Compensation as a Remedy in Public Law

The concept of compensation has evolved from a pillar of human rights jurisprudence to far-reaching dimensions of modern rights under writ jurisdiction. In the earlier era of the compensatory jurisprudence, it started as a labour movement due to emergence of communist and socialist ideologies, and later developed as a public law remedy due to liberalisation in State liability which was restricted to common commercial courts.

The history of compensation can be traced back, well before the twelve tables i.e. the legislation that stood at the foundation of Roman law, formally promulgated in 449 BC, the infliction of an injury led to attempts to exact vengeance either by the person injured or by his kin. In course of time, custom began to impose limitations beyond which vengeance might not be so exacted. At the later stage, with the inception of “State”, the State started to act as a protector and guardian of its citizens. With the concept of State and the subsequent development of territorial jurisdiction, the State itself, in the form of some central authority, began to regulate the exaction of revenge in the form of imposition of punishment. Later with the development of modern State, the stage is reached in which elements of revenge have disappeared, and the principle is established throughout the law that for every injury compensation should be paid. Thus, granting compensation has become a part and parcel of rendering justice.

In India, the compensation was initially introduced in torts and labour legislations such as, the Employees’ Compensation Act, 1923¹. After India got Independence, and with the commencement of the Constitution, the compensation was included in most of the statutes such as Probation of Offenders’ Act, 1958²Code of Criminal Procedure, 1973³ Consumer Protection Act, 1986⁴, Motor Vehicles Act, 1988⁵, Railways Act, 1989⁶, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989⁷, Protection of Human Rights Act, 1993⁸, Protection of Women against Domestic Violence Act, 2005⁹. Also, the late 1970’s witnessed a new wave of human rights jurisprudence and litigations, development of modern welfare State, expansion of Article 21¹⁰, emergence of public interest litigation, liberation of locus standi and expansion of the term “State”, thereby setting the stage for the emergency of compensatory jurisprudence.

In late 1970’s it started to reach its height by advancing compensation through writs under Articles 32¹¹ and 226¹² of the Indian Constitution for breach of fundamental rights. With the progression of society and with judicial wisdom, the scope of compensation under writ, so far restricted to Article 21 has started expanding to other fundamental rights such as Article 19(1)(a)¹³ i.e. right to freedom of speech and expression, Article 19(1)(g) i.e. right to practise any profession or to carry on any occupation, trade or business Article 19(1)(e) i.e. right to reside and settle in any part of the territory of India, etc. The article explains the need for granting compensation for violation of other fundamental rights by the State authorities, which would act as a deterrent theory for an effective and responsible functioning of the State authorities and heading towards welfare State.

Under Indian Constitution, the fundamental rights under Part III from Articles 12 to 35¹⁴ speak about rights. Article 32, which is rightly called by Dr Ambedkar as “heart and soul” of the Constitution, defines “remedies for enforcement of rights conferred by this Part” which inherently infers that where there is a right, there should also be a remedy for its breach (ubi jus ibi remedium), paving way for compensation. So, is Article 226, the writ jurisdiction of High Court.

Apart from various legislations which provide for compensation in India, the judiciary has evolved through its wisdom of ages to include the idea of compensation under its writ jurisdiction for the breach of fundamental rights.

Compensation under writ with respect to Article 21

Initially, the judiciary has not entertained the compensation to be given under writ either by Article 32 or Article 226. The seed for granting compensation under writ has been laid by the Supreme Court in Khatri (2) v. State of Bihar¹⁵. In this case Justice Bhagwati observed that (SCC pp. 629-630, para 4):

4. … Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

Further, by giving life to Khatri (2)¹⁶, the Supreme Court in Rudul Sah v. State of Bihar¹⁷, has brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to the victim of State lawlessness on the part of the Bihar Government for keeping him in illegal detention for over 14 years after his acquittal of a murder charge. In the case, the victim was granted Rs 30,000 as compensation. This judgment has set the stage for new compensation era under writs. The relevant paras are extracted hereinbelow (Rudul Sah case¹⁸, SCC p. 148, paras 11 and 12):

11. Taking into consideration the great harm done to the petitioner by the Government of Bihar, we are of the opinion that, as an interim measure, the State must pay to the petitioner a further sum of Rs 30,000 (Rupees thirty thousand) in addition to the sum of Rs 5000 (Rupees five thousand) already paid by it. The amount shall be paid within two weeks from today. The Government of Bihar agrees to make the payment though, we must clarify, our order is not based on their consent.

12. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope, there will be no more Rudul Sahs in Bihar or elsewhere.

Since 1993, compensation which had been granted to the victim, only under Article 32 of the Constitution, was also included under Article 226 i.e. the writ jurisdiction of the High Court. The judgment of the Supreme Court in Nilabati Behera v. State of Orissa¹⁹, has paved the way for compensation not only under Article 32 but also under Article 226. The Court at para 34 held that (SCC pp. 768-769):

34. … The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen.

Consequently, the High Court has given a kick-start to compensate for the loss suffered by the victim for the breach of fundamental rights primarily under Article 21. In D.K. Basu v. State of W.B.²⁰, the remedy of compensation under public law was recognised. The relevant para is extracted hereinbelow (SCC p. 439, para 44):

44. … Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

In Rohtash Kumar v. State of Haryana²¹, the Supreme Court has granted compensation for violation of Articles 14 and 21 causing death of the petitioner’s son, in a fake police encounter. The Court has directed the State of Haryana to pay Rs 20 lakhs as compensation. The relevant paras are extracted hereinbelow (SCC p. 299, paras 15 and 16):

15. We share the pain and anguish of the appellant, who has lost his son in what appears to be a fake encounter. He has conveyed to us that he is not interested in money but he wants a fresh investigation to be conducted. While we respect the feelings of the appellant, we are unable to direct fresh investigation for the reasons which we have already noted. In such situation, we turn to Nilabati Behera²², wherein the appellant’s son had died in custody of the police. While noting that custodial death is a clear violation of prisoner’s rights under Article 21 of the Constitution of India, this Court moulded the relief by granting compensation to the appellant.

16. In the circumstances of the case we set aside the impugned judgment and order dated 13-9-2010 and in light of Nilabati Behera²³, we direct Respondent 1 State of Haryana to pay a sum of Rs 20 lakhs to the appellant as compensation for the pain and suffering undergone by him on account of loss of his son Sunil. The payment be made by demand draft drawn in favour of the appellant “Rohtash Kumar” within a period of one month from the date of the receipt of this order.

United Air Travel Services v. Union of India²⁴ the Supreme Court held that it was a clear case of violation of Article 14 i.e. right to equality and has granted 5 lakhs as compensation (SCC p. 148, paras 16 and 17):

16. In the facts of the present case, the arbitrariness and illegality of the action of the authority is writ large. The petitioners have been deprived of their right to secure the quota on a patently wrongful order passed for reasons, which did not apply to them and for conditions, which had been specifically exempted. What could be a greater arbitrariness and illegality? Where there is such patent arbitrariness and illegality, there is consequent violation of the principles enshrined under Article 14 of the Constitution of India. The facts of the present case are, thus, undoubtedly giving rise to the satisfaction of parameters as a fit case for grant of compensation.

17. On a conspectus of the aforesaid facts including the number of pilgrims for whom the petitioners would have been entitled to arrange the Hajj pilgrimage, an amount of Rs 5 lakhs per petitioner would be adequate compensation for the loss suffered by them and subserve the ends of justice. We are conscious of the fact that there is no quantification based on actual loss, but then the award by us is in the nature of damages in public law.

In Railway Board v. Chandrima Das²⁵, the question of granting compensation under Article 226 first came up before the Calcutta High Court. The case involves gang rape of a foreign national women by employees of the Railway. The relevant paras are extracted hereinbelow (SCC p. 484, paras 36 and 37):

36. It has already been pointed out above that this Court in Bodhisattwa Gautam v. Subhra Chakraborty²⁶ has already held that “rape” amounts to violation of the fundamental right guaranteed to a woman under Article 21 of the Constitution.

37. Now, Smt Hanuffa Khatoon, who was not the citizen of this country but came here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so far as “right to life” was concerned. She was entitled to be treated with dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she could not be subjected to a treatment which was below dignity, nor could she be subjected to physical violence at the hands of government employees who outraged her modesty. The right available to her under Article 21 was thus violated. Consequently, the State was under the constitutional liability to pay compensation to her. The judgment passed by the Calcutta High Court, therefore, allowing compensation to her for having been gangraped, cannot be said to suffer from any infirmity.

7. Compensation under writ with respect to Article 19

So far, the Supreme and the High Courts through catena of judgments has granted compensation for custodial death, atrocities and ill-treatment by authorities, atrocities against women and children, illegal detention, negligence of police in dealing with injured, encounter deaths, death of minor due negligence of State authorities, communal riots, etc. which were so far granted under Article 21. Later, the grant of compensation has been extended to Article 19 of the Constitution.

In Chambara Soy v. State of Orissa²⁷, some persons had blocked a road due to which the petitioner was delayed in taking his ailing son to the hospital and his son died on arrival at the hospital and violated his right move freely under Article 19(1)(d) and right to life under Article 21. The Court held that the State is liable to pay the compensation of Rs 1,00,000 to the victim. The relevant paras are extracted hereinbelow :

9. From the facts as narrated in the foregoing paragraphs, the irresistible conclusion is that the State authorities failed in their duties to provide protection to the innocent persons like the petitioner and to remove the blockage, which the State is bound to do, as the petitioner as well as the citizens have a right under Article 19(1)(d) of the Constitution of India to move freely within the territory of India. This right of the petitioner is admitted by the State authorities to have been interfered by some hooligans blocking the road. In our considered opinion, the State is liable to pay the compensation for the death of the petitioner’s son due to the inaction on the part of the State authorities in removing the aforesaid blockage, which resulted in delay in treatment of the ailing son of the petitioner leading to his death. The said blockage also caused immense loss to the State economy.

In this regard, we may refer the decision in Nilabati Behera v. State of Orissa²⁸. Relying upon the said decision, in our considered opinion, an amount of Rs 1,00,000 (Rupees one lakh) would be the appropriate compensation to the victim family of the petitioner.

In Ramlila Maidan Incident, In re²⁹, the Supreme Court took suo motu cognizance for breach of Articles 19(1)(a) & (b) and 21. The Court held that the negligence of the State and the Trust was in the ratio of 3:1. It asked Ramdev’s Foundation Bharat Swabhiman Trust to pay 25 per cent of the compensation to the dead and the injured. It ordered Rs 5 lakhs compensation per affected family. The judgment of the Supreme Court concluded with inclusion of “right to sleep” as a fundamental right under the ambit of Article 21 that is “right to life and personal liberty”. The relevant paras are extracted hereinbelow: (SCC p. 114, paras 286.18 and 287)

286.18. I also direct that the persons who died or were injured in this unfortunate incident should be awarded ad hoc compensation. Smt Rajbala, who got spinal injury in the incident and subsequently died, would be entitled to the ad hoc compensation of Rs 5 lakhs while persons who suffered grievous injuries and were admitted to the hospital would be entitled to compensation of Rs 50,000 each and persons who suffered simple injuries and were taken to the hospital but discharged after a short while would be entitled to a compensation of Rs 25,000 each.

287. The compensation awarded by this Court shall be treated as ad hoc compensation and in the event, the deceased or the injured persons or the persons claiming through them institute any legal proceedings for that purpose, the compensation awarded in this judgment shall be adjusted in those proceedings.

In P.K. Koul v. Estate Officer³⁰, the Court has acknowledged the petitioner’s right to reside and settle in any part of the territory of India under Article 19(1)(e) along with Article 21, which was being violated by the State officials and granted compensation of Rs 25,000 to each petitioner. The relevant para of the judgment is extracted hereinbelow :

Result in view of the above discussion, it is directed as follows:

(i) The impugned orders cancelling the allotment of the petitioners; the orders of eviction passed in the proceedings held against the petitioners under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971³¹ and the appellate orders which are detailed in para 13 are hereby set aside and quashed.

(ii) A direction is issued to the respondents to make all endeavours to adequately, effectively and reasonably rehabilitate and resettle the petitioners, making provisions for appropriate accommodations for them.

(iii) Till such time, the respondents are able to provide alternative accommodation to the petitioner and his/or her family anywhere in Delhi, the petitioners shall be allowed to retain and occupy the allotted accommodation (also detailed in Column 2 of para 13 above) subject to payment of normal licence fees.

(iv) Each of the petitioners shall be entitled to costs of Rs 25,000 which shall be paid within a period of six weeks from the date of passing the order.

In Indibily Creative (P) Ltd. v. State of W.B.³², the Supreme Court has granted compensation under Article 19(1)(g) for consequential financial losses caused by State authorities. In this case the petitioner has suffered violation of fundamental rights under Articles 19(1)(a) & (g), 14 and 21. The respondent State authorities were directed to pay compensation of Rs 20 lakhs, which was a huge amount. The relevant para is extracted hereinbelow (SCC p. 466, para 52):

52. As a consequence of the pulling off of the film from the theatres where it was screened on 16-2-2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the State in failing to affirm, fulfil and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case. We order and direct the respondents to pay to the petitioners’ compensation which we quantify at Rs 20 lakhs within a period of one month from the date of the present judgment.

Therefore, the judgment of the Supreme Court in Chambara Soy case³³, Ramlila Maidan case³⁴ and Indibily Creative (P) Ltd. case³⁵ has marked a new era of compensation under writs. Now it has been recognised that when there is a loss of business due to arbitrary actions of the State authorities, it leads to grave economic injustice. Further if the freedom of speech and expression is violated, it harms the society at large.

The future scope of compensation

Nevertheless, compensation has been brought under the writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution for the breach of fundamental rights, it has been still being restricted only to Articles 14, 21 and 19. With the emergence of new issues in the society, which disturbs the core of fundamental rights as well as the basic structure doctrine, the courts are required to impose strict monetary damages if the same has been violated by the State authorities. Also, the compensation as palliative to the unlawful acts of the State instrumentalities has to be granted according to each and every circumstance of the case.

As the Indian Constitution sits on a bedrock of checks and balances, the judiciary should consider applying the deterrent theory of compensation as “just” and “reasonable”, if the State walks against the path, which disturbs the precepts of fundamental rights of the citizen. Such steps of judiciary will help the State to progress more into a welfare State.

It is said the “Hurried justice is buried justice, delayed justice is denied justice”. Therefore, the writ courts have to look forward to grant compensation not only to the established heinous crimes but also to the peripheral issues that might disturb the core fundamental rights in future.