".. Award of compensation in a proceeding under Article 32 by this Court
or by the High Court under Article 226 of the Constitution is a remedy available
in public law, based on strict liability for contravention of fundamental rights
to which the principle of sovereing immunity does not apply, even though it may
be available as a defence in private law in an action based on tort... It is
this principle which justifies award of monetary compensation for contravention
of fundamental rights guaranteed by the Constitution, when that is the only
practicable mode of redress available for the contravention made by the
State or its servants... This remedy in public law has to be more readily
available when invoked by the have nots, who are not possessed of the
wherewithal for enforcement of their rights in private law, even though its
exercise is tempered by judicial restraint to avoid circumvention of
private law remedies, where more appropriate."
The principle of the Constitutional tort took a decade to mature. In Rudul Sah v. State of Bihar, (1983), it was held that compensation could be awarded under Article 32 for contravention of a fundamental right, but at the same time the Court opined that Article 32 "cannot be used as a substitute for the enforcement or rights and obligations, which can be enforced efficaciously through the ordinary process." The doctrine has since evolved. Neelabati arose where a mother's petition alleged custodial death of her son and claimed compensation directly from the Supreme Court in a petition under Article 32 on the ground of violation of his right to life and personal liberty. The court held that Rudul Sah was not good law to the extent that it directed the claimants to resort to an action in tort to recover damages. The Court held that it could award compensation without directing the claimant to resort to an action in tort.
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