). Mr. Bati appears to have argued that the wrongful impounding of his passport caused harm to his reputation resulting in defamation and also deprivation of his liberty and freedom to travel.
The court after conducting a trial agreed with Mr. Bati that his name was wrongly included on the LoC. On the issue of defamation, the court states:
This court also agrees with Ld counsel for the plaintiff that plaintiff has suffered mental agony when he was not allowed to board the flight for Dubai and was detained at IGI Airport on 15.08.2014. He might have also cut a sorry figure and become a laughing stock before his family and friends.
On the issue of whether Mr. Bati was deprived of his liberty, the court ruled:
This court is also of the considered view that since the plaintiff is living in a democratic society where a person should not be detained or curtailed his freedom without due process of law and the defendants without proper verification encroached the right of freedom of the plaintiff.
This is a rare judgment where a district judge has found the central government liable for committing a tort against a private citizen and is an interesting example in a country where despite flagrant rights violations by the bureaucracy, the victims rarely sue the government in civil court for damages. This reluctance can be put down to a lack of knowledge of such a remedy, bothersome sovereign immunity provisions in the law, the rather low faith in civil courts given the glacial pace of adjudication and the fact that the Supreme Court has created a new, somewhat arbitrary class of torts called “constitutional torts”.
The practice of approaching High Courts or the Supreme Court for the so called “constitutional torts” emerged in the eighties. A regular tort is basically any wrong committed against any person that results in damages to the said person. A tort can be committed by either a private party or the government. The most frequent torts would include negligence, defamation or passing off. Such lawsuits are usually filed in civil courts although in India due the enactment of sector specific legislation we have a splintered system of special fora like the consumer courts or the railways claims tribunal or the motor vehicle claims tribunal that deal with claims that would otherwise be dealt with by civil courts under ordinary tort law. Tort litigation generally takes time because a trial has to be conducted to ascertain facts. It is time consuming but a trial is the only way to settle factual disputes.
In the eighties, when the Supreme Court became significantly more activist, it started awarding ‘compensation’ for the so called ‘constitutional torts’. A typical fact situation would involve a citizen approaching the court through a writ petition complaining of a violation of a fundamental right and the Supreme Court would grant compensation while also giving liberty to the petitioner for filing a civil lawsuit for damages under tort law.
For example, in the case of Rudul Sah v. State of Bihar, Justice Chandrachud was faced with a petitioner who had been detained in prison for over 14 years after his acquittal. The petitioner filed a habeas corpus petition seeking his release and his compensation. While ordering the release of the prisoner, Justice Chandrachud declared that the violation of fundamental rights could be remedied through the grant of compensation, and that the petitioner could also institute a lawsuit for damages against the government for wrongful confinement and loss of liberty. This practice of granting compensation for violation of fundamental rights, rather than regular torts like wrongful confinement, came to be known as constitutional torts. Justice Chandrachud sums it up in the following paragraph:
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 right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. (sic)
On the basis of this reasoning, Justice Chandrachud awarded a compensation of Rs. 30,000 to the petitioner. Post the Rudul Sah case, there were several judgments from the Supreme Court where compensation was awarded for wrongful actions by the state.
The problem with this approach, that was concretized in subsequent cases like Bhim Singh v. State of J&K (wrongful confinement) Nilabati Behera v. State of Orissa (custodial death) and D.K. Basu v. State of West Bengal (custodial violence) is that the Supreme Court has assumed for itself the power to grant compensation for violation of fundamental rights when it was never granted any powers to do so by Parliament.
From a procedural view point, it should be mentioned that the Supreme Court and High Courts (in their role as constitutional courts) lack any kind of procedural setup to examine issues of fact and conduct trials – this is a relevant issue because in order to grant compensation, the court will have to examine factual issues through a trial in order to determine whether a wrong has been committed and also the quantum of damages. For example, if a citizen sues for wrongful confinement or negligence, the court needs to conduct a trial to assess the damage suffered by the citizen in monetary terms such as loss of income or damage to property. These are complex issues that require procedural and evidentiary rules to ensure fairness to all parties. In India, civil courts governed by the Code of Civil Procedure and the Evidence Act are well equipped to conduct trials although these trials can take long, depending on the complexity of the facts.
Thus although these judgments dealing with constitutional torts appear have a certain populist appeal in the eyes of activists and votaries of social action litigation, the complete disregard for procedural law opens the door to arbitrariness – a trend that was sparked by the invention of the Public Interest Litigation (PIL), which Anuj Bhuwania has so rightly excoriated in his must-read book Courting the People. As Bhuwania rightly comments in his book this trend of diluting procedure has dripped through the entire judicial system opening the door to arbitrary behavior across the board. Even the constitutional torts theory has been applied randomly by the Supreme Court. Take for example the Aksharadham terror case where 6 acquitted citizens, who were clearly the subject of a malicious prosecution by the Gujarat police, were denied compensation by a bench headed by Justice Dipak Misra on the grounds that it would set a dangerous precedent.
But returning to the case at hand where Mr. Bati was awarded damages of Rs. 2 lakhs, I would consider it a significant victory for three reasons. First, it is rare to see a wronged citizen sue the government before a civil court as opposed to a constitutional court, for a regular tort committed by the government as opposed to a constitutional tort. Second, this judgment was delivered in a remarkable time span of 2 years 6 months, which is close to lightning speed by Indian standards of litigation. Third, civil courts unlike High Courts are spread across the country in literally every district making the judicial system much more accessible and affordable to citizens because lawyers in smaller towns and cities charge less than High Court lawyers.
The only omission in the judgment is any discussion on the issue of ‘good faith’ immunity given to government officers under Section 16 of the Passports Act, 1967 but if the court didn’t discuss the issue, it would appear that the government waived its immunity on the calculation that its actions would not be construed as good faith.
In a country struggling to make the bureaucracy accountable to citizens, the only hope is to sue the government for monetary damages holding it liable for the misdeeds of its officers. The prospect of facing a cross-examination and having to explain an adverse judgment and damages to a superior officer may spur more accountability amongst the bureaucracy. One only hopes more people sue the government every time its officers violate civil liberties.
Prashant Reddy is an Asst. Professor at NALSAR University of Law, Hyderabad.