CASE DETAILS
| Bench J.S. Verma J. A.S. Anand J. N. Venkatachala J. | Case no. (1993) 2 SCC 746 | Acts/law Constitution of India |
INTRODUCTION:
In NILABATI BEHERA vs. STATE OF ORISSA , a bench of three judges of the apex court adjudicated two issues: custodial death and providing compensation to petitioner by exercising the power under writ jurisdiction.
FACTS:
In the present case son of the petitioner was arrested and detained by the police for commission of offence of theft. However, on the next date of detention son of the petitioner was found dead on the railway track. Further a letter was sent to the Supreme Court by the petitioner claiming compensation for commission of custodial death of son. The said letter was treated as a petition under Article 32 of the Constitution of India.
ISSUES:
- Whether it was a custodial death?
- Whether the state is liable to pay compensation? Or Whether state can pass an order of compensation under writ jurisdiction?
OBSERVATION:
- Whether it was a custodial death?
It was contended by the petitioner that death of her son was unnatural therefore Supreme Court has directed District Judge to conduct an inquiry to find out the reason for death. Subsequently report was filed including therein that the death occurred on account on the injuries occurred on the deceased during custody at police station. Court observed that the burden of proof is on police to establish that how those injuries sustained.
It was contended by the state on behalf of police that responsibility of police come to an end the moment son of petitioner escaped from custody of police. However, this court did not find that contention corroborative and based on factual finding and report concluded that it was custodial death.
- Whether the state is liable to pay compensation? Or Whether state can pass an order of compensation under writ jurisdiction?
Principle of sovereign immunity and compensation in writ:
The apex court ascertained that it is essential to identify the principle based on which liability of the state to pay compensation accrues and how the said liability is different from the compensation under private laws.
In para 10 court averted that compensation under Article 32 and 226 of Constitution is a remedy available under public law, that is based on strict liability for abridging the fundamental rights moreover the principle of sovereign immunity is not a defense in case of such liability. Though this could be taken as a defense under private law. Court relied certain judgements to conclude this issue.
- Rudul Sah vs. state of Bihar (1983) 4 SCC 141: This was first significant judgment wherein court gave finding concerning the payment of compensation under writ jurisdiction to petitioner who was illegally detained. Court held as under:
“It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right…………..The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and……… the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.”
- Kasturilal Ralia Ram Jain vs. State of U.P. (1965) 2 Cri LJ 44: IN the said case court uphold the plea of state of sovereign immunity in case of tortious acts of its servant.
In paragraph no. 14 of the present case court highlighted the differentiation between states liability in cointervention of fundamental rights and tortious liability, moreover in which case defense of sovereign immunity can sustain. Paragraph no. 14 as under:
14…..State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation.
Further in the said para court gave comparative analysis of both the aforesaid referred case laws as under and concluded that lagter is not applicable to the case in hand:
…. decisions of this Court in Rudul Sah in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal ……. the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal therefore, inapplicable in this context and distinguishable.
Public law and private law:
Court in paragraph 17 observed the difference between “a claim in public law and under private law for infringement of fundamental rights”. A claim under public law for compensation for violation of fundamental rights is an acknowledged remedy under article 32 and 226 of Constitution. Fundamental rights are guaranteed under constitution and violation of the same is strict liability for which claim is made by resorting to constitutional remedy. The claim of compensation under public law for violation of fundamental rights is distinct and in addition to remedy in private law for the damages for the “tort”.
Article 32 remedy:
Court in para no. 20 emphasized on power of supreme court under article 32 which is itself a fundamental right, which imposes obligation on court to bring in new tools which may be necessary for doing complete justice. Article 32 enables the award of compensation in cases where it is appropriate and only mode of redress.
Article 21:
In para 31 court ascertained the relevance of article 21 of the constitution which guarantees that “no person should be deprived of his life and personal liberty without the due process of law”. Court observed as under:
31…. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life.
Rule of law:
In para 32 court highlighted that court have to evolve new tools for protection of rights of citizen to preserve and protect rule of law. Para 32 held as under:
The citizen complaining of the infringement of the indefeasible right under Article 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.
FINDING:
In the first issues court concluded that it is a case of custodial death. In second issues court exercise power under writ jurisdiction in order to award compensation of Rs. 1,50,000 to petitioner for the liability of state.
Also read
https://lawsearchindia.com/l-chandra-kumar-vs-union-of-india/