Published in NLUA Law and Policy Review Vol 3 No.

II 2018

“Compensatory Justice Jurisprudence in INDIAN Public Law – An Analysis”

Prof. (Dr.) Vijay Kumar Singh

UPES School of Law, Dehradun, vrsingh.vk@gmail.com

Compensatory Justice Jurisprudence took birth in the case of Rudal Sah when the
Hon’ble Supreme Court of India broke one more link in the shackles of restrictive
interpretation and added another feather in the cap of Article 21 to crown the
personal life and liberty of people. The present paper would analyse the Post
Rudal development of the concept of granting compensation under public law by
Supreme Court. There are a series of judgments discussed in the present paper
which strengthened the power of Supreme Court and High Courts to compensate
the victims or their dependents for the excesses done by the State machinery or on
failure of State to take care when there was a duty imposed upon them to exercise
reasonable care. There are cases ranging from ‘birth after vasectomy’ to ‘death
due to open manholes’ to ‘custodial death’ wherein Supreme Court has ventured
out to grant compensation under Public Law. Over a period of time, the Hon’ble
Supreme Court has given a dynamic interpretation to the constitutional remedies
provision under the Constitution so as to enhance the fundamental rights of an
individual. The present paper examines the cases in which the Courts have
awarded compensation for the excesses committed by the state or for negligence
of the State as well as examines the self-imposed restrictions of Supreme Court in
not awarding compensation in certain cases. The paper would further examine
the ‘judicial activism’ or ‘judicial legislation’ undertaken in some cases, for
example grant of compensation for ‘acid-attack victims’ in the Laxmi Case as
well as cases of victim compensation for example Delhi High Court awarding
compensation to the victims of Nitish Katara Murder Case relying upon the
international law covenants like Declaration on Basic Principles of Justice for
Victims and Abuse of Power (1985). The Courts have further extended this
branch of public law to grant compensation in cases of consumer disputes also,
for example recently A compensation of Rs. 5.96 crores was awarded by the
Supreme Court in a Medical Negligence case (Kunal Saha-AMRI case) treating
the ‘right to health’ as a fundamental right under Article 21 of the Constitution
and in another case the Delhi High Court awarded compensation of Rs. 6.5 crores
to an Australian woman who was rendered quadriplegic due to the negligence of
ITDC hotel in Delhi. The aforesaid cases of compensation dealt with by the
Supreme Court and various High Courts shows an inconsistent approach in

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 granting compensation. Thus, the question always remains as to what is the
rationale for providing such compensation and if granted how much is to be
granted. Further what is the criterion for providing the compensation or it is ad
hoc. What about the erring officials in discharging their public duty and finally
whether judicial activism has led to judicial adventurism? What should be the
suggested approach? The present paper would seek an answer to these questions
and trace the development of compensatory justice jurisprudence in Indian public
law, especially in light of the fact that in India, the tort litigation has been very
weak and not pursued like USA. The private enforcement of public law in India
has been very poor though the Public Interest Litigation (PIL) has done some
service in this area. The present paper seeks to explore the aforesaid areas of
jurisprudential development and judicial rulemaking in India.

A stiff apology is a second insult. … The injured party does not

want to be compensated because he has been wronged; he wants to
be healed because he has been hurt1.

The terminology ‘Compensatory Justice’ is one of the tools to promote positive equality. It is
associated with Quota System or preferential treatment to a particular class. The term
compensatory justice finds mention for the first time in the case of Indra Sawhney v. Union of
India2 in Para 522 of the judgment as follows – “Affirmative action is not merely compensatory
justice, which it is, but it is also distributive justice seeking to ensure that community resources
are more equitably and justly shared among all classes of citizens.” “One of the aims of
preferential treatment might be compensatory justice. The aim of compensatory justice is to
provide counterbalancing benefits to those individuals who have been wrongfully injured in the
past so that they could be brought up to the level of wealth and welfare that they would now have
had if they had not been disadvantaged3”. However, in this paper the concept of Compensatory
Justice is looked at from a different perspective, i.e., the cases in which the public law remedy
has been extended to grant compensation for wrongs or omissions done by the duty-bound State.
The underlying philosophy as to right to compensation remains the same as it aims to
compensate the persons who have been wronged by State (discriminated in relation to
reservation). Another difference lies in the point that reservation is statutorily incorporated;

1
G. K. Chesterton (1874–1936), British author. The Common Man’s “The Real Dr. Johnson” (1950)
2
AIR 1993 SC 477
3
Rai, Sheela, Reservation / Set-Asides in Services in India And USA, (2004) PL WebJour 19

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however, granting compensation in public law is the product of judicial activism. This
perspective of Compensatory Justice is referred to as Compensatory Jurisprudence by many
scholars. The present paper will refer the concept as Compensatory Justice Jurisprudence.

Compensatory Justice Jurisprudence in India has emerged into a full-fledged branch over the
years. Award of compensation has evolved in the last two and half decades as a public law
remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution in
addition to the private law remedy under the Law of Torts4. The idea of compensation to victim
of any wrong is connected with the legal system in two ways; first, the legal system has to
regulate the relationship between the victim and the wrongdoer and, secondly, it has to regulate
the relationship between the victim and the administration of justice.5 The idea is to provide a
relief or to make amends for loss, recompense, remuneration or pay. It is counterbalancing of
the victim’s sufferings and loss that results from victimization. It is a sign of responsibility of
the society which is civil in nature.6

Advanced Law Lexicon7 provides the definition of compensation as “an act which a Court orders
to be done, or money which a court orders to be paid, by a person whose acts or omissions have
caused loss or injury to another in order that thereby the person damnified may receive equal
value for his loss, or be made whole in respect of his injury; the consideration or price of a
privilege purchased; some thing given or obtained as an equivalent; the rendering of an
equivalent in value or amount …. Remuneration or satisfaction for injury or damage of every
description; remuneration for loss of time, necessary expenditures, and for permanent disability
if such be the result; remuneration for the injury directly and proximately caused by a breach of
contract or duty…”

Right to Constitutional Remedies – Public Law Remedies:

4
Sube Singh vs. State of Haryana and Ors., (2006)3SCC178, para 12
5
Mundrathi, Sammaiah, Law of Compensation to Victims of Crime and Abuse of Power, (Deep & Deep
Publications., New Delhi 2002), P. 1
6
Devasia, V.V. and Leelamma Devasia. Criminology, Victimology and Corrections. (Ashish Publishing House,
Delhi, 1992), p. 236
7
Aiyar, P. Ramanathan, Advanced Law Lexicon, (Lexis Nexis, 3rd Ed. 2005, Book 1), p. 918

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Art 32 and Art 226 of the Constitution of India provide the powers to Supreme Court and High
Courts of States respectively to enforce the fundamental rights guaranteed under the
Constitution. Dr. Ambedkar has remarked about these provisions that it is the very soul of the
Constitution and the very heart of it8.

Enforcement of the fundamental rights under Article 32(1) provides for the right to move the
Supreme Court by appropriate proceedings. Under Article 32(2) the Supreme Court is free to
devise any procedure for the enforcement of fundamental right and it has the power to issue any
process necessary in a given case. In view of this constitutional provision, the Supreme Court
may even give remedial assistance, which may include compensation in “appropriate cases”9.
Similar power exists with High Courts to issue writs. However, the word compensation has
neither been used in Article 32 nor Article 226. Article 32 is itself a fundamental right and
cannot be diluted or whittled down by any law. The powers of Supreme Court under Art. 32 are
plenary and are not fettered by any legal constraints10. The Supreme Court is not bound to
follow the ordinary adversary procedure and may adopt such procedure as may be effective for
the enforcement of fundamental rights11. This has led to the growth of judicial activism and
dilution of the locus standi rule to an extent that even a post-card has been considered by the
Supreme Court as a petition under Article 3212.

Grant of Compensation for Violation of Fundamental Rights – A Global Perspective:

When the Charter of the United Nations imposed a binding obligation on signatory states to
respect the human rights and fundamental freedoms of individuals, it recognized that individuals
enjoyed such rights and freedoms under International Law. It was a recognition explicitly made
by the states parties to the Charter. From being solely a matter of domestic concern and

8
CAD vol. VII at 953
9
Justice G. Yethirajulu, Article 32 and the Remedy of Compensation, (2004) 7 SCC (J) 49
10
S. Nagraj vs. State of Karnataka, (1993) Supp (4) SCC 595
11
Bandhua Mukti Morcha case, AIR 1984 SC 802
12
Epistolary jurisdiction

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government’s treatment of its own nationals became the legitimate concern of the international
community.13

The British Experience14: “An important aspect of the remedies available in common law is the
right of the victims to claim damages for the violation of rights. Compensation payable by the
offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make
an ancillary order for compensation in addition to the main penalty in cases where 'injury', loss,
or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to
make a compensation order as the sole penalty. It also required that in cases where fines and
compensation orders were given together, the payment of compensation should take priority over
the fine. These developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims of
conventional punishment. The Criminal Justice Act 1928 furthered this shift. It required courts to
consider the making of a compensation order in every case of death, injury, loss or damage and,
where such an order was not given, imposed a duty on the court to give reasons for not doing so.
It also extended the range of injuries eligible for compensation. These new requirements mean
that if the court fails to make a compensation order it must furnish reasons. Where reasons are
given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice
Act contains a number of provisions which directly or indirectly encourage an even greater role
for compensation15”.

Unless acting within their powers, the public authorities are, like any other person, liable for torts
of trespass, nuisance, negligence and so forth, and for the breach of contract16. Payment of
compensation helps to restore the equilibrium, if not the status quo ante. By punishing the
wrongdoer and deterring the potential wrongdoers, it promotes the cause of rule of law and
ultimately, the rights of people in general17. It is established through a plethora of cases in
England that the liability of public authorities to pay compensation has protected fundamental

13
Jayawickrama, Nihal. The Judicial Application of Human Rights Law: National, Regional, and International
Jurisprudence. 2002. New York: Cambridge University Press., pg. 47
14
P. Ishwar Bhat, Fundamental Rights: A Study of their Interrelationship, Eastern Law House, 2004, P. 256
15
'The Oxford Handbook of Criminilogy' (1994 Edn.) at pages 1237-38
16
R. vs. Metropolitan Police Commissioner, ex parte Blackburn (1968) 2 QB 118
17
P. Ishwar Bhat, see above note 14

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right to property18, privacy, business, speech and expression. P.P. Craig observes, “There is a
collective interest” as well as the individual interest in gaining redress through compensation in
public law19. In a case,20 for the ‘monstrously wicked’ police behaviour of dragging a couple out
of bed in the early morning and beating them in a brutal and inhuman way, and unlawfully
detaining them upon fabricated charges, the Court of Appeals awarded a damages of £53,000.

American Experience: Interpreting the corresponding provision in American Convention on

Human Rights21, the Inter-American Court has observed that the duty to ‘ensure’ requires the
State to take all necessary measures to remove any impediments which might exist that would
prevent individuals from enjoying the recognized rights. The obligation to ensure also implies a
duty to organize the governmental apparatus and, generally all the structures through which state
power is exercised so that they are capable of ensuring the free and full enjoyment of these
rights. Consequently, there must be mechanisms through which the state is able to prevent,
investigate and punish any violation of a right and, if possible, restore the violated right and
provide such compensation as may be warranted for any damage resulting from the violation. In
Velasquez Rodriguez vs. Honduras22, it was held that the state also has a legal duty to prevent
human rights violations and to use the means at its disposal to carry out a serious investigation of
violations committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim compensation.

In America, although the remedy of monetary damages can be inferred directly from
constitutional provisions, the contribution of post bellum Congress in the form of 42 US Section
198323 allows civil damage actions to be brought against those “who, under colour of state law”,
have deprived others of constitutional rights. In Monroe v. Pape24, this provision was used and
Supreme Court held that the police officers, who broke into the room of petitioners early

18
Right to property in India is no more a fundamental right; however, there are provisions for compensation to be
granted to persons affected by land acquisition by State.
19
P.P. Craig, Compensation in Public Law, 96 LQR (1980) 413.
20
White vs. Metropolitan Police Commissioner
21
10. “Every person has the right to be compensated in accordance with the law in the event he has been sentenced
by a final judgment through a miscarriage of justice.”
22
Inter-American Court, 29 July 1988,
23
Civil action for deprivation of rights
24
365 US 167 (1961)

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morning and ransacked the whole house without preferring any criminal charges, were liable to
compensate under Section 1983. Along with the expansion of the concept of state action, the
scope of the section has enlarged to protect personal liberty, first amendment rights and various
components of due process rights. In recent times section 1983 is the most invoked remedy25.

International Human Rights Conventions on compensation and the Public Law: The European
Convention for the Protection of Human Rights and Fundamental Rights (ECHR) in its Protocol
No. 726 under Article 3 provides for “The right to compensation for a miscarriage of justice”.
Under Article 5(5) it provides “everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an enforceable right to compensation.”
Justice Yethirajulu states that “this right must be provided for within the national legal system,
that is, a remedy must be made available under the domestic law and enforceable in a domestic
court. The basic duty of the State is to ensure that a breach of Article 5 may be remedied by way
of compensation in the domestic legal system. Where, under the law of a State the Convention
forms part of the law of the land, there is less likelihood of difficulty in complying with this
paragraph, but where "transformation" or specific adaption is required constitutionally, and if
this has not occurred, a problem may arise27”.

As per Article 9(5) of the International Covenant on Civil and Political Rights of 1966 an
enforceable right to compensation is not alien to the concept of enforcement of a guaranteed
right. Article 9(5) reads as follows: “Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.”

ICCPR and ECHR provides that “when a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been reversed or he has been
pardoned on the ground that a new or newly discovered fact shows conclusively that there has
been a miscarriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the non-disclosure of
the unknown fact in time is wholly or partly attributable to him.” A right to compensation may

25
Christina Whitman, Constitutional Torts 79 Mich L Rev 5 (1980) pp. 26-28
26
Strasbourg, 22 November 1984, European Treaty Series, No. 117
27
Justice G. Yethirajulu, see supa note 9

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arise in relation to criminal proceedings if either the conviction of a person has been reversed or
he ‘has been pardoned on the ground that a new or newly discovered fact showed conclusively
that there had been a miscarriage of justice.28

The international human rights provides that “the third obligation is to ensure that any person
whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity; to ensure that any person
claiming such a remedy shall have his right thereto determined by competent judicial,
administrative, or legislative authorities, or by the legal system, and to develop the possibilities
of judicial review; and to ensure that the competent authorities shall enforce such remedies when
granted”.29

India is signatory to these agreements subject to the reservation on enforceable right to

compensation. Under the Indian legal system, there is no enforceable right to compensation for
persons claiming to be victims of unlawful arrest or detention against the State. However, in
D.K. Basu30, Supreme Court observed that “…reservation, however, has now lost its relevance in
view of the law laid down by this Court in a number of cases awarding compensation for the
infringement of the fundamental right to life of a citizen”.

Development of Compensatory Justice Jurisprudence in India:

Apart from the specific provisions of the Statutes through the interpretation of which
compensation may be ordered [by civil and criminal courts], the Public Law Courts in India have
developed a new compensatory jurisprudence according to which compensation is provided even
though there is no specific provision contained in the Constitution with regard to this matter.
The policy thus evolved by the courts is a significant development in the field of compensatory
jurisprudence. It is based on the view that under the Public Law of our country the courts have
the authority to forge new tools and devise new methods so that the Fundamental Rights

28
Muhonen vs. Finland, Human Rights Committee, Communication No. 89/1981, HRC 1985 Report, Annex VII
cited from Jayawickrama, supra see note 18
29
Article 2(3) ICCPR
30
D.K. Basu v. State of W.B., (1997) 1 SCC 416

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guaranteed to the people become meaningful31. Supreme Court in Khatri II posed questions like
“if an officer of the State acting in his official capacity threatens to deprive a person of his life or
personal liberty without the authority of law, can such person not approach the court for
injuncting the State from acting through such officer in violation of his fundamental right under
Article 21? Can the State urge in defence in such a case that it is not infringing the fundamental
right of the petitioner under Article 21, because the officer who is threatening to do so is acting
outside the law and therefore beyond the scope of his authority and hence the State is not
responsible for his action?”

Responding the aforesaid questions, the Court held that “when a court trying the writ petition
proceeds to inquire into the violation of any right to life or personal liberty, while in police
custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer
with a view to punishing him but for the purpose of deciding whether the fundamental right of
the petitioners under Article 21 has been violated and the State is liable to pay compensation to
them for such violation”.

Way back in 1962 in the case of State of Rajasthan vs. Vidhyawati32 “where the driver of a jeep,
owned and maintained by the State of Rajasthan for the official use of the collector of a district
drove it rashly and negligently, while bringing it back from the workshop after repairs and
knocked down a pedestrian and fatally injured him, the grant of compensation of Rs. 15,000 by
the High Court was upheld by the Apex Court”. Though this case was not strictly under Article
226, but it involved the interpretation of Sec. 300(1) of the Constitution. Principle of Sovereign
Immunity (laid down in Kasturi Lal33) has thus eroded with this branch of judicial activism of
granting compensation for State wrongdoings against its citizens.

31
Khatri (II) v. State of Bihar, (1981) 1 SCC 627 [Bhagalpur Blinding case] and Khatri (IV) MANU/SC/0163/1981
32
AIR 1962 SC 933
33
Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039, upholding the State's plea of sovereign immunity
for tortious acts of its servants is confined to the sphere of liability in tort. However, in Nilabati Behera v. State of
Orissa, (1993) 2 SCC 746, “plea of sovereign immunity was distinguished from state's liability for contravention of
fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and
is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of
compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the
fundamental rights can be the award of compensation”.

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In Rudal Sah vs. State of Bihar34 it was held that in a petition under Art. 32 of the Constitution,
Supreme Court can grant compensation for deprivation of a fundamental right. Hon’ble CJ,
Chandrachud, stated as under “It is true that Article 32 cannot be used as a substitute for the
enforcement of rights and obligations which can be enforced efficaciously through the ordinary
processes of courts, civil and criminal…..the important question for our consideration is whether
in the exercise of its jurisdiction under Art. 32, this Court can pass an order for the payment of
money if such an order is in nature of compensation consequential upon the deprivation of a
fundamental right.” In this case, petitioner was detained for more than 14 years in spite of his
acquittal by Court of Session. Petitioner sought relief through Habeas Corpus petition under Art.
32 seeking his release from detention in jail. Supreme Court awarded compensation for illegal
detention to the tune of Rs. 30,000 to the petitioner in addition to Rs. 5,000 already paid to him,
without affecting the right of petitioner to sue for damages. The order was in the nature of
palliative as Supreme Court felt that “petitioner could not be left penniless until the end of his
suit, the many appeals, and the execution proceedings”. This was a landmark judgment in the
growth of Compensatory Jurisprudence in the domain of Public Law by Supreme Court. The
compensation granted to the petitioner was ex-gratia payment protecting the right of further
redressal in appropriate forum.

Thus Rudal Sah’s case added a ‘new dimension to judicial activism’ and raised a set of vital
questions, such as, ‘liability of State to compensate for unlawful detention’, ‘feasibility of
claiming compensation from the State under Article 32 for wrongful deprivation of fundamental
rights’, ‘propriety of the Supreme Court passing an order for compensation on a habeas corpus
petition for enforcing the right to personal liberty’35.

In the case of Bhim Singh vs. State of J&K and others36 petitioner MLA was prevented
deliberately from attending session of Legislative Assembly by arresting and illegally detaining
him in police custody. Supreme Court severely condemned the action of police officers and
observed that “if the personal liberty of a Member of the Legislative Assembly is to be played
with in this fashion, one can only wonder what may happen to lesser mortals!... custodians of law

34
(1983) 4 SCC 141
35
Justice G. Yethirajulu, see supra note 9
36
(1985) 4 SCC 677

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and order should not become depredators of civil liberties…” Supreme Court held that
constitutional rights of the petitioner were violated with impunity and relying upon the decision
of Rudal Sah and Sebastian Hongary37 [“…we have the right to award monetary compensation
by way of exemplary costs or otherwise is now established by the decisions of this court…”]
directed the State of Jammu & Kashmir (respondent) to pay to the petitioner a sum of Rs. 50,000
within two months from the decision as compensation for infringement of his personal liberty.

The three-judge bench of the Supreme Court in the case of Nilabati Behera vs. State of Orrisa38
again reiterated the principle of award of compensation under public law for infringement of
fundamental rights. This was the case where writ petition was filed by a mother claiming
compensation alleging death of his son aged 22 years in police custody in violation of Art. 21. In
this case, custodial death was established. Supreme Court observed that “the court is not
helpless and the wide powers given to the Supreme Court by Art. 32, which itself is fundamental
right, imposes a constitutional obligation on the Court to forge such new tools, which may be
guaranteed in the constitution, which enable the award of monetary compensation in appropriate
cases where that is the only mode of redress available. The power available to the Supreme
Court under Art. 142 is also an enabling provision in this behalf. The contrary view would not
merely render the court powerless and the constitutional guarantee a mirage, but may, in certain
situations, be an incentive to extinguish life, if for the extreme contravention the court is
powerless to grant any relief against the State, except by punishment of the wrongdoer for the
resulting offence, and recovery of damages under private law, by the ordinary process.” [para 20]
Having regard to the age of the deceased and his monthly income, State was directed to pay Rs. 1
lakh as compensation to deceased’s mother and Rs. 10,000 as costs to Supreme Court Legal Aid
Committee.

J.S. Verma J., (as he then was) spelt out the following principles:- while writing in Nilabati
Behra “Award of compensation in a proceeding under Article 32 by this Court or by the High

37
Sebastian M. Hongary vs. Union of India, (1984) 3 SCC 82: In this case some army men of 21st Sikh Regiment
took in custody two persons who went missing from their custody. The court issued a writ of habeas corpus of
which there was a willful disobedience. This was held to be a civil contempt. Supreme Court thought it proper in
this case to impose exemplary cost on the respondent to pay Rupees one lakh each to the wife of the two persons
respectively.
38
AIR 1993 SC 1960: (1993) 2 SCC 746

10

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Court under Article 226 of the Constitution 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. Enforcement of the constitutional right and grant of redress embraces award of
compensation as part of the legal consequences of its contravention”.

In Saheli, police was in violation and in excess of power vested in them, where a child was done
to death on account of beating by police, the Supreme Court has held that mother of the child
was entitled to exemplary compensation of Rs. 75,000/- from State for the death of the child.
State was held responsible for the tortuous acts of its employees. However, it was indicated that
the State might take appropriate steps for recovery of the amount of compensation paid or part
thereof from the officers who will be found responsible, if they are so advised.39

In a petition for mandamus against the State Govt. and local authorities for causing death to a
child by keeping open the lid of a sewerage tank, the Division Bench of the Supreme Court
allowed appeal by special leave from the order of the High Court dismissing the claim for
compensation, and directed the State Govt. to pay heavy compensation to the father of the child,
keeping it open for the State Govt. to take appropriate proceeding to recover the amount from
some other party which might be responsible for keeping the sewerage tank open.40

The remedy of compensation in a writ proceedings has been applied not only to cases of death in
Police Custody, but extends to cases of indignity such as parading in public of an undertrial
prisoner with handcuffs, for which there was no justification.41 In the case of State of
Maharashtra and others vs. Ravikant S. Patil42 a compensation of Rs. 10,000/- was awarded to
the undertrial prisoner who was taken through the streets handcuffed in a procession by police
during investigation. This was held to be violation of fundamental rights. However, the police
officer responsible for the said act was held to have acted only as an official and was not made

39
. Saheli vs. Commissioner of Police, AIR 1990 SC 513: (1990) 2 SCC 422. see. Joginder Kaur vs. State of Punjab,
1969 ACJ 28
40
(1992) 1 UJSC 527 cited in Basu, Durga Das. Constitutional Remedies and Writs. 2 nd Ed. Calcutta: Kamal Law
House, pg. 305
41
Basu, Durga Das. Constitutional Remedies and Writs. 2nd Ed. Calcutta: Kamal Law House, pg. 306
42
(1991) 2 SCC 373

11

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personally liable to pay compensation to the victim undertrial, but authorities were allowed, if
they consider necessary, to hold an enquiry against the police officer and then decide whether
any further action needs to be taken against him or not.

“It is thus now well settled that award of compensation against the State is an appropriate and
effective remedy for redress of an established infringement of a fundamental right under Article
21, by a public servant. The quantum of compensation will, however, depend upon the facts and
circumstances of each case. Award of such compensation (by way of public law remedy) will not
come in the way of the aggrieved person claiming additional compensation in a civil court, in
enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering
compensation43 under Section 357 of Code of Criminal Procedure44”.

Other Cases where Compensation was granted under Public Law:

There are a number of other cases in which compensation was granted by Supreme Court and
High Courts, such as birth after vasectomy45, denial of pension for 12 years46, loss of vision in

43
Sube Singh vs. State of Haryana and Ors., (2006)3SCC178, para 17 and also Ankush Shivaji Gaikwad v. State of
Maharashtra, AIR2013SC2454, para 25.
44
Section 357: Order to Pay Compensation
“(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a
part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation
is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted
the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act,
1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such
death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of
trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of,
stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser
of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period
allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment
order the accused person to pay, by way of compensation such amount as may be specified in the order to the person
who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall
take into account any sum paid or recovered as compensation under this section.”
45
Shankuntala Sharma vs. State of UP, AIR 2000 All 219

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eye-camps47, injury to newly born infant48, death due to open manholes49, death due to
electrocution50, death due to landslide, death due to police firing51, custodial deaths, police
encounter52 and many more. Out of these Police atrocities top the list in which compensation has
been granted by the Supreme Court. Further, in Consumer Education & Research Center vs.
Union of India53 it was held that in public law, claim for compensation is a remedy available
under Art. 32 and 226 for the enforcement and protection of fundamental rights and human
rights.

In PUDR vs. Police Commissioner, Delhi Police Headquarters54, “one of the labourers was
taken to the police station for doing some work, when he demanded wages he was severely
beaten and as a result of which he died. It was held that the State was liable to pay compensation
of Rs. 75,000/- to the family of the deceased”.

In Chiranjit Kaur vs. Union of India55, the husband of the petitioner was a major in army who
died while in service in mysterious circumstances. No proper investigation was made regarding
the cause of his death. His case was handled with culpable negligence and cynical indifference
by the authorities concerned. It was held that widow and her children were entitled to a
compensation of 6 Lakhs as well as other benefits.

In Kewal Pati vs. State of Uttar Pradesh56, the Court awarded compensation to the petitioner, the
wife of a convict who was killed by a co-accused in jail while serving out his sentence under
Section 302, IPC. It was held that the killing in jail resulted in deprivation of his life contrary to
law.

46
Dewaki Nandan Prasad vs. State of Bihar, AIR 1983 SC 1134 – Award of Rs. 25,000/- was given
47
MP Human Rights Commission vs. State of MP, AIR 2003 MP 17
48
Jasbir Kaur vs. State of Punjab, AIR 1995 P& H 278
49
Punjab Civil and Consumer Welfare Front vs. UT of Chandigarh, AIR 1999 P&H 32
50
Haneefa Bano vs. Stateof J&K 156
51
Aheibam Ongbi Laihao Devi vs. State of Manipur, AIR 1999 Gau 9
52
Malkiat Singh v. State of U.P., AIR 1999 SC 1522, A compensation of Rs. 5 Lakhs was granted to petitioner for
his son’s death due to fake police encounter
53
(1995) 2 SCC 42: AIR 1995 SC 922
54
Peoples Union for Democratic Rights vs. Police Commissioner, Delhi Police Headquarters (1989) 4 SCC 730
55
(1994) 2 SCC 1
56
(1995) 3 SCC 600

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An analysis of the cases where compensation has been awarded by Supreme Court would show
that in all the cases “the fact of infringement was patent and incontrovertible, the violation was
gross and its magnitude was such as to shock the conscience of the court and it would have been
gravely unjust to the person whose fundamental right was violated, to require him to go to the
civil court for claiming compensation”.

Limitations to grant of compensation by Judicial Activism

In M.C. Mehta v. Union of India57, Supreme Court made it clear that the power to award
compensation can be exercised only in “appropriate cases”. Court went on to say that “we are
deliberately using the words ‘in appropriate cases’ because we must make it clear that it is not in
every case where there is a breach of a fundamental right committed by the violator that
compensation would be awarded by the court in a petition under Article 32. The infringement of
the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and
either such infringement should be on a large scale affecting the fundamental rights of a large
number of persons, or it should 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 act in the civil courts. 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.”

A word of caution was also given by Supreme Court in the case of Nilabati Behra58 – “It may be
necessary to identify the situations to which separate proceedings and principles apply and the
courts have to act firmly but with certain amount of circumspection and self-restraint, lest
proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in
private law.”

57
MANU/SC/0092/1986: AIR 1987 SC 1086
58
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746

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Though Supreme Court emphasized that compensation can be awarded under Article 21 in
D.K. Basu59, it also drew attention to the fact that “if we lay too much of emphasis on protection
of their (criminals) fundamental rights and human rights, such criminals may go scot-free
without exposing any element or iota of criminality with the result, the crime would go
unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the
problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of
justice. This is all the more so, in view of the expectation of the society that police must deal
with the criminals in an efficient and effective manner and bring to book those who are involved
in the crime. The cure cannot, however, be worst than the disease itself.”

In petition for mandamus against certain orders of the Inspector of Factories, in the Bhopal Gas
Leak Case60, the Constitution Bench upon a reference by the 3-judge Bench laid down the
following proposition: “The power to award compensation under Art. 32 extends to the violation
of any fundamental right, whenever the violation is gross, patent and incontrovertible… though
every case of infringement of a fundamental right is not a fit case for awarding compensation,
thereby supplanting the ordinary remedy of a suit in the civil Court.61

Judicial Activism shown by National Human Rights Commission (NHRC) in awarding

Compensation:

The establishment of National Human Rights Commission under the Protection of Human Rights
Act of 1993 made a big breakthrough in providing an institution performing multi-dimensional
functions supplemental to the cause of protection of basic rights. Under Section 12 of the Act,
the Commission shall inquire, suo motu or on a petition, into complaint of violation of human
rights or abetment thereof or negligence in the prevention of such violation by a public servant.
In cases of violation of human rights, it may recommend to the concerned government about the
remedial actions including interim relief for the protection of Human Rights.

59
D.K. Basu v. State of W.B. MANU/SC/0157/1997
60
M.C. Mehta vs. Union of India (I), AIR 1967 SC 965
61
M.C. Mehta vs. Union of India (II) AIR 1987 SC 1086

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NHRC has taken up several issues relating to fake encounters, custodial violence, custodial
deaths, rape incidents, child abuses, etc. and granted compensation ranging from thousands to
lakhs. The NHRC asked the UP Government to pay fifty thousand rupees to a victim of
detention and torture. The Commission's direction came on a complaint filed by one Shashi
Kumar Upadhyay of Varanasi, who alleged that his brother Naveen Upadhyay, who was picked
up by the local police on February 11, 1999 was illegally detained at the police station till
February 19, 199962. On a complaint received from Mrs Sheela Sinha and others, from Japala in
Palamu district of Jharkhand Government was asked to pay a monetary relief of fifty thousand
rupees to the next of kin of a woman who died at a Health Centre due to doctor's negligence.63.
Jammu and Kashmir Government was asked to pay Rs. 3 lakhs as monetary relief to the next of
kin of a deceased who was subjected to torture and later on died after release. The Commission's
direction came on a complaint registered earlier64.

Ishwar Bhat compares the position of NHRC with Apex Court stating – “Matching with the
heights of judicial activism, the NHRC’s supplemental role in strengthening the substantive and
remedial law on human rights is undoubtedly a welcome and positive development. Its status
commands respect from the power holders also. No doubt, this development adds to the strength
of rule of law mechanism under Article 32”.

The National and State Human Rights Commission could not be considered as replacement of
courts regarding effective redress for victims. The role of the commission at all levels is to
recommend to the government actions required by the government in cases involving human
rights violations. The pertinent question is whether the government adheres to these
recommendations.

A media report pointed out that “the NHRC made a claim to the Human Rights Council by
saying that ‘100,000,000 Indian rupees [US$2.47 million] had been recommended and also
distributed to the victims or next of kin.’ Though the recommendations were true, it lacked
compliance. Hundreds of victims have not received any compensation awarded by the

62
http://nhrc.nic.in/dispArchive.asp?fno=1563
63
http://nhrc.nic.in/dispArchive.asp?fno=1564
64
http://nhrc.nic.in/dispArchive.asp?fno=1584

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commission leaving one to wonder where all the money went. The recommendations of the
commission seemingly end in a black hole within the government; they are just not
implemented65”.

Issues in relation to Judicial Activism in granting compensation:

According to Justice Yethirajulu66 “The compensatory jurisprudence introduced by the Supreme

Court of India by invoking powers under Article 32 gained tremendous importance in recent
times due to the increase of the incidents of State lawlessness, police lawlessness, custodial
violence, violence in jails, unlawful detentions and other violations. This innovation made by the
Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to
render speedy justice to victims of the infringement of right to life and personal liberty.”

True, but Court has also highlighted the cons of the aforesaid development “there seems to be a
disturbing trend of increase in cases where false accusations of custodial torture are made, trying
to take advantage of the serious concern shown and the stern attitude reflected by the courts
while dealing with custodial violence. It needs to be carefully examined whether the allegations
of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading
as victims of custodial violence67”.

It can be seen from the aforesaid discussions that by and large judicial pronouncements in India
support the concept of paying compensation to the people whose rights have been subjected to
State Excesses. However, as a general rule, damages are not available in a proceeding under Art.
32, e.g., for humiliation by remarks made in a judgment.68 The point is to find out whether the
aforesaid general rule has become exception in the past few decades of Judicial Activism.

65
Bijo Francis, The false pride of the National Human Rights Commission of India, retrieved from
http://hindugrowth.wordpress.com/2007/06/20/the-false-pride-of-the-national-human-rights-commission-of-india/
66
Justice G. Yethirajulu, Article 32 and the Remedy of Compensation, (2004) 7 SCC (J) 49
67
Court warned against non-genuine claims in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble
MANU/SC/0677/2003 and Munshi Singh Gautam v. State of M.P. MANU/SC/0964/2004
68
Jiwan Mal vs. Union of India, AIR 1983 SC 1107.

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Loose grounds of Rudal Sah: Rudal Sah69, the landmark precedent (in 12 paras) for awarding
monetary compensation was neither supported by any express provision in the Constitution, nor
any philosophical foundation. Justice Chandrachud, expressed in this case that “it is true that
Article 32 cannot be used as a substitute for the enforcement of rights and obligations, which can
be enforced efficaciously through the ordinary process of Courts, Civil and Criminal. A money
claim has therefore, to be agitated in and adjudicated upon a suit instituted in a lower courts of
lowest grade competent to try it.” This was a case where the petitioner was kept in prison for 14
years in spite of the fact that he had been acquitted by competent criminal court. Moved by this,
the court awarded Rs. 35,000/- as an interim compensation. However, the view of judges in this
case was not emphatic in nature, as well did not have any philosophical foundation. It was more
of a compassion for a victim of state atrocity. Moreover, the State Counsel did not object to the
payment of compensation on the ground that petitioner was required to file a suit to recover
damages from the State Government.

The Hon’ble Court laid down the historic foundation for compensatory justice jurisprudence by
the following words: “But we have no doubt that if the petitioner files a suit to recover damages
for his illegal detention, a decree for damages would have to be passed in that suit, though it is
not possible to predicate, in the absence of evidence, the precise amount which would be decreed
in his favour. In these circumstances, the refusal of this Court to pass an order of compensation
in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which
the State Government has so grossly violated. Article 21 which guarantees the right to life and
liberty will be denuded of its significant content if the power of this Court were limited to
passing orders to release from illegal detention. One of the telling ways in which the violation of
that right can reasonably be prevented and due compliance with the mandate of Article 21
secured, is to mulct its violaters in the payment of monetary compensation. Administrative
sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any
other method open to the judiciary to adopt. The right to compensation is some palliative for the
unlawful acts of instrumentalities which act in the name of public interest and which present for
their protection the powers of the State as a shield. If civilization is not to perish in this country
as it has perished in some others too well-known to suffer mention, it is necessary to educate

69
AIR1983SC1086

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ourselves into accepting that, respect for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage done by its officers to the petitioner's
rights. It may have recourse against those officers.” Apex Court further remarked, “The
Bhagalpur blindings should have opened the eyes of the Prison Administration of the State. But
that bizarre episode has taught no lesson and has failed to evoke any response in the Augean
Stables. Perhaps, a Hercules has to be found who will clean them by diverting two rivers through
them, not the holy Ganga though.”

Compensation to Rape Victims – Changing Criminal Jurisprudence: Awarding compensation to

rape victims by Supreme Court was a bold step under the development of Compensatory Justice
Jurisprudence. In Chandrima Das case70 High Court awarded a compensation of Rs. 10 Lacs to
a Bangladeshi Woman who was gang raped in a room at Yatri Niwas at Howrah Station on a PIL
filed by a practicing advocate of Calcutta High Court. Supreme Court upheld the same and went
on to say that “where public functionaries are involved and the matter relates to the violation of
the fundamental rights or the enforcement of public duties, the remedy would still be available
under the public law notwithstanding that a suit could be filed for damages under private law.”
Supreme Court recently granted an interim compensation of Rs. 10 lakhs to the mother of
Manipuri girl Thangjam Manorama, who was allegedly killed by Assam Rifles personnel71.

Compensation to Acid Attack Victims – Filling the Legal Vacuum: In Laxmi, Supreme Court
gave the directions to (i) enact appropriate provisions for effective sale of acid in States/Union
Territories (ii) Measures for the proper treatment, after care and rehabilitation of the victims of
acid attack and needs of acid attack victims and (iii) Compensation payable to acid victims by
the State/or creation of some separate fund for payment of compensation to the acid attack
victims72. Pursuant to these directions the action taken by some states in deciding the
compensation was found inadequate by the Supreme Court, particularly in view of the fact that
acid attack victims need to undergo a series of plastic surgeries and other corrective treatments.

70
Chairman, Railway Board vs. Chandrima Das AIR 2000 SC 988
71
Union of India & Anr. v. State of Manipur & Anr., SLP (C) 14726-14730 of 2011 Order December 2014.
72
Laxmi v. Union of India and Ors. 2013 (9) SCALE 291

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It was directed that the compensation by States/Union Territories be enhanced to at least 3 lakhs
as the after care and rehabilitation cost73.

In Delhi Domestic Working Women’s Forum vs. Union of India74, the petitioner Women’s Forum
through a PIL brought the pathetic condition of four domestic women servants who were raped
by seven army personnel in a running train while traveling by the Muri Express from Ranchi to
Delhi. Supreme Court laid down broad parameters in assisting the victims of rape trial of rape
cases. Among other suggestions one of the suggestions mooted “to set up Criminal Injuries
Compensation Board having regard to the Directive Principles contained under Article 38(1) of
the Constitution of India. Further compensation for victims shall be awarded by the Court on
conviction of the offender any by the Criminal Injuries Compensation Board whether or not a
conviction has taken place. The board will take into account pain, suffering and shock as well as
loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of
the rape”.

These precedents not only disturbed the scope and purpose of the ‘existing legal provisions’ on
compensation to the victims of crime, but also have shaken the foundation of settled cardinal
principles of criminal law in India. The above two precedents brought into light the vicarious
liability of the State, in Criminal law, which was unknown so far, in the name of compensatory
jurisprudence75. In the words of Prof. S.N. Jain76, “is there any express authority of statutory law
which empowers the Court to award exemplary costs in such cases? There seems to be none –
Neither in the Supreme Court Rules nor the Code of Civil Procedure, assuming that by analogy
the court apply those provisions to writ petitions.”

73
Id. Para 11. “Of this amount, a sum of 1 lakh shall be paid to such victim within 15 days of occurrence of such
incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate medical
attention and expenses in this regard. The balance sum of 2 lakhs shall be paid as expeditiously as may be possible
and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union
Territories shall ensure compliance of the above direction.”
74
(1995) 1 SCC 14
75
Sahadeva, A. and Ravi Pulukuri, “Compensations under Article 32 and Vicarious Criminal Liability of State – A
Critical Study”, Ed. Mahoher Rao, Constitutional Development through Judicial Process, Hyderabad: Asia Law
House, 2006, p. 558
76
Jain, S.N., “Money Compensation for Administrative Wrongs Through Article 32”, Journal of Indian Law
Institute, 1983 Vol. 25 1, p.118

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In another landmark judgment Bodhisathwa Gautam vs. Subhra Chakraborty77 the Supreme
Court awarded interim compensation of Rs. 1000 per month to the victim of rape until her
charges of rape are decided by the trial court. The question is on what principle the award is
made. For the sake of understanding, one can justify it under Article 142, which gives the
Supreme Court power “to make such orders as is necessary for doing complete justice” in a
matter before it. The nature of exemplary cost and the grant of compensation for violation under
Article 21 can be justified to the extent of doing complete justice. However, such a justification
would not fit the bill and would be just an empty formality. The law under Article 142 cannot be
stretched so far that its elasticity is lost.

Whether to grant or not to grant? The judicial approach in this regard has been ad hoc, and not
systematic, about the circumstances in which, persons for whom and persons against whom
compensation is to be awarded. In the case of Sube Singh78, the court while dealing with a case
of custodial violence laid down the principles to be followed while deciding whether
compensation can be granted in the cases of custodial death in following words:
“In cases where custodial death or custodial torture or other violation of the rights
guaranteed under Article 21 is established, courts may award compensation in a
proceeding under Article 32 or 226. However, before awarding compensation, the Court
will have to pose to itself the following questions:
(a) Whether the violation of Article 21 is patent and incontrovertible,
(b) Whether the violation is gross and of a magnitude to shock the conscience of the
court,
(c) Whether the custodial torture alleged has resulted in death or whether custodial torture
is supported by medical report or visible marks or scars or disability.
Where there is no evidence of custodial torture of a person except his own statement, and
where such allegation is not supported by any medical report or other corroboration
evidence, or where there are clear indications that the allegations are false or exaggerated
fully or in part, courts may not award compensation as a public law remedy under Article

77
(1996) 1 SCC 490
78
Sube Singh vs. State of Haryana and Ors., (2006)3SCC178, para 21, In this case a police case was pending against
the petitioner. Moreover, no clear or incontrovertible evidence about custodial torture, nor any medical report of
any injury or disability was found and allegations proved to be exaggerated and false.

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 32 or 226, but relegate the aggrieved party to the traditional remedies by way of
appropriate civil/criminal action”. [Para 21]

Now, which is the fit case to grant compensation depends on the judge who hears it. In absence
of any guidelines there are bound to be inconsistencies. The inconsistency, among other things,
is attributable to the ‘subconscious element’ present within a judge. As Benjamin Cardozo79
puts, to the forces which judges avowedly avail to shape the form and content of their judgments.
“The eccentricities of judges balance each another. One judge looks at problems from
the point of view of history, another from that of philosophy, another from that of social
utility, one is a formalist, another a latitudinarian, one is timorous of change, another
dissatisfied with the present; of the attrition of diverse minds there is beaten something
which has a constancy and uniformity and average valued greater than its component
elements”.

How much to grant? - Is there any standard in place? It is now well settled by judicial
pronouncements that award of compensation against the State is an appropriate and effective
remedy for redress of an established infringement of a fundamental right under Article 21, by a
public servant. The quantum of compensation will, however, depend upon the facts and
circumstances of each case. There is no scale to determine the standard of compensation, as we
can find in case of Workmen’s Compensation Act or for that matter Motor Vehicles Act. In
People's Union for Democratic Rights v. State of Bihar80 while deciding a case of police firing
on an unlawful assembly wherein 21 people died, the heirs and relations of a few of the dead
people had been compensated by the State to the tune of Rupees ten thousand as found from the
record. No justification has been indicated as to why the said compensation has not been given
in every case of death or injury. Supreme Court said, “Ordinarily in the case of death
compensation of Rupees twenty thousand is paid and we see no reason as to why the quantum of
compensation should be limited to rupees ten thousand. We may not be taken to suggest that in
the case of death the liability of the wrong-doer is absolved when compensation of Rupees
twenty thousand is paid. But as a working principle and for convenience and with a view to

79
The Nature of the Judicial Process, Universal Law Publishing, 1961, p.167
80
AIR 1987 SC 355

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rehabilitating the dependants of the deceased such compensation is being paid. We direct that:
(1) without prejudice to any just claim for compensation that may be advanced by the relations of
the victims who have died or by the injured persons themselves, for every case of death
compensation of Rupees twenty thousand and for every injured person compensation of Rupees
five thousand shall be paid. Where some compensation has already been paid, the same may be
adjusted when the amount now directed is being paid. These payments be made within two
months hence.”

Evidence shows that award of compensation in public law is mostly on ad-hoc basis, which is
also followed in our country. This ad-hocism is sometimes supported with rationale and
sometimes is just ad-hoc. In Uphaar Cinema Case the High Court awarded a compensation of
Rs. 5 Lakhs on the basis of social placements of the students which was further upheld by the
Supreme Court81. We are not concerned about these classes of cases where the court makes an
objective assessment of compensation awarded on some basis, but with the cases where
compensation is awarded without basis82. In Uphaar, Supreme Court made recourse to
multiplying factor method of calculating compensation as it is done in motor vehicles cases83. In
another matter relating to 2006 Meerut Fire in a Fair, Supreme Court set up a one-member
Commission headed by Justice (Retd.) Shri. S.B. Sinha and as an interim measure directed the
State of Uttar Pradesh to give a compensation of Rs. 5 Lakh each to the families of dead (65 in
nos.), Rs. 2 Lakh each to those who suffered serious injuries and Rs. 25,000/- each to those who
suffered minor injuries84.

Award of such compensation (by way of public law remedy) will not come in the way of the
aggrieved person claiming additional compensation in a civil court, in enforcement of the private
law remedy in tort, nor come in the way of the criminal court ordering compensation under
section 357 of Code of Civil Procedure. Thus the amount of compensation which can be
awarded to a victim will depend upon the force of argument, the way of presentation of the

81
Assn. of Victims of Uphaar Tragedy and Ors. vs. Union of India (UOI) and Ors., 104(2003)DLT234
82
Mr. Bahuguna in Uphaar Tragedy case contended that anguish of high court is understandable by reason of the
factual import in the matter but that does not however mean and imply that a court of law would be guided by
emotions and allow the sentiments to play a pivotal role in the matter of assessment of damages.
83
Refer to Uphaar Tragedy case for an exhaustive discussion on determination of quantum of compensation.
84
Sanjay Gupta & Ors. v. State of Uttar Pradesh & Ors., WP(C) 338 of 2006 order dated 31.07.2014.

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client’s case by the counsel – after all, its all about gaining sympathy (empathy) of the Judge
listening to the case.

Non-genuine claims: In Dhananjay Sharma v. State of Haryana85, Supreme Court refused

compensation where the petitioner had exaggerated the incident and had indulged in falsehood.
There is a concern of scrutinizing genuine claims with that of non-genuine one. There cannot be
a straight-jacket formula in such cases. It will all depend on the judicial ‘activism’ to find out
what is milk and what is water?

In Gridco v. Sukamani Das86 “the question which arose for consideration was, can the High
Court under Article 226 of the Constitution award compensation for death caused due to
electrocution on account of negligence, when the liability was emphatically denied on the ground
that the death had not occurred as a result of negligence, but because of an act of God or of acts
of some other persons. The Court held that it is the settled legal position that where disputed
questions of facts are involved, a petition under Article 226 of the Constitution is not a proper
remedy. Therefore, questions as to whether death occurred due to negligence or due to act of god
or of some third person could not be decided properly on the basis of affidavits only, but should
be decided by the civil court after appreciating the evidence adduced by the parties”. Further in
TNEB v. Sumathi87, “it was held that when a disputed question of fact arises and there is clear
denial of any tortuous liability, remedy under Article 226 of the Constitution may not be proper.
The Court carved out exception to this general rule by observing that, it should not be understood
that in every case of tortuous liability, recourse must be had to a suit. When there is negligence
on the face of it and infringement of Article 21 is there, it cannot be said that there will be any
bar to proceed under Article 226 of the Constitution”.

Burden on State Exchequer – Should honest tax-payers pay the amount of compensation: One
important question is on whose shoulders would the burden to pay the compensation will fall –
the State – the taxpayers ultimately. Will it be fair to impose penalty on the persons (though

85
MANU/SC/0707/1995
86
Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Ors. v. Sukamani Das (Smt.) and Anr
MANU/SC/0572/1999
87
Tamil Nadu Electricity Board v. Sumathi and Ors. MANU/SC/0338/2000, followed in SPS Rathore vs. State of
Haryana and Ors. (2005)10SCC1

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indirectly) who nowhere were concerned with the crime committed by the public servants –
unless the argument is extended to mean that one is part of the society and one has to share the
burden. On the issue of personal liability of responsible/erring officials, Supreme Court has
taken the view that it will depend on the facts and circumstances of the case. In State of
Maharashtra v. C. C. W. Council of India88 Supreme Court was confronted with the problem
wherein the High Court observed in the body of its judgment that the amount of Rs. 1,50,000
directed to be paid as compensation “may ultimately be recovered from the concerned Police
Officers pro rata depending upon their involvement in the death of the deceased”. Apex Court
deciding the issue said “The question whether such compensation paid by the State can be
recovered from the Officers concerned will depend on the fact whether the alleged misdeeds by
the Officer concerned is committed in the course of the discharge of his lawful duties, beyond or
in excess of the same which will have to be determined in a proper enquiry. The High Court by
the impugned judgment has not conclusively held that the amount should in any circumstance be
recovered from the Officers, therefore, at this stage it is too premature for us to go into this
question whether the appellants in this case are liable to reimburse the State the amount paid by
it to the widow of the deceased as directed by the High Court. This will have to be as stated
above adjudicated in an inquiry wherein it will have to be decided whether the acts of the
concerned Police Officers were in the performance of State duty a (sovereign function) or
outside the same. If it is found that the appellant-Officers did cause the death of the deceased and
the same is not in the performance of their official duty or in excess of the same then they cannot
escape the liability. However, as stated above this question would arise only as and when an
inquiry specifically in this regard is conducted. Therefore, for the present there need for any
direction in this regard does not arise.”

Equal Protection of Laws: Although caution is necessary to stop every claim under Article 21
from becoming a claim for compensation as well, too rigid an approach revolving around
economic status of victim denudes the efficacy of the remedy, and does not conform to the
principle of equal protection of laws89. Thus, the equal protection of laws mandates that the

88
AIR 2004 SUPREME COURT 7
89
P Ishwar Bhat, p. 260

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victims are not left out with the mere hope of justice which is often delayed due to the procedural
nitty-gritty.

National Commission to Review the Working of the Constitution90: Advisory Panel on

enlargement of Fundamental Rights chaired by Justice V.R. Krishna Iyer recommended for
inclusion of judicially deduced fundamental rights like freedom of the press, freedom of
information, right to privacy etc., in Part III of the Constitution. The advisory panel also
recommended for inclusion of ‘Rights against torture and inhuman, degrading and cruel
treatment and punishment.’ This was done by proposing renumbering of Article 21 so that it
would appear as follows:

“Article 21: (1) No person shall be deprived of his personal life and liberty except according to
the procedures established by law.
“(2) No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
(3) Every person who has been illegally deprived of his right to life or liberty
shall have an enforceable right to compensation.”

Thus, it recommended for an enforceable right to compensation for every person who has been
illegally deprived of his right to life or liberty. However, the Constitution has not been amended
so far on these lines.

Conclusion:
The edifice of Indian constitutional democracy stands on three pillars of which the guiding pillar
is the judiciary. The law declared and the jurisprudence developed by this Court has earned a
glory which is matchless. The Supreme Court is the custodian of the Indian Constitution and
exercises power of judicial review over the acts of the legislature and the executive91. Rudal Sah
was not the first case where the question of compensating victim cropped up. In Sant Bir v. State

90
A consultation paper on enlargement of fundamental rights, National Commission to Review the Working of the
Constitution, May 11, 2001, para 3.9 available at <http://lawmin.nic.in/ncrwc/finalreport/volume1.htm>
91
Justice R.C. Lahoti, Speech on Law Day, (2005) 2 SCC (Jour) 1

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of Bihar92 the question of compensation to the victims of the lawlessness of the State was left
open. In Veena Sethi v. State of Bihar93 the Court observed that “the question would still remain
to be considered whether the petitioners are entitled to compensation from the State Government
for the contravention of the right guaranteed under Article 21 of the Constitution”. Prof. S.P.
Sathe94 observes that “In India, there has been a very weak tradition of tort litigation, because of
delays, high court costs, and Indian judges’ tendency to award meager compensation.” But at
last, judiciary has to step in and evolve a new jurisprudence by way of the Compensatory Justice
Jurisprudence for remedying the wrong done to victims due to state excesses. The Supreme
Court rightly felt that mere release of a person from illegal detention would not be an adequate
relief for him and would not deter irresponsible police officers from riding roughshod over
people’s rights. It therefore used the writ jurisdiction for awarding token compensation to
aggrieved persons95.

Prima facie, the development of Compensatory Justice Jurisprudence does not appear to be on
firm grounds as can be seen from the landmark judgment in Rudal Sah wherein the approach of
the court was more of the compassionate nature rather than giving a principle of compensatory
justice. However, thanks to the doctrine of stare decisis, under the torchlight of Rudal,
compensatory justice jurisprudence has nevertheless gained importance and recognition.

There is no evidence of judicial adventurism by Supreme Court in granting compensation, but a

few can be seen by some High Courts and the NHRC. The approach is ad hoc and in this set of
affairs, problems are bound to arise. The Judicial activism of Supreme Court in the development
of compensatory justice jurisprudence is taken positively by the victims (of course), a large
group of citizens, but there is a need for streamlining the process of granting compensation under
Article 21. An example of the effort taken by Supreme Court is the guidelines laid down in the
Sube Singh96 and Delhi Domestic Working Women’s Forum97 vs. Union of India

92
(1982) 3 SCC 131
93
(1982) 2 SCC 583
94
Sathe, S.P. Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press,
2002, pp. 232-33
95
Ibid.
96
Sube Singh vs. State of Haryana and Ors., (2006)3SCC178
97
(1995) 1 SCC 14

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It is to be noted that judicial activism is permitted but not judicial adventurism. Justice Anand,
very aptly speaks about judicial activism in the following words “it should not be an unguided
missile. It has to be controlled and properly channelised. Courts have to function within
established parameters and constitutional bounds. Decisions should have a jurisprudential base
with clearly discernable purposes. Limits of jurisdiction cannot be pushed back so as to make
them irrelevant. Court has to be careful to see that they do not overstep their limits because to
them is assigned the sacred duty of guarding the constitution. Courts cannot create rights where
none exist as to act otherwise would lead to utter confusion. We must ensure that judicial
activism does not become judicial adventurism.98”

The development of Compensatory Justice Jurisprudence in Indian Public Law is a significant

contribution by the Supreme Court towards the development of Human Rights principles in the
form of an un-enumerated right under Article 21. This is an effective measure to keep the state
on guard towards their duties. But at the same time, the principle of granting compensation
should not be allowed to be whittled down and proper scrutiny of genuine cases needs to be
done.

The researcher supports the evolution of Compensatory Justice Jurisprudence in public law.
Though the underlying principle under law of torts is restitutio in integrum (by the payment of
compensatory damages, the claimant should be restored to their original position) does not apply
stricto sensu to the public law award of compensation, the principle is to award an interim
compensation for the wrongs done to the victim due to indifferent attitude of the State in
maintaining law and order or due to positive acts of State which harms the victim in violation of
his fundamental rights. Except the points raised in the aforesaid discussion, the researcher is in
favour of award of compensation to the victims of state lawlessness under public law.

It would not be out of place to mention the recent trend prevalent where the State itself grants
compensation to the victims in situations of wrongs committed by its officers and many times

98
Dr. A.S. Anand, “MC Bhandari Memorial Lecture speaking on the ‘Public Interest Litigation as Aid to Protection
of Human Rights,” (2001) 7 SCC (J) p.10. Also see, Kaul, J.L and Anju Vali Tikoo, Revisiting Award of
Compensation for violation of Fundamental Human Rights: An Analysis of Indian Supreme Court Decisions,
available at www.ailtc.org/downloads/Revisiting_Award_of_Compensation.doc

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NHRC steps in and directs the grant of compensation. Again, there is no rationale for award of
such compensation. Mostly it depends on the political relevance of the incident to a political
party and is aimed at shadowing the lawlessness and negligence of the state. Moreover, there is
no track kept for actual reimbursement of compensation after its fan-fare declaration by political
parties, meant for making a newspaper reports.

This brings us to the next question as to what should be the mode of deciding the compensation
in public law. “Many of the valuable things in life -- love, companionship, health -- come
without dollar price-tags attached. If their financial value is to be judged, therefore, some
method has to be found for assigning pecuniary amounts in situations that do not appear to have
any intrinsically financial aspect”99. It is evident that no straight jacket formula can be evolved
to award compensation in public law as is available in few statutes like The Workmen’s
Compensation Act, The Motor Vehicles Act, etc. Similar is the situation in granting
compensation to the victims of a crime though some guidance is provided under Section 357 of
the Cr.P.C100 or for that matter compensation under the Consumer Protection Laws 101 which is
not the subject of the present paper. However, there should not be an uncertainty in the award of
compensation. There exists no standard (very difficult to frame unless legislated) of determining
compensation and at times it leads to violation of right to equality in principle as there is no
equal protection of laws. For one mother who has lost her son due to police atrocity a
compensation of Rs. 1 Lakh is given102, for another103 it is Rs. 75,000/-, and for the third one it is
Rs. 5 Lakhs104. Recently, in one case, Supreme Court confirmed the payment of Rs. 60 lakhs as
compensation to a triple amputee who was electrocuted due to negligence of Uttar Haryana Bijli
Vitran Nigam Ltd. setting aside the decision of Division Bench of Punjab and Haryana High
Court which lowered the compensation to Rs. 30 lakh from Rs. 60 lakh which was awarded by

99
Oswald, Andrew J. and Nattavudh Powdthavee, Death, Happiness, and the Calculation of Compensatory
Damages, Discussion Paper No. 3159, November 2007, University of Warwick
and IZA, available at http://ssrn.com/abstract=1033387
100
Some States like Maharashtra has framed Scheme regarding the same namely Maharashtra Victim Compensation
Scheme 2014.
101
See
102
Rudal Sah vs. State of Bihar, (1983) 4 SCC 141.
103
Saheli vs. Commissioner of Police, AIR 1990 SC 513: (1990) 2 SCC 422
104
Malkiat Singh v. State of U.P., AIR 1999 SC 1522

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Learned Single Judge105. In absence of parity, it amounts to inequality. To resolve this situation,
it is suggested that a Board or Commission be formed to which the cases of compensation in
public law should be forwarded and a compensation be suggested by such Board/Commission
which should be a parameter for the judge to decide the actual compensation. After the award of
compensation, this Board/Commission may also be given the task of keeping track of
enforcement of those awards.

Right of Compensation under Article 21 would serve as another candle in the life and liberty of
common people of this country provided the said light is not blown away by the inadequacy in
grant of compensation and actual enforcement of such compensation for the benefits of the
victim.

105
Raman v. Uttar Haryana Bijli Vitran Nigam Ltd. in Civil Appeal No. 11466 of 2014 (arising out of SLP 8113 of
2014) decided on 17 Dec. 2014.

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