DECLINED RESTITUTION AND VICTIM COMPENSATION SRI LAKSHMI AGENCIES –VS- GOVERNMENT OF ANDHRA PRADESH [(1994) 1 ANDH LT 341]

 

DECLINED RESTITUTION AND VICTIM COMPENSATION

SRI LAKSHMI AGENCIES –VS- GOVERNMENT OF ANDHRA PRADESH [(1994) 1 ANDH LT 341]

The following is the case summary of Sri Lakshmi Agencies v. Government of Andhra Pradesh in which the High Court of Andhra Pradesh declined restitution and victim compensation. In this case, the court refused to accept the prayer for compensation to the loss of life, injury, destruction and loss of property as a result of the violence that followed the murder of a sitting member of the legislative assembly. The then Government deemed fit to grant some immediate relief measures to rehabilitate the aggrieved persons to the extent possible. That was in the shape of interest free loans, rebuilding of the houses or repairs, as the situation demanded for weaker sections and for others ex-gratia payments. It can be noted that the right of a victim to restitution has not yet merited statutory recognition. Courts in India usually are inclined to examine the plea of victims for the purpose of redressal of the losses suffered during violent incidents including rioting. The principle of ‘culpable inaction’ is evoked under which the state as well as its agencies are all expected to anticipate the damages to public and private property in various situations, especially the ones over which the potential victims have no control. Furthermore, the courts have also gone out of their way to find the state liable only in cases where a definite failure on its part has resulted in the loss.  This is one such area that is still evolving and in which the courts in India are usually seen to be treading cautiously.

FACTS OF THE CASE

The aspects of culpable action and culpable inaction, located within the border doctrine of sovereign immunity, were applied by B S Reddy in this case. In the eruption of violence which followed the murder of a sitting member of the Andhra Pradesh State Legislative Assemble (MLA), acts of arson and looting were committed by private individuals/miscreants. In this situation, a curfew was immediately imposed, and the situation was brought under control by the police, but the violence had taken its toll and there was loss of life, injury, destruction and loss of property, as well as the disruption of livelihood. A writ petition was filed under Article 226 of the Indian Constitution, in order to seek

compensation for the heavy damages that were suffered by the petitioners in terms of their properties as well as their businesses. In this regard, the petitioners had alleged negligence on the part of the state and its officers which had resulted in violation of the petitioners’ fundamental rights under Article 14, 19(e) and (g), 21 as well as the constitutional guarantee provided under article 300A.  This plea was controverted by the respondents by filing a counter affidavit in this regard claiming that no vicarious liability arises in this case.

ISSUES INVOLVED

I. Are public law remedies available for the tortious acts of private individuals and whether or not the State is liable to pay compensation for such tortious acts of private individuals?

Plea of the Petitioner

E. Manohar appearing for the petitioners had strenuously contended that the deceased MLA had long been fasting unto death and had demanded police protection for his life. It was

claimed that the state could have easily anticipated this turn of events in order to have taken preventative measures but had willfully failed to do so. The failure of the state in taking preventative measures allowed miscreants to indulge in large-scale looting and arson. The violent act also specifically targeted specific individuals belonging to a particular caste and in this regard the State as well as its officers are liable to compensate the victims for said losses and damages.

In the plea, Article 14, 19(e) and (g) were also mentioned as grounds and so are the Directive Principles of State Policy, but the only argument that was put forward was on the touch-stone

of Article 21 of the Indian Constitution.

Plea of the Respondents

Mr. S. Venkat Reddy, the learned Advocate General appearing for the respondents countering the arguments of the learned counsel for the petitioners, submitted that in no way are the respondents related with the violence erupted by private individuals. It was also claimed that there was no negligence of their part and that the petitioners only suffered damage due to the involvement of unsocial elements of the society on account of arson and looting. The respondents also claimed that due care and precaution was taken at their end in the shape of curfew and that the situation was brought under control. The respondents contended that they

are not liable as no vicarious liability arises in case private individuals indulge themselves in violence and arson and that the respondents cannot be mulcted with any liability to pay compensation to the petitioners. It was also submitted that there is a material differentiation between acts committed by state

servants who are traceable to sovereign powers and the acts committed by public servants who are not referable to such sovereign powers. And that even if a wrong committed on the

part of the public servant in the first category is proved, the State is immune from liability.

LEGAL ASPECTS INVOLVED IN THE CASE

Constitution of India

Article 14 – ‘Equality before law’: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 19(e) and (g) – ‘Protection of certain rights regarding freedom of speech etc.’:

(e) to reside and settle in any part of the territory of India; and, (g) to practise any profession, or to carry on any occupation, trade or business.

Article 21 – ‘Protection of life and personal liberty’: No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 was deemed inapplicable in this particular case by Justice B S Reddy on the grounds that a direct nexus for the loss/damage suffered on

account of the State’s action was found to be missing.

Article 300A – ‘Right to Property’: No person shall be deprived of his property save by the authority of law.

It is no longer a fundamental right, rather it is a constitutional right. Therefore, this article strived to protect an individual from interference by the State as well as disposes a person of their property in case it not in accordance with the procedure established by law.

In this particular matter of Sri Lakshmi Agencies and Ors., this law deems inapplicable since it was concluded that there is no negligence on the part of the State and its officers.

JUDGEMENT

It was observed that in this particular case, the indulgence in violence by miscreants was not at the instance of the respondents and neither did the respondents simply watch this

occurrence as silent spectators. It would be too far-fetched to say that simply because the deceased MLA was fasting unto death for police protection, the respondents ought to have anticipated the turn of events and that preventative measures ought to have been employed and had the said measures been taken, then the violence would have been prevented, is an argument that is based on hypothetical facts. In this regard, no negligence can be attributed on that hypothetical basis and hence no liability can be fastened on the State. It is doubtless that the tackling and protection of law and order is the State’s primary duty. But it is only when the State fails to perform such duty, will it be held liable. The State could have been held liable in case it failed to take necessary steps upon the eruption of violence but it cannot be held liable for not being able to visualize the eruption of violence. It would be too far-fetched to argue that the State and its officers’ ought to have anticipated the MLA’s death and the violence that would occur as a consequence as a result of which the petitioners would likely sustain losses/damages. The right under Article 21 of the Indian Constitution cannot be stretched that far in this regard. It was further stated that in case private vandalism is involved then the State and its officers cannot be held liable under Article 21 or any other Articles of the Indian Constitution. The article is only deemed to be applicable in case of a positive State action violating the fundamental right to life or personal liberty. Even by stretching its purview, it can only be

established up to mulcting the State for the wilful negligence of its servants in discharge of their duties which is not applicable to this particular case. It was held that, no presumption arises of the failure of the State machinery in order to protect life and personal liberty of individuals in all cases of loss of life or property and that such a sweeping principle of law can never be laid. If such a principle is accepted then for any and every criminal or illegal act done by private individuals in their own free capacity including

every action of erring individual directed against another individual, would entrust the State with liability and not just for any positive criminal or illegal State action or culpable inaction.

The State can only be held liable to pay damages in cases where the officers of the State do any act positively or have failed to act in a manner that is expected under law, leading to

culpable inaction. It was also held that, there should be a direct nexus for the loss/damage suffered on account of the State’s action and in case that is missing, then Article 21 of the Indian Constitution would deem inapplicable. Consequently, public law remedy under Article 226 of the Indian Constitution would also

deem inapplicable to this case and hence unavailable to the petitioners. In this regard, their remedy lies in invoking the private law remedy in a common law court against the miscreants. And in view of the above discussed facts and circumstances, the writ petitioned were dismissed. The High Court in this regard observed that even in case where there is no negligence on the

part of the government and as a goodwill gesture, takes a sympathetic view in the matter and in exercise of its executive function grants ex-gratia relief, then such a gesture would not

amount to an admission of guilt on their part, either directly or indirectly. Moreover, the government providing ex-gratia relief for immediate help as well as rehabilitation fixing sums does not raise any claim as of right to the victims. In fact, such a gesture on the part of the government should be appreciated and commended.