← The hardest concepts in Indian law
In one breath
When the State violates a fundamental right, such as by unlawful detention or custodial death, the Supreme Court and the High Courts can order it to pay compensation in a writ petition, as a remedy in public law. This is separate from the victim’s right to sue in tort, and the State cannot answer it by pleading sovereign immunity.
The picture
The second counter
A bank has two counters. At the first, a customer who has been wronged asks for compensation through the ordinary process of a claim and a trial, which takes years. At the second, a customer whose basic account rights have been broken can ask a senior officer for immediate redress. The customer who goes to the second counter is not forbidden from also trying the first.
Before the 1980s the State’s liability in tort turned on whether the act was done in the exercise of sovereign powers, as in Kasturi Lal, which refused compensation for goods lost through the negligence of police. In Rudul Sah the Court awarded compensation under Article 32 to a man kept in jail for years after his acquittal, and in Nilabati Behera it held that compensation for a violation of a fundamental right in custody is a remedy in public law that the doctrine of sovereign immunity does not defeat. In D K Basu the Court laid down safeguards on arrest and confirmed that compensation can follow a breach.
Where the picture stops working
A bank’s two counters are independent and well signed, but the line between the writ remedy and the civil suit is drawn by the courts. The Court has said that writ compensation is suited to clear cases where the facts are undisputed, and a doubtful or contested claim is better sent to a civil court. The metaphor also suggests a fixed price list, though amounts are fixed by the courts and have been described as an interim or palliative sum and not full damages.
How it really works
- 1Identify the violation: a breach of a fundamental right, usually Article 21, by an agent of the State, such as police detention or death in custody.
- 2Decide the forum: a writ petition in the High Court or the Supreme Court is available when the facts are clear and the violation is established.
- 3Reject the defence of sovereign immunity. In a public law claim for violation of fundamental rights, it does not apply.
- 4Assess compensation as an award that recognises the wrong and the harm, noting that it is fixed by the court and may be treated as a palliative.
- 5Remember that the victim may also sue in tort or ask for prosecution, and that any sum paid may be taken into account.
Why people get it wrong
- Thinking sovereign immunity bars every claim against the State. It does not defeat public law compensation for violation of fundamental rights.
- Treating the writ remedy as a substitute for the civil suit. It is an additional remedy, and the victim may use both.
- Using a writ for every disputed claim. The courts decline it where the facts need a full trial.
- Assuming the compensation must equal full tort damages. It is fixed by the court and may be lower.
A worked example
The facts are invented
Dev, a young man, is taken from his home by police officers and dies in the police station the same night. A post-mortem report shows injuries inconsistent with the police’s account. His mother petitions the High Court under Article 226.
The Court asks whether a fundamental right was violated by agents of the State. The report is strong evidence that the right to life was violated in custody. The State cannot plead sovereign immunity, so the Court may order the State to pay compensation at once, and direct an investigation. Dev’s mother may still bring a suit for damages in the civil court or push for a prosecution of the officers, and the court may take any sum already paid into account.
Try it
A person dies in police custody because of State action. The State says that it is immune because police are exercising sovereign power. How does the Court treat that argument in a claim for compensation under a writ?
Landmark authorities
Read the sources themselves; this list is a starting point.
- State of Rajasthan v Vidhyawati, AIR 1962 SC 933
- Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh, AIR 1965 SC 1039
- Rudul Sah v State of Bihar, (1983) 4 SCC 141
- Nilabati Behera v State of Orissa, (1993) 2 SCC 746
- D K Basu v State of West Bengal, (1997) 1 SCC 416
Where to go next
Courses
Dictionary
More hard concepts in India law
- Absolute liability for hazardous industry (Tort law)
- The rarest of the rare doctrine (Criminal law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.