Name : Nilesh C.

Nagapure
Roll no: 34
Class : B.A.LLB. (5years) 10th semester
Sub : Administrative Law
Case : Nilabati Behera Alias Lalita v. S/O Orissa & Ors
College: RTMNU’s Dr. B R Ambedkar College of Law
(Main Branch), Nagpur
Supreme Court of India

Nilabati Behera Alias Lalita v. S/O Orissa & Ors .

CITATION: 1993 AIR 1960, 1993 SCR (2) 581

Petitioner:
Nilabati Behera or Lalitha Behera

Respondent:
STATE OF ORISSA

Date of Judgement: 24/03/1993

Bench:
VERMA, JAGDISH SARAN (J),

ANAND, A.S. (J)

VENKATACHALA N. (J)

INTRODUCTION:

The torture in the police captivities, unchallenged and unopposed, has become a
'usual routine’ or 'legitimate practice’ all over the entire nation. The Right to life
and liberty guaranteed under Art 21 is a precious right and it should not be denied
to convicts, under-trials or other prisoners in custody, except according to
procedure established by law. Hence, if the fundamental right guaranteed under
Article of the convict is infringed by the state machinery, the victim should have
a right to seek redressal under Article.32 of the constitution. But as 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 pathetic situation, the
Supreme Court for the first time in Smt. Nilabati Behera v. State of Orrisa[3],
held that compensation can be demanded against the state in the case of human
right violation.

The Judgments of the Court was delivered by VERMA, J. A letter dated

14.9.1988 sent to this Court by Smt. Nilabati Behera alias Lalita Behera, was
treated as a Writ Petition under Article 32 of the Constitution for determining the
claim of compensation made therein consequent upon, the death of petitioner's
son Suman Behera, aged about 22 years, in police custody.

Facts

• Petitioner’s son Suman Behera aged 22 years was taken into the police
custody at around 8 a.m. on 1.12.1987 by Assistant Sub-Inspector of
Police of the Police Outpost for the investigation of an offence of theft.

• He was confined at the Police outpost on 2.12.1987. At about 2 p.m. on

the same day it came to the knowledge of the petitioner that the corpse of
her son was found on the railway track, there have been multiple injuries
on the body and his death was unnatural, the reason behind the death was
the injuries on his body.

• The petitioner alleged that it had been a 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 in her letter written on 14.9.1988, which was treated as a writ
petition under Article 32 of the Constitution.

• It had been prayed within the petition that award of compensation be

made to her, for contravention of the elemental right to life guaranteed
under Article 21 of the Constitution.

• The defending argument of the respondents was that the petitioner’s son
managed to flee from police custody at about 3 a.m. on 2.12.1987 from
the Police Outpost where he was detained and thereafter, he couldn’t be
apprehended in spite of a research. After a brief search his body was
found on the railway track on 2.12.1987 with multiple injuries, which
indicated that he was run over by a train. The respondents denied the
allegations of the custodial death and their responsibility for the unnatural
death of the petitioner’s son. On 4.3.1991, this 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 sets of evidences
the District Judge submitted the Inquiry Report on 4.9.1991. The District
Judge found that the petitioner’s son died because of the multiple injuries
suffered by him while he was in the police custody. The correctness of
the finding of the District Judge in his report was assailed during this
Court.

• The respondents stated that the petitioner’s son managed to escape from
police custody at about 3 a.m. on 2.12.1987 and he was run over by a
passing train and hence he sustained the fatal injuries. They also stated
that that the responsibility of the respondents for his safety came to an
end 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 was absent.

ISSUES

• Whether there is a right to life under Article 21 of the Indian Constitution,

and whether the Supreme Court of India and the High Courts can issue
monetary compensation in case of (or if it is given in compensation for)
violation of fundamental right under Article 32 and 226 of the Indian
Constitution respectively, if the case is with regard to “Sovereign
Immunity”.

Contentions Raised

By the Petitioner:
The petitioner’s counsel stated that the District Court judge’s findings on the
matter of the case cannot be rejected, and that there was enough evidence to
prove that a petitioner’s son was in custody of the police when he was inflicted
with the injuries that has caused his death. It was also argued that the
petitioner’s son’s right to life under Article 21 of the Indian Constitution has
been deprived by the police, and then compensation was claimed.
By the respondent:
The respondents’ counsel, i.e., the Additional Solicitor General ( Altaf Ahmed),
claimed that the petitioner’s son had escaped the police custody at around 3a.m.,
on the morning of 2nd of December, 1987, and was not to be found in spite of
the police having searched for him. He also claimed that the petitioner’s son
reached near the railway station soon after his escape from the police, and was
hit by a train that was crossing, and stated that it was those injuries that has
caused the death of the petitioner’s son. He argued 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.
.

JUDGEMENT

The Supreme Court held that the respondent i.e. State of Orissa has to pay a sum
of Rs.1,50,000 Mrs. Nilabati Behera and also a sum of Rs.10,000 has to be paid
to the Supreme Court Legal Aid Committee. It was contended that the evidence
adduced 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.

“We may also refer to Article 9(5) of the International Covenant on Civil and
Political Rights, 1966 which indicates that an enforceable right to compensation
is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads
as under” :-

"Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation."

As referred, In Rudul Shah’s case, it was held that in a petition

under Article 32 of the Constitution, this Court can grant compensation for
deprivation of a fundamental right. That was a case of violation of the petitioner's
right to personal liberty under Article 21 of the Constitution. Chandrachud, C.J.,
dealing with this aspect, stated as under:-

"It is true that Article 32 cannot be used as a substitute for the enforcement of
rights and obligations which can be enforced effecaciously through the ordinary
processes of Courts, Civil and Criminal A money claim has therefore to be
agitated in and adjudicated upon in a suit instituted in a court of lowest grade
competent to try it.
Petition allowed.
ANALYSIS:
Article 21 of the Indian Constitution states that “No person shall be deprived of
his life or personal liberty except according to procedure established by law”. It
is pretty evident with this particular law that no one can snatch away the right to
life of a person. Not unless the Law states, which happens in the rarest of the
rarest cases; It was not just culpable homicides and murders, but custodial
deaths were also pretty frequent and in fact, increased in the 1980s. And most
of the times, they couldn’t be proved. In a Country where its Constitution even
talks about the rights of the persons detained, it is pretty apparent that the rights
that they are vested to already, cannot be taken away. And the judgment of this
case of Nilabati Behera v. State of Orissa, is undoubtedly one of the landmark
judgments of the country, for the court stated in its judgment that compensation
can be claimed in case of a custodial death, and it definitely does stand as a
testimony to the fact that in spite of all the drawbacks of the setup of the
Government of this country, there is still a hope for justice.