COMPENSATION FOR DEPRIVATION OF FUNDAMENTAL RIGHTS
1.Tort -- Compensation -- The State is responsible for the tortious
acts of its employees. An action for damages lies for bodily harm
which includes battery, assault, false imprisonment, physical
injuries and death. In case of assault, battery and false imprisonment
the damages are at large and represent a solatium for the mental
pain, distress, indignity, loss of liberty and death. As we have
held hereinbefore that the son of Kamlesh Kumari aged 9 years
died due to beating and assault by the SHO, Lal Singh and as such
she is entitled to get the damages for the death of her son. It
is well settled now that the State is responsible for the tortious
acts of its employees. Respondent 2, Delhi Administration is liable
for payment of compensation to mother for the death of her son
due to beating by the SHO of Police Station. Joginder Kaur vs.
Punjab State 1969 ACJ 28; State of Rajasthan vs. Vidhyawati AIR
1962 SC 933 : 1962 Supp 2 SCR 989; Peoples' Union for Democratic
Rights vs. Police Commissioner, Delhi Police Headquarters (1989)
4 SCC 730, followed.
Supreme Court directed the Delhi Administration to pay compensation
to mother of the deceased, a sum of Rs. 75,000. The Delhi Administration
may take appropriate steps for recovery of the amount paid as
compensation or part thereof from the officers who will be found
responsible, if they are so advised. As the police officers are
not parties any observation made by the Court in justification
of the order shall not have any bearing in any proceedings specially
criminal prosecution pending against the police officials in connection
with the death of son.
In Peoples' Union for Democratic Rights v. Police Commissioner,
Delhi Police Headquarters ((1989) 4 SCC 730) one of the labourers
who was taken to the police station for doing some work and on
demand for wages was severely beaten and ultimately succumbed
to the injuries. It was held that the State was liable to pay
compensation and accordingly directed that the family of the deceased
labourer will be paid Rs. 75,000 as compensation.
[Saheli,a Women's Resources Centre vs. Commissioner Of Police
Delhi ;1990-(001)-SCC -0422 –SC; 1990-(077)-AIR -0513 –SC]
2. Constitution of India - Arts. 32, 142, 226 & 300 - Criminal
Procedure code, 1973 - Sec. 357(5) - International Covenant on
Civil and Political Rights, 1966 - Art. 9(5) - Evidence Act, 1872
- Sec. 106 - Award of compensation from Public Law Proceedings
- Different from private law proceedings - Custodial death - State
liable for compensation to deceased's mother- 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 in the purported exercise of
their powers, and enforcement of the fundamental right is claimed
by resort to the remedy in public law under the Constitution by
recourse of arts. 32 & 226 - The Court is not helpless and
wide powers given to Supreme Court by art. 32, which itself is
fundamental right, imposes a constitutional obligation on Court
to forge such new tools, which may be necessary for doing complete
justice and enforcing the fundamental rights guaranteed in Constitution,
which enable award of monetary compensation in appropriate cases,
where that is only mode of redress available - Power available
to the Supreme Court under art. 142 is also enabling provision
in this behalf - Death in police custody established - Having
regard to deceased aged and monthly income between Rs. 1200 to
Rs. 1500 - Respondent State is directed to pay the sum of Rs.
1,50,000 to the widow
Constitution of India - Arts. 32 & 226 - Remedy in public
law proceedings - The burden is, clearly on the respondents to
explain how the deceased sustained those injuries which caused
his death - Unless a plausible explanation is given by the respondents
which is consistent with their innocence, the obvious inference
is that the fatal injuries were inflicted on the deceased in police
custody resulting in his death, for which the respondents are
responsible and liable.
Enforcement of the constitutional right and grant of redress embraces
award of compensation as part of the legal consequences of its
contravention. Award of compensation in a proceeding under art.
32 by Supreme Court or by the High Court under art. 226 of the
Constitution is a remedy available in public law, base on strict
liability for contravention of fundamental rights to which the
principle of sovereign immunity does not apply, even though it
may be available as a defence in private law in an action based
on tort.'A claim in public law for compensation' for contravention
of human rights and fundamental freedoms, the protection of which
is guaranteed in the Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and such a claim based
on strict liability made by resorting to a constitutional remedy
provided for the enforcement of a fundamental right is 'distinct
from, and in addition to, the remedy in private law for damages
for the tort' resulting from the contravention of the fundamental
right. The defence of sovereign immunity being inapplicable, and
alien to the concept of guarantee of fundamental rights, there
can be no question of such a defence being available in the constitutional
remedy. 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 in the purported exercise of their powers, and enforcement
of the fundamental right is claimed by resort to the remedy in
public law under the Constitution by recourse to arts. 32 &
226 of the Constitution. This is what was indicated in Rudul Sah
and is the basis of the subsequent decisions in which compensation
was awarded under arts. 32 & 226 of the Constitution, for
contravention of fundamental rights. Certain further observations
therein adverted to earlier, which may tend to minimise the effect
of the principle indicated therein, do not really detract from
that principle. This is how the decisions of Supreme Court in
Rudul Sah and others in that line have to be understood and Kasturilal
distinguished therefrom.
Constitution of India - Art. 21 - Convicts, prisoners or undertrials
- Their fundamental rights under art. 21 - Obligation of State
to ensure that there is no infringement of the indefeasible rights
of a citizen to life, except in accordance with procedure established
by law, while the citizen is in its custody. Convicts, prisoners
or undertrials are not denuded of their fundamental rights under
art. 21 and it is only such restrictions, as are permitted by
law, which can be imposed on the enjoyment of the fundamental
right by such persons. It is an obligation of the State to ensure
that there is no infringement of the indefeasible rights of a
citizen to life, except in accordance with law, while the citizen
is in its custody. His liberty is in the very nature of things
circumscribed by the very fact of his confinement and therefore
his interest in the limited liberty left to him is rather precious.
The duty of care on the part of the State is strict and admits
of no exceptions. The wrongdoer is accountable and the State is
responsible if the person in custody of the police is deprived
of his life except according to the procedure established by law.
The defence of "sovereign immunity" in such cases is
not available to the State. Adverting to the grant of relief to
the heirs of a victim of custodial death for the infraction or
invasion of his rights guaranteed under art. 21 of the Constitution
of India, it is not always enough to relegate him to the ordinary
remedy of a civil suit to claim damages for the tortious act of
the State as that remedy in private law indeed is available to
the aggrieved party. The citizen complaining of the infringement
of the indefeasible right under art. 21 of the Constitution cannot
be told that for the established violation of the fundamental
right to life, he cannot get any relief under the public law by
the Courts exercising writ jurisdiction. The primary source of
the public law proceedings stems from the prerogative writs and
the Courts have, therefore, to evolve 'new tools' to give relief
in public law by moulding it according to the situation with a
view to preserve and protect the Rule of Law. The old doctrine
of only relegating the aggrieved to the remedies available in
civil law limits the role of the Courts too much as protector
and guarantor of the indefeasible rights of the citizens. The
Courts have the obligation to satisfy the social aspirations of
the citizens because the Courts and the law are for the people
and expected to respond to their aspirations.
Penal Code, 1860 - Sec. 302 - Evidence Act, 1872 - Sec. 45 - Deceased
taken in police custody and found dead next day on railway track
without being released from custody - Burden clearly on respondents
(State) to explain how deceased sustained those injuries which
caused his death - Respondent's plea that deceased escaped from
police custody - Opinion of Professor and Head of Deptt. of Forensic
Medicine, who not examined as witness during inquiry - Being cryptic
and based on conjectures, not acceptable - Deceased in police
custody resulting in his death for which respondent are responsible
and liable
The burden is, clearly on the respondents to explain how the deceased
sustained those injuries which caused his death. Unless a plausible
explanation is given by the respondents which is consistent with
their innocence, the obvious inference is that the fatal injuries
were inflicted on the deceased in police custody resulting in
his death, for which the respondents are responsible and liable.
Criminal Procedure Code, 1973 - Sec. 176 - Custodial death - Inquiry
contemplated independently by magistrate and not jointly with
police officer when role of police officer itself matter of inquiry
- Joint inquiry report in case cannot made u/s. 176 CrPC and cannot
be relied on as statutory report relating to cause of death
Joint inquiry report is stated to have been not made been u/s.176
CrPC and was not strongly relied on by the Additional Solicitor
General as a statutory report relating to the cause of death.
An inquiry u/s. 176 CrPC is contemplated independently by a Magistrate
and not jointly with a police officer when the role of the police
officers itself is a matter of inquiry.
[Nilabati Behera Alias Lalita Behera V. State Of Orissa;1993-(002)-SCC
-0746 -SC
1993-(080)-AIR -1960 –SC;1993-(099)-CRLJ -2899 –SC]
3. Constitution of India - Arts. 21, 32, 226 - Habeas corpus petition
- Compensation - Where the plea of Army that the young boys detained
by them had been released was found to be false on enquiry, mothers
of boys awarded compensation to the tune of Rs. 1,25,000 each
with costs of Rs. 7,500 - Nilabati Behera v. State of Orissa (1993)
2 SCC 746 : 1993 SCC (Cri) 527 followed
Where the plea of Army that the young boys detained by them had
been released was found to be false on enquiry, mothers of boys
awarded compensation to the tune of Rs. 1,25,000 each with costs
of Rs. 7,500.
The Supreme Court directed the District Judge, Imphal (West),
to conduct an inquiry into the circumstances relating to the disappearance
of the two boys. The District Judge submitted a detailed report
and concluded that there was no cogent evidence to show that the
said boys had been released. He, therefore, found that they had
not yet been released from the custody of the army.
The case before the Supreme Court was squarely covered by their
earlier decision in Nilabati Behera v. State of Orissa [(1993)
2 SCC 746 : 1993 SCC (Cri) 527] the facts whereof were similar
to the present case. The Court held that there was an obligation
upon it, conferred by Article 32 of the Constitution, to forge
new tools necessary for doing complete justice and enforcing the
fundamental rights guaranteed by the Constitution. This enabled
it to award monetary compensation in appropriate cases where that
was the only mode of redress available. The remedy in public law
was more readily available when invoked by the have-nots, who
were not possessed of the wherewithal for enforcement of their
rights in private law, but the exercise was to be tempered with
judicial restraint to avoid circumvention of private law remedies,
where more appropriate.
The Supreme Court directed the Union of India to pay a sum of
Rs. 1,25,000 to the kin of the two boys, the interest whereon
was to be paid periodically to them.
[Postsangbam Ningol Thokchom vs. General Officer Commanding and
Others;1997-(007)-SCC -0725 –SC]
4 Constitution of India: Compensation for prison death: A convict
Ramjit Upadhaya working as a Nambardar in Central Jail, Varanasi,
was killed by a co-accused while serving out his sentence under
Section 302 IPC in Central Jail, Varanasi. His wife sent a letter
petition to the Supreme Court claiming compensation for the death
of her husband both in law and on compassionate grounds, Reports
were obtained from the Inspector General of Prisons, U.P. and
the Superintendent, Central Jail, Varanasi. They confirm that
Ramjit Upadhaya was killed by a co-accused. Even though Ramjit
Upadhaya was a convict and was serving his sentence yet the authorities
were not absolved of their responsibility to ensure his life and
safety in the jail. A prisoner does not cease to have his constitutional
right except to the extent he has been deprived of it in accordance
with law (see Francis Coralie Mullin v. Administrator, Union Territory
of Delhi and A. K. Roy v. Union of India). Therefore, he was entitled
to protection. Since the killing took place when he was in jail,
it resulted in deprivation of his life contrary to law. He is
survived by his wife and three children. His untimely death has
deprived the petitioner and her children of his company and affection.
Since it has taken place while he was serving his sentence due
to failure of the authorities to protect him, we are of opinion
that they are entitled to be compensated. The Supreme Court directed
the State of U.P. to pay a sum of Rs. 1,00,000 as compensation
to the wife of the deceased.
[Smt. Kewal Pati vs. State Of U.P. and Others;1995-(101)-CRLJ
-2920 –SC]
5. Compensation for Police firing on unarmed protestors:On 19th
April, 1986, 600 to 700 poor peasants and landless people mostly
belonging to the backward classes had collected for holding a
peaceful meeting within the compound of Gandhi library in Arwal,
a place within the District of Gaya in the State of Bihar. Without
any previous warning by the police or any provocation on the part
of the people who had so collected, the Superintendent of Police,
reached the spot with police force, surrounded the gathering and
opened fire as a result of which several people were injured and
at least 21 persons including children died. Even though several
people died and many more were injured by the ruthless and unwarranted
firing resorted to by the police, to give a cover to the atrocities,
the police started a false case and therein implicated several
innocent people including even some of the people who had been
killed in the firing.
The incident drew a lot of publicity and attention both within
the State as also outside. There has been no dispute that as a
result of the police firing 21 people died and several others
were injured. The heirs and relations of a few of the dead people
had been compensated by the State of the tune of Rupees ten thousand
as found from the record. No Justification has been indicated
as to why the said compensation has not been given in every case
of death or injury. It is a normal feature of which judicial notice
can be taken that when such unfortunate consequences emerge even
in police firing, the state comes forward to give compensation.
The Supreme Court directed that for every case of death compensation
of Rupees twenty thousand and for every injured person compensation
of Rupees five thousand shall be paid.
[Peoples' Union For Democratic Rights vs. State Of Bihar and Others;
1987-(093)-CRLJ -0528 –SC]
6. Constitution of India Art 226 - Habeas Corpus petition - as
per the enquiry report brother of the petitioner was arrested
by the BSF personnel while on his way to his place of duty as
a teacher and has disappeared since then - prayer to release the
detenu and constitute magisterial inquiry and to prosecute the
respondents under Sec 302 read with Sec 149 RPC and direct them
to pay a compensation of Rs. one crore to the family of the detenu
- investigations are already in progress - detenu has not been
released - as held by various decisions of the SC State is under
a legal obligation to compensate the family of the deceased for
the pain and sufferings occasioned by custodial death of the deceased.
Case of disappearance has been registered and investigations are
already in progress. It being a case of arrest and custodial disappearance,
the respondents, Union of India and the BSF personnel are under
legal obligation to compensate the family for the pain and sufferings
occasioned by loss of liberty and disappearance of their bread
earner. Under public law, the Union and its instrumentality are
under legal duty to safeguard the life and liberty of the individuals
and protect its citizens from its wrong doings which may occasionally
result in death of the citizen. There are a no. of decisions of
the SC which go in favour of awarding compensation to the family
of the deceased who has become a victim of custodial violence.
With regard to quantum of compensation details about family strength
and other relevant facts having a bearing on the question of award
of compensation are quite sketchy. Taking into consideration the
various decisions and totality of facts and circumstances the
amount of Rs. one lakh is awarded as just and proper compensation
to be paid by the Union of India and BSF, to the family of the
deceased.
[Mohammad Sultan Mir vs. State Of J. & K.; 2001-(107)-CRLJ
-0301 -J&K]
7. Arts.32 & 21 -- Police atrocities -- Resulted in the death
of three persons - Direction issued that an ex gratia payment
of Rs. 25,000 be made to widow of each deceased person - State
Govt. may recover this amount from tort-feasors. Since death of
the persons resulted due to police atrocities hence Supreme Court
directed to make payment of ex gratia of Rs. 25,000 to each widow
of deceased persons.
[Pratul Kumar Sinha vs. State Of Bihar; 1994-(SU3)-SCC -0100
–SC]
8. Compensation for forced disappearance: A writ petition for
issue of Habeas Corpus was taken up on receipt of a telegram.
On 11-8-1991 the marriage of one Allampati Sudhakara Reddy, a
close friend of the present detenu and two others, namely (i)
Raja and (ii) Pakam Sudhakar, took place at Jonnawada temple with
one Parveen, daughter of a Sub-Inspector. While so, hearing that
the above three persons attended the marriage, the Sub-Inspector
along with other constables came to the house of the detenu in
the early hours and took him away by using criminal force in a
van and from there went to the house of the other two, namely
Raja and Pakam Sudhakar, and took them also in the same van, kept
all of them in the Central Crime Station, Nellore, and the persuasions
of their parents to release their sons having proved futile, the
parent of the detenu moved the Addl. Judicial Ist Class Magistrate,
Nellore under S. 97 of the Criminal Procedure Code, resulting
in the appointment of an Advocate as Commissioner to search and
have custody of the three persons for being produced before the
Court. By then the three persons were moved to the III-Town Police
Station, Nellore. The Commissioner, along with the petitioner
went to the Police Station and proceeded to the lock-up room and
found all the three in the lock-up. When asked for handing over
custody of the three persons, the Sub-Inspector refused to do
so and did not also endorse his refusal on the warrant when demanded
by the Commissioner.
In view of the facts and circumstances, the Court held that it
was proved that the Sub-Inspector along with some constables took
away the detenu forcibly from his house in Nellore and confined
him in illegal custody; the detenu was kept in illegal custody
in the Police-Station and the Sub-Inspector attached to the said
Police Station during the relevant time and refused to hand over
custody of the detenu to the Commissioner inspite of the fact
that the warrant issued by the Court was shown to him, and thus
interfered with the due course of judicial process and that the
detenu was beaten by the Sub-Inspector and another while he was
in the illegal custody in the said police station resulting in
number of injuries.
Adequate compensation or exemplary costs were sought for the illegal
detention of the detenu and infringing his fundamental rights
guaranteed by Art. 21 and 22 of the Constitution. Article 21 guarantees
the life and personal liberty of the citizens and the same cannot
be deprived of except by the procedure laid down under law. Art.
22 provides for protection against arrest and detention in certain
cases. Under Art. 22 no person can be kept by the police under
arrest for more than 24 hours without producing the arrested person
before the Magistrate. In provides for production of the arrested
person within '24' hours before the nearest Magistrate, excluding
the travel time. In other matters of detention, the Article mandates
that the arrested person should be informed of the grounds of
arrest. In the instant case the very fact that the detenu was
taken away forcibly is illegal In the circumstances the forcible
taking away and illegal detention of the detenu is in gross violation
of the fundamental rights guaranteed under Articles 21 and 22
of the Constitution.
It is pertinent to notice a few decisions of the Supreme Court
and other Courts dealing with cases where a victim can be compensated
for wrongful arrest and illegal detention. In Rudul Sah v. State
of Bihar, AIR 1983 SC 1086 : 1983 Cri LJ 1644 the petitioner was
detained illegally in the prison for over fourteen years after
his acquittal in a full dressed trial. It is only after moving
the Supreme Court by way of a petition for habeas corpus, he was
released. In that background, that Supreme Court observed that
an order for payment of money in the nature of compensation can
be passed consequential upon the deprivation of a fundamental
right to life and liberty of a petitioner. The Supreme Court further
observed at page 1989 of AIR :
"Article 21 which guarantees the right to life and liberty
will be denuded of its significant content if the powers of the
Supreme Court were limited to passing orders of released 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 its violaters 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 the individuals is the true bastion of democracy. Therefore,
the State must repair the damage, done by its officers to the
petitioner's rights. It may have recourse against those officers."
So observing, the Supreme Court in that case ordered the State
to pay to the petitioner a further sum of Rs. 30,000/- as an interim
measure keeping it open to the petitioner to recover appropriate
damages from the State and erring officials through institution
of a suit.
[Ega Venkaiah vs. State Of Andhra Pradesh;1993-(099)-CRLJ -0691
–AP]
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