The security of man’s person is the most elementary of civil rights. Even a Constable would be liable in tort like any other citizen for any unlawful interference with the person or liberty of another in the same manner as a private citizen would be. Actual violence inflicted on a person results in deprivation of the basic right of life which is guaranteed as a fundamental right under Article 21 of the Constitution. A direct application of physical force to a person of another, whether inflicted with any weapon or missile is battery, when it be done either intentionally or negligently.
Battery falls in the category of tort known as trespass to the person; the other two in that category being assault and false imprisonment. In an action of trespass to the person, once the trespass is admitted or proved, it would be for the defendant to justify the trespass, if he can, on the defences available to him under the law, such as, that the defendant was acting in defence of his person or property or using reasonable force in the prevention of crime or stopping a breach of peace or in effecting lawful arrest or using permissible force under the law.
The question that arises before us is when a person is deprived of his fundamental right to life or personal liberty, except according to the procedure established by law, by police and the wrong done is actionable, is the State responsible for such deprivation caused by a wrongful act committed by a member of the police force.
It is a rule of law that an employer, though guilty of no fault himself, is liable for the damage done for the fault or negligence of his servant acting in the course of his employment (Per Lord Reid in Stavcley Iron & Chemical Co. v. Jones, (1956) AC 627 at 643).
On the other hand, if it is established that master himself owed a duty to the plaintiff and that duty has been broken by the act of the servant, the master will be liable for his primary liability and not vicarious liability.
Crown Proceedings Act, 1947
In England, Crown immunity in tort was brought to an end by the Crown Proceedings Act, 1947, which by Section 2 subjected Crown to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject: in respect of torts submitted by its servants or agents; in respect of any breach of those duties which a person owes to his servant or agents at common law by reason of being their employer; and in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.
Thus, the Crown is made vicariously liable to third parties for torts committed by its servants in the course of their employment, if committed in circumstances which would render a private employer liable. It was also provided that the Crown was not to be liable, unless the act or omission in question would, apart from the Act, have given rise to a cause of action in tort against the servant or agent. This preserves such defences as acts of state and the exercise of statutory or prerogative powers but it does not protect the Crown from liability for the tortious act of its servant which is ultra vires the statute creating the powers under which the act is purported to be done, nor does it protect the Crown from the negligent exercise by its servant of such powers. (See Clerk & Lindsell on Torts, Fourteenth Edition, Paragraph 153 at page 87).
Police Act, 1944
In England by Section 48 of the Police Act, 1944 the Chief Officer of the Police for any police area is made liable in respect of torts committed by constables in the like manner as a master is liable in respect of torts committed by his servants in the course of their employment.
Any police atrocity, be it custodial or otherwise, which results in death of or injury to a person is per se a violation of fundamental right guaranteed by Article 21 of the Constitution. The defence of sovereign immunity would in such cases be alien to the concept of guarantee of the fundamental right to life and personal liberty. Assault or battery, when committed by the State-agency would be a violation of the fundamental right to life guaranteed by Article 21.
The doctrine of sovereign immunity of the State would be subject to the constitutional mandate enjoining a duty on the State not to deprive any person of his life or personal liberty without following the procedure established by law.
Causing injury or death by police excesses would be a clear violation of such right and such wrongful acts even if referable to the sovereign functions of the State of maintenance of law and order will not immune the State from its strict liability which arises due to the violation of the fundamental right to life and personal liberty. The State must in such cases adequately compensate for the wrong done irrespective of the fact that it was done by the employee during the course of employment, which is relatable to the sovereign functions of the State, such as maintenance of law and order.
Power of civil Court to grant relief of damages for violation of fundamental rights by the State agency
Tort committed by a State employee resulting in violation of fundamental right would be an actionable wrong for which a remedy lies in Civil Court for damages to compensate the victim. The fact that a public law remedy lies under Articles 32 and 226 of the Constitution before the Superior Courts in respect of torts committed by police for which State is liable on the principle of strict liability when there is violation of the fundamental right to life under Article 21, would not take away the power of civil Court to grant relief of damages for violation of fundamental rights by the State agency by committing such tort. The ordinary civil Courts have jurisdiction in all matters of civil nature.
As provided by Section 9 of the Code of Civil Procedure, the Courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Violation of fundamental right to life by committing a tort would, therefore, constitute a valid cause of action to seek redressal in a civil Court.
Such violation by tortious act of the police being an actionable wrong can be tried in a civil Court and a large portion of the population of the rural area of this vast country would find it more convenient to approach the civil Courts in their local area father than to rush to the High Court or the Supreme Court for invoking their extraordinary writ powers.
Suits for compensation against the State Government are not excluded from the jurisdiction of the civil Court. Therefore, in a suit for damages for a tort committed by an employee of the State, where the liability of the State arises, the civil Court has jurisdiction to pass a decree for damages against the State. In case of an establishment breach of fundamental rights, the liability of the State is a strict liability and no question of pleading a defence of sovereign functions can now arise in face of the Constitutional protection of the fundamental rights which enjoins a duty on the State not to violate them.
Therefore, when the said defence is not available in context of the established breach of fundamental rights, the civil Court can award damages for such violation against the State for the tort committed by the police during the course of employment, even though the maintenance of law and order may be in the nature of sovereign functions of the State.
The Civil Court obviously has to determine whether the tort in question committed by the State employee violates the fundamental right of the person. When the plaintiff establishes that the police man has, during the course of his employment, caused physical harm such as battery, that by itself is sufficient proof of violation of fundamental right to life even if the expression ‘fundamental right’ is not used in respect of such harm.
The fundamental rights are all pervasive and do not depend on whether they are so described. When physical harm is wrongfully caused by the State agency, it amounts to violation of the right to life and it does not require a label to become such violation.
Therefore, mere non-mention of Article 21 in the pleadings will not defeat a claim where the facts proved clearly establish that the fundamental right to life is in fact violated. In other words, when a person pleads and proves that he was tortured, maimed or assaulted by the police wrongfully, that established fact itself means that the fundamental right of that person to life is violated and even if he had not added the surplusage to the effect: “therefore my fundamental right under Article 21 is violated“, it nonetheless remains a violation of his fundamental right under Article 21 and he cannot be non-suited on the ground that there is no pleading or issue to that effect.
State of Gujarat vs Govindbhai Jakhubhai: 2000 ACJ 1305, AIR 1999 Guj 316, (2000) 2 GLR 1085