Compensation in Public Law

In one line

Where the State violates a fundamental right, a court may award compensation in the writ jurisdiction itself, as a public law remedy distinct from damages in tort, and the availability of a civil suit is no answer to it.

Why the remedy was necessary

Four reasons, and each is a defect in the ordinary route.

Sovereign immunity. A suit in tort against the State ran into arguments that the act was done in the exercise of a sovereign function, for which the State was not liable, and the distinction between sovereign and non-sovereign functions was uncertain and productive of litigation.

Time. A suit takes years, and a person whose relative has died in custody or who has been unlawfully detained cannot wait.

Proof. The claimant must prove negligence or another tort, and the evidence is held by the defendant, who is the State.

And cost. A suit requires court fees, a lawyer and a stamp on the plaint proportionate to the claim, all of which a disadvantaged claimant does not have.

The public law remedy answers all four: the liability is strict once the violation is established, the remedy issues in the writ petition, the burden shifts to the State to explain what happened in its custody, and there is no ad valorem fee.

The two founding decisions

The case. Rudul Sah v. State of Bihar, (1983) 4 SCC 141.

Facts. The petitioner was acquitted of a charge of murder and was nonetheless kept in jail for more than fourteen years after his acquittal. He petitioned under article 32 for release and for ancillary relief including compensation for the illegal detention. He was released while the petition was pending, and the question was whether the Court could award compensation in a proceeding under article 32.

Held. The Court could. Article 32 is not confined to the issue of a writ of habeas corpus for release, and the power to grant compensation is implicit in the power of the Court to enforce a fundamental right, because a refusal to award monetary relief would reduce article 32 to a mere formality where the wrong was already done. The Court awarded compensation, describing it as palliative and without prejudice to any claim in a civil suit, and observed that the State was liable for the wrong done by its officers.

The case. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.

Facts. The petitioner's son was taken into police custody and his body was found the next day on railway tracks with multiple injuries. The State contended that he had escaped from custody and been run over by a train. The mother's letter was treated as a petition under article 32, and the Court appointed a District Judge to inquire, whose report established that the injuries were not consistent with a railway accident and that the death had occurred in custody.