Compensation in Public Law
Chapter -Two
Syllabus topic 6, "Remedies"
Pages 305 to 308 of 430
In one line
Where the State violates a fundamental right, the writ court can order it to pay, and sovereign immunity is no answer.
In the wording a student can write in an exam: compensation in public law is a remedy available in proceedings under Articles 32 and 226 for the violation of a fundamental right, founded on strict liability for the contravention, to which the defence of sovereign immunity is not available; it is distinct from and in addition to the private law remedy in tort, and any amount awarded may be adjusted against damages recovered in a civil suit.
Why the remedy had to be invented
Because quashing is often worthless. A man illegally imprisoned for fourteen years and then released gains nothing from an order that his detention was unlawful. A mother whose son died in police custody cannot be given her son back. In both, the only meaningful relief is money, and the ordinary route to money was a civil suit which faced sovereign immunity, section 80 notice and ten years of delay.
The first case
Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
Facts. The petitioner was acquitted in 1968 but was kept in prison for more than fourteen years afterwards. He filed a habeas corpus petition under Article 32 asking for release and for compensation. By the time the petition was heard he had been released.
Held. His detention after acquittal was wholly unjustified. Article 32 confers power on the Supreme Court to issue directions, orders or writs for the enforcement of the rights conferred by Part III, and Article 21 would be denuded of its significant content if the Court's power were limited to ordering release from illegal detention. One of the telling ways in which the violation can be prevented and compliance with Article 21 secured is to make the violators pay monetary compensation, which is a palliative for the unlawful acts of instrumentalities acting in the name of the public interest. Compensation was ordered, without prejudice to any suit for damages.
Why it matters here. It is the beginning of the remedy, and the reasoning is textual: Article 32(2) speaks of directions and orders, not only of writs.
The doctrinal basis
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.
Facts. A young man was taken into police custody in connection with a theft investigation and detained at a police outpost. The next day his body was found on a railway track with multiple injuries. His mother wrote to the Supreme Court and the letter was treated as a petition under Article 32. The police defence was that he had escaped from custody.
Held. The defence of escape was rejected on the medical and circumstantial evidence, and compensation was awarded. Award of compensation in a proceeding under Article 32 or Article 226 is a remedy available in public law, based on strict liability for the contravention of fundamental rights, to which the defence of sovereign immunity is not available. It is distinct from and in addition to the private law remedy in tort, and the amount awarded may be adjusted against damages recovered in a civil suit.
Compensation in Public Law
Why it matters here. It gives the remedy its doctrinal footing and answers the sovereign immunity point, which is the whole reason the remedy is more valuable than a suit.
The conditions
A violation of a fundamental right, usually Article 21.
A clear case on admitted or undisputed material. The writ court does not try a contested claim for damages.
A gross violation. Compensation is not given for every illegality; it is reserved for cases where the ordinary remedy would be inadequate.
A public authority. The liability is the State's, though the State may recover from the officer.
Property taken without authority of law: Article 300A
Article 300A. No person shall be deprived of his property save by authority of law.
The article was inserted by the Constitution (Forty-fourth Amendment) Act 1978 with effect from 20 June 1979, and the same amendment repealed Article 19(1)(f) and Article 31. Property therefore ceased to be a fundamental right and became a constitutional right in Part XII, and three consequences follow for this chapter.
Article 32 no longer lies for a bare deprivation of property. In 1960 it did, which is why Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, could be brought directly under Article 32 to strike down a statute that turned a sthanee's property into tarwad property. The same complaint today, without any breach of a fundamental right, would have to come under Article 226.
Article 226 does lie. The High Court's jurisdiction is not confined to fundamental rights, and Article 300A is an "other purpose" within Article 226(1), so a deprivation without authority of law is examinable there. This is one of the practical situations where Article 226 is wider than Article 32, worked in [Article 226 Compared with Article 32].
The remedy is often restitution or money. Where the State has taken possession of land without acquiring it, quashing gives the owner nothing, so the writ court directs restoration of possession or payment of the value with interest, on the same reasoning that produced the compensation jurisdiction: authority of law is a condition of the taking, and the absence of it cannot be cured by leaving the owner to a suit years later.
Compensation in Public Law
Two cautions. The deprivation must be by the State or an authority within Article 12; and where the taking is under a valid acquisition law the complaint is about compensation under that law, not about Article 300A.
The relation to the private law remedy
| Public law compensation | Damages in tort | |
|---|---|---|
| Forum | Writ court, in a petition | Civil court, in a suit |
| Basis | Strict liability for breach of a fundamental right | Fault, and vicarious liability |
| Sovereign immunity | Not available | Available, though confined after Nagendra Rao |
| Section 80 notice | Not required | Required |
| Quantum | Interim or palliative, often modest | Full compensation on proof |
| Effect on the other | May be adjusted against damages recovered later |
A worked example
A man is picked up by the police, held for three days without production before a magistrate, and released with injuries recorded by a hospital on the day of his release. He petitions under Article 226.
The violation of Article 21 and Article 22(2) is plain on admitted material, since the police records show the dates. The injuries are documented. This is exactly the Nilabati Behera situation, and the High Court may award compensation without a suit and without any defence of sovereign immunity. The order will say that it is without prejudice to a civil suit, and any decree there will be adjusted against what is paid.
What this does NOT mean
It does not mean a writ court is a court of damages. The remedy is exceptional and confined to clear cases.
It does not mean every breach of a right sounds in money. Quashing remains the ordinary relief.
It does not mean the officer escapes. The State may recover from the officer responsible, and criminal proceedings are unaffected.
Quick revision
Rudul Sah began it, on the words directions or orders in Article 32(2), awarding compensation for fourteen years of illegal detention after acquittal. Nilabati Behera gave it a basis: a remedy in public law, on strict liability for breach of fundamental rights, to which sovereign immunity is no defence, distinct from and in addition to the private law remedy, and adjustable against damages recovered later. Conditions: a violation of a fundamental right, clear material, a gross case, and a public authority. Article 300A, inserted in 1978 when property ceased to be a fundamental right, is enforced under Article 226 and not under Article 32, and a taking without authority of law is met by restoration or by payment.
Test yourself
1. What is the textual basis of the remedy? Article 32(2) and Article 226(1) speak of directions or orders as well as writs, so the court may make whatever order will enforce the right, including an order to pay.
2. Why is sovereign immunity no defence? Because the liability is a public law liability for the contravention of a fundamental right, which is strict, and not a vicarious liability in tort: Nilabati Behera.
Compensation in Public Law
3. What happens if the person also sues in tort? The public law compensation is adjusted against any damages recovered in the civil suit, the two being distinct remedies.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.