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Report No. 277

4.12 A crucial judgment often credited with crystallising the principle of vicarious liability of the State underlining the abovediscussed cases and that of principle of sovereign immunity vis-àvis violation of fundamental rights by the State officials was delivered in the case of Nilabati Behera v. State of Orissa51. The Supreme Court in this case observed that award of compensation in writ proceedings is a remedy under public law, based on strict liability for contravention of fundamental rights, and that the principle of sovereign immunity is inapplicable in the cases involving violation of fundamental rights, though available as a defence under private law in an action based on tort52.

The Court further observed that the State in such cases in turn has the right to be indemnified by, and/or take action against the concerned officers in accordance with law through appropriate proceedings. The principle of strict liability of the state was also upheld in the landmark decision on the issue of 'police atrocities and awarding of compensation' in the case of D. K. Basu v. State of West Bengal53.

4.13 The defence of sovereign immunity is not applicable to cases of violations of the fundamental rights guaranteed under the Constitution. Claim for compensation is a constitutional remedy under Article 32 or 226, and the said defence is not available against a constitutional remedy. This was reiterated by the Supreme Court in the case of Consumer Education and Research Center & Ors. v. Union of India54. The Court further observed: It is a practicable and inexpensive mode of redress available for the contravention made by the State, its servants, it instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.

4.14 The right of personal liberty of citizens is precious, and no one can be permitted to interfere with it except in accordance with the procedure established by law. For any damage thereto, the State must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers.55

4.15 With respect to protection of fundamental rights from excesses and abuse of power, the Courts have taken a very restrictive view of the 'sovereign functions' of the State, thereby expanding the scope of State's liability. In the case of People's Union for Civil Liberties v. Union of India & Ors.,56 the Supreme Court held that the State cannot deprive a citizen of his life and liberty except according to the procedure established by law, and cannot claim immunity on the ground that the said deprivation of life occurred while the officers of the State were exercising the sovereign power of the State. The claim for compensation is based on the principle of strict liability to which the defence of sovereign immunity is not available.

4.16 The right to life under Article 21 is available not only to 'citizens', but also to 'persons' which would include 'non-citizens.57 A foreigner too can claim protection under Article 21 along with the Indian citizens.58 A natural corollary to this is entitlement to compensation in the event of a violation of the said right. In line with the foregoing, the Supreme Court in the case of Chairman, Railway Board & Ors. v. Chandrima Das59 ruled that a citizen of Bangladesh i.e. a foreign national when in India was entitled to the protection of her person under Article 21, which when violated also entitled her to relief of compensation by the State under Article 226 as the State was under constitutional liability to pay compensation to her.

4.17 As the principle of granting compensation for violation of Article 21 was gaining ground, the scope of cases covered under this remedy once again came under review in the case of Sube Singh v. State of Haryana,60 which laid down the proposition that compensation is not to be awarded in all cases. This case limited the award of compensation to cases where:

(i) the violation of Article 21 is patent and inconvertible;

(ii) the violation is gross and of a magnitude to shock the conscience of the court; or

(iii) the custodial torture alleged has resulted in death, or the custodial torture is supported by medical report or visible marks or scars or disability. In this case, the petitioner alleged illegal detention, custodial torture and harassment to the family members of the petitioner. Applying the foregoing criteria, the Court did not award any compensation in this case on the ground of lack of clear and incontrovertible evidence.

4.18 In cases of wrongful incarceration, prosecution involving infringement or deprivation of a fundamental right, abuse of process of law, harassment etc., though it has evolved as a judicial principle that the Supreme Court and the High Courts have the power to order the State to pay compensation to the aggrieved party to remedy the wrong done to him as well as to serve as a deterrent for the wrongdoer;61 but there is no set framework (statutory or otherwise) within which the right to compensation or the quantum of compensation is determined. Compensation for violation of fundamental rights in aforementioned cases is a public law remedy but there is no express provision in the Constitution of India for grant of compensation by the State in such cases.62 It is a remedy determined and decided on case-to-case basis dependent on the facts of each case, the disposition of the court hearing the case etc.63; which makes this remedy arbitrary, episodic and indeterminate.

4.19 As is evident from the famous case of Adambhai Sulemenbhai Ajmeri & Ors. v. State of Gujarat (the Akshardham Temple case),64 where the accused persons spent more than a decade in prison; the Supreme Court acquitted the accused persons with a specific noting as to the perversity in the conduct of the case from investigation to conviction to sentencing but did not award any compensation to those wrongfully convicted; despite also noting that the police instead of booking the real culprits caught innocent people and subjected them to grievous charges.

However, when a separate petition praying for compensation came up before another bench of the Supreme Court, the plea for compensation was rejected on the grounds that acquittal by a court did not automatically entitle those acquitted to compensation Phoolwati v. National Capital Territory of Delhi, 84 (2000) DLT 177, Sunita v. State of National Capital Territory of Delhi, 151 (2008) DLT 192. and if compensation is to be awarded for acquittal, it will set a 'dangerous precedent', post which the petition was withdrawn.65

4.20 The foregoing is in contrast to the other cases where under similar circumstances the court held the State accountable and awarded compensation. Perhaps it was owing to this kind of variance in the decisions on otherwise similar facts that the High Court of Delhi in its Reference to the Commission noted that "these (awards of compensation for wrongful incarceration under public law) are episodic and are not easily available to all similarly situated persons."66

4.21 Further, whether awarding or denying compensation, as noted above, most of these cases did not provide much clarity as to the basis of how the amount of compensation was arrived at - the pecuniary and non-pecuniary factors and peculiarities considered by the Court while determining the amount. In few of these cases in the last few decades, the compensation standard fixed at Rs. 50,000/- in the Bhim Singh, MLA case (supra) was applied after adjustment for inflation; which in many instances amounts to a very modest sum, all things considered.67



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