Rostrum’s Law Review | ISSN: 2321-3787



Custodial torture and death is a gross violation of the rule of law. It deprives a person of his right to life which is a fundamental right. The constitutional remedy of article 32 gives a guarantee for the enforcement of fundamental rights. However, it is a question worth discovering how the right to life can be enforced in case of a custodial death where the victim has already died or in a case of custodial torture where injuries have already been inflicted upon him while he was in police custody. Can the state be vicariously held liable to pay compensation due to the existence of a master-servant relationship between the state and the erring police officials? Or, can the plea of sovereign immunity be taken in such a case? The author of this paper has employed the doctrinal method of study by analysing relevant bare provisions and seminal case laws since the nature of the subject matter of research necessitated it. The results of the research provide a glittering light at the end of the dark tunnel since it has been discovered that the Supreme Court has evolved a new kind of compensatory jurisprudence to hold the State liable in such cases to do complete justice to the victim. This landmark invention of the Supreme Court has far-reaching consequences since now not only the victim can claim compensation from the erring police officers under the law of torts but also can seek compensation from the State.


“Violence in custody is the worst form of torture since sanction of state is involved in it. It may possibly be worse than terrorism”

Police is an executive wing of the state. It was formed to preserve law and order in the society, investigate into criminal cases and to prevent commission of offences. However, the events have turned upside down. Police who was made guardian of citizens’ rights and custodian of liberties of people itself has started abrogating them. It is not just the violation or abrogation of human rights by the police that is a matter of concern. The fact that this violation by police is so blatant and conspicuous that a casual attitude regarding custodial violence has been adopted by the police official. Not only do they have a feeling of impunity or being protected in respect of the brutalities done by them but also, they feel justified in doing it.

The Indian Judiciary has played a massive role in curbing custodial violence. There is a historical time line associated in form of precedents involving the judicial effort against third degree by police. No doubt, such an action by the police officer does invite liability under law of torts and penal law on the personal level of such officials. So, just like any other person these officials shall be liable as individuals under the penal law of India[1]. Similarly, a suit for compensation can be filed against such officials as individuals under law of torts. This was already settled[2].

However, the question is Can the state be made vicariously liable for the acts of torture committed by the police officials. Under law of torts, master-servant relationship is distinctly identified for creating vicarious liability upon the master for the acts of servant. This liability arises if the servant commits any tort or civil wrong in the course of his employment. The basis behind imposition of such liability is the financial capacity which a master has and the servant lacks to pay compensation. State employees and public servants are instrumentalities or extended arms of the state. They are the servants of the state and the state is their master. Vicarious liability of the state on account of tortious acts of the state has been recognized under law of torts.  In England, earlier, the crown had no vicarious liability for the acts done by its officials or servants. However, the servant himself personally continued to remain liable. If the master was an ordinary person, he would be vicariously liable for the acts of the servant. But a crown could not be. This discrimination was done away with in 1947. With the passing of Criminal Proceedings Act, 1947 the crown was made liable for the tortious acts committed by its servants just like any other ordinary individual. In this paper, the vicarious liability of the state is endeavoured to be discovered in cases of custodial violence and death by the police officials.

3.Evolving the Compensatory Jurisprudence

The Union of India and the state are legal persons. Article 300 of the Constitution of India provides that Union of India and the Governments of States can sue or be sued in same cases for which the dominion of India and the Indian states or the provinces, as the case may be, could sue or could have been sued. However, this liability has been made subject to any legislation passed by the parliament or the state legislature. This means to determine the vicarious liability of a state for the acts of its servants one has to understand the pre-constitutional liability of the state of India i.e. liability of Dominion of India and the liability of Indian states or the provinces as stood before the commencement of constitution. So we refer to the Government of India Act, 1935 which could be said to be India’s pre independence constitution. The act of 1935 like Indian Constitution doesn’t create any vicarious liability of the state for acts of its servants but only recognises it as stood before the passing of the act of 1935. So, finally, we refer to the government of India Act 1858, section 65 which provides the liability of the secretary of state in council which was the authority at helm in India after crown. The section says that the liability of the secretary of state in council shall be the same as that of East India company prior to 1858. The council can sue and be sued for those matters for which East Indian company could sue and be sued. So long story short, whatever was the liability of The East India Company for the acts of its servants the same liability shall be of the Union of India and the governments of state[3].

3.1 Peninsular and Oriental Steam Navigation Company v. Secretary of State for India[4].

In this case for the first time liability of east India company for the tortious acts committed by its servants was recognised. The servant of plaintiff’s was riding a horse driven carriage. He was passing by the Kidderpore dockyard in Calcutta. The Dockyard was the property of the defendant government. Due to the negligence of the servants of the defendant government a big piece of iron fell on the ground. Due to this the horse got frightened and was injured in the process. The plaintiff sued the defendant government for damages. At that time the governance vested in the east India company. The court observed the vicarious liability of the east India company. It held that the company like any ordinary citizen is liable for the tortious acts of its servants. However, the court drew a distinction in the functions of the government. It segregated the functions of the government into two categories- sovereign and non- sovereign functions of the government. The sovereign functions are those functions which can only be performed by the state i.e. the government or by the individuals to whom such power has been delegated by a legislation. It means these functions cannot be performed by the private individuals. Some examples of sovereign functions will include policing, defence, prosecution etc.

In reality the sovereign functions are those indispensable functions without which a state cannot survive. If these functions are not performed the existence of state is threatened. This is the reason that these functions cannot be performed by the private individuals. So, sovereign functions are those functions which can either be performed by the state itself or by the persons upon whom such power has been delegated by a legislation.

So, the court held that the East India company couldn’t be held vicariously liable for the tortious acts of its servants if the nature of function involved is sovereign. However, most certainly the company can be made liable for an act done by its servant if the function performed was a non-sovereign function. A non-sovereign function is that function which can be performed by a private individual without any requirement of delegation by the state.

So, we found out that the East India Company can be held liable vicariously for for tortious acts committed by its servants while performing non-sovereign functions.

Sovereign function is not to be confused with sovereign authority or power. Just because an act has been done by a sovereign authority it does not mean that such an act is a sovereign function and the jurisdiction of civil court is ousted. Though such an act might have been done under some law and might have done under a power derived from that law yet it shall not become sovereign only because it is done by some sovereign authority. This was held by the the Privy Council in case of Secretary of State for India in Council v. Hari Bhanji.[5]

There has been plethora of cases where the liability of state has been recognised only for non-sovereign functions performed by the officials of the state. Thus, a state cannot be held liable for the tortious acts committed by its servants in discharge of sovereign function.

We also know that policing is a sovereign function of the state. A private individual cannot as a right perform policing. And a civil court’s jurisdiction shall be ousted for a claim of damages against state if a police officer commits any tortious act while discharging his duty. But this has serious repercussions. No doubt a victim of torture can file a suit for compensation and initiate criminal proceedings under relevant sections of IPC against the guilty police officers in their individualistic capacity but he cannot claim compensation from state under the law of torts. A suit against the government for damages on ground of vicarious liability will not lie against the government in case of custodial torture since policing and investigation too is a sovereign function and it is only in during investigation that torture was inflicted. Due to this problem the supreme court had to evolve compensatory jurisprudence which never existed before. Under this concept a claim of compensation can lie against the state in a case of torture. The following cases must be analysed to understand this compensatory jurisprudence kin case of custodial torture against the state.

3.2Rudul Sah v. State of Bihar[6]

In this case the petitioner though was acquitted by the court of session, Muzaffarpur on 3rd of June 1968 yet he was released more than 14 years after his date of acquittal on 16th October 1982. In this case the petitioner had asked for his release on the premise that his detention was illegal. He also asked for compensation for his illegal detention in prison for 14 years and expenses which were to be spent upon his rehabilitation and his medical treatment.

The Supreme court observed that Article 32 of the constitution bestowed powers upon the supreme court to pronounce orders, directions or writs including writs of habeas corpus, mandamuss, quo waranto and certiorari. It can issue any of the earlier mentioned writ which it considers is appropriate to enforced the fundamengtal rights. It is to be noted that what article 32 provides for is the right to move to supreme court in case of violation of fundamental rights. Thus, the right to move to the supreme court is guarantted. In other words, we can say that the right to move to the supreme court in case of violation of fundamental rights is itself a fundamental right. Also, it must be kept in mind that the constitutional guarantee provided by article 32 cannot be a substitute of ordinary criminal or civil processes.If equally efficacious civil or criminal remedy is there then article 32 can not be resorted to. Therefore, ordinarily a money claim for compensation has to be filed in the lowest court of competent jurisdiction. So, in this case the question before the supreme court was whether or not in the ecercise of jurisdiction conferred by article 32 the supreme court can order compensation for violation of fundamental rights? In present case a petition was filed by the petitioner asking court to issue a writ of habeas corpus for his release and grant of compensation for illegal detention.

The only defence that could be taken by the respondent state in this case would be that the petition of the petitioner should be dismissed on the ground that that the petitioner has an equally efficacious remedy of filing a suit in a civil court to recover damages from the state government. To deal with this problem the court devised a test. It said if the claim of petitioner is factually controversial in the sense that a decree for compensation against state by civil court may or may not be passed then the petition should be dismissed and compensation can not be granted by the supreme court by exercising its jurisdiction under article 32. However, when the claim of petitioner for compensation under article 32 is not indisputable and is not factually controversial then in that event the supreme court must pass an order for grant of compensation. And, in the instant case there was no factual controversy regarding the violation of right to life and liberty. The petitioner was illegally incarcerated in prison for a humongous period of 14 years after his acquittal. This was clearly on record and the state government too has not denied this. It means in any event the suit of petitioner if he files any in the civil court, shall be decreed in his favour though it is difficult to predicate the exact amount of damages that would be granted to him by the civil court. However, if the supreme court after having the full knowledge of violation of article 21 since the claim is indisputable does not grant compensation her on the ground that the petitioner has a more efficacious remedy of filing civil suit and it is the civil court which will be the appropriate forum here to assess the damages then the court shall be running way from its duty imposed upon it by article 32 of the constitution. It shall only amount to lip service to the fundamental right to liberty if the compensation is not granted in the present case.

The court also observed that once the fundamental right to life and liberty has been violated by the state officials by illegally detaining the petitioner for 14 years, the only way to somehow enforce his fundamental right now would be granting compensation. So compensation was granted in this case however the court specifically mentioned that this order of grant of compensation shall not by itself preclude the petitioner from filing a civil suit in a civil court for damages.

3.3 Bhim Singh, M.L.A. v. State of Jammu and Kashmir[7]

Mr. Bhim Singh was an MLA of Jammu & Kashmir. The police stopped him while he was going to attend a session of Legislative assembly. He was illegally detained and later on released by the police. His wife had filed a petition requesting the court to issue a writ of habeas corpus seeking his release and also compensation for his illegal detention. Since he was already released by the police the court ordered compensation to be paid to him. The court observed that the supreme court has the power to grant compensation for enforcement of fundamental rights. In this case the court awarded the compensation worth Rs50,000.

3.4 Khatri v. State of Bihar[8]

In this case a number of prisoners of Bhagalpur central Jail were allegedly blinded by the jail authorities. Around 42 prisoners who were undertrials were blinded. The investigation of these cases was done by CBI and the criminal proceedings were pending before the CBI court. Meanwhile the petitioners filed a petition under article 32 for compensation for loss caused to the undertrials. The main question involved before the court in this case was- :

Whether police reports so submitted including the case diaries and the statements recorded by the investigation officer in course of investigation can be used as evidence in the writ proceedings initiated by the petitioner or the bar contained in section 162 and 172 of the code would apply upon them.

The court perused the language of section 162 and observed that the first thing which the section says is that any statement made to a police officer in course of investigation need not be signed by the maker of it. The second part of the section talks about the restricted use of such statements. The section provides that such statements cannot be used for anything except for the purposes mentioned in the section itself.

But it quite expressly says that these statements are not to be used in any inquiry or trial of an offence regarding which investigation was pending when the statement was made. This means that such statements can be used as evidence in a proceeding which is neither an inquiry nor a trial. Also, such statements can be used in a trial or an inquiry of some other offence regarding which investigation was not going on when the statement was recorded.  In the instant case the proceedings pending before the court were writ proceedings. Writ proceeding commenced under article 32 of the constitution are neither trial nor inquiry. Thus, the bar contained under section 162 shall not in this case.

It means so longer the statements recorded by the police are relevant under any provisions of Indian Evidence Act, 1872, such statements can be used as evidence in the writ proceedings.

Similarly, section 172 of the code of the criminal procedure uses similar terminology. It gives the court a power to call for case diaries maintained by a police officer investigating the case. However, the use of such case diaries has been limited by the section. It cannot be used as evidence in any inquiry or trial of an offence. Again, the bar is upon using the diaries in an inquiry or a trial and not in proceedings which are neither trials nor inquiries. This implies that the bar contained in section 172 has no application where the diaries have been produced as evidence in a civil proceeding or in writ proceeding initiated under article 32 or article 226 of the constitution.

Moreover, bar is upon the accused or the agent of the accused to call for diaries when the court calls for it and uses it. Thus, it shall not apply upon a person who is neither an accused nor his agent. This writ pettion filed under article 32 to enforce the cardinal right guaranteed under article 21 is neither an inquiry nor a trial.

Now in this case neither the court hearing the writ petition is a criminal court nor are the pettioners accused in this case, rather they are the blinded prisoners i.e. victims in this case. This means only one thing which is that the case diaries can be used as evidence in writ proceedings.

3.5 Smt. Nilaabeti Behera v. State Of Orissa and ors. [9]

In this case a letter to the chief justice of India was treated as a writ petition. The latter disclosed that the deceased was arrested from home and taken in police custody. The very next day the mother of deceased came to know about the death of the deceased. His dead body was found lying on a railway track somewhat near to the police station. Multiple injuries were found on the body of the deceased. From first sight one could make out that the death was unnatural. It was alleged in the letter that it was a case of custodial death. The letter requested the court to make the state liable for compensation for the custodial death of the son of the correspondent.

The supreme court treated the letter as a petition under article 32 of the constitution. The supreme court laid down the law relating to compensatory jurisprudence where a state could be held liable to pay compensation in case of custodial torture or custodial death.

The supreme court distinguished between private and public law. It held that the defence of sovereign immunity is recognized only under private law and cannot be used in a proceeding initiated under public law. It is pertinent to note that an order of compensation made by a court under article 32 or 226 of the Indian constitution is a remedy granted under public law and not under private law. Fundamental rights are sacrosanct due to which strict liability is required to be imposed upon state whenever there is violation of fundamental rights. Thus, the principle of sovereign immunity is cannot be given as a defense in a proceeding undr public law. This distinction between these two remedies is required to be kept in mind whenever a claim for compensation for violation of fundamental rights comes before the court.

The court in this case observed that way back in Rudul Shah’s case it was already held that if the claim of petitioner is not factually controversial that is a decree shall be passed in his favour and the only question which is left would be the quantum of compensation that is required to be given to him. Though it is also true that a civil court shall be the appropriate forum for determination of quantum of compensation to be given to the petitioner yet if the court does not enforce the right to life granted under article 21 by passing an order of compensation then it shall not be performing its duty imposed upon it by article 32 to itself. It is true that article 32 cannot be substituted with the ordinary remedy of filing civil suit yet the court is duty bound to enforce the fundamental right of the petitioner. He may file a suit in a civil court for grant of compensation but it shall fall in the area of private law and the remedy in present case invoked by the petitioner is under public law.

Under private law i.e. a claim by petitioner under law of torts, vicarious liability of state has been recognised for the tortious acts of its servants. State may take a plea of sovereign immunity there and it can be upheld in such suit. However, the petition under article 32 is a public remedy and oblivious to the concept of sovereign immunity. Thus, the defence of sovereign immunity is not useful in this proceeding.

Further, it has to be seen that article 32 is not just a remedy given to the citizens whenever fundamental rights of citizens are violated. Article 32 i.e. right to constitutional remedies itself is a fundamental right. The constitutional enforcement of the rights given in part III is guaranteed. Thus, court is under a constitutional obligation to enforce the fundamental rights. If the fundamental rights are being violated by state, then definitely court can pass an order injuncting state from violating fundamental. But where custodial death has already taken place and the person concerned is already dead then how can court enforce his fundamental rights. In such an event it becomes imperative for state to forge new tools for enforcement of fundamental rights. It is imperative that the supreme court must use its power under article 142 to do complete justice. If contrary view is held that the only remedy available with the victim is punishment of offender and grant of compensation under private law, then the constitutional guarantee given under article 32 shall remain nothing but a mirage only.

But one thing has to be understood. It is that the payment of compensation under public for breach of law is not similar to damages awarded to the plaintiff in a suit for damages under private law. Compensation ordered under public law is sort of an order asking state to atone or make amends by paying compensation for breach of a public duty. The state was under a duty to protect the violation of fundamental rights. When it doesn’t protect and let the fundamental rights of citizens getting violated, it commits a major breach in its duty. One can say that the compensation awarded under public law is in nature of examplery damages awarded against the state for violation of its most sacrosanct duty. Award of damages under public law has nothing to do with the damages which could be awarded by a civil court under private law. The petitioner’s remedy to prosecute the offendors under penal law or to file a suit for claim of damages under private law is not affected by award of compensation by the court under public law.


Our constitutional fore fathers laid down a foundation of certain human rights which were classified as fundamental rights and put in part III. However, these rights have still been trampled upon by the police with clear impunity. At times, the law enforcement authorities have justified the use of violence by putting forth that it is an effective tool to cause deterrence and recover evidence at earliest. Little do they know that while doing such thing themselves are flouting the law of the land which they are bound to protect. They don’t understand that such acts only cause fear in society and hamper with the prosperity of society. People these days are afraid of police. They hesitate in seeking help from police. So, custodial violence has brought the stature of law enforcement agencies down. They have been left in a position no better than the real offendors.

Custodial violence strikes at core of the principle of Rule of Law. Rule of law demands absence of privileges. But after doing custodial violence and torturing the detainees police easily gets away from any culpability. It seems as if the criminal justice delivery system grants impunity to them. Dicey said an authority can derive a power which it can exercise from a law only. But custodial deaths, cases of custodial torture and custodial disappearances show a different malign sight. Such a power was never given and can never be given to the executive. Hence, it completely destroys the rule of law from inside out.

So it has been observed that again the supreme court turned out to be the guardian angel of the fundamental rights of the citizens. By giving a meaningful interpretation to article 32 and 226 the Supreme court has allowed the writ petitions to be filed against the State in cases of custodial violence and custodial death. It declared that the principle of sovereign immunity is foreign to the domain of public law. The relationship of state with the citizens in enforcement of the constitutional guarantee of the fundamental rights falls within the domain of public law. Thus, any victim of custodial torture or death could seek compensation from the state by holding it vicariously liable.

This manuscript is a part of the Conference organised by School of Law, Lovely Professional University and the Author is Ramandeep Singh, Assistant Professor, School of Law, Lovely Professional University, Punjab.


  1. Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1861) 5 Bom H.C.R
  2. Rudul Sah v. State of Bihar1983 AIR (SC) 1086
  3. Bhim Singh, M.L.A. v. State of Jammu and Kashmir 1986 AIR (SC) 494
  4. Khatri v. State of Bihar1981 AIR (SC) 1068
  5. Nilaabeti Behera v. State Of Orissa and ors 1993 AIR (SC) 1960
  1. Indian Penal Code Act (Act 45 of 1860).
  1. Diganth Raj Sehgal, Constitutional Tort: The law that deals with Vicarious Liability of the State, iPleaders (2019), (last visited May 20, 2022).
  2. Manmeet Singh, Compensatory Jurisprudence, Legalservicesindia, (last visited Jun 6, 2022).

[1] ss. 330 and 331 of IPC

[2] Diganth Raj Sehgal, Constitutional Tort: The law that deals with Vicarious Liability of the State, iPleaders (2019), (last visited May 20, 2022).

[3] Manmeet Singh, Compensatory Jurisprudence, Legalservicesindia, (last visited Jun 6, 2022).

[4] (1861) 5 Bom H.C.R.

[5] I.L.R. (1882) 5 Madras 273

[6] 1983 AIR (SC) 1086

[7] 1986 AIR (SC) 494

[8] 1981 AIR (SC) 1068

[9] 1993 AIR (SC) 1960

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