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Petitioners: ………………….SHRI D.K. BASU
VS
Respondent : ………………….STATE OF WEST BENGAL (1)
CORAM : KULDIP SINGH AND A.S. ANAND, JJ.
CONSTITUTION - ARTICLE 21 & 22 - CUSTODIAL DEATH -
CUSTODIAL VIOLENCE - Power of Arrest - Requirements of - Whether monetary
compensation should be awarded for established infringement of
fundamental rights guaranteed by Articles 21 & 22 - Held, Court laid
down requirements of power of arrest in para 36 of the judgment and
declared monetary or pecuniary compensation is an appropriate and indeed
an effective and sometime perhaps the only suitable remedy for redressal
of the established infringement of the fundamental right to life of a
citizen by the public servants and the State is victoriously liable for
their acts.
A.
The following requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as preventive
measurers : (1) The police personnel carrying out the arrest and handling
the interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of
all such police personnel who handle interrogation of the arrestee must
be recorded in a register. (2) That the police officer carrying out the
arrest of the arrestee shall prepare a memo of arrest at the time of
arrest and such memo shall be attested by atleast one witness, who may be
either a member of the family of the arrestee or a respectable person of
the locality from where the arrest is made. It shall also be counter
signed by the arrestee and shall contain the time and date of arrest. (3)
A person who has been arrested or detained and is being held in custody
in a police station or interrogation centre or other lock-up, shall be
entitled to have one friend or relative or other person known to him or
having interest in his welfare being informed, as soon as practicable,
that he has been arrested an is being detained at the particular place, unless
the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee. (4) The time, place of arrest and venue of
custody of an arrestee must be notified by the police where the next
friend or relative of the arrestee fives outside the district or town
through the Legal Aid Organisation in the District and the police station
of the area concerned telegraphically within a period of 8 to 12 hours
after the arrest. (5) The person arrested must be made aware of this
right to have someone informed of his arrest or detention as soon as he
is put under arrest or is detained. (6) An entry must be made in the
diary at the place of detention regarding the arrest of the person which
shall also disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of the, police
officials in whose custody the arrestee is. (7) The arrestee should,
where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/herbed, must be recorded
at that time. The "Inspection Memo" must be signed both by the
arrestee and the police officer effecting the arrest and its copy
provided to the arrestee. (8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours during his detention in
custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned State or Union Territory.
Director, Health Services should prepare such a penal for all Tehsils and
Districts as well. (9) Copies of all the documents including the memo of
arrest, referred to above, should be sent to the illaga Magistrate for
his record. (10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation. (11) A police
control room should be provided at all district and State Headquarters,
where information regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer causing the arrest, within
12 hours of effecting the arrest and at the police control room it should
be displayed on conspicous notice board. (Para 36)
B.
These requirements are in addition to the constitutional and statutory
safeguards and do not detract from various other directions given by the
courts from time to time in connection with the safeguarding of the
rights and dignity of arrestee. (Para 39)
C.
It is now a well accepted proposition in most of the jurisdictions, that
monetary or pecuniary compensation is an appropriate and indeed an
effective and sometime perhaps the only suitable remedy for redressal of
the established infringement of the fundamental right to life of a
citizen by the public servants and the State is victoriously liable for
their acts. The claim of the citizen is based on the principle of strict
liability to which the defence of sovereign immunity is not available and
the citizen must receive the amount of compensation from the State, which
shall have the fight to be indemnified by the wrong doer. (Para 56)
D.
In the assessment of compensation, the emphasis has to be on the
compensatory and not on punitive element. The objective is to apply balm
to the wounds and not to punish the transgressor or the offender, as
awarding appropriate punishment for the offence (irrespective of
compensation) must be left to the criminal courts in which the offender
is prosecuted, which the State, in law, is duty bound to do. The award of
compensation in the public law jurisdiction is also without prejudice to
any other action like civil suit for damage which is lawfully available
to the victim or the heirs of the deceased victim with respect to the
same matter for the tortious act committed by the functionaries of the
State. (Para 56)
E.
The quantum of compensation will, of course, depend upon the peculiar
facts of each case and so strait jacket formula can be evolved in that
behalf. The relief to redress the wrong for the established invasion of
the fundamental rights of the citizen, under the public law jurisdiction
is, thus, in addition to the traditional remedies and not in derogation
of them. The amount of compensation as awarded by the Court and paid by
the State to redress the wrong done, may in a given case, be adjusted
against any amount which may be awarded to the claimant by way of damages
in a civil suit. (Para 56)
Referred. Joginder Kumar vs State, 1994 (4) SCC 260;
Neelabati Bahera vs State of Orissa, 1993 (2) SCC 746; State of Madhya
Pradesh vs Shyamsunder Trivedi & Ors, 1995 (3) SCALE 343; Re Death of
Sawinder Singh Grover, 195 Supp (4) SCC 450; Miranda vs Arizona, 384 US
436; Rudal Shah vs State of Bihar, 1983 (4) SCC 141; Sebastian M. Hongrey
vs Union of India, 1984. (3) SCC 339 and 1984 (3) SCC 82; Bhim Singh vs
State of J&K, 1984 (Supp) SCC 504 and 1985(4) SCC 677; Sahell vs
Commissioner of Police, Delhi, 1990(1) SCC 422; Kasturi Lal Ralia Ram
Jain vs State of U.P., 1965. (1) SCR 375; Quinn vs Ryan, 1965 IR 70
(122); Byrne vs Ireland, 1972 IR 241; Maharaj vs Attorney General of
Trinidad and Tobago, (1978) 2 All E.R.670; Simpson vs Attorney General,
1994 NZLR 667;
Dr. Anand, J.
- The Executive Chairman, Legal Aid Services, West Bengal, a
non-political organisation registered under the Societies Registration
Act, on 26th August, 1986 addressed a letter to the Chief Justice of
India drawing his attention to certain news items published in the
Telegraph dated 20, 21 and 22 of July, 1986 and in tile Statesman and
Indian Express dated 17th August, 1986 regarding deaths in police
lock-ups and custody. The Executive Chairman after reproducing the news
items submitted that it was imperative to examine the issue in depth and
to develop "custody jurisprudence" and formulate modalities for
awarding compensation to the victim and/or family members of the victim
for atrocities and death caused in police custody and to provide for
accountability of the officers concerned. It also stated in the letter
that efforts are often made to hush up the matter of lock-up deaths and
thus the crime goes unpunished and "flourishes". It was
requested that the letter alongwith the news items be treated as a writ
petition under "public interest litigation" category.
2.
Considering, the importance of the issue raised in the letter and being
concerned by frequent complaints regarding custodial violence and deaths
in police lock up, the letter was treated as a writ petition and notice
was issued on 9.2.1987 to the respondents.
3. In
response to the notice, the State of West Bengal filed a counter. It was
maintained that the police was not hushing up any matter of lock-up death
and that wherever police personnel were found to be responsible for such
death, action was being initiated against them. The respondents
characterised the writ petition as misconceived misleading and untenable
in law.
4. While
the Writ petition was under consideration, a letter addressed by Shri
Ashok Kumar Johri on 29.7.87 to the Hon’ble Chief Justice of India
drawing the attention of this Court to the death of one Mahesh Bihari of
Pilkhana, Aligarh in police custody was received. That letter was also
treated as a writ petition and was directed to be listed alongwith the
writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made following
order:
"In almost every states there were allegations
and these allegations are now increasing in frequency of deaths in
custody described generally by newspapers as lock-up deaths. At present
there doesn't appear to be any machinery to effectively deal with such
allegations. Since this is an all India question concerning all States,
it is desirable to issue notices to all the Sates Governments to find out
whether they are desire to say anything in the matter. Let notices issue
to all the State Governments. Let notice also issue to the Law Commission
of India with a request that suitable suggestions may be made in the
matter. Notice be made returnable in two months from today."
5. In
response to the notice, affidavits have been filed on behalf of the
States of West
Bengal,
Orissa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil Nadu,
Meghalaya,
Maharashtra and Manipur. Affidavits have also been filed on behalf of
Union
Territory of Chandigarh and the Law Commission of India.
6.
During the course of hearing of the Writ petitions, the court felt
necessity of having assistance from the Bar and Dr. A.M. Singhivi senior
advocate was requested to assist the Court as amicus curiae.
7.
Learned counsel appearing for different States and Dr. Singhivi, as
friend of the Court, present the case ably and though the effort on the
part of the States initially was to show that "everything was
well" within their respective States, learned counsel for the
parties, as was expected of them in view of the importance of the issue
involved, rose above their respective briefs and rendered useful assistance
to this Court in examining various facts of the issue and made certain
suggestions for formulation of guidelines by this Court to minimise, if
not prevent, custodial violence and for award of compensation to the
victims of custodial violence and kith and kin of those who die in
custody on account of torture.
8.
The Law Commission of India also in response to the notice issued by this
Court forwarded a copy of the 113th Report regarding "Injuries in
police custody and suggested incorporation of Section 114-B in the India
Evidence Act."
9.
The importance of affirmed rights of every human being need no emphasis
and, therefore, to deter breaches thereof becomes a sacred duty, of the
Court, as custodian and protector of the fundamental and the basic human
rights of the citizens. Custodial violence, including torture and death
in the lock ups, strikes a blow at the Rule of Law, which demands that
the powers of the executive should not only be derived from law but also
that same should be limited by law. Custodial violence is a matter of
concern. It is aggravated by the fact that it is committed by person who
are supposed to be the protectors of the citizens. It is committed under
the shield of uniform and authority in the four walls of a police station
or lock-up, the victim being totally helpless. The protection of an
individual from torture and abuse by the police and other law enforcing
officers is a matter of deep concern in a free society. These petitions
raise important issues concerning police powers, including whether
monetary compensation should be awarded for established infringement of
the Fundamental Rights guaranteed by Articles 21 and 22 of the
Constitution of India. The issues are fundamental.
10.
"Torture" has riot been defined in the Constitution or in other
penal laws. "Torture" of
a human being by another human being is essentially an instrument to
impose the will of the ‘strong’ over the ‘week’ by suffering. The
word torture today has become synonymous with the darker side of
human cilivlisation.
"Torture is a wound in the soul so painful that
sometimes you can almost touch it, but it is also so intangible that
there is no way to heal it. Torture is anguish squeezing in you, chest,
cold as ice and heavy, as a stone paralyzing as steep and dark as the
abyss. Torture is despair and fear and rage and hate. It is a desire to
kill and destroy including yourself." - Adriana P. Bartow.
11. No
violation of any of the human rights has been the subject of so many
Conventions and Declarations as ‘torture’ - all aiming at total banning
of it in all forms but inspite of the commitments made to eliminate
torture, the fact remains that torture is more widespread now than ever
before. "Custodial torture" is a naked violation of human
dignity and degradation which destroys, to a very large extent, the
individual dignity and whenever human - dignity is wounded, civilisation
takes a step backward - flag of humanity must on each such occasion fly
half-mast.
12. In
all custodial crimes what is of real concern is not only infliction of
body pain but the mental agony which a person undergoes within the four
walls of police station or lock-up. Whether it is physical assault or
rape in police custody, the extent of trauma, a person experiences is
beyond the purview of law.
13.
"Custodial violence" and abuse of police power is not only
peculiar to this country, but it is widespread. It has been the concern
of international community because the problem is universal and the
challenge is almost global. The Universal Declaration of Human Rights in
1948, which marked the emergence of a worldwide trend of protection and
guarantee of certain basic human rights, stipulates in Article 5 that
"No one shall be subjected to torture or to cruel, inhuman or
degarding treatment or punishment." Despite the pious declaration,
the crime continues unabated, though every civilised nation shows its
concern and takes steps for its eradication.
14. In
England, torture was once regarded a normal practice to get information
regarding the crime, the accomplices and the case property or to extract
confessions,
but
with the development of common law and more raidcal ideas imbibing human
thought and approach, such inhuman practices were initially discouraged
and eventually almost done away with, certain aberrations here and there
notwithstanding. The police powers of arrest, detention and interrogation
in England were examined in depth by Sir Cyril Philips Committee –
‘Report of a Royal Commission on Criminal Procedure’ (command – Papers
8092 of 1981). The report of the Royal Commission is, instructive. In
regard to the power of arrest, the Report recommended that the power to
arrest without a warrant must be related to and limited by the object to
be Carved by the arrest, namely, to prevent the suspect form destroying
evidence or interfering with witnesses or warning , accomplices who have
not yet been arrested or where there is a good reason to suspect the
repetition of the offence and not to every case irrespective of the
object sought to be achieved.
15.
The Royal Commission suggested certain restrictions on the power of
arrest on the basis of the ‘necessity principle The Royal
Commission Said:
".........
we recommend that detention upon arrest for an offence should continue
only on one or more of the following criteria:
(a)
the person’s unwillingness to identify himself so that a summons may be
served upon him;
(b)
the need to prevent the continuation or repetition of that offence;
(c)
the need to protect the arrested person himself or other persons or
property;
(d)
the need to secure or preserve evidence of or relation to that offence or
to obtain such evidence from the suspect by questioning him; and
(e)
the likelihood of the person failing to appear at court to answer any
charge made against him."
The
Royal Commission also suggested: "To help to reduce the use of
arrest we would also propose the introduction here of a scheme that is
used in Ontario enabling a police officer to issue what procedure can be
used to obtain attendance at the police station without resorting to
arrest provided a power to arrest exists, for example to be finger
printed or to participate in an identification parade. It could also be
extended to attendance for interview at a time convent both to the
suspect and to the pole office investigating the case......"
16.
The power of arrest, interrogation and detention has now been streamlined
in England on the basis of the suggestions made by the Royal Commission
and incorporated in Police and Criminal Evidence Act, 1984 and the
incidence of custodial violence has been minimised there to a very great
extent.
17. Fundamental
rights occupy a place of pride in the Indian Constitution. Article 21
provides "no person shall be deprived of his life or personal
liberty except according to procedure established by law". Personal
liberty thus, is a sacred and cherished right under the Constitution. The
expression "life or personal liberty" has been held to include
the right to live with human dignity and thus, it would also include within
itself a guarantee, against torture and assault by the State or its
functionaries. Article 22 guarantees Protection against arrest and
detention in certain cases and declares that no person who is arrested
shall be detained in custody without being informed of the grounds of
such arrest and he shall not be denied the rights to consult and defend
himself by a legal practitioner of his choice. Clause (2) of Article 22
directs that the persons arrested and detained in custody shall be
produced before the nearest Magistrate within a period of 24 hours such
arrest, excluding the time necessary for the journey form the place of
arrest to the court of the Magistrate. Article 20(3) of the Constitution
lays down that a person accused of an offence shall not be compelled to
be a witness against himself. These are some of the constitutional
safeguards provided to a person with a view a protect his personal
liberty against any unjustified assault by the State. In tune with
constitutional guarantee a number of statutory provisions also seek to
protect personal liberty, dignity and basic human rights of the citizens.
Chapter V of Criminal Procedure Code, 1973 deals with the powers of
arrest of a person and the safeguards which are. required to be followed
by the police to protect the interest of the arrested person. Section 41,
Cr. P.C. confers powers on any police officer to arrest a person under
the circumstances specified therein without any order or a warrant of
arrest from a Magistrate. Section 46 provides the method and manner of
arrest. Under this Section no formality is necessary while arresting a
person. Under Section 49, the police is not permitted to use more
restraint than is necessary to prevent the escape of the person. Section
50 enjoins every police officer arresting any person without warrant to
communicate to him the full particulars of the offence for which he is
arrested and the grounds for such arrest. The police officer is further
enjoined to inform the person arrested that he is entitled to be released
on bail and lie may arrange for sureties in the event of his arrest for a
non-bailable offence. Section 56 contains a mandatory provision requiring
the police officer making an arrest without warrant to produce the
arrested person before a Magistrate without unnecessary delay and Section
57 echoes Clause (2) of Articles 22 of the Constitution of India. There
are some other provisions also like Section 53, 54, and 167 which are
aimed at affording procedural safeguards to a person arrested by the police.
Whenever a person dies in custody of the police, Section 176 requires the
Magistrate to hold an enquiry into the cause of death.
18.
However, inspite of the constitutional and statutory provisions aimed at
safeguarding the personal liberty and life of a citizen, growing
incidence of torture and deaths in police custody had been a disturbing
factor. Experience shows that worst violations of human rights takes
place during the course of investigation, when the police with a view to
secure evidence or confession often resorts to third degree methods
including torture and adopts techniques of screening arrest by either not
recording the arrest or describing the deprivation of liberty merely as a
prolonged interrogation. A reading of the morning newspapers almost
everyday carrying reports of dehumanising torture, assault, rape and
death in custody of police, or other governmental agencies is indeed
depressing. The increasing incidence of torture and death in custody has
assumed such alarming proportions that it is affecting the
creditability of the Rule of Law and the administration of criminal
justice system. The community rightly feels perturbed. Society's cry for
justice becomes louder.
19.
The Third Report of the National Police Commission in India expressed its
deep concern with custodial violence and lock-up deaths. It appreciated
the demoralising effect which custodial torture was creating on the
society as a whole. It made some very useful suggestions. It suggested:
".......
An arrest during the investigation of a cognizable case may be considered
justified in one or other of the following circumstance:-
(i)
The case involves a gave offence like murder, dacoity, robbery, rape
etc., and it is necessary to arrest the accused and bring his movements
under restraint to infuse confidence among the terror stricken victims.
(ii)
The accused is likely to abscond and evade the processes of law.
(iii)
The accused is given to violent behaviour and is likely to commit further
offences unless his movements are brought under restraint.
(iv)
The accused is a habitual offender and unless kept in custody his is
likely to commit similar offences again. It would be desirable to insist
through officer making an arrest should also record in the case diary the
reasons for making the arrest, thereby clarifying his conformity to the
specified guidelines........"
The
recommendations of Police Commission (supra) reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom.
These recommendations, however, have not acquired any statutory status so
far.
20.
This Court in Joginder Kumar Vs. State [ 1994 (4) SCC 260]
() to which one of us, namely Anand, J. was a party) considered the
dynamics of' misuse of police power of arrest and opined:
"No
arrest can be made because it is lawful for the police officer to do so.
The existence of the power of arrest is one thing. The justification for
the exercise of it is quite another.... No arrest should be made without
a reasonable satisfaction reached after some investigation about the
genuineness ad bonafides of a complaint and a reasonable belief both as
to the person's complicity and even so as to the need to effect arrest.
Denying a person his liberty is serious matter."
21. Joginder
Kumar's case (supra) involved arrest of a practicing lawyer who had
been called to the police station in connection with a case under inquiry
on 7.1.94. On not receiving any satisfactory account of his whereabouts,
the family members of the detained lawyer preferred a petition in the
nature of habeas corpus before this Court on 11.1.94 and in compliance
with the notice, the lawyer was produced on 14.1.94 before this Court.
The police version was that during 7.1.94 and 14.1.94 the lawyer was not
in detention at all but was only assisting the police to detect some
cases. The detenue asserted otherwise. This Court was not satisfied with
the police version. It was noticed that though as on that day the relief
in habeas corpus petition could not be granted but the questions whether there
had been any need to detain the lawyer for 5 days and if at all he
was not in detention then why was this Court not informed, were important
questions which required an answer. Besides, if there was detention for 5
days, for what reason was he detained. The Court, therefore, directed the
District Judge, Ghaziabad to make a detailed enquiry and submit his
report within 4 weeks. The Court voiced its concern regarding complaints
of violations of human rights during and after arrest. It said:
"The
horizon of human rights is expanding. At the same time, the crime rate is
also increasing. Of late, this Court has been receiving complaints about
violations of human rights because of indiscriminate arrests. How are we
to strike a balance between the two?
A
realistic approach should be made in this direction. The law of arrest is
one of balancing individual rights, liberties and privileges, on the on
one had, and individual duties, obligations and responsibilities on the
other, of weighing and balancing the rights, liberties and privileges of
the single individual and those of individuals collectively of simply
deciding what is wanted and where to put the weight and the emphasis; of
deciding which come first – the criminal or society, the law violator or
the abider......"
This
Court then set down certain procedural "requirements" in cases
of arrest.
22.
Custodial death is perhaps one of tile worst crimes in a civilised
society governed by the Rule of Law. The rights inherent in Articles 21
and 22(1) of the Constitution require to be jealously and scrupulously
protected. We cannot wish away the problem. Any form of torture or cruel,
inhuman or degrading treatment would fall within the inhibition of
Article 21 of the Constitution whether it occurs during investigation, interrogation
or otherwise. If the functionaries of the Government become law breakers,
it is bound to breed contempt for law and would encourage lawlessness and
every man would have the tendency to become law unto himself thereby
leading to anarchanism. No civilized national can permit that to happen.
Does a citizen shed off his fundamental right to life, the moment
a policeman arrests him? Can the right to life of a citizen be put in abeyance
on his arrest? These questions touch the spinal cord of human rights
jurisprudence. The answer, indeed, has to be an emphatic ‘No’. The
precious right guaranteed by Article 21 of the Constitution of India
cannot be denied to convicts, under trials, detenues and other prisoners
in custody except according to the procedure established by law by
placing such reasonable restrictions as are permitted by law.
23. In
Neelabati Bahera Vs State of Orissa [1993 (2) SCC,746], (to
which Anand, J. was a party) this Court pointed out that prisoners and
declines are not denuded of their fundamental rights under Article 21 and
it is only such restrictions as are permitted by law, which can be
imposed on the enjoyment of the fundamental rights of the arrestees and
detenues. It was observed:
"It
is axiomatic that convicts, prisoners or undertrials are not denuded of
their fundamental rights under Article 21 and permitted by law, which can
be imposed on the enjoyment of fundamental right by such persons. It is
an obligation of the State to ensure that there is no infringement of the
indefeasible rights of a citizen to life, except in accordance with law,
while the citizen is in its custody. The precious right guaranteed by
Article 21 of the Constitution of India cannot be denied to in custody,
except according to procedure established by law. There is a great
responsibility on the police or prison authorities to ensure tatha the
citizen in its custody is not deprived of his right to life. His liberty
is in the very nature of things circumscribed by the very fact of his
confinement and therefore his interest in the limited liberty left to him
is rather precious. The duty of care on the part of the Sate is strict
and admits of no exceptions. The wrongdoer is accountable and the Sate
responsible if the accountable in Sate is responsible if the person in
custody of the police is deprived of his life except according to the
procedure established by law.
24.
Instances have come to our notice where the police has arrested a person
without warrant in connection with the investigation of an offence, without
recording the arrest and the arrested person has been subjected to
torture to extract information form him for the purpose of further
investigation or for recovery of case property or for extracting
confession etc. The torture and injury caused on the body of arrestee has
sometimes resulted into his death. Death in custody is not generally
shown in the records of the lock-ups and every effort is made by the
police to dispose of the body or to make out a case that the arrested
person died after he was released from custody. Any compliant against
such torture or death is generally not given any attention by the police
officers because of ties of brotherhood. No first information report at
the instance of the victim or his kith and kin is generally entertained
and even the higher police officer turn a blind eye to such complaints.
Even where a formal prosecution is launched by the victim or his kith and
kin, no direct evidence is available to substantiate the charge of
torture or causing hurt resulting into death as the police lock-up where
general torture or injury is caused is away from the public gaze and the
witnesses are either police men or co-prisoners who are highly reluctant
to appear as prosecution witnesses due to fear of retaliation by the superior
officers of the police. It is often seen that when a complaint is made
against torture, death or injury, in police custody, it is difficult to
secure evidence against the policemen responsible for resorting to third
degree methods since they are incharge of' police station records which
they do not find difficult to manipulate. Consequently, prosecution
against the delignuent officers generally results in acquittal. State
of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. [1995 (3)
Scale, 343 =] is an apt case illustrative of the observations made by us.
In that case, Nathu Banjara was tortured at police station, Rampura
during the interrogation. As a result of extensive injuries caused to him
he died in police custody at the police station. The defence set up by
the respondent police officials at the trial was that Nathu had been
released from police custody at about 10.30 p.m. after interrogation on
13.10.1986 itself vide entry Ex. P/22A in the Roznamacha and that at
about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the
police station, Rampura, at the instance of Ramesh respondent No. 6, to
the effect that he had found "one unknown person" near a tree
by the side of the tank riggling with plain in his chest and that as soon
as respondent No. 6 reached near him, the said person died. The further
case set up by SI Trivedi, respondent No. 1, incharge of the police
station was that after making a Roznamacha entry at 7.00 a.m. about his
departure from the police station (respondent No. 1 - Shyamsunder
Trivedi) and Constable RajRam respondent proceeded to the spot where the
dead body was stated to be lying for conducting investigation under
Section 174 Cr. P.C. He summoned Ramesh Chandra and Goverdhan respondents
to the spot and in their presence prepared a Panchanama Ex. P/27 of the
dead body recording the opinion therein to the effect that no definite
cause of death was known.
25.
The First Additional Sessions Judge acquitted all the respondents of all
the charges holding that there was no direct evidence to connect the
respondents with the crime. The State of Madhya Pradesh went up in appeal
against the order of acquittal and the High Court maintained the
acquittal of respondents 2 to 7 but set aside he acquittal of respondent
No. 1, Shyamsunder Trivedi for offences under Section 218, 201 and 342
IPC. His acquittal for the offence under Section 302/149 and 147 IPC was,
however, maintained. The State filed an appeal in this Court by special
leave. This Court found that the following circumstances had been
established by the prosecution beyond every reasonable doubt and coupled
with the direct evidence of PWs 1,3,4,8 and 18 those circumstances were
consistent only with hypothesis of the guilt of the respondents
and were inconsistent with their innocence:
(a)
That the deceased had been brought alive to the police station and was
last seen alive there on 13.10.81;
(b)
that the dead body of the deceased was taken out of the police station on
81 at about 2 p.m. for being removed to the hospital;
(c)
that SI Trivedi respondent No. 1, Ram Naresh Shukla, Respondent No. 3,
Rajaram, respondent No. 4 and Ganiuddin respondent No. 5 were present at
the police station and had all joined hand to dispose of the dead body of
Nathu- Banjara;
(d)
that SI Trivedi respondent No. 1 created false evidence and fabricated
false clues in the shape of documentary evidence with a view to screen
the offence and for that matter, the offender;
(e)
SI Trivedi respondent in connivance with some of his subordinates,
respondents herein had taken steps to cremate the dead body in host haste
describing the deceased as a ‘lavaris’ though the identity of the
deceased, when they had interrogated for a sufficient long time was well
known to them and opined that:
"The
observations of the High Court that the presence and participation of
these respondents in the crime is doubtful are not borne out from the
evidence on the record and appear to be an unrealistic over
simplification of the tell tale circumstances established by the
prosecution."
26.
One of us (namely, Anand, J.) speaking for the court went on to observe:
The trial court and the High Court, if we may say so with respect,
exhibited a total lack of sensitivity and a could not careless' attitude
in appreciating the evidence on the record and thereby condoning the
barbarous their degree methods which are still being used, at some police
stations, despite being illegal. The
exaggerated adherence to and insistence upon the establishment of proof
beyond every reasonable doubt, by the prosecution, ignoring the ground
realities, the case situations and the peculiar circumstances of given
case as in the present case, often results in miscarriage of justice and
makes the justice delivery system a suspect. In the ultimate analysis the
society suffers and criminal gets encouraged. Tortures in police custody,
which of late are on the increase, receive encouragement by this type of
an unrealistic approach of the Courts because it reinforces the
belief in the mind of the police that no harm would come to them, if an
odd harm would come to them, if an odd prisoner dies in the lock-up,
because there would hardly be any evidence available to the prosecution
to directly implicate implicate them with the torture. The Courts, must
not loose sight of the fact that death in police custody is perhaps one
of the worst kind of crime in a civilised society, governed by the rule
of law and poses a serious threat to an orderly civilised society."
This Court then suggested:
The Courts are also required to have change in their
outlook and attitude particularly in cases involving custodial crimes and
they should exhibit more sensitivity and adopt a realistic rather than a
narrow technical approach, while dealing with the case of custodial crime
so that as far as possible with their powers, the guilty should not
escape so that the victim of the crime has the satisfaction that
ultimately the Majesty of Law has prevailed.
27.
The State appeal was allowed and the acquittal of respondents 1,3,4 and 5
was set aside. The respondents were convicted for various Offences
including the offence under Section 304 Part II/34 IPC and sentenced to
various terms of imprisonment and fines ranging from Rs. 20,000/- to Rs.
50,000/-. The fine was directed to be paid to the heirs of Nathu Banjara
by way of compensation. It was further directed:
"The
trial Court shall ensure, in case the fine is deposited by the accused
respondents, that the payment of the same is made to the heirs of
deceased Nathu Banjara, and the Court shall take all sort precautions as
are necessary to see the money is not allowed to fall into wrong, hand
and its utilised for benefit of the members of the family of the
decreased Nathu Banjara, and if found practical by deposit in
Nationalised Bank or post office on such terms as the Trial Court may in
consultation with heirs for the deceased consider fit and proper."
28. It needs no emphasis to say that when the crime goes
unpunished, the criminals are encouraged and the society suffers. The
victim of crime or his kith and kin become frustrated and contempt for
law develops. It was considering these aspects that the Law Commission in
its 113th Report recommended the insertion of Section 113B in the Indian
Evidence Act. The Law Commission
recommended in its 113th Report that in prosecution of police officer for
an alleged offence of having caused bodily injury to a person, if there
was evidence that the injury was caused during the period when the person
was in the custody of the police, the court may presume the injury
was caused by the police officer having the custody of that person during
that period. The Commission further recommended that the court, while
considering the question of presumption, should have regard to all
relevant circumstance including the period of custody, statement made by
victim, medical evidence and evidence which the Magistrate may have
recorded. Change of burden of proof was, thus, advocated. In Shyam
Sunder Trivedi's case (supra) this Court also expressed the hope that
the Government and the legislature would give serious thought to the
recommendation of the Law Commission. Unfortunately the suggested
amendment, has no been incorporated in the statute so far. The need of
amendment requires no emphasis - sharp rise in custodial violence,
torture and death in custody, justifies the urgency for the amendment and
we invite Parliament's attention to it.
29.
Police is no doubt, under a legal duty and his legitimate right to arrest
a criminal and to interrogate him during the investigation of an offence
but it must be remembered that the law does not permit use of third
degree methods or torture of accused in custody during interrogation and
investigated with a view to solve the crime. End cannot justify the
means. The interrogation and investigation into a crime should be in true
sense purposeful to make the investigation effective. By torturing a
person an using third degree methods, the police would be accomplishing
behind the closed doors what the demands of our legal order forbid. No
society can permit it.
30.
How do we check the abuse of police power? Transparency of action and
accountability perhaps are two possible safeguards which this Court must
insist upon. Attention is also required to be paid to properly develop
work culture, training and orientation of the police force consistent
with basic human values. Training methodology of the police needs
restructuring. The force needs to be infused with basic human values and
made sensitive to the constitutional ethos. Efforts must be made to
change the attitude and approach of the police personnel handling
investigations so that they do not sacrifice basic human values during
interrogation and do not resort to questionable forms of interrogation.
With a view to bring in transparency, the presence of the counsel of the
arrestee at some point of time dying the interrogation may deter the
police from using third degree methods during interrogation.
31.
Apart from the police, there are several other governmental authorities
also like Directorate of Revenue Intelligence, Directorate of
Enforcement, Coastal Guard, Central Reserve Police Force (CRPF), Boarder
Security Force (BSF), the Central Industrial Security Force (CISF), the
State Armed Police, Intelligence Agencies like the Intelligence Bureau,
R.A.W., Central Bureau of investigation (CBI), CID, Traffic Police,
Mounted Police and ITBP, which have the power to detain a person and to
interrogate him in connection with the investigation of economic offences
under the Essential Commodities Act, Excise and Customs Act, Foreign
Exchange Regulation Act etc. There are instances of torture and death in
custody of these authorities as well. In Re Death of Sawinder Singh
Grover [1995 Supp (4) SCC, 450], (to which Kuldip Singh, J. was a
party) this Court took suo moto notice of the death of Sawinder Singh
Grover during his custody with the Directorate of Enforcement. After
getting an enquiry conducted by the Additional District Judge, which
disclosed a prima facie case for investigation and prosecution, this
Court directed the CBI to lodge a FIR and initiate criminal proceedings
against all persons named in the report of the Additional District Judge
and proceed against them. The Union of India/Directorate of Enforcement
was also directed to pay a sum of Rs. 2 lacs to widow of the deceased by
way of ex gratia payment at the interim stage. Amendment of the
relevant provisions of law to protect the interest of arrested persons in
such case too is genuine need.
32.
There is one other aspect also which needs our consideration. We are
conscious of the fact that police in India have to perform a difficult ad
delicate task, particularly in view of the deteriorating law and order
situation, communal riots, political turmoil, the increasing number of
underworld and armed gangs and criminals. Many hard core criminals like
extremists, the terrorists, drug peddlers smugglers who have organized
gangs, have taken strong roots in the society. It is being said in
certain quarters that with more and more liberalization and enforcement
of fundamental rights, it would lead to difficulties in the detection of
crimes committed by such categories of hardened criminals by soft
peddling interrogation. It is felt in those quarters that if we lay too
much of emphasis on protection of their 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 balance
approach is needed to meet the ends of justice. This is all them ore 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.
33.
The response of American Supreme Court to such an issue in Mirranda
Vs. Arizona 384 US 436 is instructive. The Court said:
"A
recurrent argument, made in these case is that society's need for
interrogation out-weights the privilege. This argument is not unfamiliar
to this Court. See e.g., Chambers V. Florida 309 US 227 240-41, 84L ed
716, 724, 60 S CT 472 (1940). The whole thrust of our foregoing
discussion demonstrates that the Constitution has prescribed the
rights of the individual when confronted with the power of Government
when it provided in the Fifth Amendment that an individual cannot be
compelled to be a witness against himself. That right cannot be abridged."
(Emphasis ours)
34.
There can be no gain saying that freedom of an individual must yield to
the security of the State. The right of preventive detention of
individuals in the interest of security of the State in various
situations prescribed under different statutes has been upheld by the
Courts. The right to in the detenues, culprits or arrestee in the
interest of the nation, must take precedence over an individual's right
to personal liberty. The latin maxim salus populi est
suprema lex (the safety of the people is the
supreme law) and salus populi est suprema lex (safety of the State
is the supreme law) co-exist
and are not only important and relevant but lie at the heart of the
doctrine that the welfare of an individual must yield to that community.
The action of the Sate, however, must be "right, just and
fair". Using any form of torture for extracting any kind of
information would neither be ‘right nor just nor fair’ and, therefore
would be impermissible, being offensive to Article 21. Such a crime-suspect
must be interrogated - indeed subjected to sustained and scientific
interrogation - determined in accordance with the provisions of law. He
cannot, however, be tortured or subjected to third degree methods or
eliminated with a view to elicit information, extract confession or
drive knowledge about his accomplice, weapons etc. His constitutional
right cannot be abridged except in the manner permitted by law, though in
the very nature of things there would be qualitative difference in the
method of interrogation of such a person as compared to an ordinary
criminal Challenge of terrorism be met with innovative ideas and
approach. State terrorism is no answer to combat terrorism. State
terrorism would only provide legitimacy to terrorism. That would be bad
for the State, the community
and above all for the Rule of law unto themselves. That the
terrorist has violated human rights of innocent citizens may render him
liable for punishment but it cannot justify the violation of his human
rights except in the manner permitted by law. Need, therefore is to
develop scientific methods of investigation and train the investigators
properly to interrogate to meet the challenge.
35. In
addition to statutory and constitutional requirements to which we have
made a reference, we are of the view that it would be useful and
effective to structure appropriate machinery for contemporaneous
recording and notification of all cases of arrest and detention to bring
in transparency and accountability. It is desirable that the officer
arresting a person should prepare a memo of his arrest at the time of
arrest in the presence of atleast one witness who may be a member of the
family of the arrestee or a respectable person of locality from where the
arrest is made. The date and time of arrest shall be recorded in the
memo which must also be counter signed by the arrestee.
36.
We, therefore, consider it appropriate to issue the following
requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as preventive
measurers:
(1) The police personnel carrying out
the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle
interrogation of the arrestee insist be recorded in a register.
(2) That the police officer carrying out
the arrest of the arrestee shall prepare a memo of arrest at the time of
arrest and such memo shall be attested by atleast one witness, who may be
either a member of the family of the arrestee or a respectable person of
the locality from where the arrest is made. It shall also be counter
signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or
detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative
or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the
memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue
of custody of an arrestee must be notified by the police where the next
friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station
of the area concerned telegraphically within a period of 8 to 12 hours
after the arrest.
(5) The person arrested must be made
aware of this right to have someone informed of his arrest or detention
as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary
at the place of detention regarding the arrest of the person which shall
also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is.
(7) The arrestee should, where he so
requests, be also examined at the time of his arrest and major and minor
injuries, if any present on his/herbed, must be recorded at that time.
The "Inspection Memo" must be signed both by the arrestee and
the police officer effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to
medical examination by a trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director, Health
Services of the concerned State or Union Territory. Director, Health
Services should prepare such a penal for all Tehsils and Districts as
well.
(9) Copies of all the documents
including the memo of arrest, referred to above, should be sent to the
illaqa Magistrate for his record.
(10) The arrestee may be permitted to
meet his lawyer during interrogation, though not throughout the
interrogation.
(11) A police control room should be
provided at all district and State Headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should bc
displayed on conspicuous notice board.
37.
Failure to comply with the requirements herein above mentioned shall
apart form rendering the concerned official liable for departmental
action also render him liable to be punished for contempt of court and
the proceedings for contempt of court may be instituted in any High Court
of the Country, having territorial jurisdiction over the matter.
38.
The requirements, referred to above flow from Articles 21 and 22(1) of
the Constitution and need to be strictly followed. These would apply with
equal force to the other governmental agencies also to Which a reference
has been made earlier,
39.
These requirements are in addition 1, the constitutional and statutory
safeguards and do not detract from various other directions given by the
courts from time to time in connection with the safeguarding the rights
and dignity of arrestee.
40.
The requirements mentioned above shall be forwarded to the
Director General of Police and the Home Secretary of very State Union
Territory and it shall be their obligation to circulate the same to every
police station, under their charge and get the same notified at ever
police station at a conspicuous place. It would also be useful and serve
large interest to broadcast the requirements on the All India
Radio besides being shown on the National network of Doordarshan and publishing
and distributing pamphlets in the local language containing these
requirements for information of the general public. Creating awareness
about tile rights of the arrestee would in our opinion be a step
in the right direction to combat the evil of custodial crime and bring in
transparency and accountability. It is hoped that these requirements
would been to curb, if not totally eliminate the use of questionable
methods during interrogation and investigation leading to custodial
commission of crimes.
PUNITIVE MEASURES
41.
UBI JUS IBI REMEDIUM - There is no wrong without a remedy. The law wills
that in every case where a man is wronged and undamaged he must have a
remedy. A mere declaration of invalidity of an action or finding of
custodial violence or death in lock-up, does not by itself provide any
meaningful remedy to a person whose fundamental right to life has been
infringed. Much more needs to be done.
42.
Some punitive provisions are contained in the India Panel Code which
seeks to punish violation of right to life. Section 220 provides for
punishment to an officer or authority who detains or keeps a person in
confinement with a corrupt or malicious motive Sections 330 and 331
provide for punishment of those who inflict injury grievous hurt on a person
to extort confession or information in regard to commission of all
offence. Illustrations (a) and (b) to Section 330 make a police officer
guilty of torturing a person in order to induce him to confess the
commission of a crime or to induce him to point out place where stolen
property is deposited. Section 330, therefore, directly makes torture
during interrogation and investigation punishable under the Indian Penal
Code. These statutory provisions are, however, inadequate to repair
the wrong done to the citizen. Prosecution of the offender is an
obligation of State in case of every crime but the victim of crime needs
to be compensated monetarily also. The Court, where the infringement of
the fundamental right is established, therefore, cannot stop by giving
compensatory relief, not by way of damages as in a civil action but by
way of compensation under the public law jurisdiction for the wrong done,
due to breach of public duty by the Sate of not protecting the
fundamental right to life of the citizen. To repair the wrong done and
give judicial redress for legal injury is compulsion of judicial
consequence.
43.
Article 9(5) of the International Convenient on Civil and Political
Rights, 1996 (ICCRP) provides that "anyone who has been the victim
of unlawful arrest or of courts, the Government of India at time of its
ratification (of ICCRP) in 1979 had made a specific reservation to the
effect the Indian legal system does not recognise a right to compensation
for victims of unlawful arrest or detention and thus become a party to
covenant. That reservation, however, has now lost its relevance in view
of law laid down by this Court in a number of case awarding compensation
this Court in number of cases awarding compensation for the infringement
of the fundamental right to life of a citizen. {See with advantage Rudal
Shah Vs. State of Bihar [1983 (4) SCC, 141]: Sebastian M.
Hongrey Vs. Union of India [184 (3) SCC, 339] and 1984 (3)
SCC, 82]; Bhim Singh Vs. State of J & K [1984 (Supp)
SCC, 504 and 1985 (4) SCC, 677] Saheli Vs. Commissioner of
Police, Delhi [1990 (1) SCC, 422]} There is indeed no express
provision in the Constitution of India for grant of compensation for
violation of a fundamental right to life, nonetheless, this Court has
judicially evolved a right to compensation in cases of established
unconstitutional depravation of personal liberty or life, [See: Neelabati
Bahera Vs. State (Supra)].
44.
Till about two decades ago the liability of the Government for
tortious act of its public servants was generally limited and the person
affected could enforce his right in tort by filing a civil suit and there
again the defence of sovereign immunity was allowed to have it play. For
the violation of the fundamental right to life or basic-human rights,
however, this Court has taken the view that the defence of sovereign
immunity is not available to the State for the tortious acts of the
public servants and for the established violation of the rights
guaranteed by Article 21 of the Constitution of India. In Neelabati
Bahera Vs. State [supra] the decision of this Court in Kasturi
Lal Raila Ram Jain Vs. State of U.P. [1996 (1) SCR, 375]
wherein the plea of sovereign immunity had been upheld in a case of
vicarious liability of the State for the tort committed by its employees
was explained thus:
"In
this context it is sufficient to say that the decision of this Court in Kasturilal
unpholding the State's plea of sovereign immunity for tortious acts of
its servants is confined to the sphere of liablity in tort, which is distinct
form the State's liablity for contravention of fundamental rights to
which the 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 fundamental rights, when the only practicable mode
of enforcement of the fundamental rights call be the award of
compensation. The decisions of this Court in Rudal Sah and others in that
contravention of fundamental rights, in the constitutional remedy under
Articles 32 and 226 of the Constitution. On the other hand, Kasturilal
related to the value of goods seized and not returned to the owner due to
fault of damages for the tort of conversation under the ordinary process,
and not a claim for compensation for violation of fundamental rights.
Kasturilal is, therefore, inapplicable in this context and
distinguishable."
45.
The claim in public law for compensation for unconstitutional deprivation
of fundamental right to life and liberty, the protection of which is
guaranteed under the Constitution, is a claim based on strict liability
and is in addition to the claim available in private law for damages for
tortious acts of the public servants. Public Law proceedings serve a
different purpose than the private law proceedings. Award of compensation
for established infringement of the indefeasible rights guaranteed under
Article 21 of the Constitution is a 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 226 of the Constitution
of India for the established violation of the fundamental rights
guaranteed under Article 21, is an exercise of the Courts under the
public law jurisdiction for penalising the wrong doer 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.
46.
The old doctrine of only relegating the aggrieved to the remedies
available in civil law limits the role of the courts too much, as the
protector and custodian of the indefeasible rights of the citizens. The
courts have the obligation to satisfy the social aspirations of the
citizens because the courts and the law are for the people and expected
to respond to their aspirations. A Court of law cannot close its
consciousness and aliveness to stark realities. Mere punishment of the
offender cannot give much solace to the family of the victim - civil
action for damages is a long drawn and cumbersome judicial process.
Monetary compensation for redressal by the Court finding the infringement
of the indefeasible right to life of the citizen is, therefore, a useful
and at times perhaps the only effective remedy to apply balm to the
wounds of the family members of the deceased victim, who may have been
the bread winner of the family.
47. In
Nilabati Bahera's case (supra), it was held :
"Adverting
to the grant of relief to the heirs of a victim of custodial death for
the infraction or invasion of his rights guaranteed under Article 21 of
the Constitution of India, it is not always enough to relegate him to the
ordinary remedy of a civil suit to claim damages for the tortious act of
the State as that remedy in private law indeed is available to the
aggrieved party. The citizen complaining of the infringement of the
indefeasible right under Article 21 of the Constitution cannot be told that
for the established violation of the fundamental right to life, he cannot
get any relief under the public law by the courts exercising writ
jurisdiction. The primary source of the public law proceedings stems from
the prerogative writs and the courts have, therefore, to evolve 'new
tools' to give relief in public law by molding it according to the
situation with a view to preserve and protect the Rule of Law. While
concluding his first Hamlyn Lecture in 1949 under the title "Freedom
under the Law" Lord Denying in his own style warned:-
"No
one can suppose that the executive will never be guilty of the sins that
are common to all of us. You may be sure that they will sometimes do
thing which they ought not to do : and will not do things that they ought
to do. But if and when wrongs are thereby suffered by any of us what is
the remedy? Our procedure for securing our personal freedom is efficient,
our procedure for preventing the abuse of power is not. Just as the pick
and shovel is no longer suitable for the winning of coal, so also the
procedure of mandamus, certiorari, and actions on the case are not
suitable for the winning of freedom in the new age. They must be replaced
by new and up-to date machinery, by declarations, injunctions and actions
for negligence... This is not the tasks of Parliament.... the courts must
do this. Of all the great tasks that lie ahead this is the greatest.
Properly exercised the new powers of the executive lead to the welfare
state; but abused they lead to a totalitarian state. None such must even
be allowed in this country".
48. A
similar approach of redressing the wrong by award of monetary
compensation against the State for its failure to protect the fundamental
rights of the citizen has been adopted by the courts of Ireland, which
has a written constitution, guaranteeing fundamental rights, but which
also like the Indian Constitution contains no provision of remedy for the
infringement of those rights. That has, however, not prevented the Courts
in Ireland from developing remedies, including the award of damages, not
only against individuals guilty of infringement, but against the State
itself.
49.
The informative and educative observations of O’ Dalaigh CJ in The State
(at the Prosecution of Quinn) v. Ryn [1965] IR 70 (122) deserve special
notice. The Learned Chief Justice said:
"It
was not the intention of. the Constitution in guaranteeing the
fundamental rights of the citizen that these rights should be set at
bought or circumvented. The intention was that rights of substance were
being assured to the individual and that the Courts were the custodians
of those rights. As a necessary corollary, it follows that no one
can with impunity set these rights at bought or circumvent them, and that
the Court's powers in this regard are as ample as the defence of the
Constitution requires." (Emphasis supplied)
50. In
Byrne v. Ireland [1972] IR 241, Walsh J opined at p 264:
"In
several parts in the Constitution duties to make certain provisions for
the benefit of the citizens are imposed on the State in terms which
bestow rights upon the citizens and, unless some contrary provision
appears in the Constitution, the Constitution must be deemed to have
created a remedy for the enforcement of these rights. It follows that, where the right is
one guaranteed by the State, it is against the State that the remedy must
be sought if there has been a failure to discharge the constitutional
obligation imposed".
(Emphasis
supplied)
51. In
Maharaj Vs. Attorney General of Trinidad Tobago [(1978) 2
All. E.R. 670], the Privy Council while interpreting Section 6 of the
Constitution of Trinidad and Tobago held that though not expressly
provided therein, it permitted an order for monetarycompensation, by way
of ‘redress’ for contravention of the basic human rights and fundamental
freedoms. Lord Diplock speaking for the majority said:
"It
was argued on behalf of the Attorney General that Section 6(2) does not
permit of an order for monetary compensation despite the fact that this
kind of redress was ordered in jaundoo v. Attorney General of Guyana.
Reliance was placed on the reference in the subsection to enforcing, or
securing the enforcement of, any of the provisions of the said foregoing
sections’ as the purpose for which orders etc. could be made. An order for
payment of compensation, it was submitted, did not amount to the
enforcement of the rights that had been contravened. In their Lordships'
view an order for payment of compensation when a right protected under
Section I ‘has been’ contravened is clearly a form of ‘redress’ which a
person is entitled to claim under Section 6(1) and may well be the only
practicable form of redress, is by now it is in the instant case. The
jurisdiction to make such an order is conferred on the High Court by para
(a) of Section 6(2), viz. jurisdiction to hear and determine any
application made by any person in pursuance of sub-section (1) of this
section. The very wide powers to make orders, issue writs and give
directions are ancillary to this."
52.
Lord Diplock then went on to observe (at page 680):
"Finally,
their Lordships would say something about the measure of monetary
compensation recoverable under Section 6 where the contravention of the
claimant's constitutional rights consists of deprivation of liberty
otherwise than by due process of law. The claim is not a claim in private
law far damages for the tort of false imprisonment, under which the
damages recoverable are at large and would include damages for loss of
reputation. It is a claim in public law for compensation for deprivation
of liberty alone."
53. In
Simpson vs. Attorney General [Baigent’s case] (1994 NZLR, 677) the
Court of Appeal in New Zealand dealt with the issue in a very elaborate
manner by reference to a catena of authorities from different jurisdictions.
It considered the applicability of the doctrine of vicarious liability
for torts like unlawful search, committed by the police officials which
violate the New Zealand Bill of Rights Act, 1990. While dealing with the
enforcement of rights and freedoms as guaranteed by the Bill of Rights
for which no specific remedy was provided. Hardie Boys J. observed:
"The
New Zealand Bill of Rights Act unless it is to be no more than an empty
statement, is a commitment by the Crown that those who in the three
branches of the government exercise its function powers duties will
observe the rights that the Bill affirms. It is I consider implicit in
that commitment, indeed essential to its worth, that the courts are not
only to observe the Bill in the discharge of their own duties but are
able to grant appropriate and effective remedies where rights have been
infringed. I see no reason to think that this should depend on the terms
of a written constitution. Enjoyment of the basic human rights are the
entitlement of every citizen and their protection the obligation of every
ciglized state. They are inherent in and essential to the structure of
society. They do not depend on the legal or constitutional form in
which they are declared. The reasoning that has led the Privy Council and
the Courts of Ireland and India to the conclusions reached in the cases
to which I have referred (and they are but a sample) is in my own opinion
equally valid to the New Zealand Bill of Rights Act if it is to have life
and meaning." (Emphasis supplied)
54.
The Court of Appeal relied upon the judgments of the Irish Courts, the
Privy Council and referred to the law laid down in Nilabati Behera Vs.
State (supra) thus :
"Another
valuable authority comes from India, where the constitution empowers the Supreme
Court to enforce rights guaranteed under it. In Nilabati Behera v. State
of Orissa (1993) Crl. LJ 2899, the Supreme Court awarded damages against
the State to the mother of a young man beaten to death in police custody.
The Court held that its power of enforcement imposed a duty to
"force new tools", of which compensation was an appropriate one
where that was the only mode of redress available. This was not a remedy
in tort, but one in public law based on strict liability for the
contravention of fundamental rights to which the principle of sovereign
immunity does not apply. These observations of Anand J it p 2912 may be
noted.
The
old doctrine of only relegating the aggrieved to the remedies available
in civil law limits the role of the courts too too much as protector and
guarantor of the indefeasible rights of the citizens. The courts have the
obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and expected to respond
to their aspiration. The purpose of public law is not only to
cigilized public power but also to assure the citizen that they live
under a legal system which aims to protect their interests and preserve
their rights."
55. Each
of the five members of the Court of Appeal in Simpson’s case
(supra) delivered a separate judgment but there was unanimity of opinion
regarding the grant of pecuniary compensation to the victim, for the
contravention of his rights guaranteed under the Bill
of
Rights Act, notwithstanding the absence of an express provision in that
behalf in the
Bill
of Rights Act.
56. Thus, to sum up, it is now a well accepted
proposition in most of the jurisdictions, that monetary or pecuniary
compensation is an appropriate and indeed an effective and sometime
perhaps the only suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the
State is victoriously liable for their acts. The claim of
the citizen is based on the principle of strict liability to which the
defence of sovereign immunity is not available and the citizen must
receive the amount of compensation from the State, which shall have the
right to be indemnified by the wrong doer. In the assessment of
compensation, the emphasis has to be on the compensatory and not on
punitive element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be fell to
the criminal courts in which the offender is prosecuted, which the State,
in. law, is duty bound to do. The award of compensation in the public law
jurisdiction is also without prejudice to any other action like civil
suit for damage which is lawfully available to the victim or the heirs of
the deceased victim with respect to the same matter for the tortious act
committed by the functionaries of the State. The quantum of compensation
will, of course, depend upon the peculiar facts of each case and no
strait, jacket formula can be evolved in that behalf. The relief to
redress the wrong for the established invasion of the fundamental
rights of the citizen, under the public law jurisdiction is, thus, in
addition to the traditional remedies and not in derogation of them. The
amount of compensation as awarded by the Court and paid by the State to
redress the wrong done, may in a given case, be adjusted against any
amount which may be awarded to the claimant by way of damages in a civil
suit.
57.
Before parting with this judgment we wish to place on record our
appreciation for the learned counsel appearing for the States in general
and Dr. A.M. Singhvi, learned senior counsel who assisted the Court
amicus curiae in particular for the valuable assistance rendered by them.
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