Nilabati Behera v. State of Orissa

A mother wrote a letter to the Supreme Court after her son died in police custody in Orissa. The Court treated the letter as a writ petition and found that the death was a custodial death. It held that the State must pay compensation under Article 32, and that sovereign immunity (the State's old shield against suits) is no defence.

Quick Revision

Read the full judgment: jajharkhand.in (unofficial copy)

Parties

Smt. Nilabati Behera alias Lalita Behera — petitioner; the mother of Suman Behera. She wrote the letter that became the writ petition.

State of Orissa — respondent. It was directed to pay the compensation.

Sarat Chandra Barik — respondent No. 6; Assistant Sub-Inspector of Police, Jaraikela Police Outpost, Police Station Bisra, District Sundergarh.

Chhabil Kujur — respondent; Police Constable No. 127 of Police Outpost Jeraikela. He guarded Suman Behera at the Outpost.

Other police officers — impleaded with the State and the two named officers.

Suman Behera — the deceased son of the petitioner, aged about 22 years.

Mr. M.S. Ganesh — appeared as amicus curiae (a lawyer appointed to assist the Court) and for the petitioner.

Mr. Altaf Ahmed, Additional Solicitor General — for the respondents, with A.K. Panda and Naresh Kumar Sharma.

Procedural History

1. On 14 September 1988 the petitioner sent a letter to the Supreme Court. The Court treated it as a writ petition under Article 32 (Writ Petition (Crl.) No. 488 of 1988).
2. Before that, the Regional Forensic Science Laboratory made a report on 11 March 1988 about the rope. An opinion of Dr. K.K. Mishra, Cuttack, was given on 15 February 1988.
3. A joint inquiry by an Executive Magistrate and a Circle Inspector of Police reported on 19 December 1988. It said Suman Behera had escaped and died in a train accident.
4. On 4 March 1991 the Supreme Court directed the District Judge, Sundergarh, to hold an inquiry and report. The parties led evidence before him.
5. The District Judge submitted his Inquiry Report on 4 September 1991. It found that Suman Behera died of multiple injuries inflicted in police custody at the Police Outpost.
6. The respondents disputed the report. The Supreme Court examined the matter afresh.
7. Judgment was delivered on 24 March 1993. Verma, J. gave the main opinion. Dr. Anand, J. gave a concurring opinion.

Facts

1. Suman Behera was taken from his home in police custody at about 8 a.m. on 1 December 1987. He was taken by respondent No. 6, Sarat Chandra Barik, an Assistant Sub-Inspector of Police.
2. The arrest was in connection with the investigation of a theft. He was detained at the Jaraikela Police Outpost in Orissa.
3. Suman Behera and another accused, Mahi Sethi, were handcuffed and tied together. They were kept in custody.
4. At about 8 p.m. his mother and grandmother took food to the Outpost. He ate, and the women went away. He stayed in police custody.
5. Police Constable Chhabil Kujur and some other persons were at the Outpost that night.
6. At about 2 p.m. on 2 December 1987 the petitioner learned that his body had been found on the railway track near a bridge. It lay near Jaraikela railway station, at Kilometer No. 385/29 between Jeraikela and Bhalulata stations.
7. The body had a handcuff and multiple injuries. His death was unnatural and was caused by those injuries.
8. The police version was that he escaped from the Outpost at about 3 a.m. on the night of 1 and 2 December 1987. They said he could not be found despite a search, and was run over by a train.
9. The petitioner said the death was a custodial death. She said he died of injuries inflicted in custody and the body was then thrown on the track.
10. Railwaymen found the body in the morning. The police reached the spot much later in the day to take charge of it.
11. The post-mortem doctor listed many injuries. They included skull fractures, a fractured left humerus and left femur, fractured mandible and maxilla, and multiple lacerations and bruises.
12. The post-mortem listed these external injuries:
    • Lacerations of the damaged face, the left temporal region (down to bone), above the right mastoid process, and on the forehead.
    • Lacerations on the left arm, left thigh, both knees, left leg, the toes of the right foot and the dorsum (upper surface) of the left foot.
    • Bruises on the neck, obliquely placed along the muscle above the left clavicle and on the posterior aspect of the neck.
    • Bruises on the right shoulder, both palms, the extensor surface of the left forearm, the right elbow, and the left patella.
    • Bruises near the right iliac spine, both scapulae, below the left twelfth rib, the left lumbar region and the left buttock.
13. On dissection, the Court records these internal injuries:
    • Fractures of the right parietal and occipital bones, the frontal bone (a 2-inch depressed fracture) and the left temporal bone.
    • A ruptured membrane below the depressed fracture with brain matter protruding, intracranial haemorrhage and a lacerated brain.
    • Bone chips on the temporal surface on both sides, and fractures of the left humerus, the left femur, both angles of the mandible and the maxilla.
    • The face was completely damaged, with the nose, lips and cheeks absent. No injury was present on the front of the trunk.
14. The doctor said the injuries on the face and the left temporal region were post-mortem. The other injuries were ante-mortem.
15. The doctor ruled out dragging by a running train as the cause. He said all the ante-mortem injuries could be caused by lathi blows.
16. Suman Behera was aged about 22 and had a monthly income of Rs.1200 to Rs.1500. This finding rests on the District Judge's record.

Issues Raised

1. Is it a case of custodial death, as the petitioner alleged?
2. If so, is the State liable to pay compensation in a proceeding under Article 32 for violation of the fundamental right to life under Article 21?
3. Is the State's plea of sovereign immunity available against that claim, in view of Kasturilal Ralia Ram Jain v. State of Uttar Pradesh?
4. What amount of compensation is appropriate, and how should it be paid?

Arguments Contended

For the petitioner (Mr. M.S. Ganesh, amicus curiae for the petitioner):

• The evidence led at the inquiry does not support the respondents' defence.
• There is no reason to reject the District Judge's finding that Suman Behera died in police custody from injuries inflicted on him.

For the respondents (Mr. Altaf Ahmed, Additional Solicitor General):

• Suman Behera escaped from custody at about 3 a.m. on 2 December 1987. He was likely run over by a passing train.
• The evidence of the respondents supports this defence. The police were responsible for his safety only until he escaped.
• The written opinion of Dr. K.K. Mishra, Professor and Head of Forensic Medicine, Medical College, Cuttack, was relied on. It said the injuries could have been caused on the track by contact with the moving train or engine, and that an accidental fall was more likely.
• The joint report of 19 December 1988 under Section 176 Cr.P.C. was relied on as a statutory report on the cause of death.
• The injuries on the head and face could not have been caused by police torture. The finding of the District Judge to the contrary was wrong.
• The medical evidence did show lathi injuries, but the injuries on the face and left temporal region could not have been caused by lathis.
• The rope-chewing escape theory: the respondents suggested he escaped by chewing off the rope with which he was tied.
• The State did not dispute that it would be liable for compensation under Article 21 if the death was a custodial death. The argument was that the factual foundation for that liability was absent.
• No plea of sovereign immunity was raised. Dr. Anand, J. records that the Additional Solicitor General raised no such defence.

Court's Reasoning

The judgment has no numbered paragraphs, so no paragraph numbers are cited. Each opinion is set out below.

Opinion of Verma, J.

1. Noted: The letter of 14 September 1988 was treated as a writ petition under Article 32 to decide the claim for compensation for Suman Behera's death in police custody.
2. Noted: The Court examined the District Judge's report afresh, because the respondents disputed its correctness.
3. Held: The admitted facts placed the burden on the respondents to explain how the injuries came about.
   Why: Suman Behera was taken into custody, was not released, and was found dead with multiple injuries. "Unless a plausible explanation is given by the respondents which is consistent with their innocence", the obvious inference is that the fatal injuries were inflicted in police custody. The respondents are then responsible and liable.
4. Noted: The Additional Solicitor General did not dispute the State's liability for compensation under Article 21 if it was a custodial death. He argued only that the factual foundation was absent.
5. Noted: The first question was whether it was a case of custodial death. The admitted facts are listed under Facts.
6. Held: There is no cogent independent evidence of any police search to find Suman Behera, if the escape defence were true.
   Why: After railwaymen found the body in the morning, the police reached the spot much later in the day. This conduct is a significant circumstance in judging the defence.
7. Noted: The Court set out the post-mortem injuries in full (see Facts).
8. Held: The medical evidence of the post-mortem doctor excludes the possibility that all the injuries came from a train accident. It shows that all of them could result from a merciless beating.
9. Held: The written opinion of Dr. K.K. Mishra is not of much help. He was not examined as a witness.
   Why: The opinion is cryptic and rests on conjectures with no basis. It says nothing about the injuries being both ante-mortem and post-mortem. The Court preferred the testimony of the doctor who did the post-mortem.
10. Held: The joint report of 19 December 1988 does not help the respondents.
    Why: An inquiry under Section 176 Cr.P.C. is meant to be held independently by a Magistrate, not jointly with a police officer, when the role of the police is itself under inquiry.
11. Held: The rope evidence defeats the escape story.
    Why: A handcuff and rope were on the body. The Regional Forensic Science Laboratory report of 11 March 1988 says the two cut ends of the rope do not match in appearance. This rejects the suggestion that he escaped by chewing through the rope.
12. Held: It is a custodial death. Suman Behera died of injuries voluntarily inflicted on him in police custody at the Police Outpost.
    Why: The Court reached the same conclusion as the District Judge on a fresh look at the evidence and the circumstances. It did not need to refer to the other evidence, including the oral evidence.
13. Noted: On that finding, the question was the liability of the respondents to pay compensation to the petitioner.
14. Noted: Earlier decisions of this Court make the State of Orissa's liability beyond doubt. The Additional Solicitor General rightly did not dispute it. The decisions are Rudul Sah, Sebastian M. Hongray, Bhim Singh, Saheli and Ravikant S. Patil.
15. Noted: The Court said it was appropriate to spell out the principle on which the State's liability arises. It must also spell out how this differs from liability in private law for damages in tort.
16. Held: Compensation in a proceeding under Article 32 by this Court, or under Article 226 by a High Court, is a public law remedy. It is based on strict liability for contravention of fundamental rights.
    Why: The principle of sovereign immunity does not apply to it, even though sovereign immunity may be a defence in a private law action based on tort.
17. Noted: In Rudul Sah, this Court held that in a petition under Article 32 it can award compensation for deprivation of a fundamental right. That was a case of violation of the right to personal liberty under Article 21.
18. Noted: Chandrachud, C.J. said in Rudul Sah that Article 32 cannot replace ordinary processes for enforcing rights that can be enforced effectively in civil and criminal courts. A money claim must ordinarily go to a suit in the lowest competent court.
19. Noted: The Chief Justice in Rudul Sah asked whether the Court can order payment of money by way of compensation for deprivation of a fundamental right. He held that refusing compensation would pay mere lip-service to the right to liberty.
20. Noted: The Chief Justice said Article 21 would be denuded of its content if the Court could only order release from illegal detention. Compensation is one telling way to secure compliance with Article 21. The State must repair the damage done by its officers, and it may have recourse against them.
21. Held: Some words in Rudul Sah could raise a doubt. They said the petitioner could have been sent to a suit if his claim was factually controversial. The Court cleared that doubt.
    Why: The later decisions proceed on the basis that compensation can be awarded under Article 32 or Article 226. But they did not state the nature of this remedy. It is distinct from, and in addition to, the ordinary processes.
22. Noted: In Sebastian M. Hongray (1), the burden was on the respondents to prove their stand when the detained person was last seen alive under the control of the detaining authority.
23. Noted: In Sebastian M. Hongray (II), exemplary costs were awarded when the missing persons were not produced and were found to be dead. The award apparently followed Rudul Sah but said nothing more.
24. Noted: In Bhim Singh, illegal detention violated Articles 21 and 22(2). The Court awarded compensation under Article 32 as settled by Rudul Sah and Sebastian M. Hongray.
25. Noted: In Saheli, the State was held liable to pay compensation to the mother of a person who died from police beating. The principle stated there was that the State is responsible for the tortious acts of its employees.
26. Noted: In State of Maharashtra v. Ravikant S. Patil, compensation by the High Court was upheld for an undertrial prisoner who was handcuffed and paraded through the streets.
27. Held: Apart from Rudul Sah, none of these cases said more on the principle. Saheli did not refer to Kasturilal. It is therefore more in line with Rudul Sah.
28. Held: Kasturilal is confined to tort liability. It does not apply to the State's liability for contravening fundamental rights.
    Why: Sovereign immunity has no application in the constitutional scheme. Kasturilal concerned the value of goods seized and not returned. That was a claim for damages for the tort of conversion (wrongfully dealing with another's goods), not for violation of fundamental rights. It is inapplicable and distinguishable.
29. Noted: The Privy Council decision in Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) is useful. Section 6 of the Constitution of Trinidad and Tobago, 1962 allows an application for redress for breach of human rights.
30. Noted: The majority in Maharaj, through Lord Diplock, rejected the argument that compensation is not enforcement of the right. It held that an order for compensation is clearly a form of redress and may be the only practicable form.
31. Noted: Lord Diplock said the claim is not a private law claim for damages for false imprisonment (unlawful confinement). It is a claim in public law for compensation for deprivation of liberty alone.
32. Noted: Lord Hailsham dissented on liability in that case. He agreed with the majority on the principle that redress and enforcement can include damages where damages are available as a legal consequence of a contravention.
33. Held: On this principle the view in Maharaj was unanimous. Enforcement of a constitutional right and its redress include compensation as a legal consequence of the contravention.
34. Held: A claim in public law for compensation for contravention of human rights is an acknowledged remedy. It is based on strict liability. It is separate from, and in addition to, the private law remedy of damages for the tort.
35. Held: The defence of sovereign immunity is inapplicable and alien to the concept of guaranteed fundamental rights. "It is this principle which justifies award of monetary compensation for contravention of fundamental rights".
    Why: That is the only practicable mode of redress when the State or its servants contravene the right in the purported exercise of their powers. This is what Rudul Sah indicated and what later decisions rest on.
36. Noted: The Court found support for this view in the discussion in Ratanlal and Dhirajlal's Law of Torts (22nd Edition, 1992, by Justice G.P. Singh, pages 44 to 48). It also found support in the Bhagalpur blinding cases, Khatri (II) and Khatri (IV).
37. Noted: The Bhagalpur cases said the Court should be ready to forge new tools and devise new remedies to vindicate the right to life and personal liberty. The suitable procedure must be used to find the facts.
38. Noted: In Union Carbide Corporation v. Union of India, Misra, C.J. said the Court must develop its own law. It may construct a new principle of liability for an unusual situation. Venkatachaliah, J. made similar observations on the Court's power to grant relief.
39. Held: The Court concurred that "the court is not helpless". The wide powers under Article 32, itself a fundamental right, impose a constitutional obligation to forge new tools. They enable compensation in appropriate cases where it is the only mode of redress.
40. Held: The power under Article 142 is also an enabling provision.
    Why: The contrary view would make the Court powerless and the constitutional guarantee a mirage. It could even become an incentive to extinguish life, if the only remedies were punishing the wrongdoer and private law damages.
41. Held: If the guarantee that life and personal liberty can be taken away only in accordance with law is to be real, every contravention must be enforceable. The mode of redress is what is appropriate in the facts of each case.
42. Held: This public law remedy must be more readily available when the have-nots invoke it. They lack the means to enforce their rights in private law. Its use must still be tempered by judicial restraint, to avoid circumventing private law remedies where they are more appropriate.
43. Noted: Article 9(5) of the International Covenant on Civil and Political Rights, 1966 says a victim of unlawful arrest or detention has an enforceable right to compensation. It shows that such a right is not alien to enforcing a guaranteed right.
44. Held: This discussion states the principles for awarding compensation under Articles 32 and 226. The extra observations in Rudul Sah do not detract from the principle. Kasturilal is distinguished.
45. Held: On the finding reached, it is a clear case for compensation for the custodial death of the petitioner's son.
46. Held: A total of Rs.1,50,000 is appropriate as compensation.
    Why: The deceased was about 22 years old and had a monthly income of Rs.1200 to Rs.1500. This finding rests on the District Judge's record and there is no reason to doubt it.
47. Held: The compensation awarded will be taken into account if the petitioner takes any other proceeding to recover compensation on the same ground. This avoids double recovery.
    Why: The order is just and matches the statutory adjustment in Section 357(5) Cr.P.C. and Section 141(3) of the Motor Vehicles Act, 1988.
48. Held: Apart from that adjustment, this compensation does not affect any other liability of the respondents or any other person arising from the custodial death.
49. Noted: The Court expected the State of Orissa to fix the responsibility of the individuals responsible for the death. The State should take all appropriate action against each of them, including prosecution.

Opinion of Dr. A.S. Anand, J. (concurring)

1. Noted: Verma J.'s judgment made it unnecessary to review the facts or the case law. Dr. Anand, J. recorded a few observations of his own while concurring.
2. Noted: A letter of 14 September 1988 from the mother brought the custodial death to the Court's notice. It was treated as a writ petition under Article 32. The District Judge held an inquiry and reported that the death was due to multiple injuries in police custody.
3. Noted: The Court scrutinised the report with the help of Mr. M.S. Ganesh, amicus curiae for the Supreme Court Legal Aid Committee, and Mr. Altaf Ahmad, the Additional Solicitor General.
4. Held: Dr. Anand, J. agreed with Verma, J. that the police case of escape and a train accident is not acceptable.
5. Noted: The Additional Solicitor General argued that the head and face injuries could not be from police torture. The State accepted that the medical evidence showed lathi injuries. It said the face and left temporal injuries could not have been caused by lathis.
6. Held: The doctor excluded a train accident. The face and left temporal injuries were post-mortem and the rest were ante-mortem.
   Why: This shows that after inflicting the injuries that caused death, the police threw the body on the track. The post-mortem injuries came after death. It exposes the police attitude and their crude attempt to fabricate false clues.
7. Held: The claim of escape is exposed by the Regional Forensic Science Laboratory report of 11 March 1988 (Annexure R-8). The two pieces of rope did not tally in appearance. This belies the police case that he escaped by chewing the rope.
8. Held: The theory of escape was rightly disbelieved. The death was caused in police custody by police torture. "A custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law."
9. Noted: It was not the Court's concern at this stage to decide which police officers were responsible. The competent court must decide that. Dr. Anand, J. agreed with the directions of Verma, J. on this.
10. Noted: The next question was whether relief under Article 32 stops at a declaration that fundamental rights were infringed. The other choice was to go further and award monetary damages as the only practicable redress. The Article 32 remedy is without prejudice to any other lawful action.
11. Held: Convicts, prisoners and undertrials are not stripped of their fundamental rights under Article 21. Only restrictions permitted by law can be placed on them. The State must ensure that a citizen in its custody is not deprived of life except in accordance with law.
12. Held: The police or prison authorities carry a great responsibility to protect life in custody. The liberty left to a person in custody is precious. "The duty of care on the part of the State is strict and admits of no exceptions."
13. Held: The wrongdoer is accountable and the State is responsible if a person in police custody loses life except by procedure established by law.
14. Held: Dr. Anand, J. agreed that sovereign immunity is not available to the State in such cases. He noted that the Additional Solicitor General raised no such defence.
15. Held: Relegating the heirs of a custodial death victim to a civil suit is not always enough. That private law remedy exists, but the citizen cannot be told that no public law relief is available from courts exercising writ jurisdiction.
16. Noted: Public law proceedings come from the prerogative writs. Courts must evolve new tools to give relief by moulding it to the situation, to preserve the Rule of Law.
17. Noted: He quoted Lord Denning's first Hamlyn Lecture, Freedom under the Law (1949). Lord Denning said the executive will sometimes do wrong. The old writs and actions are not suited to the new age, and courts must supply new machinery. The passage warns that abused executive power leads to a totalitarian state.
18. Held: The old doctrine of only sending the aggrieved to civil law remedies limits the courts' role as protector of citizens' rights. Courts and the law are for the people and must respond to their aspirations.
19. Held: Public law proceedings serve a different purpose from private law proceedings. Monetary compensation, as exemplary damages (compensation that penalises the wrongdoer), under Article 32 or 226 for an established infringement of Article 21 is a public law remedy. It is based on strict liability.
20. Held: The purpose of public law is to civilise public power and to assure citizens that the legal system protects their rights. When the court moulds relief as compensation, it penalises the wrongdoer and fixes liability for the public wrong on the State. The State failed in its public duty.
21. Held: Such compensation is not payment in the sense of a civil action for damages. It is 'monetary amends' under public law for breach of the public duty to protect fundamental rights. It is exemplary damages and is independent of the right to claim compensation in tort or to prosecute the offender.
22. Held: This Court and the High Courts have the power and also an obligation to grant relief under Articles 32 and 226. This applies to the victim or the heir of a victim whose Article 21 rights were flagrantly infringed. The State must repair the damage done by its officers. The civil suit or criminal proceedings remain open.
23. Noted: The State has the right to be indemnified by the wrongdoer and to take action against the wrongdoer in accordance with law. Relief under Article 32 or 226 is given only when an infringement is established and no other form of redress is possible.
24. Noted: The line of cases starting with Rudul Sah granted monetary relief in Article 32 and 226 petitions despite civil law remedies. It is sound policy to punish the wrongdoer. Courts weigh the interest of the applicant, the respondent and the public, so that public bodies and officials perform their duties properly.
25. Noted: Law is developing, and separate public law procedures and principles are needed. Courts must act firmly but with circumspection and self-restraint. Article 32 and 226 proceedings must not become a disguised substitute for a civil action in private law.
26. Held: On the findings, the appropriate redress is an order of monetary amends by way of exemplary damages for the custodial death.
27. Held: Dr. Anand, J. agreed that the State of Orissa should pay Rs.1,50,000 to the petitioner and Rs.10,000 as costs to the Supreme Court Legal Aid Committee. He concurred with the opinion and directions of Verma, J. in all respects.

Opinion of N. Venkatachala, J.

The judgment text records no separate opinion by Venkatachala, J. He sat on the Bench listed in the header. The reported headnote says Verma, J. delivered his opinion on his own behalf and on behalf of Venkatachala, J.

Authorities

• Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R. 508: held that this Court can award compensation under Article 32 for deprivation of a fundamental right. Verma, J. quoted Chandrachud, C.J. and cleared the doubt in some of its words (Verma, J.). Dr. Anand, J. also cited it (Anand, J.).
• Sebastian M. Hongray v. Union of India (I), [1984] 1 S.C.R. 904: burden on respondents to prove their stand when the detainee was last seen in their control (Verma, J.).
• Sebastian M. Hongray v. Union of India (II), [1984] 3 S.C.R. 544: exemplary costs awarded on failure to produce the missing persons (Verma, J.).
• Bhim Singh v. State of J&K, [1984] Supp. S.C.C. 504 and [1985] 4 S.C.C. 677: compensation under Article 32 for illegal detention violating Articles 21 and 22(2) (Verma, J.).
• Saheli, A Women's Resources Centre and Others v. Commissioner of Police, Delhi Police Headquarters and Others, [1990] 1 S.C.C. 422: State liable to pay compensation for a death from police beating. The Court found it closer to Rudul Sah than to Kasturilal (Verma, J.).
• State of Maharashtra and Others v. Ravikant S. Patil, [1991] 2 S.C.C. 373: High Court compensation upheld for an undertrial handcuffed and paraded (Verma, J.).
• Kasturilal Ralia Rain Jain v. The State of Uttar Pradesh, [1965] 1 S.C.R. 375 (the body of the judgment spells it Ram Jain): sovereign immunity upheld in tort. Distinguished, as it relates to conversion of goods and not to fundamental rights (Verma, J.).
• Maharaj v. Attomey-General of Trinidad and Tobago (No. 2), [1978] 3 All E.R. 670 (Privy Council; the text spells it Attomey-General): compensation is a form of redress for breach of constitutional rights. The Court found it useful (Verma, J.).
• Jaundoo v. Attorney-General of Guyana, [1971] SC 972: cited by Lord Diplock in Maharaj as a case where monetary compensation was ordered as redress (Verma, J.).
• Khatri (II) v. State of Bihar, [1981] 1 S.C.C. 627, and Khatri (IV) v. State of Bihar, [1981] 2 S.C.C. 493 (Bhagalpur blinding cases): the Court is not helpless and must forge new remedies (Verma, J.).
• Union Carbide Corporation v. Union of India, [1991] 4 S.C.C. 584: Misra, C.J. and Venkatachaliah, J. on developing new principles of liability and relief (Verma, J.).
• Ratanlal and Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, pages 44 to 48: on the public law remedy and the private law remedy (Verma, J.).
• Lord Denning, first Hamlyn Lecture, Freedom under the Law (1949): quoted on the need for new remedies against abuse of executive power (Anand, J.).
• Also cited in footnotes: none. The judgment has no footnotes.

Provisions the Court used:

• Article 21 of the Constitution: no deprivation of life or personal liberty except by procedure established by law.
• Article 32: the right to move the Supreme Court to enforce fundamental rights. Article 226: the High Courts' power to issue writs.
• Article 22(2) (as noted in Bhim Singh): violated by the illegal detention in that case.
• Article 142: the Supreme Court's power to do complete justice. The Court said it is an enabling provision.
• Section 176 Cr.P.C.: inquiry by a Magistrate into the cause of death.
• Section 357(5) Cr.P.C. and Section 141(3) of the Motor Vehicles Act, 1988: statutory adjustment of compensation.
• Article 9(5), International Covenant on Civil and Political Rights, 1966: an enforceable right to compensation for unlawful arrest or detention.
• Section 6 of the Constitution of Trinidad and Tobago, 1962, as discussed in Maharaj.

Judgement

The writ petition was allowed. The Court gave these directions:

1. The State of Orissa must pay Rs.1,50,000 to the petitioner as compensation.
2. The State must also pay Rs.10,000 as costs to the Supreme Court Legal Aid Committee.
3. The Rs.1,50,000 must be paid by a term deposit in a scheduled bank in the petitioner's name for three years. She gets only the interest during that time. The principal is payable to her when the term ends.
4. The Collector of the District must take the necessary steps and report compliance to the Registrar (Judicial) of the Court within three months.
5. The compensation will be adjusted against any other proceeding by the petitioner for compensation on the same ground. This avoids double recovery.
6. Apart from that adjustment, the compensation does not affect any other liability of the respondents or anyone else arising from the custodial death.
7. The State of Orissa is expected to fix the responsibility of the individuals responsible for the custodial death. It should take all appropriate action against each of them, including prosecution.

Legal Principle / Ratio

Compensation under Article 32 or Article 226 for contravention of a fundamental right is a public law remedy based on strict liability. Sovereign immunity is no defence to it. Key holding: the claim is "distinct from, and in addition to, the remedy in private law for damages for the tort". A custodial death is one such contravention of Article 21.

Subsequent Treatment

D.K. Basu v. State of West Bengal, Supreme Court of India, decided 18 December 1996, reported at [1996] Supp. 10 S.C.R. Bench: Kuldip Singh and Dr. A.S. Anand, JJ. The opinion on compensation is by Dr. Anand, J. The judgment has no numbered paragraphs, so no paragraph numbers are cited.

• Source of the remedy. The Court said the Constitution has no express provision for compensation for violation of the right to life. It said this Court has judicially evolved a right to compensation for established unconstitutional deprivation of personal liberty or life. It cited Nilabati Behera for this.
• Sovereign immunity. The Court set out how Nilabati Behera explained Kasturilal. It said Kasturilal is confined to liability in tort. It said sovereign immunity is not available against the State for violation of the right to life.
• Relief to heirs. The Court reproduced the passage of Nilabati Behera that a civil suit is not always enough for the heirs of a custodial death victim. It restated the same points on public law relief and new tools.
• Compensation as a remedy. The Court noted that civil damages are a long and cumbersome process. It called monetary compensation for a custodial death a useful, and at times the only effective, remedy for the victim's family.
• Foreign courts. The Court noted that the New Zealand Court of Appeal, in a case on the Bill of Rights Act, cited Nilabati Behera as another valuable authority. That court described it as an award of damages against the State, in public law, based on strict liability.
• Summary rule. The Court concluded that compensation is an accepted remedy in most jurisdictions. It said the claim rests on strict liability and the defence of sovereign immunity is not available. It said the State may recover from the wrongdoer. The emphasis is on compensating, not punishing.

Kaushal Kishor v. State of U.P., Supreme Court of India (Constitution Bench), Writ Petition (Criminal) No. 113 of 2016, decided 3 January 2023. Bench: S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna, JJ. Ramasubramanian, J. wrote the main judgment. Nagarathna, J. wrote a separate opinion. Paragraph numbers below are from the respective opinions.

• Attorney General's note (Ramasubramanian, J., para 9). The note said the State's liability for tortious acts of its servants has been held inapplicable to violation of fundamental rights. It said the principle of constitutional tort was conceived in Nilabati Behera. It also said the matter deserves a proper legal framework.
• Amicus note (Ramasubramanian, J., para 10). The note said the State liability principle of constitutional tort was expounded in Nilabati Behera. It said Common Cause v. Union of India explained the position of a public functionary.
• The Court's summary (Ramasubramanian, J., para 76). The Court recorded that Nilabati Behera made a distinction. Kasturilal upheld sovereign immunity for tortious acts, confined to liability in tort. The State's liability for contravention of fundamental rights is separate, and sovereign immunity does not apply to it. The Court reproduced the summary of the law in the concurring opinion of Dr. A.S. Anand, J.
• List of compensation cases (annexure to Ramasubramanian, J.'s opinion). The list records Nilabati Behera as a case where the petitioner was a mother whose son died in police custody. It records that the Court directed the State to pay Rs.1.5 lakh.
• Nagarathna, J. (para 55). She said Nilabati Behera held compensation under Article 32 or 226 to be a public law remedy based on strict liability. She said sovereign immunity does not apply to it, though it may apply in a private law tort action. She restated the differences between public law and private law proceedings from that case.
• Nagarathna, J. (para 56). She noted that D.K. Basu granted compensation. She then noted the caution in Hindustan Paper Corporation v. Ananta Bhattacharjee. Compensation under Article 226 is a public law remedy only where the State or its agents violate a fundamental right under Article 21. This paragraph does not name Nilabati Behera.

No other later case that names this judgment was fetched.

Critical Analysis

Analysis based on the judgment text.

• The Court said Rudul Sah's words about factually controversial claims could raise a doubt. It cleared the doubt but did not overrule those words.
• The Court asked for restraint. The remedy is to be used where compensation is the only practicable redress, and not as a disguised substitute for a civil action.
• The Court fixed the amount from the deceased's age and monthly income. It gave no formula for other cases.
• Dr. Anand, J. called the award exemplary damages. Verma, J. spoke of strict liability. The judgment treats both as the same public law remedy.
• The Court left the question of which officers were responsible to a competent court. It only expected the State to act against them.

Significance

• The Court confirmed compensation under Articles 32 and 226 as a public law remedy. It is separate from a tort suit.
• Sovereign immunity was held to have no place in a fundamental rights claim. Kasturilal was confined to tort liability.
• Dr. Anand, J. said Article 21 protects persons in custody, including convicts, prisoners and undertrials.
• The Court said this remedy must be more readily available to the poor who cannot use private law remedies.

Exam-Important Points

• Rule: compensation for breach of a fundamental right is a public law remedy under Articles 32 and 226, based on strict liability. Trap: it does not replace the tort suit. The two remedies can both exist, with adjustment to avoid double recovery.
• Sovereign immunity is not a defence to this public law claim. Kasturilal was distinguished and confined to tort liability.
• Burden: when a person dies in custody, the respondents must give a plausible explanation consistent with their innocence.
• Section 176 Cr.P.C.: an inquiry into cause of death is meant to be independent of the police when the police role is in question.
• Amount: Rs.1,50,000 plus Rs.10,000 costs to the Supreme Court Legal Aid Committee. Paid as a three-year term deposit.
• Article 142 is an enabling provision for this remedy. Article 9(5) ICCPR supports the right to compensation.
• Dr. Anand, J. concurred with a separate opinion. He described the award as exemplary damages and 'monetary amends'.

Prepared from the full text of the judgment. This judgment has no numbered paragraphs. The citation is not in the body of the judgment.