Constitution , indian constitution and its underpinning, Lecture notes of Law

Download Constitution , indian constitution and its underpinning and more Lecture notes Law in PDF only on Docsity! 1 COMPENSATION FOR VIOLATION OF FUNDAMENTAL RIGHTS A NEW REMEDY IN PUBLIC LAW DISTINCT FROM RELIEF OF DAMAGES IN TORT V.K. Sircar, LL.M. District Judge, Kanpur Nagar In Rahul Sah‟s case1 the apex Court for the first time was faced with a dilemma whether or not to award compensation for violation of right to life and personal liberty guaranteed under Article-21. The stand taken on behalf of the State, was that the petitioner should be left entirely to claim damages under the ordinary Civil Law, by filing a suit in that behalf. This contention was, however, rejected by the Supreme Court as according to Hon‟ble Mr. Justice Chandrachud, the then CJ it would have amounted to robbing Article 21 of its “Significant Content”. He also felt it necessary to award monetary compensation of Rs. 30,000=00 without impairing the right of the petitioner to claim damages under ordinary law through Civil Courts, Chandrachud, CJ had observed that “the petitioner can be relegated to the ordinary remedy of suit if his claim to compensation was factually controversial in the sense that a Civil Court may or may not have upheld his claim but while the court has already found in the present case, that petitioner‟s prolonged detention after his acquittal, in prison was wholly unjustified and illegal, there can be no doubt that if the petitioner files a suit to recover damages for his illegal detention a decree for damages would have to be passed in that suit”. After this decision the Hon‟ble Supreme Court had occasion to award compensation for violation of fundamental rights in four more cases, namely-Sabastain M. Hongaray 2 , Bhim Singh 3 , Saheli 4 and Ravi Kant Patil 5 . Before proceeding further it would be appropriate them in Court in compliance with the Writ of Habeas Corpus issued by the Supreme Court. The Supreme Court, therefore, concluded that those persons must have met an un-natural death while in Army custody. Union of India was directed to pay an exemplary cost of one lac rupees each to the wives of those persons. In Bhim Singh’s case the petitioner, who was M.L.A., was illegally arrested and detained with the object of preventing him from attending the Assembly Session. Supreme Court directed the State Government to pay Rs. 50,000=00 compensation to the petitioner. In Saheli’s case 6 , writ was moved before the Supreme Court by the mother of the child aged about 9 years who died as a result of police beating. The Supreme Court awarded Rs. 75,000=00 as damages to the mother of the child against the Delhi Administration. In Ravi Kant Patil’s case 7 High Court‟s order awarding compensation for violation of fundamental right under Article 21 of an undertrial prisoner, who was handcuffed and taken through streets in a procession by the police during investigation, was upheld by the Supreme Court. 1 Radul Sah Versus State of Bihar, AIR 1983 SC 1086 2 Sebastian M. Hongray Vs. Union of India (1984)3 SCR 544. 3 Bhim Singh Versus State of J & K. (1985)4 Se.c. 677 AIR 1986 SC 494. 4 Saheli Versus Union of India. AIR 1990 SC 513. 5 State of Maharashtra Versus Ravi Kant Patil (1991)2 SC 3C3: AIR 1991 SC 871. 6 Saheli Versus Union of India, AIR 1990 SC 513. 7 State of Maharashtra Versus Ravi Kant Patil (1991)2 SC 3C3: AIR 1991 SC 871. 4YFPMWLIHMR-RWXMXYXI W.SYVREP%TVMP.YRI 2 The aforesaid four cases are the authority for legal proposition that the Union or the State Government would be liable for tortious acts committed by their officers in violation of Article 21. However, it may be noted that the basis and the nature of the liability was not clearly spelled out by the Supreme Court in these decisions. A survey of aforesaid four decisions discloses that in these cases no new jurisprudential foundation was provided for awarding monetary compensation to a person whose right to life and personal liberty guaranteed under Article 21 was violated. In Rahul Sah’s case interim compensation was awarded as a “palliative” without impairing the petitioner‟s right to claim damages for wrongful detention under ordinary law of torts, as State was responsible for wrongs done by its officers. In Sebastian M. Hongray’s case the Union of India was directed to pay exemplary cost of rupees one lac each to the wives of persons on their presumed un-natural death. This amount was awarded as an exemplary cost but was in the nature of compensation. 8 In Bhim Singh’s case the Apex Court had awarded compensation to the M.L.A. petitioner for being illegally prevention by the State from attending the session of the Legislative Assembly, and in Saheli’s case, damages had been awarded to the mother of child against the Delhi Administration and its police officers who had caused the death of the child. In Ravi Kant Patil’s case compensation was awarded for hand-cuffing and parading an undertrial prisoner in a procession in streets, during investigation. Thus the principles of vicarious liability of State was invoked in all these cases. It was in Nilabati’s case 9 that the Supreme Court felt the need for clearly spelling out the true basis and nature of State‟s responsibility to pay compensation for violation of fundamental rights of the citizen by their officers. The Supreme Court said: “It would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between the liability and the liability in law for payment of compensation in an action on tort”. The need for providing independent jurisprudential basis to liability of the State for payment of compensation for violation of fundamental rights became imperative due to the fact that in Radul Sah’s case there was an observation to the effect that “the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial”, and “Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through ordinary process”. The judgment in Nilabati’s case clearly seems to have been inspired by the Privy Council decision in Maharaj Versus Attorney General of Trinadad and Tobago 10 and Art. 9 of International Covenant on Civil and Political Rights. In the said decision the Privy Council was called upon to interpret Sections 1 11 and 2 of the Constitution Act of Tribadad and Tobago (which correspond to Articles-21 and 22 of Constitution of India) and Section 6 (which corresponds to Article 32 and 226 of Constitution of India). The Privy Council had clearly laid down in the said decision that Section 6 of the Constitution Act of Tribanad and Tobago “impliedly permitted award of compensation” where it was “the only practical mode 8 Bhim Singh Versus State of J & K (“.......word compensation was not used but it is obvious that the court awarded compensation”). 9 Nilabati Behera Versus State of Orissa AIR 1993 S.C. 1993 S.C. 1960 (J.S. Verma, Dr. A.S. Anand and N. Venkatachala, JJ.) 10 (1978)2 All.E.R. 670. 11 Section-1 of the Constitution of Trinadad & Tobago recognises amongst others the right of the individual of life, liberty, security of person & the right of not to be deprived thereof except by due process of law.