22 Apr 2010

Compensation for wrongs of State to citizens: The law revisited

Declaring that the law to this regard is settled that even State instrumentalities are liable to compensate a citizen for their wrongs, the Delhi High Court in a recent decision allowed compensation to a victim of police torture. Holding that the person had been subjected to undue harassment from the Delhi Police for being implicated in false cases for about fifteen years, and given the fact that he had to suffer due to the highhandedness of the police during the long pending litigation, the High Court directed the Delhi Police to pay compensation to the person while also directing the Commissioner of Police to send, within a period of two weeks from today, a written apology to him and his family members. 

Stating the law in regarding the liability of the State to pay compensation, the High Court observed as under;
23. At this stage this Court considers it necessary to recapitulate the well settled law of liability of the state to pay compensation to victims of police excesses. Recently in Sube Singh v. State of Haryana AIR 2006 SC 1117, the Supreme Court noted that: “Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades.”
24. A decision that is not cited but which perhaps unique in acknowledging the unconstitutional practices adopted by the police and perhaps laid the foundations for the later development of the law in the area is Prem Chand (Paniwala) v. Union of India AIR 1981 SC 613 where the poignant life of a stock witness, and how such persons are "used" by the police, was taken note of by the Supreme Court. Speaking for the Bench, Justice V.R. Krishna Iyer observed: “In Justice, Justices and Justicing and likewise in the Police and Policing, the Peril to the judicial process is best left to imagination if professional perjurers like the self-confessed Paniwala are kept captive by the Police, to be pressed into service for proving "cases". Courts, trusting the Police may act on apparently veracious testimony and sentence people into prison. The community, satisfied with such convictions, may well believe that all is well with law and order. We condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent threat to human rights of innocent persons. We hope that the higher authorities in the Department who, apparently, are not aware of the nefarious goings-on at the lesser levels will immediately take measures to stamp out this unscrupulous menace.” “The petitioner's reply affidavit makes startling disclosures about the police methods of implicating innocent people. However, the version of the petitioner can hardly be swallowed since he is a self-confessed perjurer. Nevertheless, it is not too much to ask Government to take effective measures to prevent Police methods straying into vice. We hopefully remind the State about what Justice Brandieis once observed: [Olmstead v. U. S. (1928) 277 US 438:
Crime is contagious. If the government becomes a law breaker, it breeds contempt for law".... "To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this Court must resolutely set its face. In the same American decision we have just mentioned Justice Holmes observed: We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.”
25.1 Among the early cases where the seeds of the law relating to payment of compensation to victims of state excesses was laid down is the Bhagalpur Blinding case [Khatri (II) v. State of Bihar 1981CriLJ 597], Bhagwati J., (as he then was), speaking for the Bench, posed the following question while considering the relief that could be given by a court for violation of constitutional rights guaranteed in Article 21 of the Constitution: “...but if life or personal liberty is violated otherwise than in accordance with such procedure, is the Court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty?”

25.2 The question was expanded in a subsequent order in Bhagalpur Blinding case [Khatri (IV) v. State of Bihar (1981) 3 SCR 145], thus:
“If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the court for injuncting the State from acting through such officer in violation of his fundamental right under Article 21 ? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex-concessions be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the State of the fundamental right guaranteed under Article 21, the petitioner who is aggrieved can move the court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the fundamental right under Article 21, the petitioner can approach the court under Article 32 and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the fundamental right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the fundamental right guaranteed to him ? Would the court permit itself to become helpless spectator of the violation of the fundamental right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the fundamental right to him and has also given him the fundamental right of moving the court for enforcement of his fundamental right, the court cannot give him any relief?"
25.3 Answering the said questions, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. This Court clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. The Court further clarified that in a given case, if the investigation is still proceeding, the Court may even defer the inquiry before it until the investigation is completed or if the Court considered it necessary in the interests of Justice, it may postpone its inquiry until after the prosecution was terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it, even if the investigation or prosecution is pending.

26. In Rudul Sah v. State of Bihar AIR 1983 SC 1086 the Supreme Court ordered compensation to be paid by the state to a person who had to undergo wrongful incarceration for several years. It held:
“10. …The petitioner could have been relegated to the ordinary remedy of a 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 we have 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, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release 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 Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. 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. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of 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.” (emphasis supplied)
27.1 Nilabati Behera v. State of Orissa AIR 1993 SC 1960 was a case where the son of the petitioner was taken in police custody from his home and was later found dead with bodily injurious on a railway track the next day. The deceased was aged 22 years and his monthly income was between Rs. 1,200 and 1,500 in 1987. The Supreme Court, while directing the State of Orissa to pay a sum of Rs. 1,50,000 as compensation to the Petitioner and Rs. 10,000 as costs to the Supreme Court Legal Aid Committee, observed:
“12. … award of compensation in a proceeding under Article 32 by this court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based 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.”
“16. In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State's plea of sovereign immunity for tortuous acts of its servants is confined to the sphere of liability in tort, which is distinct from the 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 tor contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Sah and others 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 related to value of goods seized and not returned to the owner due to the fault of Government servants, 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 is, therefore, inapplicable in this context and distinguishable.”
27.2 In his concurring opinion Justice Dr. A.S. Anand, (as he then was) observed:
“37. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar & Anr. granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through 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. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned.” (emphasis supplied)
28. A few years later in State of Madhya Pradesh v. Shyamsunder Trivedi (1995) 4 SCC 262 it was observed: “16. …. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve otherwise the common man may lose faith in the judiciary itself, which will be a sad day.”
29. Following this was the celebrated decision in D.K. Basu v. State of West Bengal (1997) 1 SCC 416 where the entire law relating to payment of compensation by the state to a victim of state excesses was expostulated. In Mrs. Sudha Rasheed v. Union of India 1995 (1) SCALE 77, the Supreme Court granted compensation of Rs.7,50,000/- to the relatives of an Advocate who had died in police custody. This court in Nasiruddin v. State, [Criminal Writ No. 585 of 1996, decided on December 16, 1997], while relying on the decision of the Supreme Court in D.K. Basu v. State of West Bengal (supra), granted monetary compensation to the father of an accused who died in Tihar Jail as a result of sixteen injuries which were found on his person.
30. Consistent with the law as explained in the above and several later decisions, this Court holds that Prempal is entitled to be compensated by the Respondent State for the suffering he has had to undergo on account of the illegal actions of the police in implicating him falsely in FIR No.231 of 2002 and consequently getting him wrongly arrested and incarcerated unjustifiably for nearly two years and five months. In Sube Singh v. State of Haryana (supra) the Supreme Court sought to draw a distinction between the cases where there was “established and incontrovertible evidence of violation of Article 21” and cases where it was not. The present case falls in the former category. There is no doubt in the facts and circumstances of the present case that there has been a clear-cut violation of the fundamental rights guaranteed to Prempal under Article 21. It is a case that shocks the judicial conscience.

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