In this blog, we will write about the concept of constitutional tort, the constitutional mandate of principle of constitutional tort, the root of constitutional tort, the scope and applicability of tort law principles by the judiciary in constitutional tort litigation and lastly extent of constitutional tort in domestic jurisprudence with relevant case references.
What is Constitutional Tort?
A constitutional tort is the infringement of citizen’s constitutionally guaranteed fundamental rights by a local authority or government servant or employee. Constitutional tort is comparatively a modern judicial instrument, which is used by the higher judiciary to make the State accountable vicariously, for the faults of its employees or servants. Constitutional tort litigation is a kind of litigation, where the affected party is entitled to legal remedy in the nature of damages if any of his/her fundamental rights are violated.
A constitutional tort is an act or omission which expressly or impliedly contravenes the provisions of the Constitution but is not otherwise tortious. It does not create any substantive rights, but gives a legal redress in the form of exemplary damages for the affected party or victim who have been deprived of basic human rights ensured by the Constitution.
Origin of Constitutional Tort
In the medieval period of England under common law jurisprudence, there exists a legal maxim namely Res Non-Potest Peccare which means the king can do no wrong. The doctrine of crown immunity was based on this legal maxim. By virtue of this doctrine the king could have bypassed the judiciary and a blanket immunity was provided to the king from all legal proceedings. After the 18th century, with the emergence of democracy and people’s power, the doctrine of crown immunity started to lose its importance and the courts became active to scrutinize the acts and omissions of state authority to prevent abuse of power by them and to give remedy to the affected party. Meanwhile, the legal maxim Salus Populi Suprema Lex which means “The welfare of the people shall be the supreme law” started to gain popularity in the novel democratic world. Thus, all the acts and omissions of the state authority and authorities subsequent to the state were put under the microscope of the judiciary.
Constitutional Mandate of Constitutional Tort
Under Article 102(1) of the Constitution of People’s Republic of Bangladesh an aggrieved party can file a writ petition against ‘any person or authority’ inclusive of any person performing any function in connection with the affairs of the Republic for the enforcement of his/her fundamental rights which are guaranteed under Part 3 of the constitution. An aggrieved party can file writ petition against both public and private bodies for the infringement of fundamental rights.
Under article 102(1), what type of legal remedy will be given to the sufferer or victim of the infringement of fundamental rights is left to the judicial discretion of the court. Public law compensation is a newly invented instrument of the judiciary which is given as a constitutional redress for the enforcement of fundamental rights. The root of public law compensation lies in the liberal interpretation of the expression ‘appropriate’ used in the Article 102(1) of the constitution. Article 102(1) has given enormous power to the supreme court of Bangladesh to award monetary compensation to the affected party for violation of fundamental rights. Right to enforce a citizen’s fundamental right is itself a fundamental right under article 44 of the constitution.
Article 7 of Constitution of Bangladesh declares the supremacy of the constitution. The solemn expression of the will of the public is embodied and reflected in each provision of the constitution. So, protecting fundamental rights of the citizens and limiting the powers of the state authorities are constitutionally mandated.
Applicability of Tort Law Principles by the Judiciary in Constitutional Tort Litigation
In constitutional tort litigation the courts apply the principles of tort law to hold the state authorities accountable for contravention of fundamental rights or to impose limitations on their powers. Mostly the courts apply the principles of vicarious liability, strict liability, negligence and res ipsa loquitur in respect of constitutional tort litigation.
Extent of Constitutional Tort in the Domestic Jurisprudence
The case of CCB Foundation v Government of Bangladesh 279 5 CLR (HCD)  is extraordinarily remarkable because in this case a victim’s right to compensation in public law was established for the first time in our domestic jurisprudence. The court applied doctrine of negligence and res ipsa loquitur to award monetary compensation of Taka 20 lacs against Bangladesh Railway Board and Bangladesh Fire Services and Civil Defence for their gross negligence which cost a 4 year old child his life. This case has created a landmark precedent that, by virtue of constitutional tort and vicarious liability, public authority bodies can be held accountable for their employee’s or servant’s negligence. There are two important aspects of this case.
- The court has observed that unlike Indian Constitution (Article 300) under our constitutional scheme there is no room for the principle of sovereign immunity. Thus, the courts have full power to award monetary compensation to the affected family for infringement of the right to life which is guaranteed under Article 32 of the constitution.
- The court promulgated that the award of monetary compensation under public law will not restrain the affected party or victim from asserting compensation in private law. The liabilities of the respondents under private laws will be still in existence.
In the case of British American Tobacco Bangladesh Company Ltd vs Begum Shamsun Nahar 66 DLR (AD) (2014) 80 a victim of sexual harassment and bullying filed a suit for damages against the company when she was terminated from the service. The Appellate Division after duly scrutinising the judgments of HCD and Trial Court held BATB company vicariously liable for the tort committed by its employees and also for its inaction when the victim complained against the employees who were harassing her for a long period. The AD awarded monetary compensation of Taka 2,50,038,000 as damages along with interest at the rate of 15% against the British American Tobacco Bangladesh Company Ltd.
Right to protection from sexual harassment comes within the purview of right to life which is guaranteed under Article 32. Right to life connotes the right to live with utmost human dignity and decency.
In another case of Bangladesh Beverage Industries Ltd v. Rowshan Akhter (69 DLR 129), a company was ordered to pay 1.7 crores in damages in a money suit to the family members of a journalist who was killed in 1989 by the negligent driving of the company’s delivery van driver. The wife of the deceased fought the legal battle continuously for 24 years. Finally in 2016 the Appellate Division awarded the monetary compensation against the company by making them vicariously liable for the act of the driver.
Two landmark Indian cases have highly influenced the growth of constitutional tort in Bangladesh. In the case of Rudul Sah v State of Bihar (1983) 4 SCC 141 a victim of illegal detention and torture for 14 years filed habeas corpus writ and prayed for his rehabilitation cost, medical charges and compensation for illegal detention.
The two prime issues in this case were –
- Whether in exercise of jurisdiction under Article 32, the court can pass an order for payment of money?
- Whether such order is in the nature of compensation consequential upon the deprivation of fundamental rights?
The court resolved the issues affirmatively and established the victim’s right to compensation for illegal detention. The Supreme Court ordered the State to pay Rs. 30,000 to the petitioner as a monetary compensation in addition to the Rs. 5,000 already paid for his rehabilitation. This case is a landmark judgment in the jurisprudence of the concept of state liability. The court interpreted the extent of its remedial power and granted the relief. The court said in this case that refusal to grant monetary compensation to the petitioner would be ‘mere lip service’ to his precious fundamental right to liberty which the state has so grossly infringed.
The decision of Rudal Shah is important for constitutional tort in two aspects.
- The violation of a constitutionally guaranteed fundamental right can give rise to a civil liability enforceable in a civil court
- This judgment sets a precedent which formulates the bases for a theory of liability under which an infringement of the right to personal liberty can give rise to a civil liability.
In the case of Nilabati Behera v State of Orissa 1993 AIR 1960, the mother of the victim of custodial torture and death filed the writ petition for enforcement of fundamental right to life and right to compensation. The court observed that when a violation of fundamental rights occurred and the affected party seeks compensation, this claim of compensation is founded on the principle of strict liability and it is distinct from and in addition to the remedy in private laws. In this case the demarcation between public law compensation and private law compensation was drawn by the court.
Public Law Compensation
- Founded on the doctrine of strict liability;
- The defence of sovereign immunity is inapplicable;
- It is an acknowledged redress for the enforcement and safeguard of fundamental rights.
Private Law Compensation
- Founded on the doctrine of vicarious liability;
- The defence of sovereign immunity is applicable;
- It is in the nature of damages recoverable at large and is inclusive of damages for the loss of reputation.
In the light of the discussion above we conclude that the superior courts are absolutely empowered by the constitution to grant monetary compensation as a constitutional redress for the gross infringement of sacred fundamental rights of the citizens. Public law compensation is a new horizon in the constitutional remedy and it has yet to flourish completely in our domestic legal system.
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