Compensatory Jurisprudence

Article 226(1) gives every High Court the same power in wider terms, "for the enforcement of any of the rights conferred by Part III and for any other purpose." Those last five words widen a High Court's writ jurisdiction, though article 32 is itself a fundamental right and article 226 is not.

Article 300A is the counterpoint: "No person shall be deprived of his property save by authority of law." Since the Forty-fourth Amendment it sits outside Part III, so a claim founded on it alone is not a claim under article 32.

Public law compensation and a suit in tort

This distinction is the heart of the chapter, and Nilabati Behera states it.

Two consequences follow, both examinable. The remedies are cumulative, not alternative: Rudul Sah's order did "not preclude the petitioner from bringing a suit to recover appropriate damages from the state and its erring officials". But they are not cumulative in amount: a writ award is adjusted in any later proceeding, "so that the amount to this extent is not recovered by the petitioner twice over."

Where the jurisdiction was created

Facts. Rudul Sah v. State of Bihar, AIR 1983 SC 1086, 1983 SCR (3) 508, decided 1 August 1983 by a Bench of three. Rudul Sah was acquitted of murder and then kept in a Bihar prison for over fourteen years afterwards. He petitioned under article 32 for habeas corpus and compensation. By the hearing he had been released, so the only live question was money, and the State's explanation that he had been of unsound mind rested on no medical record.

Held. The detention after acquittal was "wholly unjustified", and article 32 is not confined to release. Article 21 "will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention"; where the payment is "in the nature of compensation consequential upon the deprivation of a fundamental right", the writ court may order it, since to refuse would be "doing mere lip-service to his fundamental right to liberty". Rs. 30,000 was ordered in addition to Rs. 5,000 already paid, "as an interim measure" and "in the nature of a palliative", without prejudice to a suit.

Why it matters. It is the origin of the jurisdiction and also its most cautious statement. Compensation was not said to follow every infringement: it was available because the claim was not "factually controversial", and because a suit would leave the victim "penniless until the end of his suit, the many appeals and the execution proceedings." The reasoning is about the futility of the alternative.

Where the jurisdiction was explained

Facts. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, (1993) 2 SCC 746, decided 24 March 1993 by a Bench of three. Suman Behera, aged about 22, was taken into police custody over a theft investigation. The next afternoon his body was found on a railway track with multiple injuries, and the police said he had escaped in the night and been run over by a train. His mother's letter to the Court was treated as a petition under article 32, and a District Judge, directed to inquire, found death from injuries inflicted in custody.

Held. It was a custodial death. On the remedy, the passage to learn: an award under article 32 or article 226 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, even though it may be available as a defence in private law in an action based on tort." Such a claim is "distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right." Article 32, itself a fundamental right, "imposes a constitutional obligation on this Court to forge such new tools". Anand J., concurring, added that the compensation is "in the nature of the exemplary damages awarded against the wrong-doer for the breach of its public law duty". Rs. 1,50,000 was awarded, to be kept on term deposit for three years.

Why it matters. Three things. It supplied the juristic basis Rudul Sah had left vague, by naming the remedy public law and the liability strict. It removed sovereign immunity from this jurisdiction by distinguishing rather than overruling the older law: immunity may still be pleaded in a tort suit, but it is "alien to the concept of guarantee of fundamental rights". And it added the caution that keeps the jurisdiction honest, that the power is "tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate".

How compensation is measured, and what else the court may do

Facts. D.K. Basu v. State of West Bengal, AIR 1997 SC 610, (1997) 1 SCC 416, decided 18 December 1996. The Executive Chairman of Legal Aid Services, West Bengal, wrote to the Chief Justice of India in 1986 enclosing newspaper reports of deaths in police lock-ups and asking that a "custody jurisprudence" be developed and machinery for compensation formulated. The letter was treated as a public interest writ petition, and notice went to every State.

Held. Custodial violence "strikes a blow at the Rule of Law". Beyond the existing safeguards the Court laid down eleven requirements for every arrest or detention until legislation was made: name tags for the arresting officers, a memo of arrest attested by a witness and countersigned by the arrestee, information to a relative or friend, a diary entry at the place of detention, an inspection memo of injuries, medical examination every 48 hours, copies to the magistrate, and access to a lawyer during interrogation though not throughout. Breach renders the officer liable to departmental action and to contempt. The requirements "flow from Articles 21 and 22(1) of the Constitution".

On compensation, a mere declaration of illegality "does not by itself provide any meaningful remedy"; the court "must proceed further and give compensatory relief", not as damages in a civil action but "by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State". As to quantum, "the emphasis has to be on the compensatory and not on punitive element", punishment belonging to the criminal court, "no strait jacket formula can be evolved", and the amount "may in a given case be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."

Why it matters. It turns the doctrine into a working practice, settles the measure as compensatory with no formula, and confirms that the State pays and then recovers from the wrongdoer. It also pairs this jurisdiction with the technique in [Continuing Mandamus and Judicial Guidelines]: finding that money alone would not stop custodial deaths, the Court wrote the rules of arrest as well.

A worked example

Suresh is picked up by police for questioning and dies in the lock-up the same night. The post-mortem records multiple injuries. The police say he collapsed. His widow, Kavita, has no money for a suit. She petitions the High Court under article 226 for compensation.

Step one, is a fundamental right in play, and is article 226 the right door? Yes to both. Article 21 protects life, a person in custody does not forfeit it, and the State's duty of care over someone in its custody is strict. Article 226(1) runs "for the enforcement of any of the rights conferred by Part III and for any other purpose", wider than article 32; she could also move the Supreme Court, but the High Court is nearer and the facts are local.

Step two, how are the facts found without a trial? As in Nilabati Behera, by referring the matter for inquiry to a District Judge and reading the medical evidence. No trial is needed to be satisfied that a man who entered custody healthy and left it dead was injured there. Nor can the State plead sovereign immunity, which is inapplicable to a public law claim for breach of a fundamental right.

Step three, how much, and what is left over? On D.K. Basu there is no formula and the emphasis is compensatory: the court looks to the deceased's age, earnings and dependants, as it did in fixing Rs. 1,50,000 in Nilabati Behera on a monthly income between Rs. 1,200 and Rs. 1,500. Kavita's civil suit remains open, the award being adjustable against any later decree; the State remains bound to prosecute the officers and may seek indemnity from them.

What it does NOT mean

It does not mean every breach of a fundamental right yields compensation. The award is made where it is the only practicable mode of redress. Nilabati Behera says the power is tempered by restraint to avoid circumventing private law remedies where those are more appropriate, and Rudul Sah says a "factually controversial" money claim belongs in a suit.

It does not mean the writ court is deciding a tort action. It is enforcing a right, which is why sovereign immunity is unavailable, proof is by inquiry rather than trial, and the sum is called monetary amends rather than damages.

It does not mean the compensation is a fine. D.K. Basu insists the emphasis is compensatory, punishment of the officer being for the criminal court. Calling the award exemplary damages in Nilabati Behera marks the public wrong; it does not punish through the civil measure.

Quick revision

• The jurisdiction rests on article 32(2) and article 226(1): directions or orders, not only writs, whichever may be appropriate, for the enforcement of Part III rights.
• Article 300A is not in Part III, so a deprivation of property alone is not enforceable under article 32.
• Rudul Sah (1983): fourteen years in jail after acquittal; article 21 would be denuded of its significant content if the Court could only order release; Rs. 30,000 as an interim palliative, a suit still open.
• Nilabati Behera (1993): custodial death; the award is a public law remedy on strict liability, sovereign immunity inapplicable, distinct from and in addition to the tort remedy; Rs. 1,50,000. The same case adds the restraint: article 32 must not become a disguised substitute for a civil action.
• D.K. Basu (1996): eleven requirements on arrest flowing from articles 21 and 22(1), breach punishable as contempt; compensation is compensatory not punitive, no strait jacket formula, adjustable against a civil decree.
• The two remedies are cumulative in availability, not in amount.
• MU set this as short note 3 of Set 3, 30 May 2022: "Write short note on Compensatory Jurisprudence in Context of Nilabati Behera Vs State of Orissa." The book's paper survey records Set 3 as a question bank, not one of the eleven printed papers.

Test yourself

1. On what words of article 32 does the power to award compensation rest, and what work does each of them do?

2. Set out four differences between compensation in a writ petition and damages in a suit in tort.

3. Why is sovereign immunity unavailable in the first and arguable in the second?

4. Rudul Sah called its order a palliative and an interim measure. What did the Court mean, and what did it leave open?

5. How is the quantum fixed, and when should a court refuse compensation under article 32 and send the claimant to a civil court?