Report No. 152
With the advance of civilisation, individual's right to restitution and compensation against the abuse of power by public servants has been well recognised throughout the civilised nations. In India, prior to independence the liability of the Government for the tortuous act of public servants was limited and the person affected could enforce his right in tort by filing a civil suit. But no restitution or compensation was available to a person if the damage or injury was caused in exercise of sovereign function.
Even after independence the distinction between sovereign and non-sovereign functions of the State was maintained and the State's claim for immunity was upheld by the Supreme Court.1 But without abandoning the distinction formally, the Supreme Court has recently taken a more realistic and enlarged view of the functions termed "non-sovereign". Further, the Supreme Court of India in a number of path breaking pronouncements has extended the fundamental right of life and personal liberty and fashioned compensatory and rehabilitative reliefs to the victims of custodial crimes.
Despite the distinction between exercise of sovereign and non-sovereign functions, the Supreme Court has awarded compensation to the victims and their kith and kin for the injury caused to the victim by the police and other detaining authorities of the State.2 Such damages have been awarded even for the injuries arising out of police firing killing innocent citizens in crowd or riot. Though the Supreme Court has awarded compensation to the affected persons but no uniform principles have been laid down.
In the absence of specific legislation, there is uncertainty and the courts have adopted their own standards in awarding the compensation or in determining its quantum. The question that arises for consideration is whether legislative provision should be made for the award of compensation and, if so, what should be the principles for determining the amount of compensation. A further question that arises for consideration is whether in case of death of a person in custody of a public servant compensation upto a specified limit irrespective of the proof of fault should be provided for.
It is felt that such a provision would be justifiable in the interest of social justice and the rule of law. Another interesting question that arises for consideration is whether the victim of torture and injury and his kith and kin in the case his death should be awarded one time compensation or it should be continuous to provide means of sustenance and livelihood to the relatives of the victims.
Under the general law prevailing in our country, any award of compensation or ex-gratia payment by the criminal court or the Supreme Court and the High Court under the writ jurisdiction or the ex-gratia payment by the executive is subject to the right of the victim and his kith and kin to obtain decree for damages in tort before the civil court. If the criminal court is vested with power to award compensation to the victim of custodial offences or his kith and kin why should they have another innings of litigation before civil court in tort.
According to one view the amount awarded by the criminal court and the Civil Court and High Court under writ jurisdiction is tentative and the final amount of compensation is determined on consideration of the basis of the scrutiny of evidence and circumstances of the case in 'detail by the civil court. This question requires further consideration.
1. Kasturi Lal v. State of Uttar Pradesh, AIR 1965 SC 1039.
2. State of Rajasthan v. Vidyawati, AIR 1962 SC 993; Basava Patil v. State of Mysore, AIR 1977 SC 1749; Nilabati Behra v. State of Orissa, (1993) 2 SCC 746; State of Gujarat v. Memon Mohammed Hazi Hussain, AIR 1967 SC 1885; Rudal Shah v. State of Bihar, AIR 1983 SC 1086; Sebastian M. Mongray v. Union of India (1984) 1 SCC 339; Bhim Singh v. State of Jammu & Kashmir, 1989 Supp SCC 564; Bhim Singh v. State of Jammu & Kashmir, (1985) 4 SCC 677; Saheli v. Commissioner of Police, (1990) 1 SCC 422.
The Supreme Court1 has granted compensation to provide support to the dependants of the deceased. An analysis of the decisions of the Supreme Court shows that the Court has awarded Rs. 75,000,2 Rs. 1,50,0003 and Rs. 2,00,0004 as interim measure5 to the legal heirs of the victims who died in police custody. This indicates that the amount of compensation has not been uniform and no principles have been laid down or followed. The award of compensation has varied from case to case probably on the facts of each.
1. Rudal Shah v. State of Bihar (1983) 4 SCC 141: (1983) 3 SCR 508; Sebastian M. Hongray v. Union'of India, (1984) All SCC 339 (1); Bhim Singh v. State of Jammu & Kashmir, 1984 Supp SCC 504; Bhim Singh v. State of Jammu & Kashmir, (1985) 4 SCC 677; Saheli v. Commissioner of Police, Delhi, (1990) 1 SCC 422.
2. People's Union of Democratic Rights v. Police Commissioner, (1984) 4 SCC 730.
3. Nilabati Bahera v. State of Orissa, (1993) 2 SCC 746.
4. Sarvinder Singh Grover v. State of West Bengal, (1993) 1 Cr LR 163.
5. Rudal Shah v. State of Bihar, (1983) 4 SCC 141.
If the law is required to lay down principles, the question arises what formula or principles should be prescribed for determining the quantum of compensation. The Indian courts have followed two kinds of formula to determine the amount of compensation payable to the dependants of the deceased in case of wrongful death i.e., the interest theory and multiplier theory. In the case of former the proposition contemplates that only such amount should be payable to the claimants which would ensure the accrual of interest equal to the annual dependency if the same were invested on a long-term basis in the bank.
Under the multiplier theory damages are computed on the basic annual figure of dependency, by applying a multiplier which seeks to take care of uncertainty of vicissitudes of life. While determining the amount the damages must represent solarium for the mental pain, distress, indignity, loss of liberty and death.1 The principles laid down by the English court2 for determining the compensation in the case of wrongful death have been followed by the Supreme Court of India.3 These principles are as follows:
1. Saheli v. Commissioner of Police, supra.
2. 1951 AC 601.
3. AIR 1962 SC 1.
"(1) The deceased man's expectation of life has to be estimated keeping in view his age, his bodily health and the possibility of premature determination of his life by subsequent accident;
(2) The amount required for the future provision of his wife should be estimated having regard to the amount the deceased used to spend on her during his life time;
(3) This estimated annual sum should be multiplied by the number of years of the man's estimated span of life;
(4) The said amount must be discounted so as to arrive at the correct equivalent in the form of lump-sum payable on his death, after making deductions for the acceleration of her interest in the estates; and
(5) Deductions should also be made for the possibility of the wife dying earlier if the husband had full span of this life and also for the possibility that in case the widow remarriages, that may result in improvement of her financial position."
In this connection it would be worthwhile to refer to some of the proposals made in respect of relief to be provided to the victims of custodial crimes or their kith and kin placed before the Chief Minister's Conference on Human Rights held on 14th September, 1992. One of the proposals made contemplated that in case of death the amount of compensation should be determined by the criminal court taking into account all relevant considerations and the court may further allow payment of interim relief.
The extent of such interim relief may not be less than Rs. 10,000 and may extend upto Rs. 25,000 in case of death and in the case of other injury it may not exceed Rs. 10,000. As regards the final relief payable in the case of death, the proposal contemplated maximum amount of Rs. 5,00,000 and Rs. 50,000 in the case of injury.
Section 357 of Cr. P.C. confers power on court to direct for payment of compensation out of the fine awarded against the accused at the time of passing judgment. The amount of compensation is contemplated to meet the expenses incurred in prosecution and compensation for loss of injury caused by the offence, if the compensation is recoverable in a civil court. Under this provision, compensation can be ordered to be paid only if the accused is convicted and sentenced and fine is imposed, but the payment of compensation is subject to appeal.
The Supreme Court has interpreted this section narrowly. The court held that the court has to consider in the first instance whether the sentence or fine is at all called for particularly when the offender is sentenced to death or life imprisonment. Even if the fine is to be awarded it should not be excessive.1 The provisions of section 357 are not adequate to provide for restitution or compensation to the persons entitled to compensation.
1. 1972 SCC 634, Para. 12.
Apart from the police there are several other governmental authorities like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A.W., Central Bureau of Investigation (CBI), CID. Traffic Police, Mounted Police and ITBP, which have power to detain a person and to interrogate him in connection with the investigation of economic offences under Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulations Act etc.
There are instances of torture and death in custody of authorities other than the police authorities.1 It would be necessary to amend the law to protect the interest of arrested persons in such cases also. This may require amendment of the relevant provisions of law.
1. Sarvinder Singh Grover v. State of West Bengal, (1993) 1 Cr LR 163 (SC).
There is yet another view point which needs consideration. The police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, students unrest, terrorist activities, radical politicism like extremists and among others the increasing number of armed gangs and criminals. Many hardcore criminals like extremists, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society.
One can visualise that with the more and more liberalisation and enforcement of fundamental rights, it may lead to more difficulties in detection of crimes by such categories of hardened criminals. It is felt in certain quarters that if we provide them with more measure of safety and interests pertaining to their fundamental rights and human rights vis-a-vis torture of their person, such criminals will go scot-free without exposing any element or iota of criminality. To deal with such a situation a balance approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner.