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
costs. 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 its citizens. After 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.