Report No. 277
A. Public Law Remedy
4.3 Public law remedy for miscarriage of justice on account of wrongful prosecution, incarceration or conviction finds its roots in the Constitution of India. In such cases, it is the violation of fundamental rights under Article 21 (the right to life and liberty), and Article 22 (protection against arbitrary arrests and illegal detention etc.) that invokes the writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution respectively; which includes the grant of compensation to the victim, who may have unduly suffered detention or bodily harm at the hands of the employees of the State.
4.4 The function of maintaining law and order has been held to be a sovereign function.40 According to the traditional classification, arrest and detention were classified as 'sovereign' functions, whereby any person who suffered undue detention or imprisonment at the hands of the State was not entitled to any monetary compensation and, the courts could only quash an arrest or detention if it was not according to law. This, however, changed with the Maneka Gandhi judgment,41 where the Supreme Court gave a dynamic interpretation to Article 21, a new orientation to the concept of personal liberty. One of the important offshoots of the foregoing was that the courts started to consider awarding compensation in cases of undue detention and bodily harm.
4.5 In this respect, the case of Khatri & Ors. v. State of Bihar & Ors.,42 (the Bhagalpur Blinding case), was one of the earlier cases where the question was raised as to whether a person who has been deprived of his life or personal liberty in violation of Article 21 can be granted relief by the Court, and what could such relief be. In this case, it was alleged that the police had blinded certain prisoners and that the State was liable to pay compensation to them. The Court though not giving a definitive answer to the question of the State's pecuniary liability to pay compensation, did order the State to meet the expenses of housing the blinded victims in a blind home in Delhi.
4.6 Subsequent to the above, there was a series of Supreme Court judgments which expounded on the State's vicarious liability, which developed the foundational principle for holding the State liable for abuse of power by its employees- one of them being misconduct on the part of police and investigating agencies. These judgments established pecuniary compensation as a prominent public law remedy for the aforesaid violations of fundamental rights.
4.7 One of the first precedent-setting cases is from the year 1983, Rudal Sah v. State of Bihar43, where the Supreme Court, exercising its writ jurisdiction, passed an order of compensation for the violation of Articles 21 and 22 of the Constitution. In this case the petitioner was unlawfully detained in prison for 14 years after the order of acquittal. The court observed thus:
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 violators 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.
4.8 The Court further observed that this remedy is independent of the rights available under the private law in an action based on tort, or that under criminal law i.e. via criminal proceedings against the wrongdoer.44 On the heels of Rudal Sah (supra) came the Boma Chara Oraon45 case, where the Supreme Court declared that anyone deprived illegally of his life or personal liberty can approach the Supreme Court and seek compensation for violation of his fundamental right under Article 21. Subsequently, there has been a string of cases, where the Supreme Court awarded compensation to persons whose fundamental rights under Articles 21 and 22 had been violated on account of illegal detention, wrongful incarceration etc.46
4.9 Emphasising the need to compensate the victims of wrongful arrests, incarceration etc. by awarding "suitable monetary compensation", the Supreme Court in the case of Bhim Singh, MLA v. State of J & K & Ors.47 opined that the mischief, malice or invasion of an illegal arrest and imprisonment cannot just be "washed away or wished away" by setting free the person so arrested or imprisoned. The Court awarded a sum of Rs. 50,000/- as compensation for illegal detention but, it is noteworthy that it did not delve into the reasoning or mechanism of how this "suitable monetary compensation" was determined or should be determined in similar cases.
4.10 Delving into question of 'who is responsible to pay the compensation in cases of State officials' misconduct- individual police officers or the State', the Supreme Court in the case of SAHELI, A Women's Resources center & Ors. v. Commissioner of Police Delhi & Ors.48, upheld the principle of the vicarious liability of the State i.e. the State to responsible for the tortious acts of its employees; and, ordered the Delhi Administration to pay the compensation for police atrocities which lead to the death of a 9 year-old child; further noting that the Delhi Administration has the option to recover the amount paid from the officers found responsible.49
4.11 The Supreme Court upholding the principle of vicarious liability of the State in the case of State of Maharashtra v. Ravi Kant Patil,50 further observed that the individual officers cannot be held personally liable because even if it is assumed that such officers exceeded the limits of their power, they were still acting as officials. These cases recognised State's liability and responsibility to pay compensation for the wrongful acts of its employees but did not go into the compensation jurisprudence - factors taken into consideration for arriving at the amount of compensation etc.