Law should not sit limply; while those who defy it go free and those who seek its protection lose hope

The torture in the police captivities, unchallenged and unopposed, has become a 'usual routine’ or 'legitimate practice’ all over the entire nation. The Right to life and liberty guaranteed under Art 21 is a precious right and it should not be denied to convicts, under-trials or other prisoners in custody, except according to procedure established by law. Hence, if the fundamental right guaranteed under Article of the convict is infringed by the state machinery, the victim should have a right to seek redressal under Article.32 of the constitution. But as there is no express provision in the constitution which empower the Courts to award monetary compensation, in the case of fundamental right violation, the Courts will be rendered helpless. In order to overcome this pathetic situation, the Supreme Court for the first time in Smt. Nilabati Behera v. State of Orrisa[3], held that compensation can be demanded against the state in the case of human right violation.

Relevancy of Verdict in Smt. Nilabati Behera v. State of Orrisa

Facts of the case
The letter sent to the Supreme Court by Smt. Nilabati Behera was treated as a Writ Petition under Art. 32 of the Constitution for determining the claim of compensation made therein consequent upon the death of peti­tioner's son Suman Behera, aged about 22 years, died in police custody. The said Suman Behera was taken from his home in police custody, in con­nection with the investigation of an offence of theft and detained at the Police Outpost. Later the petitioner came to know that the dead body of her son Suman Behera was found on the railway track near a bridge at some distance from the Jaraikela railway station. The prayer made in the petition is for award of compensation to the petitioner, the mother of Suman Behera, for contravention of the fundamental right to life guaranteed under Art.21 of the Constitution. The case is now posted for final hearing.

Verdict of the Supreme Court

The State of Orissa claimed sovereign immunity in public law or private law. But the Court held that the fundamental right to life guaranteed under Art. 21 of the constitution have been clearly infringed by the state. The state will be vicariously liable towards the wrong done by its servants during the course of their employment. The state must repair the damage done by its officers to the petitioners rights.[4] Hence strictly liable for contravention of fundamental rights as award of compensation in a proceeding under Art.32 or under Art 226 is a remedy available in public law to which the principle of sovereign immunity does not apply.

Verma J observed that “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”.

Further the court observed that “there is a great responsibility on the police to ensure that the citizen in its custody is not deprived of his right to life. The interest of the convict in the limited liberty left to him is rather precious and therefore the duty of care on the part of the state is strict and admits of no exceptions”.

Honorable supreme court also relied on  Art. 9(5) of the International Covenant on Civil and Political Rights, 1966 [ICCPR], which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under - “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Reliance was also placed in the preceding decisions of this hon’ble Court in the line of cases starting from Rudul Shah v. State of Bihar[5], Sebastian M. Hongary v. Union of India[6], Bhim Singh v. State of J&K[7], Saheli, A Women’s Resources Centre v. Commr. of Police Delhi Police Headquarters[8] and State of Maharashtra v. Ravikant S. Patil[9] which granted monetary relief to the victims for deprivation of their fundamental rights in proceeding though petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant     of such relief was warranted.

The Supreme Court further emphasized that “the jurisdiction of this honorable Court under Art. 32 imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution which enables the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Art.142 is also an enabling provision in this behalf.
           
Ultimately the Court ordered monetary amend in favour of Smt Nilabathi Behra for the custodial death son by ordering payment of a sum of One Lakh Fifty Thousand Rupees as compensation by the way of exemplary damages.
 
End-Notes
[1] Written by: Dr. N. Krishna Kumar - Associate Professor, Government Law College, [email protected]
[2] Jennison v. Baker (1972) 1 All ER 997.
[3] AIR1993 SC p 1961
[4] Rudul Shah v. State if Bihar AIR 1983 SC 1086
[5] AIR 1983 SC 1086
[6] AIR 1984 SC 1026
[7] 1984 (supp) SCC 504
[8] (1990)1 SCC 422
[9] (1991)2 SCC 373