Rudal Shah v. State Of Bihar

COURTSupreme Court of India
JUDGES/CORAMJustice Y.V. Chandrachud


The liability of the state for wrongful acts of its employees has assumed importance in the present context. State has been defined in Article 12 of the Constitution of India, which means the union government or provincial government or any other local authority. In democracy, the state performs innumerable functions for the welfare of its citizens. In the exercise of these functions, any misuse of power by the government servants may cause injury to person or property of the citizens. Sometimes even the fundamental rights are attacked. Such a situation calls for an adequate mechanism for determining the state liability and compensating the victim. It is, however, strange that the state itself has not bothered to enact a law for determining the citizens’ claims against it.

Indian judiciary has taken an onerous task by evolving in its own way some principles for meeting with the aforesaid situation. An attempt is made here to evaluate the judicial response with focus on the conflict between the individual and the state.

Rudul Shah’s case is a landmark judgment in the jurisprudence of state liability. It is considered particularly important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights under the Constitution. It is noteworthy in this context that there is no express provision for awarding compensation in the text of the Indian Constitution, and that this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers. This was the first case since the inception of the Supreme Court that awarded monetary compensation to a person for the violation of his fundamental rights guaranteed under the Constitution. The grant of such monetary compensation was in addition, and not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in tort. Following this case, the Supreme Court awarded compensation in several cases. In the subsequent early cases in which this remedy was considered, the Court held that compensation would be awarded only in ‘appropriate cases’ which seemed to primarily involve life and liberty rights and were mostly cases relating to  illegal detention and unlawful deaths. Nonetheless, in later cases, it became clear that the scope had become significantly wider. Since economic and social rights are often considered by the Supreme Court under the ambit of Article 21 of the Constitution (the right to life which is a fundamental right), compensation as a constitutional remedy may be available for violations of these rights.  For example, in the case Paschim Banga Khet Samity v State of West Bengal[1] (1996 SCC(4)37), where the SC held that the right to life included the right to health, compensation was granted by way of redress with explicit reference to the Rudul Shah case.


The facts of the case are as follows: Rudul Shah’s case was a public interest litigation (PIL) case filed in the Supreme Court under Article 32 of the Indian Constitution (whereby one can directly approach the Supreme Court when fundamental rights have been infringed upon). The petition sought the release of Rudul Shah from illegal detention, and also ancillary relief such as rehabilitation and compensation. Rudul Shah was arrested in 1953 on charges of murdering his wife. He was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. Rudul Shah languished in jail for 14 years after his acquittal, until his plight was highlighted in the media in 1982 and led to the filing of the PIL on his behalf.

By the time the PIL came up for hearing in Court, Rudul Shah had been released. However, he sought ancillary relief including payment for his rehabilitation, future medical expenses incurred, and compensation for his illegal incarceration from the State. The Court directed the State to show cause for the petitioner’s detention in relation to his ancillary claims, and received a much delayed response in defense of the incarceration from a state jailor. The Court viewed the State response as a callous afterthought with no true basis in fact and thus held that the petitioner’s detention was wholly unjustified.  Next, the Court examined whether, under its remedial powers it could adjudicate the petitioner’s claims for ancillary relief.  The Court reasoned that Article 21’s guarantee of the right to life and personal liberty would be stripped of its significant content if the Court was limited to passing orders releasing individuals illegally detained.  The Court held that the “right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.” Accordingly, the Court ordered the State to pay 30,000 rupees to the petitioner as an interim measure, in addition to the 5,000 already paid, noting that the judgment did not preclude the petitioner from bringing future lawsuits against the State and its officials for appropriate damages relating to his unlawful detention.

Also Read  State of West Bengal v. Orilal Jaiswal & Anr.


The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under Art.32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful. He also asked for certain other reliefs including compensation for his illegal detention.

The main issue before the Supreme Court was whether under article 32 of the Constitution the Supreme Court can pass order of compensation for infringement of fundamental right by officers? Whether the defence of sovereign immunity is available to the state whenever its employees commit tort against the citizens?

Summary of court decision and judgment

The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under Article 32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful. He also asked for certain other reliefs including compensation for his illegal detention.  When the petition came up for hearing the Court was informed by the respondent State that the petitioner had already been released from the jail. Allowing the petition, the court held that the petitioner’s detention in the prison after his acquittal was wholly unjustified. Article 32 confers power on the Supreme Court to issue directions or orders or appropriate writs for the enforcement of any of the rights conferred by Part III of the Constitution. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention.  One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art.21 secured, is to mulct it is a violators in the payment of monetary compensation. The right to compensation  is  some palliative for the unlawful acts of instrumentalities which act in the name of public  interest and which present for their protection  the powers  of  the  State  as  a  shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. In the circumstances of the instant case the refusal to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly 509 violated. Therefore, as an interim measure the State must pay to the petitioner a further sum of Rs. 30,000 in addition to the sum of Rs 5,000 already paid by it. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials.


The Court in this landmark case was correct in deciding the matter. This Judgement overruled the Kasturilal Raliaram v. State of U.P[2]. In Kasturilal’s case the Court held that the state was immune from liability for the tortious act done by its policemen, who caught the plaintiff under suspicion during night and put him in lock-up. The gold and silver seized from him was kept in malkhana.  Later the plaintiff was proved innocent and he demanded his property back. But the gold was missing, perhaps taken away by the policeman in charge of malkhana. Unfortunately the state succeeded in getting sovereign immunity as the apex court came to the conclusion that the tortious act was done in the exercise of a sovereign function. Justice P.B.  Gajendragadkar, C.J., felt helpless and called on the government of India to enact a law in this field. The state liability bill was introduced in the Parliament in 1967, but it remained as a bill and could never be passed.  Thus a chance of codifying the law of torts with regard to state acts was lost. The Kasturilal decision has been criticized on many counts[3]. One reason sounds good that the taking care of the property seized and duty to return the same is just like the duty of a statutory or contractual bailee and cannot fall within the sovereign powers.[4]

Also Read  Osman Jamal & Sons Ltd. v. Gopal Purshottam

In N. Nagendra Rao & Co. v. State of Andhra Pradesh[5], the Supreme  Court has held that when a citizen suffers any damage due to the negligence  of the employees of the state, the latter is liable to pay damages and the defence of sovereign immunity will not absolve it from this liability. It was held that in the modern context, the concept of sovereign immunity stands diluted and the distinction between sovereign and non-sovereign functions no longer exists. The appellant in the above case was carrying on business in fertilizers and food grains legally. His premises were inspected and goods were seized under Essential Commodities Act. On 29.6.1976, the proceedings terminated in his favor and confiscation order was quashed. The collector directed the release of the stock, but the subordinates delayed it due to which the goods were spoilt both in quality and quantity. The appellant then asked for the value by way of compensation. His demand was rejected. Therefore, he filed suit and the state claimed sovereign immunity. The trial court did not allow this defense and decreed the suit. The state appealed to the high court, which set aside the decree relying on Kasturilal and the appellant came in appeal to the Supreme Court. The Apex court reversed the high court decision and disallowing the contention of the state held that the state is vicariously liable for negligent act of its employees in discharge of their public duty. The court rightly observed that the traditional concept of sovereignty has undergone a drastic change in the modern times. No legal system can place the state above law, as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent acts of state’s officers without remedy. The need of the state to have extraordinary powers is not doubted. But at the same time, the state cannot claim sovereign immunity for the sufferings caused to the common man by its officers acting illegally or negligently.

The above view also finds support in Hazur Singh v. BihariLal[6], where Justice B.R. Arora has observed that ours is a democratic country following the rule of law and the state cannot claim any immunity from payment of compensation for the wrongs done by pleading sovereign immunity. This defence has become outdated in the context of modern development and the time has come for us to say a good-bye to it. In our nation, the people are sovereign and the government, which is elected by the people, cannot seek sovereign immunity against them.  The whole question was again examined by our Supreme Court in Common Cause, a Registered Society v. Union of India[7] and the doctrine of sovereign immunity was rejected. The state liability rule as laid down in P&O Steam Navigation case[8] is very outmoded. In the modern times when the state activities have been largely increased, it is very difficult to draw a line between its sovereign and non-sovereign functions. The increased activities of the state have made a deep impact on all facts of citizen’s life, and therefore, the liability of the state must be made co- extensive with the modern concept of a welfare state. The state must be held liable for all tortious acts of its employees, whether done in exercise of sovereign or non-sovereign powers. The apex court rightly observed that in this process of judicial advancement, Kasturilal case has paled into insignificance and is now no longer of binding value.


Human rights are traditionally known as ‘natural rights’ and can be said to have their origin from the divine law of nature. The right to life and liberty has been held to be a basic human right. Through its various pronouncements, the Supreme Court of India has been successful in creating human rights jurisprudence and helping the poor people of our country. But only a few could be benefited and it was thought that there should be a separate agency to deal with the cases of human rights violations. Indian Parliament enacted the protection of Human Rights Act, 1993 and a high-powered and multi-member National Human Rights Commission (NHRC) headed by a former Supreme Court Chief Justice was constituted to monitor and probe into the human rights violations.  This National Commission was established at New Delhi in 1993 and many of the states are also taking steps to constitute state human rights commissions. These commissions can take action on being approached and also suo motu by coming across the news of violation of human rights in the media.

Despite the constitutional and statutory safeguards in favor of the individual’s liberty, the growing incidents of custodial torture and death in our society have become a matter of concern both for the higher judiciary and the National Human Rights Commission[9], which has awarded compensation in many cases. Complaints of abuse of power and torture to suspects by the police in custody or by other law enforcing agencies are on rise. Generally, the victims of custodial wrongs belong to the weaker sections of our society or they are either women or children. The rich are able to get legal shelter, but the poor, the down trodden and the ignorant with little or no political or financial power, are the sufferers and practically enjoy no human rights. 

Also Read  Montari Overseas Ltd. v. Montari Industries Ltd.

D.K. Basu v. State of West Bengal[10] is an important case in which the Supreme Court considered a PIL petition for dealing with the complaints of custodial violence and deaths in the police lock-ups. The respondent protested by saying that the petition was misconceived, misleading and untenable in law. While the writ petition was under consideration, the Court received a letter from Shri A.K. Johri on 29.7.1987 about the death of one Mr. Mahesh Bihari in police custody at Aligarh (Uttar Pradesh).  This letter was also treated as a writ petition and listed with the writ petition filed earlier by Shri D.K. Basu, Executive Chairman of West  Bengal Legal Aid Services. 

The Supreme Court, through Kuldip Singh, J. and Dr. A.S. Anand, J., observed that in almost all the states there are allegations of frequent deaths in custody reported in media and custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. Any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of article 21 of the Constitution. If the functionaries of government become lawbreakers, it is bound to breed contempt for law and encourage lawlessness. In its effort of making a human rights jurisprudence, the court rightly said that the precious right guaranteed by article 21 of the Constitution cannot be denied to convicts, under-trials, detenues and other prisoners in custody, except according to the procedure established by law. The court also gave some directions to all the states which should be followed in all cases of arrest or detention till legal provisions are made in that behalf. 

It was also stated by the court in the above case that the monetary compensation is an effective remedy for redressal of the infringement of the fundamental right to life or liberty by the public servants and the state is vicariously liable for their tortious acts. The claim is based upon the principle of strict liability and the state is not allowed to get the defence of sovereign immunity in that. There is no room for sovereign immunity now and human rights considerations required its rejection.

On the basis of the above study involving various cases, it can be concluded that the defence of sovereign immunity is now not available to the state whenever its employees commit tort against the citizens. Kasturilal is now overruled and the apex court has given a new dimension to the state liability principle from Rudul Shah case. A concept of paying the compensation has been evolved that whenever there is violation of fundamental right of life or liberty by any employee of the state, it is vicariously liable for such tortious act. The remedy of getting damages can be availed both, through writ or through civil litigation. It can also be obtained by approaching the Human Rights Commission, whether at national level or at the state level. It will be better if our Parliament enacts a law on this point and makes the state statutorily liable, whenever there is any tort committed by its employees, whether in the exercise of sovereign or non-sovereign function.

[1] Paschim Banga Khet Samity v. State of West Bengal, (1996 SCC (4)37) (India).

[2] Kasturilal Raliaram v. State of U.P, AIR 1965 SC 1039 (India).

[3] H.M SEERVAI, Constitutional Law of India1137.

[4] State of Gujarat v. Memon Mohd, AIR 1967 SC 1885 (India). See also, B.P. Dwivedi, “Form Sah to Saheli” 36 JILI 99 (1994).

[5] N. Nagendra Rao & Co. v. State of Andhra Pradesh, AIR 1994 SC 2663 (India).

[6] Hazur Singh v. BihariLal, AIR 1993 Raj 51 (India).

[7] Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979 (India).

[8] P. & O. Steam Navigation Company v. Secretary of State for India, (1851) 5BomHCj (India).

[9] NHRC Annual Reports revealed 444 custodial deaths in 1995-96, which were doubled (888) in 1996-97, as quoted in S.C.Raina. “Custodial Torture in Police Stations” 5 NCLJ 1(2000).

[10] D.K. Basu v. State of West Bengal, AIR 1997 SC 610 (India).

Leave a comment