Compensation through Writ Petitions: An Analysis of Case Law Vikram Raghavan* In this article, the author has tried to find out the trend of the Supreme Court in the area of Compensatory Jurisprudence. The author has noted all the decisions in a manner which will help subsequent researchers to get their fundamental materials. Introduction Social and economic justice fs the signature (une of the Indian Constitution. It guarantees, fundamental rights which cannot be ordinarily derogated from. In protecting these rights, the Constitution has provided for writ remedies enforceable by the High Courts and the Supreme Court,! Often these rights are violated by the State, though in some cases private parties may also be involved. An important dimension of these remedies is the award of compensation as part of the relief that can be granted to the affected person. This arises from the fact that not only does the state have a legal duty in protecting the rights guaranteed, but also a social duty to compensate the affected, when the state violates these rights. Through the various decisions of the Courts in India, it may be stated that this dream of human rights enthusiasts is now an obligation of the state.* The rights have been interpreted to imply a contract between the State and the citizens, a breach of which may be regressive monetarily. This articles seeks to examine this new trend through a focus on various aspects The Doctrine of Sovereign Immunity ILis pertinent to examine in brief historically the action taken by individuals against the state. The Indian law was in a state of confusion from its colonial times. This was because the concept of tortious liability - as it existed in England - was blindly followed in India.° Though liability existed in some areas,® (he Indian courts had been so obsessed with the maxim “King can do no wrong” that they made a distinction between sovereign and non-sovereign functions.” +1 Year B.A., LLB. (H), NLSIU. 1 Articles 226 and 32 of the Constitution of India, 2 P, Leelakrishnan, “Compensation for Gov 1992). 3 P. Srikrishna Deva Rao. Custodial Deaths in India, Critical Inquiry into Law, Procedure and practice with specific reference fo A.P.. diss.. NLSIU, Bangalore, 1993. 4 P. Srikrishna Deva Rao, “Custodial Deaths and Compensatory Jurisprudence” (1992) Ill M.O.L. 199. 5 Leelakrishnan, see supra n. 2 at 53, 6 GP. Singh (Ed.). Ratanlal & Dhirajlal's Law of Torts, (Nagpur: Wadhwa & Co., 1992). . 40-41 7 c first case in this regantt was P.O. Steam Navigation Co. v. Secretary of State, 1868 5 Box. HGR. App. p. 1. where a distinction was made. It was followed by the decision in State of Rajasthan v. Vidyawati. A.1.R. 1962 SC 933.. ino faras the tort was committed in the discharge of a non sovereign function. This was follawed by Kasturi Lal's Case. see infra n. 8. ". XVIIC.U.LR. (December98 Student Advocate (Vol. 6) The decision of the Supreme Court in Kasturi Lal v. State of Uttar Pradesh.® laid down that the exercise of a sovereign function will not give rise to a tort action. This decision was:erroneous, and to an extent was resolved by later decisions enumerated in this article, but has still not been completely overruled. Most judges either conventently avoid reference to it or distinguish ils ratio.” Dawn of the Human Rights Era In the late 1970s, a new wave of human rights litigation flooded the Supreme Court. Old dogmas yielded place to new concepts. This period along with the 1980s was characterised by the presence of activist judges, ° through whom a new human rights jurisprudence was ushered in, ranging from development of prison to expansion of Article 21 rights.!' There was also a marked departure from the traditional rules in conducting litigation, especially in writ petitions.!? This era also marked the emergence of public interest litigation, liberation of locus standi and expansion of the term “State”!?*, Thus the stage was set for the emergence of a new jurisprudence of compensation for the wrongs done by the state. In fact il seemed that this would be a logical development in continuation with the earlier trend. Rudul Shah's Case The question of liability to compensate for infringement of fundamental rights was first raised in the Bhagalpur Blinding’s Case.'* The Supreme Court, refused to order compensation under its writ jurisdiction, until Rudul Shah v. State of Bihar'* in which compensation was granted for wrongfully detaining an innocent person, Rudul Shah's Case heralded a new era of compensatory jurisprudence in Indian legal} history.'* According to the court, the compensation was in the nature of a palliative, in order to give a better meaning to the right to life under Article 21. This was a path breaking decision imposing on the state liability to pay compensation to victims of its lawlessness. Rudul Shah's Case was the first decision in this respect, and some of the parameters used, such as compensation only in exceptional cases, can be viewed critically today. But il is to be appreciated for making a start in this direction. 8 ALR. 1965 SC 1039. 9 In Stateof Gujarat v. Menon. A.L.R. 1967 SC 1885., confronted with similar facts as the above, the Supreme court resorted to the contract of bailment to hold the state liable. 10 P.N. Bhagwati, V.R. Krishna Iyer. Chinnappa Reddy. JJ. ete. 11 A summary of the concommitant rights are found in J.P Unnikrishnan v. State of Anethra Pradesh. 1993 (1) J.T. 474 (577). 12 S.P, Gupta v. Union of India, A.LR. 1982 SC 149 12A Ajay Hasia v. KM. Sheravardi. (1981) ISCC 722. 13° Khatri v. State of Bihar, ALR. 1981 SC 928. 14 A.LR. 1983 SC 1086. 15 _N.R. Madhav Mcnon, “S.C.'s breakthrough Judgement,” Hindustan Times, 10 Nov. 1983,1994 Compensation through Writ Petitions 99 Bhim Singh's Case and Sebastian Hongray’s Case After Rudul Shah's Case, came the pronouncement in Sebastian Hongray v. Union of India,'® where the Supreme Court awarded compensation in respect of persons missing from army custody. This was followed by the decision in Bhim Singh v. State of Jammu & Kashmir.'? In the opinion of the Court, it could set right a mischief complained of by a person in respect of arrest and violation of his rights by the award of compensation. The court deviated from the rule of Habeas Corpus being remedial and made it punitive.'® One finds in Bhim Singh's Case, a collection of rules and reasoning which evolved both in Rudul Shah's Caseand Sebastian Hongray’s Case- a mixture of palliative compensation and exemplary costs. Widening of Writ Jurisdiction in M.C. Mehta’s Case In M.C. Mehta v. Union of India,'° in anticipation of the impending litigation inconnection with the Bhopal Gas Tragedy, It was laid down that a hypertechnical approach cannot be adopted to meet the ends of justice.?° This, it is submitted was more of use to the Courts later, in the award of compensation through writs, than in the Bhopal litigation. Fundamental Rights v. Sovereign Immunity Relying on the triology of cases of Rudul Shah, Hongray, and Bhim Singh, the Andhra Pradesh High Court”! has categorically stated that Kasturi Lal's Case has no application where there is a deprivation of life or personal liberty. This ase seems to open a new vista for individual action against the state as Article 300 has been held not to be an exception to Article 2 1,22 The High Court has in a note worthy judgement, effectively distinguished a Supreme Court Judgement instead of blindly adhering to it. After having noted the background of the new judicial activism, in award of compensation, it would be pertinent to visit a few areas in which this jurisdiction has been exercised. Custodial Death ‘This seems to be one of the areas of high judicial activism, with respect to the grant of compensation, The Supreme Court has taken a clear stand of 16 A.LR. 1984 SC 571, The Court granted exemplary costs of Rs. | lakh to the widows. 17 ALR. 1986 SC 494... The Court awarded a compensation of Rs. 50,000 to a legislator who was. prevented from attending the session of the Assembly. 18 KC. Joshi, "Compensation through Writs” 30 J.1.LL. 69. 19 A.LR. 1987 SC 1086. 20 It had earlier similarly been held in Baneihua Mukti Morcha v, Union of India, A.1-R, 1984 SC 802. that Article 32 is very broad, 21 Ramakomnda Reddy v. State of Andhra Pradesh, AR. 1989 A.P. 235, 22 Acase of a bomb attack on undertrials In a prison due to the negligence of officials. It was, held that the State was liable to the extent of Rs. 1.44,000.100 ‘Student Advocate (ol. 6) awarding compensation where the detention resulted in the person's death, which has been described as a barometer in the award of compensation. 25 This. il is submitted, may not be the correct test and will lead to considerable arbitrariness in its application. Among the High Courts it is only the Guwahati High Court? from which a number of cases have been reported, but this does not mean that there are no custodial deaths elsewhere. An inference can (hus be drawn thal in a majority of the High Courts, this remedy has not been utilised. Another drawback is the tremendous delay, as was in the famous Rajan Case.25The irend also seems to be to award compensation to only the wives, and not the other dependents.2* Atrocities and Illtreatment by Authorities Not only life, but liberty with dignity, when violated must be compensated Thus the evolution of the new dignity of life and liberty, laid down in Menaka Gandhi v. Union of india,?’found its logical end in compensating for violation of il, Handcuffing has been held to mandate compensation, as a consequence.?* In keeping with the dignity of human beings, third degree methods of interogation have been condemned and compensation has been awarded.?9It is submitted that this particular remedy , will be of tremendous litigative value in the future. Atrocities against Women The courts are especially alive to atrocities perpetuated against women, which is a welcome step. In fact it may be stated, that these trends can be regarded separate from the rest. for not only are the fundamental rights involved but also the directive principles as well as the fundamental duties. The compensation paid will help.them start a fresh life, as_in the case of Saheli v, Commisioner.* The courts must also use this sphere to innovate in order to ensure that the real benefit of the compensation goes to the woman concerned, as was done in Padmini v. State of Tamil Nadu.?! The government was directed to pay compensation into a fixed deposit scheme for the benefit of a victim of molestation. This special type of atrocity has also caused the courts to ponder as to what should be the type of relief involved. The Guwahati High Court®? 23° PLUD.R. v. Dethi Administration. Unreported, cited in Rao supra note Lal p. 171, Vipen v. Union of India, WP Cri. No. 239. 1989 (SC). dated 29.10.1991, Sce also, A Rajasthan Case reported by M.J. Anthony “Legal Notes", Indian Express. 11 May 1987. 24 PJ. Gogotv. State of Assam. 1992 Cri Lu. 154., Army Custodial death, award of Rs. 2 lakh ordered, G.C. Jena v, D.G.P., 1992 Cri.LJ. 2901., Police Custodial death, Rs. 80,000 awarded. 25 Ecchera Warrier v. State of Kerala. See Rao, supra n. 3 at 118. 26 Laslithy. D.G.P.. 1989 Cri. Lal. 1732. Lithuiklav. Risheang, A.L.R. 1989 (N.O.C, 182,. See also Veen Bala v. Dethi Administration, 1993 (2) SCALE 179. 27 ALR. 1978 ASC 597. 28 State ef Maharashtra v. Patil, (1991) 2 SCC 373. 29 Lakshmi v. Sub Inspector, 1991 Cri. Lud. 2269. 80 ALR, 1990 SC 513 81 1993 Cri. LJ. 2964. 32 InRe A Police Gang Rape, 1988 (2) MWN (Cri). 141994 Compensation through Writ Petitions 101 in trying not to be patronising, said it would award ex gratia payment rather than compensation . This distinction, it is submitted, is not warranted. Illegal Detention In exercising the writ of Habeas Corpus, along with ordering the release from detention, the courts have attempted to provide the writ with a new dimension. This consists of making the person responsible, compensate in cases of illegal detention. This, it is submitted, has infused new life in to the meaning of personal liberty. Instead of merely making the state pay®® this must be an area where there must be enhanced accountability of officers involved. In the North Eastern States, the problem of illegal detention by the army, in the exercise of their power under the Armed Forces Special Powers Act, 1954, can be effectively curbed by making release effective through compensation.” In the ultimate analysis, this is the most important area to enforce personal liability of the officers involved: Negligence of Police in dealing with injured In this area, interestingly enough, the courts’ attention have been drawn by events that attract considerable media attention, such as the shabby treatment to those injured in the police firing in the Mandal agitation, covered by the video magazine Newstrack.”° The police are also accountable if care or medical attention has not been accorded.‘ This area it is submitted, has shown the way for the courts to rely on the evidence of the media, especially in respect of incidents concerning police crimes, wherein adequate evidence or witnesses may otherwise be lacking- Encounter deaths and Police Firing ‘The important aspect of this area in awarding compensation, is the fact that the highest court of the land has recognised that (he vehemently denied. encounter deaths do take place.®* This, it is submitted, constitutes a recognition of the reality, but this is only the tip of the ice berg, Details of these incidents are shrouded in secrecy and the award of compensation should be accompanied by directions to produce all relevant material that exists on these outrages. In P.U.D.R. v. State of Bihar,” a quest was made for a formula to award compensation in respect of police firing. This, it is submitted, deserves immediate judicial attention. 33 _B.Singh v. Union of India, 1993 Cri. Lu. 3454; Venkiah v. State of Andhra Pradesh, 1993 Cri, Lal. 691. 34 Civil Liberties v. Kukerty, 1988 (2) GLR 37: Barua v. Union of India, 1901 Cri, Lal. 265; Hora, v. State of Assam, 1991 Cri. Lal. 2782. 85 Susheeta v. State of Karnataka, 1991 Cri, Lal. 2675, 36 P.V. Kapoor v. Union of India, 1992 Cri, Lal. 128. 37 S.C.LA.C. v. Union of India, (1991) 3 SCC 482, 38 RS. Sodhtv. State of Uttar Pradesh. 1991 (2} SCAL 39 ALR. 1987 SC 355.102 ‘Student Advocate (vol. 6) Communal Riots In two landmark decisions, the Madras" and Jammu& Kashmirt! High Courts have, for the first time awarded compensation, for communal riots. In the view of the High Courts, since people were denied of their livelihood, the state must pay for inaction in protecting the properties of the people affected. This was unprecedented, and can give rise to various other complications like fixing of liability, amount of compensation to be awarded etc. Another aspect. to be considered, is that as these type of incidents are on the increase, the Courts will be flooded with litigation, and the monetary capacity of the state exchequer will be severely burdened. Recently the Rajasthan High Court has turned down such a petition. Negligence and other Miscellancous Petitions An important development that has taken place upon, the widening of writ jurisdiction, is that High courts have awarded compensation in a number of miscellaneous cases, liké negligence of staff in a government hospital,*? awarding freedom fighter's wives pension,“ compensating wrongful seizure,” wrongful trespass by police in a religious place,*® injuries from working for the police.*”. This wholesale enlargement of writ jurisdiction must however be viewed with appropriate caution, and proper application of mind as to whether the circumstances warrant it. Otherwise the writ courts will be inundated with frivolous pleas. Common Law Remedy to Compensation through Writs In a recent landmark Judgement, the Supreme Court® in awarding compensation in relation to acustodial death, has held that the claim in public law for enforcement of fundamental rights is distinct from the claim in private law for tort damages. The case has in effect, created a new remedy for violation of fundamental rights which is part of the constitutional common iaw: that is, the contribution of decisions of courts of law in developing constitutional law. Whether this right will become a fundamental right, remains to be seen. Compensation: Palliatives or Damages? How to measure? The question as to what can be the nature of monetary relief that a petitioner is entitled to is of crucial relevance. A perusal of the cases shows that in all of them compensation was given as a palliative measure, or as exemplary 40 R. Gandhi v. Union of India ALR. 1989 Mad, 205. 41 Inder Puri General Stores v. State of U&K, A.1.R, 1992 J&K 11. 42 Nathulal: v. State of Rajasthan. A.LR. 1993 Raj. 149. 43 Kalavati v.State of Himachal Pradesh, A.LR. 1989 11.P. 5. 44 Ram Pyari v. Union of India, A.LLR 1988 Raj. 124, 45° M.P. Lid. v. Collector, Thyruvannamatat, A.I.R 1990 Mad. 181. 47 P.U.D.R, v. Commissioner, (1989) 4 SCC 730. 48 Nilabatt Bera v. State of Orissa, ALR 1993 § 1960,1994 Compensation through Writ Petitions 103 costs.49 In fact, in many decisions, the judgements concluded with the observation that the award of money in the writ would not prejudice a claim to damages in a civil court. There is a view that the palliative compensation has been done away with, with the decision of the Supreme Court in Bhim Singh’s Case However, it is submitted that the mentioning of the remedy available with the civil court has been done with two reasons - the first is to ensure that the writ courts do not become submerged with litigation, and secondly to do away with the cumbersome process of appreciation of evidence and to calculate the damages payable. The courts in earlier cases used * shocking of conscience” as an indicator to warrant compensation. This rather arbitrary concept appears to have been done away with in Behra’s Case, as when a new remedy is created it is implied that it must be accessible to all. The rationale employed in the award of compensation also appears to be rather unsettled. The lack of guidelines, rules or legislation for the award of compensation, left the matter to the varying discretion of the individual judges. In most cases, courts awarded compensation without any basis or principles for quantifying the amount." An attempt has been made in the decision rendered in Kalavathi v. State of Himachal Pradesh, where reliance is placed on the format of the Motor Vehicle Act for guidance. A similar attempt has been made in Behra’s Case. Towards Personal Liability There are several fallouts of compensation through the Constitution Increasing use of the compensation remedy may give the impression that the State is ready to compensate, if it can purchase the right to continue to inflict constitutional deprivations on ils citizens.®* Afier the judgement in Rudul Shah's Case, fears were expressed that the socio economic conditions were not ripe, as it would have serious repercussions on the exchequer.” In answering the above question, it is important to protect the personal liability aspect. It is fair enough to make the delinquent officer personally responsible for the violation of the right concerned.°* A start has been made, but the State still bears the brunt of the burden, This is probably a concept which the courts in the future must give adequate attention 49 Leelakrishnan, see supra note 2 at 56. 50 Joshi, see supra note 16. 51 _ S.N, Jain “Monctary Compensation for Adininistrative Wrongs through Article 82,” 25 J.L.Lal 118 (121). 52 ALR. 1989 1L.P. Note lat 121 54 PAK. Tripathi. “Article 32 and Compensation Conundrum” (1984) 11 SCC 51. 55 R. Ramachandran, “Constitutional Tort," Lawyer's Collective, (April 1988) at 16.104 Student Advocate (Vol. 6) Conclusion The jurisprudence of compensation is relatively young, bul has made significant headway since the Rudul Shai’ Case. The new remedy has proved a god send to many, and has provided a substantial shot in the arm in the role of the Courts as protectors of human rights. The failings of the common law of torts are now redressed to a good extent. The judicial initiative is a welcome step, but it is only a guiding star in the long struggle of Rudul Shatt's and Sahelis who grope under the reign of terror of a politicised bureaucracy or bureaucratised politicians and other leviathans collectively manifested in the monster known as the State, The trend is thus clearly a step in the right discretion, But it must also be noted that il has been observed in only a small minority of cases. The judiciary must use the provision of compensation to grant relief in appropriate cases. The lawyers engaged in such matter may also. contribute by including in their pleadings, a prayer for compensation. To sum up, this area, promises to be an interesting one for future research,