Nilabati Behera v State of Orissa
Rule established
A claim in public law for compensation for contravention of a fundamental right is distinct from and in addition to the private law remedy in tort. It rests on the State's strict liability for the breach, and the defence of sovereign immunity is inapplicable to it. Articles 32 and 226 include the power to award compensation.
Facts
- The petitioner's son, a young man, was taken into custody by the police in connection with an investigation.
- He was detained overnight at a police outpost.
- The next morning his body was found on railway tracks at a short distance from the outpost, bearing multiple injuries.
- The police case was that he had escaped from custody during the night and had been run over by a train.
- Medical evidence indicated that the injuries were not consistent with a railway accident and were ante-mortem injuries such as could be caused by lathi blows.
- The petitioner, his mother, sent a letter to the Supreme Court, which was treated as a petition under Art.32.
Issue
- Whether compensation may be awarded under Art.32 for a custodial death; and whether sovereign immunity is a defence to such a claim.
Held
- Compensation was awarded to the mother of the deceased. The Court held that a claim for compensation for the contravention of a fundamental right, made in proceedings under Art.32 or Art.226, is a claim in public law, distinct from and additional to the private law remedy for damages in tort. It rests on the strict liability of the State for contravention of the rights guaranteed by Part III, for which the defence of sovereign immunity is not available, that defence being confined to the old law of tortious liability arising from the exercise of sovereign functions. The Court reasoned that Art.32 confers not merely a right to approach the Court but a right to an effective remedy, so the power to grant relief must include the power to award monetary compensation where that is the only practicable redress, particularly in cases of custodial death, illegal detention and torture. The award in public law does not bar a civil suit for the balance of damages.
Ratio Decidendi
The enforcement of a fundamental right would be illusory if the Court could only declare the breach and leave the victim to begin again in another forum, especially where the wrongdoer is the State itself and the victim is dead. Since the State's duty to protect a person in its custody is absolute, its liability for a breach is strict, and the immunity developed for ordinary torts has no application to a constitutional obligation. The remedy is therefore constitutional in origin and not dependent on the general law.
How to use it in an exam
- The leading case on constitutional tort. State the three propositions: the claim is in public law, liability is strict, and sovereign immunity is no defence.
- Note the practical advantages of this route over a suit: it is immediate, requires no proof of a private law duty of care, and cannot be met by the sovereign function argument. Its limit is that a fundamental right must be infringed.
- Add that the award does not bar a civil suit for the balance, so the two remedies are cumulative.
- Trace the line: Rudul Sah v State of Bihar (1983) on illegal detention after acquittal, Bhim Singh v State of JK 1985 on illegal detention of a legislator, this case on custodial death, D K Basu v State of West Bengal (1997) on arrest and detention guidelines, and Chairman, Railway Board v Chandrima Das (2000) extending the principle to a foreign national.
- Contrast the private law line under Art.300: P and O Steam Navigation Co v Secretary of State 1861, Kasturi Lal v State of UP 1965 and N Nagendra Rao v State of AP 1994. In an answer, deal with the two routes separately, because the sovereign immunity question arises only on the first.
Source
Source: (1993) 2 SCC 746; AIR 1993 SC 1960; three Judge Bench, with Dr A S Anand J concurring separately; the leading authority on constitutional tort; citation and bench checked against Indian Kanoon and reported sources, audit of 12 August 2026
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.