Minister's Speech A 'Constitutional Tort' If It Leads To Acts Of Officers Harming Persons : Supreme Court

In a significant development, a Constitution Bench of the Supreme Court on Tuesday said that a statement by a minister would be actionable as a constitutional tort if such a statement leads to an act or omission by officers of the state resulting in harm or loss to a person or citizen.“A mere statement made by a Minister, inconsistent with the rights of a citizen under Part III of the Constitution, may not constitute a violation of the constitutional rights and become actionable as constitutional tort. But if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person/citizen, then the same may be actionable as a constitutional tort", a Constitution Bench of the Court held by 4:1 majority in the case Kaushal Kishore vs State of UP. Justice V. Ramasubramanian, writing the majority judgement on behalf of himself, and Justices S. Abdul Nazeer, B.R. Gavai, and A.S. Bopanna, highlighted how the top court has, on several occasions, awarded compensation in public law, invoking the principle of constitutional tort, either expressly or impliedly. Although the judge observed that constitutional courts have consistently invoked constitutional tort whenever an act of omission and commission on the part of a public functionary, including a minister, caused harm or loss, he also recognised the merit in the contention of the Attorney-General for India, R. Venkataramani, that a proper legal framework needed to be designed by the Parliament “so that the principles and procedure are coherently set out without leaving the matter open-ended or vague”.It was noted in the majority judgement that the Law Commission in 1956 had outlined certain principles on which appropriate legislation on the tortious liability of the state would proceed, in its first report on the ‘Liability of the State in Tort’, and that based on the report, a bill known as the Government (Liability in Torts) Bill was introduced in 1967 after the Supreme Court in Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039 recommended a legislative measure on the subject-matter. However, Justice Ramasubramanian observed with dismay, neither did the proposed legislation pass parliamentary muster nor was any effort made subsequently to codify the law on the state’s liability in tort. He said, “Nothing [has] happened in the past 55 years. In such circumstances, courts cannot turn a blind eye but may have to imaginatively fashion the remedy to be provided to persons who suffer injury or loss, without turning them away on the ground that there is no proper legal framework.”Also from the judgment - No One Can Be Penalised For Holding An Opinion Not In Confirmity With Constitutional Values: Supreme CourtHaving explained the rationale behind the decision, Justice Ramasubramanian then proceeded to answer the question of whether a statement by a minister inconsistent with the rights of a citizen under Part III of the Constitution constituted a violation of such constitutional rights and would be actionable as a constitutional tort, in the affirmative. However, he qualified his answer with an important precondition. Justice Nagarathna DissentsNotably, Justice B.V. Nagarathna took a different stand with respect to the liability of a minister under constitutional tort law for a disparaging or derogatory statement affronting the fundamental rights of a person or a citizen. While her colleagues on the bench held that damages could be sought for such ministerial statements, not made in an official capacity, provided that such a statement resulted in any act or omission by state officers leading to harm or loss, Justice Nagarathna highlighted the practical difficulty of permitting such statements to, as a norm, be challenged before constitutional courts exercising their writ jurisdiction.After the decisions in Rudul Sah v. State of Bihar, (1983) 4 SCC 141 and Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465, Justice Nagarathna noted, “a public law action seeking monetary compensation for violation of fundamental rights was no longer an action in lieu of a private law claim, but was to serve an independent and more important purpose”. However, it could not be ignored that the decisions to award compensation in such cases proceeded on the basis of lower evidentiary standards. Furthermore, factual disputes also operated on a writ court’s ability to treat a matter as a constitutional tort, even though the Supreme Court has nevertheless awarded monetary compensation in many cases, particularly where the violation of fundamental rights by the state or its instrumentalities is writ large upon the facts. Writ courts, she said, would also feel reluctant to grant relief to litigants seeking damages in a writ petition or a public interest litigation against the state, in light of the alternative civil and criminal remedies available. Justice Nagarathna explained that even though scholars...

Minister's Speech A 'Constitutional Tort' If It Leads To Acts Of Officers Harming Persons : Supreme Court

Awstika Das

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