Compensatory Jurisprudence

In one line

When the State violates a fundamental right, the court hearing the writ petition can order it to pay money there and then, instead of sending the victim away to file a civil suit.

In the wording a student can write in an exam: compensatory jurisprudence is the award of monetary compensation by the Supreme Court under article 32, or by a High Court under article 226, for the established infringement of a fundamental right, particularly the right to life and personal liberty under article 21. Rudul Sah v. State of Bihar created the jurisdiction; Nilabati Behera v. State of Orissa stated its basis exactly, holding that the award is "a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply", and is "distinct from, and in addition to, the remedy in private law for damages for the tort".

Why the law needed this

A fundamental right without a remedy is an announcement. That is why article 32(1) does not merely allow a person to come to the Supreme Court but makes coming a fundamental right in itself: the right to move the Court for the enforcement of Part III rights "is guaranteed".

But look at what the writs do. Habeas corpus releases a prisoner, mandamus orders an authority to do its duty, certiorari quashes an order. Every one is directed at the future, and none repairs what is already done. In the cases that matter most, a custodial death, fourteen years of unlawful imprisonment, a beating in a lock-up, the harm is wholly in the past.

The orthodox answer was that the victim should sue in tort, and three things were wrong with it. The suit takes years, then appeals, then execution. The victim of custodial violence is usually poor and cannot fund any of that. And the State could plead sovereign immunity, the doctrine that it is not liable for a wrong done by its servant exercising a sovereign function, which is exactly what policing is. The choice was therefore between a remedy formally available and practically useless, and a new one; the Court took the second, and the question is where it found the power.

The provisions the jurisdiction is built on

Article 32(2): "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."

Three phrases carry the doctrine. "Directions or orders" are not writs and are wider, the writs being named only as included. "Whichever may be appropriate" makes the remedy a question of fitness to the violation. "For the enforcement" is a purpose clause: a remedy that does not enforce is not what the article contemplates.