Compensation Under Article 32

In one line

A writ court can award money, but only in exceptional cases, and the Supreme Court set out the test in the same judgment that created absolute liability.

MU sets this concept under the heading of absolute liability in environmental accidents, which is the right pairing: absolute liability tells you who is liable, and this chapter tells you how a constitutional court makes them pay.

The problem

A gas leak, a poisoned aquifer or a contaminated river injures a large number of people, most of them poor. The ordinary remedy is a civil suit for damages, which means court fees, proof of negligence, years of trial and an appeal. The victims of Bichhri could not have brought such a suit and would not have survived it.

So the question is whether the writ jurisdiction, which exists to enforce fundamental rights, can also award money. The answer is yes, in exceptional cases, and the Supreme Court gave the reason and the test together.

The power, and the test

The passage is in M.C. Mehta v. Union of India (the Oleum Gas Leak case), AIR 1987 SC 1086, and it should be worked closely because it is the whole of the doctrine.

The reason. If a fundamental right is threatened the Court can injunct the violation, "but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32". That "would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile."

The holding. "We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases."

The test, and the Court said it was using the words "in appropriate cases" deliberately. Compensation is not awarded in every case of breach. Two requirements, the second being an alternative.

The infringement must be "gross and patent, that is, incontrovertible and ex facie glaring".

And either the infringement must be "on a large scale affecting the fundamental rights of a large number of persons", or it must "appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil courts".

The limit. "Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32."