Another guest post from Kartik Monga, a third year student at NALSAR University of Law, Hyderabad
In this piece the author discusses how the opening of writ jurisdiction as a source for monetary compensation in cases of Human Rights infringements has led some very arbitrary amounts being awarded as compensation, especially in the absence of any set rules or jurisprudence. The problem would be discussed through some specific case laws.
The victims of any wrong generally seek compensation under the law of torts at the local civil courts. This process is tedious and insufficient at most times but the damages awarded under torts are well defined and categorized under the heads of Compensatory, Nominal and Punitive. The least amount courts provide is the direct financial loss suffered by the victim in terms of medical cost or the cost to repair the property or any such similar loss.
The Indian Supreme Court has time and again invented new methods for securing fundamental rights under Article 32. The Article 32 (2) provides the Supreme Court with power to issue directions, orders or writs for enforcement of any fundamental right. The power of the Supreme Court under Article 32 are not subject any limitations and the court has used these powers to both prevent and remedy the violations of fundamental rights. In the past few decades, India witnessed the birth of a new mechanism for damages in specific cases of Human Rights infringement. The rise of this new jurisprudence of compensation with respect to Human Rights is a welcome step from the constitutional courts but the various amounts awarded by the highest court has started a new debate.
The advent of this remedy has raised many questions. Should compensation be given in all cases of violation of Article 21? Should compensation be awarded for violation of Article 21 or for other fundamental rights also? Should the state pay compensation even when the officials were performing non-sovereign functions? and so on. Instead of engaging with all these questions, I will only discuss the arbitrariness of the amounts awarded in all these cases and save the other questions for some other day.
All the cases which will be discussed below are habeaus corpus petitions.
It all began with the landmark judgment in the case of Rudul Shah vs State of Bihar (Rudul Shah was kept in illegal detention for over 14 years after his acquittal in a murder case). In this case the Supreme Court decided to grant monetary compensation for violation of right to personal liberty. This was the first time when someone was awarded monetary compensation under the writ jurisdiction provided in Article 32 of the constitution. In this case the court decided to award a compensation of Rs. 35,000. The Court awarded this compensation as an interim relief to Rudul Shah and the court also said that this order won’t preclude Rudul Shah from bringing a suit for recovery of adequate damages from the State and the officers responsible. The honourable court gave no reasoning for arriving at the specific amount as interim relief.
This new remedy was used in the case of Sebastian M. Hongray vs Union Of India (C. Daniel and C. Paul, were last seen alive at an army camp. The court held that this was a case of custodial death and the state is responsible for their mysterious disappearance). In this case the court ordered the State to pay ₹ 1 lakh as exemplary cost, this was given to both the widows as compensation. In this case again, the court arrived at the amount in a completely arbitrary manner without any discussion and even gave it the colour of exemplary costs.
Next is the case of Smt. Nilabati Behera Alias Lalit Behera V. State Of Orissa & Ors. In this case of custodial death from Orissa, the Supreme Court tried to display some reasoning in arriving at the amount of compensation. The Court said that the “The deceased was aged about 22 years and had a monthly income between ₹ 1200 to ₹ 1500. A total amount of ₹ 1,50,000 would be appropriate as compensation”. The mention of the income and age gives a hint that the amount arrived at, may be based on the principles set out in private torts law but the amount is again arbitrary and without any reasoning or logic.
In the case of People’s Union for Civil Liberties v. Union of India , The police picked 5 persons from the village and later shot dead two of them. Though the circumstances were quite similar to the previous two cases and this judgment came 17 years after the Sebastian Hongray judgment, the Supreme Court found it fit to provide 1 lakh in compensation. It’s impossible to comprehend how even after 17 years, the Supreme Court thinks that the same amount would be sufficient for compensating a custodial death.
One year later the same court in the case of Malkiat Singh v. State of U.P., awarded 5 lakh as compensation to the family of each victim. This case also had similar facts as previous case, 10 sikh youths were killed in a fake encounter by UP police. Again the Supreme Court gave no reasoning as to how it arrived at the amount of 5 lakhs and why a year back 1 lakh was the sufficient amount for a similar case and now suddenly the same court thinks that 5 lakh should be sufficient. In the same year the in the case of Amitadyuti Kumar v. State of W.B. the Supreme Court gave only 70,000 as compensation to the wife for custodial death of husband.
In 2003, the Supreme Court again went back to the amount it awarded 20 years back in the Hongray case. In the case Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, the victim died because of the torture inflicted on him while in police custody. It’s beyond comprehension how the Supreme Court found the amount of 1 lakh as compensation for this heinous violation of Human Rights.
In the past three four years the compensation awarded in such cases has been in the range of 1 to 10 lakh rupees but again these amounts are highly arbitrary and depend on the whims of the judges. The Supreme Court further increased the unpredictability when in the famous case of Sohrabuddin Sheikh fake encounter the court left it to the whims of Gujarat government to decide the amount of compensation even though in all similar cases in past the same court has awarded compensation.
The Honourable Delhi High Court in the tragic case of Uphaar Cinema fire tried use the private law technique to decide the amount of compensation under public law. High Court framed out the average income of the deceased persons, and thereafter multiplied it with the digit 15 in order to conclude the final amount to be awarded to each of the claimants. In this matter, High Court awarded Rs. 18 lakhs to the legal heirs of those deceased aged 20 years or more, and Rs. 15 lakhs to the legal heirs of those deceased persons aged 20 years or less. The Supreme Court out rightly rejected the use of this method to award compensation under a Public Law remedy (Article 32 and 226 of the Constitution). Supreme Court, in the case, was of the opinion that considerable amount of compensation by means of Public Law Remedy is not safe and this turned out to be the reason for the reduction of compensation by the Supreme Court but the Court at least laid down the factors which should be borne in mind while arriving at the amount of compensation. These factors were
The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses).
The sad truth is that the court has repeatedly ignored these factors and has arrived at extremely different amounts in cases with similar circumstances.
It’s time for the highest court in this country to lay down some definite guidelines for compensation under constitutional torts law for itself and all the High Courts to follow. Justice Radhakrishnan himself recommended that a specific legislation is urgently required so as to address the compensation claim under Public Law.