No one ca suppose that the executive will never be guilty the of the sins that are common to all of us. Your may be sure that they will sometimes to things which they ought to do : and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, out procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning or freedom in the new age. They must be replaced by new and up-to date machinery by declarations, injunctions and actions for negligence… This is not the task of Parliament… the courts must do this. Of all the great tasks that lie ahead this is the greatest.
Properly exercised the new powers of the executive lead to the welfare state : but abused they lead to a totalitarian state. None such must ever be allowed in this country.”
A similar approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy for the infringement of those rights. That has, however, not prevented the Court in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself.
The informative and educative observations of O’ Dalaigh CJ in The State (At the Prosecution of Quinn) v. Ryan [1965] IR 70 (122) deserve special notice. The Learned Chief Justice said:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substances were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought of circumvent them, and that the Court’s powers in this regard are as ample as the defence of the Constitution require.”
(Emphasis supplied) In Byrne v. Ireland (1972) IR 241, Walsh J opined at p 264:
“In several parts in the Constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed toe have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State. It is against the State that the remedy must be sought it there has been a failure to discharge the constitutional obligation impose”
(Emphasis supplied) In Maharaj Vs. Attorney General of Trinidad and Tobago ( (1978) 2 All E.R. 670). The Privy Council while interpreting Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein, it permitted an order for monetary compensation, by way of ‘redress’ for contravention of the basic human rights and fundamental freedoms. Lord Diplock speaking for the majority said:
“It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney General of Guyana. Reliance was placed on the reference in the sub- section to ‘enforcing, or securing the enforcement of any of the provisions of the said foregoing sections’ as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships’ view of order for payment of compensation when a right protected under Section 1 ‘has been contravened is clearly a form of ‘redress’ which a person is entitled to claim under Section 6 (1) and may well be any only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by para (a) of Section 6(2), viz. jurisdiction ‘to here and determine any application made by any person in pursuance of sub-section (1) of this section’. The very wide power to make orders, issue writs and give directions are ancillary to this.”
