MONETARY COMPENSATION IN CASE OF VIOLATION OF FUNDAMENTAL RIGHT NILABATI BEHERA –VS- STATE OF ORISSA [(1993) 2 SCC 746]

 

MONETARY COMPENSATION IN CASE OF

VIOLATION OF FUNDAMENTAL RIGHT

NILABATI BEHERA –VS- STATE OF ORISSA

[(1993) 2 SCC 746]

The torture in police arrests has become regular routine and been considered as lawful practice by them. The Right to Life and Liberty guaranteed under Article 21 is a fundamental right and it should not be denied to convicts, under-trials or other prisoners in custody, except according to procedure established by law. If the state machinery infringes the fundamental right guaranteed under the constitution, then the victim should have a right to seek redressal under Article 32 of the Constitution. There is no express provision in the Constitution, which empower the Courts to award monetary compensation, in the case of fundamental right violation; the Courts will be rendered helpless. In order to overcome this situation, the Supreme Court for the first time in Nilabati Behera v. State of Orrisa, held that compensation can be demanded against the state in the case of human right violation.

FACTS OF THE CASE

The Case was heard before Supreme Court of India. The Petitioner of this case is Nilabati Behera. The Petitioner approached the Hon’ble Court for the deprivation of “Right to Life”

which was guaranteed under Article 21 of Indian Constitution along with other provisions of Human Rights. The Respondent of the case was State of Orissa. The Petitioner’s son Suman Behera, 22 years old was taken into the police custody on

December 1, 1987 around 8 pm by Assistant Sub-Inspector of Police for the investigation of an offence of theft. On December 2, 1987 also he was confined in the Police Outpost. At about 2 p.m. on the same day petitioner came to know that the corpse of her son was found on the railway track, there have been multiple injuries on the body and she realised that his son’s death was unnatural and the reason behind the death was the injuries on his body. The petitioner alleged that it was the case of custodial death since her son died as a result of the multiple injuries inflicted to him while he was in police custody and thereafter his body was thrown away on the railway track. This was written in her letter dated September 14, 1988 to Hon’ble Supreme Court of India, which was treated as a writ petition under Article 32 of the

Constitution. It had been prayed in the petition that award of compensation should be made to her, for contravention of the elemental of “right to life” guaranteed under Article 21 of the

Indian Constitution. The argument of the respondents was that the petitioner’s son managed to escape from police custody at about 3 a.m. on December 2, 1987 from the police outpost

where he was detained and thereafter, he couldn’t be found in spite of a research. After a brief search his corpse was found on the railway track on December 2, 1987 with multiple injuries, which indicated that he was run over by a train. The respondents denied all allegations of the custodial death and their responsibility for the unnatural death of the petitioner’s son. On March 4, 1991, the Hon’ble Supreme Court directed the District Judge to carry an inquiry into the matter and to submit a report. After hearing to both the parties and going through their set of evidences the District Judge submitted the Inquiry Report on

September 4, 1991. The District Judge found that the petitioner’s son died because of the multiple injuries inflicted upon him while he was in the police custody. The correctness of the finding of the District Judge in his report was criticized during this Court. The respondents stated that the petitioner’s son managed to escape from police custody at about 3 a.m. on December 2, 1987 and he was run over by a passing train and hence he sustained the fatal injuries. They also stated that the responsibility of the respondents for his safety seized at the instant he escaped from the police custody. This was the factual foundation for State’s liability for payment of compensation for violation of the elemental right to life under Article 21.

ISSUES INVOLVED IN THE CASE

I. Whether Supreme Court and High Court while exercising their Jurisdiction under Article 32 and Article 226 can grant the remedy of monetary compensation for violation of fundamental rights in relation to the principle of “Sovereign Immunity”?

Plea of the Petitioner

The petitioner’s counsel argued that the District Judge’s findings on the present case cannot be rejected, and there was immense evidence to prove that a petitioner’s son was in custody of the police and he was inflicted with the injuries by them which caused his death. It was further argued that the petitioner’s son’s right to life under Article 21 of the Indian Constitution has been deprived by the police, so then the compensation was claimed.

Plea of the Respondent

The respondents’ counsel, the Additional Solicitor General argued that the petitioner’s son had escaped the police custody at around 3 a.m., on the morning of December 2, 1987. He couldn’t be found in spite of the police having searched for him. In addition to that, he claimed that the petitioner’s son reached near the railway station soon after his escape from the police, and was hit by a train. And argued that it was those injuries that has caused the death of the petitioner’s son. He claimed that this was not a case of custodial death, as the petitioner’s son has escaped the police custody, and also denied the District Court’s evidence.

LEGAL ASPECTS INVOLVED IN THE CASE

Constitution of India

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 32

Remedies for enforcement of rights conferred by this Part III of Indian Constitution

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

• The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part.

• Without prejudice to the powers conferred on the Supreme Court by clause (1) and

(2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

• The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article 142

Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

• The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the

President may by order prescribe.

• Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the

discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Article 226

Power of High Courts to issue certain writs

Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

The power conferred by clause

(1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which

the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1),

without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the

High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.

The Code of Criminal Procedure, 1973

Section 6,

Classes Criminal Courts. Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts,  namely:-

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

Section 176

Inquiry by Magistrate into cause of death.

(1) When any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) or clause (ii) of sub- section (3) of Section 174 the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub- section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either

instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an

offence.

(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death,

the Magistrate may cause the body to be disinterred and examined.

(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.

Explanation.- In this section, expression" relative" means parents, children, brothers, sisters and spouse.

JUDGMENT

The Hon’ble Apex Court held that State of Orissa (Respondent) has to pay a sum of Rs.1,50,000/- to Mrs. Nilabati Behera and also a sum of Rs. 10,000/- has to be paid to the Supreme Court Legal Aid Committee. It was held that the evidence cited during the inquiry doesn’t support the defence of respondents and there’s no reason to reject the finding of the learned District Judge that Suman Behera died in police custody as a result of the injuries inflicted upon him.

It is very clear that there’s no evidence of any search made by the police to arrest Suman Behera if the defence of his getaway police custody is true. Contrary to which the invention of the body on the railway track within the morning by some railway men, it had been much later within the day that the police reached the spot to require charge of the body. This conduct of the concerned officials, is additionally a major circumstance to assess the credibility of the defence version.

It had been stated by the doctor that all the injuries couldn’t be caused in train accident, it had been possible to cause all the injuries by lathi blows. There is a difference between the liability of the state public law and therefore the liability of the state in private law for payment of compensation in action on tort. It is mentioned that award of compensation in a every proceeding under Article 32 by this court or by the state supreme court under Article 226 of the Constitution may be a remedy available public law, supported strict liability for contravention of fundamental rights to which the principle of exemption doesn’t apply, while it’s going to be available as a defence in private law in an action supported tort. The court isn’t helpless and therefore, the wide powers given to the current Court by Article 32, which

itself may be a fundamental right, imposes a constitutional obligation on this Court to create such new tools, which can be necessary for doing complete justice and enforcing the fundamental rights guaranteed within the Constitution, which enable the award of monetary compensation in appropriate cases, where that’s the only mode of redress available. The ability available to the current Court under Article 142 is additionally an enabling provision during this behalf.

There was concurring opinion given by Justice Dr. Anand said that it is the duty of the state to make sure that the rights of the people are not infringed in accordance with law when any person is its custody. The valuable right guaranteed by Article 21 of the Constitution of India cannot be denied to accused and convicts, under trials or other prisoners in custody, except per procedure established by law. There’s a good responsibility on the police or prison authorities to make sure that the citizen in its custody isn’t deprived of his right to life. His liberty is within the very nature of things restricted by the actual fact of his confinement and thus his interest within the limited liberty left to him is very precious. On the part of the State, the duty of care is strict and has no exceptions.

The wrongdoer is accountable and therefore the State is responsible if the person in custody of the police is deprived of his life except as per the procedure established by law.