Chapter IV

Remedies through writ Petition

While dealing with state liability, it is necessary to understand

the remedy available under Art~cle 32 and 226 of the Constitution in

writ petition to the aggrieved in cases of human rights violation by

the state agencies. When the fimdamental rights are violated by the

state, the aggrieved can approach the writ court under Article 32 and

226 of the Constitution by filing writ petition before the Supreme

Court and the High Court.

Writ is an order of the court issued to a person or authority to

do some act or forbear from doing some act. Writs are expeditious

and are an effective judicial tool to hold the government and its

functionaries to the performance of their official duties in the right

spirit'34.

1. Origin, purpose and proceedings of the Writ

The Writ was developed in the sixqeenth century in the

English law which clung to the principle that " king can do no

wrong" by which the king was subject to law and could not break the

law. According to English law, writ was an order of the king, it was

issued to the defendant to appeu before the court and to show cause

against the plaintiffs claim.

In the beginning, the l~ r i t was the monopoly of the crown's

concern. This was used by th~: king as his prerogative to superintend

over his officers and subordinate courts to protect or safeguard the

liberty of the citizen. In shon, the purpose of a writ was to see that

the crown's machinery of public administration works properly as

well as to see justice is done to the individuals.

There was no human sgency to enforce law against the king.

The courts were the king's courts like other feudal lords, the king

could not be sued in his own court, he could be a plaintiff but he

could not be a defendant. In tlie prerogative remedies available to the

aggrieved, the crown was the nominal plaintiff.

No form of writ or execution would be issued against the

Crown. The Defendant might have infringed the legal right vested in

the plaintiff. This writ was issued to the defendant only if the claim

made by the plaintiff came within the recognized form of action. If

the Plaintiff failed to get the writ and if his claim would not fall

within any one of the categories of recognized forms of right. he will

go without remedy. No one could bring an action without obtaining

writ from the officer of the king.

2. Different types of writs

There were different kbufs of writs known in the family of

prerogative remedies like Habeas corpus, Certiorari, Mandanlus and

Quo warranto. They all belonged to the same ancestry.

The writ of hahens corjws means that you have the body to

submit or answer. It is a prerogative writ for securing the liberty or

subject from the wrongful dqxivation of liberty of the subject or

unlawful detention of the subject against his The main

object of the writ of Habeas Corpus is to give quick and immediate

remedy to the person who is unlawfully detained by another. If the

court is satisfied that such a detention is illegal or improper, it can

direct the person to be set a t liberty. And they are under legal

obligation towards such subjects and the writ of habeas corpus will

lie for the enforcement of duties.

The writ of Mandamus is the order of the superior court

commanding a person or public authority to do or forbear from

doing something in the nature of public duty or statutory duty.

The Writ of certiorari is an order, quashing the decision of the

inkrior courts, if it is issued due to the excess of jurisdiction, or

disregarding the principles of natural justice .The purpose of issuing

this order is to cure the defects or, for correcting the error apparent

13' G.C .Venkata Subb Rso Prerogativ~? Writs andFundmenrulRighfs (.1953) .p 53

on the face of record, or to comply with the principles of natural

justice.

The Writ of Prohibition is an order issued to prevent an

inferior court or tribunal from exceeding its jurisdiction, preventing

the inferior courts from usurping the jurisdiction. It is designed to

keep the inferior courts within their appropriate jurisdiction.

The Writ of Quo Warra~lto is issued calling upon a person or

authority to show what is the authority of such person is to hold

the office. By this writ, a holder of a public office is called upon to

show the court, under what authority he holds the office and to

prevent a person from holding office without authority or to prevent

him from continuing to hold wlich he is not legally entitled to.

These remedies have a special public aspect which is one of

the valuable features. An applicant of certiorari and prohibition need

not have to show his locus statrdi .If the action is excesses or abuse

of power, the court will quash it even at the instance of a stranger.

So it gives priority to public right than personal right. Evidence is

given in writing rather than omlly. This prerogative writ is an extn

ordinary remedy issued only when suff~cient cause shown like

imminent danger to the health of the person who is under the

custody of another. This writ is issued in the form of command to

the inferior courts to correct irresponsible officials.

The Writ was also issued to secure the appearance of the

parties in particular where he was in detention by some inferior

courts. And it was later challenged when there was detention by the

king and the council. Finally it became the standard of procedure by

which legality of any imprisonment could be tested. Efficient

remedies are most important in case of violation of gumanteed right.

3. Origin and development of the Writs in India

The power of judicial review guaranteed under Article 32 and

226 of the Indian Constitution has been inherited from Britain.

Traditionally this Article was used only by persons whose

fUndarnental rights were infringed.

Before the commencement of the Constitution, the High

courts other than those of Madras, Bombay and Calcutta had the

power to issue prerogative writs in the nature of writ of Habeas

Corpus under section 491 o F the Criminal Procedure Code 1898.

Later this position was altered with ample power of issuing writ to

the High Courts under Article 226136. After the commencement of

Constitution, the High courts and the Supreme Court were

empowered to protect the precious rights of the citizen under Article

226 and Article 32 of the Constitution to give immediate remedy or

13' <i.C .Venkata Subb RRO. Prerngof,\a Writs and FundomentoLRlghr,s (1953.p. ss

relief to victim when a citizen's fundamental rights or legal rights

are infringed. Writs mentioneti under Article 226 were known as

prerogative writs. The rights obtainable under Article 32 '"and 226

as constitutional remedy for enforcing fundamental rights are

considered as the crowning sections of fundamental rights1".

Now the restriction hart been considerably relaxed by the

Supreme Court. In modem use, these rights are available to the

citizen; it is the subject who benefits from the writ. Now this legal

prerogative is used to ensure a good and lawful government. Now

the court has widened the scope of public interest litigation or social

interest litigations. So that the public spirited persons can approach

the court for the welfare of the poor, socially and economically

disadvantaged and weaker sections of the society, who a= unable to

approach the court for relief when there is infringement of

constitutional and legal rights. The cowt laid down the guidelines

that even a letter written to the Supreme Court by the poor in India

can be treated as petition to enforce their fundamental rights and the

court is empowered to grant remedial relief in appropriate cases. In

'" Dr.B.R.AmhtdKar," Corvtrhrhonal Assembly De&r?sSS, Constitutional Assembly Of ~ndia ,p Dec 1948,p953. Duirng the Constitutional assembly debates, he saidthat Article 32 is the moat impcdant Arlicle in the Constitution and it is the v ~ y soul and heart ofthe Constitution. '38P.l&wzra Dhat, Fuiuridmraita: Rights (2004) p.87.

the same way ignorance and illiteracy cannot be an impediment in

the way of obtaining justice from the court.

4, Remedies available through the Writ Court

Out of different kinds of mechanism available in India to

enforce and implement law, remedy available through writ court is

the important one as it gives immediate remedy to the victim and

takes measures to prevent the ongoing human rights violation. The

violation of rights by the state agencies can occur in different ways

and are due to breach of duty, inaction, negligence or excesses of

power or abuse of power. These gross human rights violation like

encounter deaths, custodial deaths and mpe, custodial torture. arrest

and illegal detention occurs in the course of exercising their duty like

maintenance of law and order, prevention of riot and controlling

terrorism etc. Then the question of vicarious liability of the state

arises.

In a welfare state its functions are multifarious so there may

be chance of interference of fundamental rights of the citizen by the

state. and the states are justified in using a reasonable force for

protecting the person and the property and at the same time the

fundamental rights of the citizens are guamnteed by the state through

the Constitution. If these rights are violated, the victim is entitled to

approach the court for gett~ng a remedy. In such a situation, the

question is what the remedy available from writ court is and whether

the present legal system is sufficient to determine the liability of the

state.

1. Remedy available lJnder Article 226 and 32 of the

Constitution, in case of gross human rights violation

The main function of the writ court is in giving quick and

immediate remedy for preventing human rights violation. In the

course of an encounter, there is a chance of infringement of rights

guaranteed to the citizen. In some cases it may be genuine and

justifiable then the citizen is entitled to get remedy for the violation

of their rights.

Encounter deaths

Use of force is justified m case of maintaining law and order

but in some cases it may end irl encounter deaths. It is necessary to

find out the reason for encounter deaths. It would be difficult to find

out the circumstances which led to that situation. The state has to do

its main duty of protecting the life and properly of the citizen at the

same time by using force it must not violate human rights of the

people. Such a situation is dealr within Chattanya Kalbagh I?. State

139 . q/" U.P. , in which three writ petitions, heard together by Mr

R.S.Pathak C. J, and Ranganath Misra. J. enquired into the

allegation of encounter deaths which happened in different states

like Uttar Pradesh, Andhra Praclesh and Tamil Nadu.

In writ petition 55 of 1982, the allegation was regarding the

massacre of 24 Harijans in Dehuli in the district of Mainpuri in the

state of Uttar Pradesh led by the Chief Minister of the state, for the

eradication of dacoits in the state. During the man-hunt a number of

innocent persons were killed in encounters. Investigation conducted

by Chaitanya Kalbagh revealed that among the persons killed there

were 299 innocent persons.

In writ petition 62 of 1982 a similar issue was raised in Tamil

Nadu. In writ petition 68 of 1982, the issue was regankg the killing

of a number of persons in the state of Andhm Pradesh.

These three petitions wc:re brought together to conduct an

enquiry with an impartial agency into the incident of encounter

deaths which had happened in tiifferent *tes Uttar Pradesh, Tamil

Nadu and Andhra Pradesh and to prosecute the police officers and

personnel found guilty of murder and other offences under the

Indian Penal Code. Professor R~JN Kothari complained of the

killing of a number of people by the police during encounters and

most of them were young activ~sts.

When these petitions were brought, an objection was taken by

the Additional Solicitor General of India on the ground that the

petitions were not mtainablc under Article 32 of the Constitution

as the issue was related whether "encounters" were genuine or not.

As there was no violation of the fundamental rights of any citizen

and the relief sought was one which could effectively be considered

under the Code of Criminal Procedure, the matter had to be

considered by the State Golrernments. It had to constitute a

commission to enquire into the deaths. It was contended that the

proper authority to take action in the matter were the respective State

Governments and the court's jurisdiction could be invoked only if

the state government weasonably declined to entertain the

representations of the petitioners.

The Court found that these three writ petitions were related to

matters which fell within the domain of the State Government and at

the first instance, the state govenunent should be. petitioned. These

writ petitions called for a comprehensive review of what had been

described as "encounters" and the condition of disturbed law and

order reflected in these petitions; which called for a comprehensive

review of 'encounter'. The court could not preclude the possibility of

personal feud and enmities being settled 'and other motive being

satisfied by recourse to the w: of force under the guise of law and

order. Whether they complied with the code of discipline expected

from them while protecting the rights of innocent citizens had to be

ensured.

In this case the court allowed the petitioners to make

representation to their respective state governments for getting relief

and directed the state govenunent to consider their request within

three months. Further liberty was given to the parties to file an

affidavit and repmentation, after the nature of the response of the

state governments concerned, for the effective disposal of the writ

petitions.

In this case, the Court t~bserved that the guardians of law and

order should observe the Code of discipline as expected of them.

They must function strictly as the protectors of innocent citizens. So

in this case, the Court refrained from saying anything further other

wise it would cause prejudice to the persons engaged in the inquiry

and investigation. The Counsc:l also emphasized that once ihe State

Government showed its honest act by taking prompt action in the

matter it must be left to the State Government to complete its

Wction under the Code of Criminal Procedure without any

interference from any outside agency. The Emphasis was laid on the

observation that matters which properly fall within the domain of the

State Govenunent should be lei? to that Government and the

Government should be petitioned first before any interference by the

Court was called for.

Whether the loss of lives was on account of a genuine or a

fake encounter was a matter which had to be inquued into and

investigated closely. Since the accusations were directed against the

local police personnel it would be desirable to entrust the

investigation to an independent agency like the Centml Bureau of

Investigation so that all concerned including the relatives of the

deceased might feel assured that if an independent agency was

looking into the matter ,that would lend the final outcome of the

investigation credibility and complete investigation at an early date

so that those involved in the oc:currences one way or the other might

be brought to book

After conducting an enquiry by an agency it was proved that a

number of innocent persons had been killed due to the act of

instrumentalities. The use of force can only be justified for the

maintenance of law and order and here it exceeded and resulted in

the death of a number of innocent persons .#en the aggrieved

approached the court ,the writ court again sent them to the very same

authority for submitting petition. The cowt stated that the parties had

to submit petition to the concerned state government according to

the law of Criminal Procedure Code. In case of the death of a

number of innocent persons, when the relatives of the aggrieved or

the people of locality, approach the court for getting justice, then

directing them to approach the state once more would discounge

the citizen. This indicates that the administration of criminal justice

is also in some way sustaining the sovereign immunity of the state

instead of guarding the rights of the people. This attitude has to be

changed and there is no justification in submitting petition to the

concerned department after the gross human rights violation

committed by the agencies of the state. Petitioning to the state would

only cause delay in condWtg investigation. These three incidents

took plakhe during the period 1980 and 1981 but the direction of

giving petition to the state was given only on 29-3-1989. In addition

to the delay of eight years in deciding the case, the court again

directed the petitioners to file petition before the state government

for getting relief reminds us of the application of archaic principle of

sovereign immunity. Here a number of Harijans were killed under

the guise of maintaining law and order and these writ petitions were

pending in the wurt for a lojig years even then without any remedy

for infringement of their rights the court again advised them to make

representation to the concerned state governments.

Another case relating tc~ encounter is R.S. Sodhi, v. State of

U.P. and others'40. A writ petition filed in connection wit11 the

incident at Piliphit on 12th, 13th of July 1991 in which 10 persons

were reported to have been kxlled in an encounter between Punjab

Militants and the local police. This issue was raised in the

Parliament and a team of M.P. s belonging to the Congress I and BJP

visited the plakhe to make spot enquiry. The report of the ACJM,

submitted that the identity of the persons killed in the encounter at

Pilibhit was not correctly staled. Before conducting an enquiry by

the Inspector General, the local police oficers suspected to be

involved in this incident had been transferred to enable the officer to

carry out enquiry unhindered by them. A Stay had been granted by

the High Court of Uttar Pradesh to restrain the sitting judge from

functioning as one member cnmmission who was appointed by the

state government. Altogether 10 lives were lost. Since the local

police were involved in this incident, the request for enquiry by an

independent agency in actordance with the code of criminal

procedwe would help to bring the offenders to book. Mr Sodhi

suggested for CBI enquiry having regard to the fact that the

accusations were levelled against the local police.

"O AIR 1994 SC 38.

The State Government tad taken prompt action by appointing

a high level officer to inquire into the incidents and tmnsferred the

concerned local police so that there may not be any possibility of

tampering by them and it had taken steps to appoint a con~mission

by a sitting judge to arrive at the truth and hence there was no need

for directing the Central Bureau of Investigation to investigate the

matter.

This decision is to be n:considered in the liglu of the human

rights violation committed by the instrumentalities of the state. Here

the involvement of the local police in causing human rights violation

was already proved. A Writ petition was filed challenging the

appointment of the sitting judge in conducting the enquiry and

seeking an impartial enquiry by an independent agency. The Court

took the view that the state hat1 already started its own honest effort

in suspending the alleged police officers and appointed a sitting

judge to conduct an enquiry then there was no need for allowing the

writ petition.

The Important point in this case is that even though the local

police involved in this case was transferred, the Enquj. could be

conducted by the sitting judge with the help of the friends of the

alleged officers. If the enquiqi was conducted by an independent

agency like the CBI it would have been an impartial enquiry and it

would have been easy to take evidence without any interference

from the department or state officials. In the writ petition, there was

a clear prayer made before the court to order such an independent

enquiry .It is unfortunate that the court didn't grant this prayer. It is

the duty of the court to regain the confidence of the people in the

legal system as well as in the judicial system. After going through

the case it was found that victln of human rights violation did not

get any remedy even to conduct a proper enquiry by an impartial

agent and their grievance could not be solved by the existing system

available in the writ court. If the writ court had a special

investigation team to enquire into the allegation of gross hunun

rights violation by the state it would have succeeded in providing

immediate remedy to the victim

The next case is an cxample to show that the n~urder

committed by an enforcement asency of the government in the name

of encounter deaths. This wrst petition People's llnion for Civil

Libertie.~, I . Union of India cmd an~ther'~'filed by the People's

Union for civil liberties under Article 32 of the ConstitSon of India

for the issuance of a writ of Mandamus or other appropriate writs to

institute judicial inquiry into the fake encounter by Imphal police on

April 3d 1991 in which two persons of Lunthilian village were killed

14' AIR 1997 SC 1203

and to take appropriate actiol against the erring officials and to

award compensation to the members of their family.

When the police got information that terrorists were gathered

in the house they raided the plakhe, at night .People inside the house

did not notice the police and they were taken from there to a distant

plakhe and two of them were shot dead.

According to thf: petitioner, certain villagers were

caught by the police during the night of April 3 1991, taken in a

truck to a distant plakhe and two of them were killed there. Three

persons who were also caught and taken away along with two

deceased persons were kept in police custody for a number of days.

They were released on bail c~nly on July 22: 1991.News paper

described this incident as deliberate killing.

The allegation of 'fake encounter' was denied by the

govenlment of Manipur and submitted that Hamar Peoples'

Convention had been indulging in illegal and terrorist activities and

in the acts of disturbing public order. Death took plakhe because of

the firing between the police and the activists of Hamar People's

convention.

The Report of the District and Sessions Judge, Manipur on

April 8, 1996 was that there was no encounter on the night of April

3d and 4'h of 1991 but the deceased persons were taken into custody

on the night and was taken in :I truck to a long distance away and

shot there. The question is, what are the relief measures that should

be granted in this writ petition.

The learned counsel appearing for the State of Manipur

submitted that Hamar People's Convention is one of such terrorist

organizations, that they had been indulging in a number of crimes

affecting the public order-indeed, affected the security of the State.

The counsel appearing for the petitioner submitted that in vlew of

the findings of District and Sessions Judge, this was a proper case

where the Court should order the prosecution of the concerned

police officials and also award compensation to the families of the

deceased.

The court Bench consiang of B.P. Jeevan Reddy and Suhas

C.Sen.J.J,) accepted the report of the learned District and Sessions

judge that additional and unusual powers were given to the police to

deal with terrorism. The Police officers or other paramilitary forces

were engaged in fighting them. If the police had information it was

better to arrest them and to deal with them according to law. There is

no doubt that police can use force in disturbed area to prevent

terrorism and nobody can say that the police should wait till they are

shot at. The courts are not the appropriate forum to decide when to

shoot and a l l those issues are bcyond the dispute .If the police had

got an information about the gathering of terrorists in a p<articular

plakhe and if they surprised them and arrested them but in the

present case, two persons along with others were seized from the hut

and taken to a long distance in a truck and shot and this type of

activity cannot be countenanced by the court even in case of

disturbed area.

In this case, apparently disallowing any claim of sovereign

immunity, the court referred the case of Challa Rama konda dealing

with the liability of the state i11 which compensation granted for the

deprivation of right to life p a n t e e d under Article 2lby stating that

it is so fundamental and basic, non-negotiable, and no compromise is

possible. In this case the question regarding the availability of the

plea of sovereign immunity was dealt within and also considered

whether the right to life guaranteed under Article 21 would defeat

the archaic principle of sovereign immunity. It was affirmed that

Article 21 does not recognize any exception and no such exception

can be read into Article 300.

In Nilabeti Behera it was stated that award of compensation

for the proceeding under Article 32 and 226 is the remedy available

In public law which is based on strict liability for contravention of

hdamental rights and the reliance was based on Article 9(5) of

ICCPR 1 9 6 6 ' ~ " ' ~ n ~ one who has been the victim of unlawful arrest

or detention shall have an enforceable right to compensation". So the

claim of the citizen is based on the principle of strict liability to

which the defence of sovereign immunity is not valid.

The main criticism was relating to the reading of international

laws into the national laws unless the legislature legislate law in this

line. It is not clear that our parliament has approved the action of the

Government of India assuming: that it has, then the question that has

to be considered is whether such approval is equal to legislation. The

covenant with sanctity of a la^^ made by Parliament for the present,

the court considered that he provisions of the covenant is

effectuated as fundamental right in our constitution, as the

guiuanteed right can certainly be relied on by the court. Recognizing

the gravity of violation, to see to which personal compensation was

given, the court ordered the compensation of Rs.1, 000001-to the

families of each of the deceased and the same to be paid by the

government of Manipur and the People's Union for Civil Liberties

which had filed this writ petition to be entitled to get its cost at the

rate of Rs 100001- .

"' Article 9(5). Any one who has been viotim of unlawful arrest or detention ahall have an cnfomcablc right to c0mpc"sation.

This case was relating to the gross human rights violation

committed by the state. Facts of the case revealed that it was a

deliberate killing in the name of encounter. In this case, Article 2 1 of

the gmanteed right of the citlzen was denied still the court faced

difficulty to decide the case because of the ambiguity existing in the

present law and not expressly including international law into the

national law to enforce right to compensation for human rights

violation by the state. Here the compensatory justice was applied

only because of the judicial c:reativity. Even in the case of gross

human rights violation due to state atrocities, the court had to repeat

for the umpteenth time that sovereign immunity is not applicable

over here. The judicialy correctly referred to Challa Raniakonda

Reddy .~ . State ofAndhra Pradc:sh to reject the claim of immunity.

Another interesting case is that A.K.Singh v. Uttar Khand Jan

hlorch'" facts of the case war connected with the stir in support of

the demand for a separate state of Uttarkhand comprised of certain

hilly regions in the state of U. P. There was an agitation on Ghandhi

Jayanti day in violation of prohibitory rules. The administration took

stern action which resulted in the loss of lives and infliction of injury

on person and outraging the modesty of women. An Association

moved a writ petition to issue direction to the authorities to meet the

'" AIR 1999 SC 2193

confrontation of human rights violation .The court called upon the

secretary and other connected person to conduct an enquiry into this

incident regarding details of injury deaths and molestation of women

and damage to property .The CHI took up the investigation.

When the matter was taken to the High Court, without

considering the evidence which may be adduced in the cases learned

judges ordered the government to pay Rs. 10 Lakhs to each of the

dependants of all persons who died in police firing and to pay Rs 10

Lakh to each of the victim molested and further Rs. 50,0001- to 398

persons who were detained b) the police without trial and even

without considering evidence. Against this judgment appeal was

filed before the bench consisting of K.T. Thomas, D.P. Mohapatra

and U.C. Banejee, I. J. Then the Supreme Court criticized that the

High Court had erred in fvring up huge amount as compensation at a

premature stage. No attempt was made to discuss the relevant

question for fixing liability and no quantification followed while

fixlng it so it was liable to be vacated. However the Supreme Court

seem to have accepted the gravity of violation in ordering that those

who have collected money need not repay. If any person had failed

to claim compensation, he or she might approach the competent

court for it. The court also came to the conclusion that the High

Court failed to take into consideration the financial capacity of the

state government and for meetin.g this expense the government has

to depend on the revenue collected fiom the common man.

In all these cases, it was clearly proved that there was excess

esof power or abuse of power by the police while exe~ising their

duty resulting in the death of a number of persons .The use of force

by the police is justified if it is done to maintain peace and order. In

all the above cases it was proved that loss of life of the citizens

happened because of excesses and abuse of power by the police and

it was done in the &?me of retaining the peaceful atmosphere in the

society. The question may arise, as to the type of remedy provided

to the petitioners, whether it succeeded in providing remedy and

what was the method followed in determining liability when the

aggrieved approached the writ court in case of violation of human

rights by the state. Article 21 guarantees right to life, but due to

excesses and abuse of power by the state agencies it is common that

the guaranteed rights of the citizens are violated. While determining

compensation in People's Union for Civil liberties due to gross

human rights violation by the police the court ostensibly denied the

claim of sovereign immunity of the state as this outmoded claim

could not go with the present sys-m. If we had a specific law to fix

the liability of the state for hwnan rights violation by the state it

would have been possible to decide the case on a firmer footing. In

this case the court was inclined to give relief to the victim so referred

into the Article Y(5) of ICCPK even though it was not included in

our constitution. If this was included into ow constitution it would

have been easy for the court to decide this case. The same way, it

was found that relief sought by the petitioners were to appoint an

impartial enquiry into the alleged encounter death, but that was

denied on the ground that the maintenance of law and order comes

within the purview of the state and directed them to send the petition

to the state. These cases raise a question whether for quick and

impartial investigation in the gmss human rights violation an agency

independent of the state government could not be established.

b) Custodial death

Here I propose to enquire into the custodial death ~ m d the

question of violation of hunlan rights involved in such death.

It is necessary to find out the remedy provided by the writ

court in case of gross human rights violation like custodial death. In

,Seebastian. M Hongray v. Union of ~ n d i a ' ~ ~ , the petitioner a student

of political science in Jawaharlal Nehru University and a member of

Naga community from Manip~u, filed a writ petition as to know the

whereabouts of the two respectable persons of his village C. Daniel

and C . Paul who according to him were detained by the army

'" A.LR.1984 S.C. 1026.

personnels on March 10,1982 . It was argued that these two persons

after being taken into the anny camp under arrest never left the camp

and was anxious to know what had happened to them.

The petitioner said that the Sikh regiment set up a camp at

Phungrei, and they had taken ,certain persons into custody, niost of

them were released on March 6, 1982. Later the Jawans ill treated

the women of that locality. Subsequently there was a disturbance of

peace and order. The Jawans resorted to firing which resulted in the

death of one Luinam. On March 7, 1982, Magistrate visited the

plakhe to enquire intothe incident .The jawans who were present in

the village produced before the officers, certification of villagers

exonerating them from the allegation of ill treatment and the conduct

of jawans under duress from local residents. On March 7,1982 Paul

and Daniel were on Sunday service, they were disturbed by the

Jawans and these jawans proceeded to get signature from the

villagers. The certificate was obtained to show that the army officers

had not treated the villagers with force and cruelty. They tried to get

signature on blank papers from the villagers. On March 10 these two

persons were arrested by the Army jawans and were taken away

from the village. As they did not return to the village till March 15.

1982 their wives went to the camp in search of them and they saw

that they were being led away by army jawans to the west .They

filed a complaint to the Deputy commissioner on March 10 and

telegraphic messages were sent to the Superintend of police on

March 15,1982 requesting them to enquire about them.

After having filed complaints they filed a habeas corpus

petition before the Supreme Court (Bench consisting of D.A.Desai

and 0.Chinnappa Reddy J.J.) on February 1983, as the detention was

illegal invalid and contrary to Article 21 .Considering the

seriousness of the offence, the cm~.rt directed to serve natice on Feb

9, 1983. In the counter statement they stated that they were not

arrested but they had called for attending the identitication pamde to

find out the suspects involved in the allegation and they had been

allowed to go on Marc11 11, 1982, and since then security force had

no knowledge about them.

When the court called for the report of the superintendent of

Police about the action taken against the complaint by the

petitioners, the Government of Manipur claimed privilege on the

ground of public interest. Counsel appearing for the state failed to

glve any information regarding the disappearance of those persons.

From the evidence it was found that these two persons were

last seen in Phugrei camp on March 11, 1982. Widows of these

persons had last seen them on Mbch 15, 1982 while they were being

taken by the 4~ respondent again under the custody of jawans.

Even in case of ex-pute the court issued an order by

considering the seriousness of the incident and called for the report.

After the perusal , it was found that it would not give any help. The

court allowed the petition and issued a writ of Habeas corpus to the

Union of India and other concerned officials, conmanding them to

produce C. Daniel, =tired Naik subedar of Manipur Riffles and

Head master of the junior high school of Huining village and C.

Paul, Assistant Pastor of Huining Baptist Church who were taken

into custody by military jawans 14'.

On Nov 24& 1983, thl: court by its judgment and order

directed to produce Daniel and Paul before the court on Dec 12 the

1983.The Director stated his inability to produce them even after

their best efforts. The Government also failed to locate then]. The

C.B.I. submitted its report of not locating these two persons. They

had a legal obligation to produce those person who were taken into

custody illegally .There was w~llful disobedience on the part of state

in not responding to the writ of habeas corpus and misleading the

Court that they had left the camp. So it amounted to civil contempt.

Hence rejecting the submission ,the Court consisting of D.A.

Desai and 0. Chumppa Reddy . J. J. said that the civil contempt was

punishable with imprisonment as well as fine and directed the Union

'I4' AIR 1984 SC 571

of India to award exemplary costs of Rs. 1 Lakh to each of the

woman and also issued a writ ofMandamus to the Superintendent of

Police to commence investigation under Cr. P. C. The court said that

Union of India cannot disown responsibility and to commence

Investigation as prescribed by tlie relevant provision of the code of

criminal proced~re'~'.

From the facts and circumstances of the case, the court

came to the conclusion that they might have met with unnatural

death. By considering the mental suffering of these two widows, the

court held that the government was liable for civil contempt. In this

case the state neither complied with the duty of protecting and

securing the life of citizen, but also it committed torture, agony and

mental oppression to the wives of the victims. This judgment was

one of the excellent verdicts givc:n by the court without referring to

sovereign immunity. Here in t h ~ s case after thorough enquiry was

made by the investigating officers, the court expressed doubt that

they might have met wtth an unnatural death .If we had a special

court to deal with human rights ,involvement of officials in this

offence could have been decided and the liability determined for

each persons at the trial.

A question of liability f)r the alleged firing and killing of

twenty one persons from a group of landless people assembled came

up in People's Union for democratic Rights v State of ~ i h a r ' ~ . This

was a writ petition under Article 32 of the wnstjmtion (before the

bench consisting of Rangmath Misra and M.M.Datt J.J.) to issue

writ or order in the subject of payment of compensation to the

victims, relating to dead or wounded by police firing, to withdraw

the poIice case, to direct the state of Bihar to resolve the land dispute

with poor families and to institute judicial enquiry into the incident.

Facts of the case is that the police opened fire on 19-4-1986

at a peaceful meeting of 600 - 700 persons, a group of landless

people belonging to the backward class at Gandhi library in Anval.

Most of the people were from the Gaya district Bihar. The firing

started without previous warning or without any provocation. The

police surrounded the gathering and opened fire. Twenty one

persons died and some were injured. The government granted

interim relief of Rs.10, 0001-. It also directed Sri Vinod -r.

member of Board of Revenue Bihar, to wnduct an in- into the

incident. The Report was produced before the court with a claim of

privilege against disclosure. After visiting the locality Shri B.D.

Sharma Asst. Commissioner of S.C. & S.T. also submitted a report

before the Supreme Court with a privileged claim by the Union

government. Meanwhile the petitioner requested to transfer the

petition pending before the High Court of Patna, to the Supreme

Court. The Supreme Court took a decision that it would be

convenient to transfer the matter to the High Court, So thzt the

court would have to go into the details of whether the disclosure of

committee report would affect public interest or not and the parties

could produce materials befox High Court. The Supreme Court

directed the state to pay compensation of Rs.20, 0001- to the legal

heirs of the deceased, and Rs.5,000/- to the injured.

The Enquiry report submitted by the member of the board of

revenue and the Asst. Commissioner of SC&ST were essential, to

know whether there were excesses by the agencies of state or not. In

the case of human rights violation, immunity is not a defence and

strict liability is the rule and so the court fixed the liability of the

state without considering the kilt of the employees.

The Main defect in the above case was that the same of

action had been pending in ~ w o writ courts. It would result in

inconvenience and be expenshe to the parties. The Supreme Court

directed the high court to decide the issue regarding the disclosure of

the investigation report and the very same court could have

determined the compensation also. It was essential to see whether

the agencies complied with the rules of procedure while firing. Or

whether there were excesses by the agency, here the Supreme Court

directed the state government to enhance the compensation given by

it. While granting compensation by the state government they

deviated from the ordinary principle of giving Rs.20,000/-in the

case of death and granted only Rs.10,000/-. This reveals that there

must be a specific law to fix the amount of compensation in case of

death.

This raises a question whether there should not a law to lay

down a standard regarding the quantum of compensation. The other

important question is whether the disclosure of documents can be

allowed. In this case it was proved that people of that locality were

attending a peaceful meeting am1 there was a sudden attack on them.

This is a gross human rights violation committed by the officials in

the name of public interest.Then what is the use of allowing

disclosure of documents in such a case. It is not justifible to allow

such a privilege of claim to the state in case of human rights

violation. Use of force can be justified only in the circumstances

when in case of failure to use force would affect danger to the life of

person or property then the burden must also be on the officials to

prove that such a situation existcd in that particular time. Otherwise

if the use of force is justified in the name of maintenance of peace

and order by the writ court, it c m o t guard the rights of the citizen.

The claim of privilege of documents must also be restricted if the act

of the agencies of the state amounted to state terrorism and 'affected

the human rights of the citizens.

The state liability question came up for consideration in

Saheli. V. Commissioner of F ' o l i ~ e ' ~ ~ . The writ petition was filed

under Article 32 of the Constitution by a women's association

through Nalini Bhanot and others Before the Bench consisting of

B.C. Ray and S. Ratnvel Partdian J.J.) claiming compensation for

police atrocities. Kamaleshkumari was a tenant in a rented house.

Even after the land owner evicted all persons; Kamaleshkumari

succeeded in getting a stay order from the court. But the landowner

attacked her several times with the help of Station House Ofllcer.

They trespassed into her house and tore her cloths, molested her. She

was dragged away and hit with a brick on the back and head. Then

her nine year old son came to her rescue and he was also beaten and

this son who clung to her leg was also beaten and thrown on the

floor and suffered serious injuries and later succumbed to his

injuries.

The Police was reluctant to register a case against the accused

even after a complaint filed by kamaleshkumri about torture and

harassment of the accused. After the death of N a r d the Post

inortem report revealed that the injuries caused with blunt force and

the injuries received were not sufficient to cause death and death was

due to pneumonia as diagnosed. There was high level pressure on

the doctor. When the petition had been brought, the Court directed

Medical superintendent to keep record relating to the death of

Naresh.

Punn Sing, Inspector. Crime Branch. Delhi opposed the bail

on the ground that there was a high level conspiracy in getting the

rooms of tenants vacated by the landlord. If the accused was bailed

out; it would be difficult to find out the truth. DD entries revealed

the involvement of local police in the entire episode and the

conspiracy or connivance of the local police with the accused.

It was apparent from the report dated 5-12-1987 of the

inspector of crime branch, Delhi as well as the counter affidavit of

the Deputy commissioner of police, Delhi and also from the fact that

the prosecution has been laur~ched in connect~on with the death of

Naresh showing that Naresh was done to death on account of the

beating and assault by the agency of the sovereign power acting in

violation and excess of the power. The nmther ofthe child, Kamlesh

Kumari, was entitled to get compensation for the death of her son

fiom the respondent, Delhi Administration. An action for damages

was for bodily harm which included battery, assault, false

imprisonment, physical injuries which resulted in the death of her

son and represent a solarium for the mental pain, distress, indignity,

loss of liberty and death. Iiere the Court applied well settled

principle of vicarious liability of the state.

The Court relied on the Peoples Union for Democratic Rights

v. Police Commissioner el hi'^' where State was held liable to pay

compensation. The court also considered the principle involved in

~ i d h ~ a w a t i ' ~ ~ that the common law immunity never operated in

India It had also emphasized the inapplicability of the case

Knsturilol Ralia Ram Jain :J . State of Uttar ~radesh"'. it was

related to the value of goods seized due to the fault of the employee

where in the sovereign immunity was upheld to determine the

vicarious liability of the Stale, which was distinct from the State's

liability for contravention 3f fundamental rights to which the

doctrine of sovereign immunity has no application. It followed that

a claim in public law for cornpensation for contravention of human

rights and fundamental ffc:edoms, the protection of which is

guaranteed in the Constitution, is an acknowledged remedy for

149 AIR 1990 SC 513. In this oase one of the laborers when demanded wages for the work done by hi the poliocfaturcd him to death. The oourl directed to pay Rn750001- 8%

compensation to the legal h&n of the victim. "O ~IR1962 SC 933. "' AIR1965 SC 1039.

enforcement and protection of such rights, and such a claim based on

strict liability made by resorting: to a constitutional remedy provided

for the enforcement of a fundamental right is 'distinct from, and in

addition to the remedy in private law for damages for the tort'

resulting ffom the contravention of the fundamental right.

In the light of these cases, the court directed the state to pay

Rs,75, 0001- as compensation to the mother of the victim and to take

appropriate steps by Delhi administration to recover the amount

from those who were responsibie for it.

This is a clear case of excess by the police. It also

proved that how human rights violation of the citizen c~an be

committed by the officials indirectly. In this case the landlord could

influence the police officials and doctors etc and could marupulate

the Post mortem report and station diary because the local police was

involved in this case. The Police being the guardian to protect the

fundamental rights and if they act contrary to this principle, the

citizens can expect protection only from the court.

The court referred to the preceding cases while determining

state liability and clarifed that there is no need of distinguishing the

function as sovereign and non-sovereign, this is because of the lakhk

of firmness in law. The court must have power to take action against

the police officials who failed to register the case, when the

complainant approached them. It is the duty of the writ court to take

into consideration the injustice suffered by the victim, to take action

against the officials and to compensate the petitioner for hisher

suffering. Here the writ court succeeded in granting compensation

still it failed to take precautiomy measures against the officials.

Shri Pranab Jyothi G0gi.v. State of ~ s s a n ~ ' ~ ~ , This writ of

Habeas corpus petition dated 18-3- 199 1 before the bench consisting

of Manisana and Smti. M. Smna.J.J, for the illegal arrest and

detention became infractuous due to delay in psoviding imniediate

remedy. Later after the death of the victim, the court issued direction

to produce the post mortem report to see whether it was custodial

death or not.

In this case, the counsel appearing for the legal heirs, of the

deceased victim argued that the people felt insecure and had lost

confidence in the civil administtation. They were not in a position to

collect and produce the relevant materials and necessary particulars

before the court in support of the case and requested to appoint a

counsel to inquire into the matter relating to the custodial death of

the victim.

In this case, the army a)~thority filed a counter that they got

information about the presence of militants in the village of

Naharani. This area was cordoned off. While they were searching in

that area one person suddenly tumed back on being chased, he

entered into a bamboo grove and attempted to hide. On being

surrounded from all sides, the person attempted to throw a grenade

and to use weapon on the party .During that encounter Dhluba Jyothi

was hit on his head with rifle and ultimately he was overpowered.

On perusal of the case diary, the court found that the Deputy

Commissioner had ordered for a magisterial enquiry. It was

conducted by SDO, in which it was stated that the death would not

be found out through such an enquixy. Initially a case was registered,

thereafter regular case had been registered against the amv

personnel under section 302, on the basis of FIR dated 22-3-1991, by

the Investigating officer who examined the petition on 27-3-1991

and thereafter no fiuther investigation was done by the investigating

officer. The same thing happens in every incident of custodial death.

In this case, the Gauhati High Court said that Dhabri Jyothi

suffered injuries and he must have suffered continuous pain. At the

time of his death he was a student of degree course aged 22 .Both

parents of the deceased have lxen suffering from mental agony thus

considering the mental strain and agony of the petitioner's wife and

children ,the Court stated that in the case of death resurrection is not

possible and money will not compensate it, the only possible way is

by applying compensatory jurispmdence. So the Court directed the

Union of in@ to pay Rs.2,00,000/- to the victim's legal heirs.

In each case the court has to see what measures have to be

taken to prevent similar crime in future. Here the death could have

been avoided if the wnt court had worked immediately as expected

by the citizen. Delay m deciding case would be denial of justice to

the parties. When the petition was brought before the court, it failed

to note that the officers failed to comply with Article 220).

After taking h ~ m into custody, the Army did not hand him

over to the police and did not even produce him before the

magistrate but kept him under their custody. In the case of custodial

death, it 1s difficult to produce evidence before the court of law

because this is committed within the four walls of lock-up cells.

Most of the witnesses may be &om the same department, belong to

the same group of the accused. If a person is taken into custody,

burden lies on the authority lo pmve that they had been released

without causing human rights violation. Departmental enquiry will

be always in favour of their department. Especially in case of

custodial torture death and rape nothing can be proved by

departmental enquiry This is done only to let the public see that the

government had taken all measures to expose the case. As usual the

departmental authonty may suspend the alleged officers from

service and in the course of time they may be reinstated into the

same department with promotion. So in the case of human rights

violation strict action is necessary against the officials who are

involved in the alleged crimes. [t is better to appoint a CBI enquiry.

In a case Golak Chaiidra Jena v. Director General of

~ o l i c e " ~ , the petitioner's son was taken into custody for the alleged

crime and nothing was heard about him thereafter. The story of the

police was that he committ~:d suicide while in custody. The

suspicion that the police had finished him was aggravated by the fact

that the dead body was not handed over to his relative and the dead

body was cremated by the police .An enquiry conducted after the

alleged suicide, it was recorded that there was no external injuries on

his body. A Magisterial inqujl was conducted by the sub-Divisional

Magistrate Jaipur, who also reported that the death of Pnmode was

due to the suicidal hanging.

The court, (the bench consisting of B.L. Hansaria C.J. and

K.C. Jagadeb Roy. J) did not accept the story of suicide and held the

authority as guilty of taking away the life. It should have been done

in accordance with the law. The compensation of Rs30, 0001- was

awarded out of which Rs. 10, 0001- to be given to the petitioner and

Rs.20,000/- to the widow of the deceased.

This case also illustrates the dificulty of relying on the

reports prepared by authorities allegedly responsible for the

custodial death. Our Constitution guarantees fundamental right to

hfe to all people even though he or she is veteran dawit, criminal or

prisoner nobody can take away one's life by torturing and this can be

done only in accordance with law. It is the duty of the court and not

the police to decide whether the person has committed the wrong or

not.

Nilabati Behera alias Lalita Behera. v. State of Orissa and

others,'j4 In this case, Nilabati's son was taken into custody for

questioning in connection with a theft case, and thereafter his dead

body found on a railway track. Nilabati claimed compensation

alleging custodial killing

The version of the police was that he escaped from cllstody

and was run over by train. Failure of the police to register a case

regarding the escape from cistody threw doubts on the police

version, it was also clear that the police did not immediately go to

the railway track to take over the dead body on receipt of the

information regarding the death.

There was no dispute regarding the point that he was taken

into custody and was detained there for interrogation in connection

with a theft case. When his mother and grandmother visited him in

jail. he was hand cuffed with another accused and tied together .Nex?

day he was found on the railway track with multiple injuries without

being released from custody.

The burden was, therefore, clearly on the respondents to

explain how he sustained those injuries which caused his death.

Allegation of custodial death was denied and then it was the

responsiiility of the respondents to reveal about the unnatural death,

without the victim being released from custody.

The Court considered the deposition of the doctor that there

was hand& on the hands of the deceased when his body was found

on the railway track and the report of the forensic department that

the two cut ends of the rope, do not match with each other. This

negatives the suggestion that he managed to escape from police

custody by chewing off the rope.

Now the question was regarding the liability of the state, for

Suman Behem's custodial death. The learned Additional Solicitor

General had no dispute regarding the liability of the State for

payment of compensation for violation of Article 2 1.

The Writ court clarif~ed that Art. 32 could not be used

as a substitute for the enforcx:ment of rights or obligations which

could be enforced through the ordinary processes of Courts, Civil

and Criminal. A money claim had to be adjudicated in a suit

instituted in a Court of the louest grade competent to try it. When

the petitioner filed a suit for 'compensation and if the facts were

controversial in nature a civil court might or might not uphold the

claim. But if the petitioner filed a suit to recover damages for his

illegal detention a decree for damages would have to be passed in

the suit but in the absence of evidence it was not possible to predict

whether the decision would be in his favour or not. It is said that

Article 226 and 32 can be used to protect the fundamental rights of

the citizen .In the case of custodial death by agencies of the state.

when the legal heirs of the victim approach the writ court, it says

that proper fonun to claim compensation is the civil court and

session's c o w the lowest coun competent to try it. So for the same

cause of action the Petitioner h;ls to approach different courts .Atter

conducting a trial, in this case it is not justifiable to tell the petitioner

to approach other courts for getting justice.

The Important question for consideration was whether writ

court was empowered to exercise jurisdiction under Article 32 to

pass an award of compensation for the deprivation of fundamental

right In this case the state Med to prove their innocence. the death

was presumed to have been caused by the state employees. In these

circumstances, it is the duty of the court to compensate the petitioner

for the violation of their guaranteed rights .The rehsal of the Court

to pass an order of compensation in favour of the petitioner would be

like mere lip-service about fi~ndamental right to liberty. In this

situation, if the court passes an order merely to release an illegally

detained person would amount to denuding the significance of

Article 21 which guarantees the right to life and liberty. The right to

compensation would be some palliative for the unlawful acts of

state instrumentalities .The tnie foundation of democracy rests on

the principle of respecting the rights of every individual. If it is so.

when the aggrieved approach the court seeking the order of writ to

release a person fmm custody, meanwhile the person detained,

already met with death due trl the act of the agencies of the state,

writ court being the guardian of fundamental right, it is necessiry to

compensate the loss for pmtecting the hdamental rights of the

citizens.

The Court (the bench consisting of J.S.Verma ,Dr .A.S.Anand

,and Venkata chala J. J.)rekrred Rudul and Sehnstion

~ o n ~ r a ~ ' ~ to show that if a person taken into custody dics. the

burden lie on the state to sho'w that the person detained was seen

alive by the detaining authority. The court also considered the

"' Supra note.49. lJ6 Supra notc.65

similar cases like Bhim singhIs7 ~aheli'" where the state was held

liable to pay compensation.

The court began to move away from the defence of

sovereign immunity. When the state officials extinguished the

human lives the remedy must be readily available in the case of

have-nots .According to Justice Anand the Public law remedy must

ensure the rule of law and civilize the public power, and protect and

preserve the rights of the citizen, and sovereign immunity camot

defeat the claim for the enforcement of fundamental right. In the

case of private law action based on tort, the sovereign immunity is a

defence. The defence of soverevgn immunity being inapplicable and

alien to the concept of guarantee of fundamental rights, there can be

no question of such a defence being available in the constitutional

remedy. The Defence of sovereign immunity should not be

applicable against violation of fundamental right like right to life

liberty and dignity; these basic rights are inherent in nature. Arrest

and detention, without legal justification or if it is done without just

cause and excuse limits the personal liberty guaranteed under the

Constitution The wrongdoer ard the state must be responsible and

lJ7 Suora note. 79. IJ8 Svpm notc57.

accountable if the person taken into custody of police has been

deprived of his life without duc: process of law. The remedy under

public law is by way of penalizing the wrongdoer and fixing the

liability of the state for the public wrong when it fails in its public

duty to protect the fundmental rights of the citizen. It is this

principle which justifies in awarding monetary compensation for

contravention of fundamental nghts guaranteed by the Constitution.

when that is the only practicable mode of redress available for the

contravention made by the State or its servants in the purported

exercise of their powers, and enforcement of the fundamental right is

claimed by resort to the remedy in public law under the Constitution

by recourse to Articles 32 and 226 of the Constitution.

Msm .C.J. discussed in Unlon Carbide Corporation 17.

Unron of l n d ~ a ' ~ ~ , the need ol' developing law to construct a new

principle of liability to deal with an u n d situation.

Venkatachaliah, J. in Bhopal gas case, stated the power of the court

to grant relief in the light of Article 9(5) of I. C . C. P.R 1966'~. and

also clarified that this enforceable right to compensation is not alien

to the concept of enforcement of a guaranteed right.

AIR 1992 SC 248. 160 A~tiole 9(5) provides "Anyone who !>as been the victim of unlawful m t or detention shall h v e on enforceable right to oompensation".

This being the clear case for awarding compensation to the

petitioner for the custodial death of her son, the court considered the

age of deceased Suman Behaa and his monthly income etc and the

total amount of compensatior~ was calculated as Rs1,50,000/-.State

of Orissa was directed to pay the sum of Rs.l,SO,O(X)/- to the

petitioner and a further sum of'Rs. 10,000/ - as costs to be paid to the

Supreme Court Legal Aid Committee. The mode of payment of

Rs. 1,50,000/- to the petitioner would be, by making a term deposit of

that amount in a scheduled bank in the petitioner's name for a period

of three years, during which she would receive only the mnterest-

payable thereon, the principal amount being payable to her on expiry

of the term. The Collector of the District will take the necessary

steps on this behalf, and report compliance to the Registrar of this

Court within three months.

Article 21 of the consjtution guarantees right to life. these

noble, precious rights are available to all irrespective of Convicts

and under trial prisoners. This can be curtailed only according to the

procedure established by aw. So the great responsibility of

protecting these rights lies on the state. If this is violated by the state

they can approach the ordmary civil court for clalming

compensation, liability bemg strict, state is accountable for it

In case of violation of ihdamental rights by the state, the

aggrieved parties can approach the Supreme Court and High court

under Articles 32 and 226 of the constitution. The difference

between public law remedy and private law remedy is that in the

case of public law remedy sovereign immunity is a defence where as

in the case of private law remedy sovereign immunity is not a

defence. The purpose of publi law is not only to civilize 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.

In the case of human rights violation by the state the public

law and private law comes and the remedies are entirely different so

it is necessary to have a specialized court to deal with such cases.

The Compensation must be according to the responsibility for the

damage committed by each pelson. Without going into the question

of wrong committed by the state it would become vicariously liable

for the act on the basis of strict liability.

Here the court evolved a principle to determine the liability of

the state by applying strict rule. This decision reminds us of the

French systems of law, which considers the responsibility of the

state while dealing with cases of state atrocities here lies the

difficulty , it is left to the discretion of the court and the people do

not feel faith in the legal system. Now it is high time to modify, the

law of fning the liability of the state in case of state atrocities.

Even though the highet courts are aware, of the action for

damages brought before the civil court it may be debarred by the

defence of sovereign immunity, in such cases it is not justifiable to

direct the victim to approach the lowest competent civil court for

compensation. If the writ cowt grants merely issuing the order for

release of prisoner from custocly without compensating the violation

of right it would be a denial of guaranteed rights.

Though the court expressed the daculty of operating

compensation by the writ court in assessing the compensation,

directing them to approach civil court, the problem of claim being

defeated on the ground of rovereign immunity might arise, this

points to the need for making a law and abrogating any claim for

sovereign immunity. As we have seen earlier, the same result can

also be achieved through j d c i a l activism to negative the principle

of sovereign immunity. In any case it is clear that when the superior

courts direct that the claim must be persuaded in the lowest courts,

Sovereign immunity should not be allowed to stand as a hurdle in

the path of justice and it is also worth maintaining.

Acwrding to the present system, for the same cause of action

the suits are pending in Werent wults, civil court sessions court

and writ wurt .If this system was modified into one system to deal

with cases of human rights violation by state it would have saved the

time of the court, it would be convenient to the state and the

aggrieved victim, and could halie given speedier remedy.

In the case of death of' Sawinder Singh Grover RE'" the

court concluded on October 2 I, 1992 in the light of the facts and

circumstances of the case that there was a prima facie case for

investigation and for prosecution and directed the CBI to register the

FIR and to prosecute all the ac~wed for appropriate offences under

the law.

A healthier trend in the matter of compensation in case of

custodial death is seen in Sawintier Singh Grover R.E.In this case the

victim was a South Delhi businessman, Sawinder Singh who had

been tortured and murdered urider suspicious circumstances while

being questioned by the enforcement directorate. According to the

District Judge the fabricated story given by the police regarding the

circumstances of suicidal jump which led to the victim's death was

not reliable. So the court directed the enforcement directorate to

grant an ex-gratia payment of Rs2, 00,000/- to the widow of the

deceased Sawinder Singh. The observation made in the order would

not affect the investigation, prosecution and the trial disposed of

'61 1994 SCC (Cri) 464.

accordingly. This decision helped to avoid delay in granting

compensation to the victim.

In all these cases, it was proved beyond doubt that death

occurred due to torture by the enforcement agencies. Even though

the court felt difficulty in fixing the state liability with the present

legal system, the court considered the need for protecting the human

rights of the citizens in case of state atrocities. In case of death.

resurrection is not possible the court was reluctant to allow the

claim sovereign immunity. But the defect seen in it was in most of

the cases the court issued ex-gratia payments and in some cases the

court even directed the petitioners to approach the civil court as it

was the proper forum for claiming compensation, at the same time it

raised a doubt whether the petitioner would succeed in such an

attempt in claiming the compensation. In many cases, initial g m t of

ex-gratia payments and referr~ng the case for further adjudication

through civil court would contribute some financial strength or

further pursuit of the matter in the civil court .Such a step is

welcome in cases where the court find it difficult to grant full

compensation without further procedure in civil court.

Smt. Charanjit Kaur, v. Union of India and others''', this

writ petition was filed to take action against army officers and for

claiming compensation, for the death of a military officer. The

petitioner's husband Mukhbain Singh was a lieutenant in the Indian

Army. He was promoted to t ~ e rank of Major on 24-5-1978 and

posted at Kargil on 10-6-1978 when he suffered from chest pain on

12-6-1978 he was removed to Leh on 16-6-1978., on diagnosis. he

was suffering from heart disease. On receiving the information

regarding her husband's disease, his wife reached there with children

on 16-6-1978. Then he was lying in a make shift hospital without

any life saving treatment. She found him in a precarious condition

and was unable to move. Both the petitioner and her husband

requested the authorities to give air lift to Ambala or Srinagar

Military hospital for proper ireatment. This was refwed and was

threatened with court martial. After a great deal of persuasion and

pleading on 196-1978 one Dr Major Bofflo agreed to shift him to

Ambala but her request to ac:company him was denied. When the

petitioner and her children reached there at Arnbala they were

informed that her husband was not well and she should return to

Leh. There to their great surprise they found the burned body of her

husband. It was proved that there was gross negligence and

callousness on the part of the authorities who caused mental torture

and financial hardship to the widow and the children of the Army

officer

The authorities did not disclose to her the circumstances

under which her husband had received the bums. Later on, she was

only given a report of the post-mortem examination conducted by

the Army Medical Authorities at Leh which at tni ted the death due

to "extensive burns".

According to the authorities, even though though had

complained of chest pain his condition was not so critical, and on

that day he had gone to the ;oak house and later his charred body

was found with 98 per cent bums due to kerosene oil.

She contended that his death was under mysterious

circumstances because he was unable to move then the question was

how he received such bum injuries. After sending several letters to

the authorities and after seven years of this incident the finding of

the enquiry was that the death of her husband was not attributable to

the military service. When she applied for getting a copy of the

report for submitting an application for family pension this was

refused on the ground of privilege in keeping the confidential

document.

Then the petitioner approached the Supreme Court claiming

family pension.The authorities stated that her application was

incomplete due to failure to pnxluce the document and took decision

denying the family pension and she was informed to file an appeal

against this decision within SLY months if she was not satisfied with

the decision. They admitted the fact that the report of death of her

husband being the contidenth1 matters it was not disclosed to her.

Her family pension was not denied because she was informed to file

an appeal to the governmerit if she was not satisfied with the

decision. They also made a contradictory statement that all the

family of Army officers are not granted family pension, but granted

only if the death was agp~vated or attributable to the military

service. They had conducted an enquiry they regretted to carry out

the investigation at the late stage.

The responsibility of b?is death is prima facie traceable to the

act of criminal omissions imd commissions on the part of the

concerned authorities. The same way the petitioner sought the

enquiry report and this was denied on the ground that the document

was confidential .Even his condition became so worse his wife and

children were allowed to meet him only after some persuasion. The

case reveals the irresponsible attitude of the officers. In the said

circumstances the court col~cluded that the officer died while in

service under mysterious circumstances and his death is attnhtable

to and aggravated by the military service. The petitioner is,

therefore, entitled to suitable compensation as well as to the Special

Family Pension and the Children Allowance according to the

relevant Rules from the date of the death of her husband. The Court

awarded her compensation of Rs. 6,00,0001- and directed that the

said amount be paid to her within six weeks from that day. The

Court also directed that the arrears of the Special Family Pension

and the ChiWren Allowance be paid to her within eight weeks from

that day with interest at 12 9'1 per annum. And directed to pay the

costs of the writ petition which were fixed at Rs. 6,0001-.

Even though the deceased was an army officer, he and his

hmily had to suffer gross human rights violation due to the criminal

omission and acts of the otht:r army officers. It is pavlful to think

about the i~responsible conduct of the other officers towards the

member of their own fraternity. Defence version of the state based

on suicidal attempt of the amy officer would not stand as he was in

a critical condition and not able to even move. They failed lo give

timely medical treatment; men though the victim and the widow

requested it. The writ court considered the whole plea of the widow

of the victim and grievance and suffering of the victim and their

family for giving justice. Wh~le deciding the liability of the state the

court could have fixed the liability of the irresponsible officers also.

If complete liability was fixed on the state it would affect the

financial stability of the state. Because of this gross injustice shown

towards the respectable fanlily of an army officer, the society would

lose confidence in the legal system. Attitude of the court in

redressing the grievance of the victim is admirable and would help to

win the confidence of the socic.@. If the cases of state atrocities are

decided in one court, compensation and punishment for the wrong

could be decided at one trial so it would save the precious time of

the court.

In a case where the superintendent of police abducted seven

persons from a house allegedly for seeking vengeance on some of

them for having helped the terrorist to finish off the superintendent

's brother, though the police accepted the complexity and undertook

to investigate the matter nothing concrete came out of it and a writ

petition filed became ~nfractuo~ls .In Inder ,Singh v. State ofPunjab

and others'63, When the efforts to release seven persons Sadhu Singh

.Gutdeep Singh ,Amanjit Singh ,Hardev Singh ,Davinder Singh

,Sukhdev Singh ,and Sharnjitl~ Singh, from the custody of police

failed, this petition was filed bj Inder Singh who is the son of Sadhu

Singh the brother of Gurdeep !;ingh the father of Hardev Singh and

AIR 1995 SC 312.

the uncle of Amanjith Singh ,Davinder Singh ,Sukhdev and

Sharnjith Singh .The Facts of the case is that on 29'h October 1991 a

police party under the coinmand of Baldev Singh came to the

petitioner's residence and dmcted that all those present be lined up

in the courtyard and plakhed them in a police van. The Petitioner

and his fanlily were told that they would be given the dead bodies of

the above said seven person!;. They were lodged in the police station

until 28m December 1991.

Addl. Solicitor General stated that the investigations revealed

that the third respondent Deputy Superintendent of Police, was

guilty of causing the abdulction of the seven persons in 1991 111

complicity with other policemen and that the invemgations have not

revealed whether the abduaed persons were alive or by the Deputy

Superintendent the third respondent and his police accomplices. A

charge-sheet was plakhed .against him and other police officers

Involved in it. The Punjab Police submitted that it was a rare case in

which the police admitted that one of its officers had been guilty of

abducting citizens, therefore they should be trusted to carry out the

invest~gations. These persons taken Into custody were not wanted by

the Punjab Police in connection with any criminal offence.

He also clarified that the 2nd respondent had taken charge as

Director General of Police Punjab on November 1991 and when

received the complaint dated25th Jan 1992 regarding the abduction

of seven persons, this was entered in the diary by his P.A. as he was

on leave on that date When DIG asked the report from Majitha, on

23rd April, 1992, he stated that all allegations were found to be false.

Dissatisfied with this report. DIG again suggested for another

investigation by a senior offic~al this was again investigated by the

very same official Majitha.

The Special Branch, recommended registration of a case

against the 3rd respondent under Section 364, Indian Penal ode.'^^

and he submitted that the 3rd respondent had abducted the said 7

persons on the suspicion that they had got his brother abducted

through terrorists and it was "llighly regrettable that a member of

police force should have resorted to retaliatory action and taken the

law in his own hands". In the port it was stated that even though

investigating officers had made all possible enquires to trace the

whereabouts of the abducted persons under the guidance of senior

officer, the police had not been able to locate them. Mean while the

police had framed a charge sheei against the third respondent and a

case was registered against him so the respondent prayed to dispose

the writ petition as the trial on the incident was likely to comnlence

in the criminal court.

Iw 364of IPC deals with kidnappiw or abdu.;ting in orda to murder.

The Supreme Court criticized that even though the complaint

was filed on 25* January 1992 addressing the 2& respondent, he

stated that up to July 1994 he knew nothing about this incident. As

he was on leave, the complaint was received by his personal

assistant and entered in the register by him. The court commended

that this practice is merited by the Punjab police. When the court

asked the reason for not bringing the notice of the superior officers

about the illegal detention of these seven persons, it was answered

by the P.A. that in those days there were dire times in Punjab, and

many such accusations were common so no comment seemed

necessary. No explanation was given for taking 18 months delay for

submitting the report But it was found that no disciplinary action

was taken against the accused and he was not suspended from

sewice. The court was surprised to see how leisurely the Punjab

Police had acted upon the complaint. The court was concerned about

the safety of the citizenry at the hands of such errant &cials being

unchecked and highhanded.

The Supreme Court (the bench consisting of M.N.

Venkatachaliah C.J., Dr.A.S.Anand and S.P.Bharucha JJ.) directed

the CBI for high level investigation into the matter and directed the

state government to ensure all ilssistance to the CBI.

However the Supreme Court made it clear that it would be

free to niake an order for con~pensation when they receive enquiry

reports after four weeks from the CBI with the assistance of state

police.

The action of the Supreme Court is a positive step for

protecting the rights of the p:ople and is a warning to the police

which had to admit custodial disappearance. The Complaint about

the detention and the custody of the seven persons, submitted by the

petitioner had not been record& and registered by the police. They

were lodged in various stations while the petitioners compliant were

pending before the high officials. This is also one of the defect and

loopholes seen in the existing system. If a complaint submitted by

the aggrieved is not registered and no action is taken, how can the

complainant prove that they had already given the complaint before

the officials.

Here the complainant had to approach the very sanie authority

for filing his submission against theni, can be rectified by allowing

the complaint to be plakhed through NHRC.

Next case was entertamed by the court with civil writ

jurisdiction. In Bahlen Balmucl~u v. State of ~ i h a r ' ~ ~ the pebtioner

approached the court for granting compensation in custodial death

allegedly committed by the I'olice officials. Then the court had to

consider whether the court was empowered to grant compensation

while pending criminal case m the trial court and before attaining

finality of the case.

As far as the facts are concerned, three persons namely Udai

S h a m , Wilson Alias Pappu and Jonsin Koro were taken into

custody, in connection with a dacoity and they were subjected to

bmtal attack by iron rod and shouts, resulting in their death. When

the complaint filed by the widow of Wilson and others was not

considered by the police offtci;lls and no action was taken then they

moved the Honorable Supren~e court and the concerned officials

were arrested by the order of that Court. Then a criminal case was

charged against them. Finally they were tried by the Second

Additional Judicial Commissioner. The charges framed against the

accused persons were proved in the court and they were held guilty

and the Court sentenced them to undergo rigorous imprisonment and

to pay a fine of Rs. 20,0001-.

While the case was pending before the sessions court, the

petitioner and others, had already moved, the Apex court and it had

ordered an interim compensation of Rs. 25,0001- and this order had

been carried out except the dependent of the deceased Udai Narayan

as she was not residing at that station at the time of issuing the order

for interim relief. Later she filed a petition before the High court

under Article 226. Then the doubt arose whether the Jh'arkhtind High

court could pass an order for compensation at the stage of disposal

of the criminal case. This was denied on the ground it if the police

officials were found guilty then the petitioner had to approach the

competent court for getting compensation.

Against the refusal to grant a compensation to the petitioner

they approached Supreme Court .The court considered that Criminal

case was passed on 27-3-1996 and the petitioner filed a writ

application on 19-9-1996 and the G.P. failed to file counter against

the order of Additional Sessions Judge, even after it served one niore

copy of the petition on 16-4-2003 as requested by him and expressed

his inability to file counter as he had not received any instruction

from the respondent. After considering the grievous human rights

violation suffered by the victims due to the act of police in the name

of dacoity, and the judicial 'commissioner having held the three

person's gwlty on the basis of post mortem report and deposition of

eye witness, the state council failed to file counter and the right to

file an appeals closed the said judgment deemed to have attained

finality.

It was well settled that in case of contravention of

fundamental right by the state or its agency, compensation could be

awarded under Article 226 of the Constitution of india'". But the

doubt in this case was whether an order of payment of compensation

could be passed at that stage or not. It was found that the order of

Judicial Commissioner had attained finality and in view of the

observation made by this courl in the earlier case relating to it that

after the disposal of criminal case if it was found that aforesaid

persons were murdered by the police officials it would be open to

the petitioners to move for payment of compensation in accordance

with the law. The Petitioner had the right to move this court for

payment of adequate compensltion.

In this case the court clarified that on that fateful day: they

took law in their hands and the Protectors of law became destructors

of law, such an attitude of the iluthorities would engulf the Article 21

of the Constitution and how cl~uld an Indian citizen believe that the

Constitution ensured the right to life and the dignity.

Justice Tapen Sen directed the ~spondents to pay

compensation to the petitioner and fixed the liability by considering

the loss of company of her husband, the mental torture, the feeling of

loneliness and the loss of the care and protection of the head of

kmily from every angle including the welfare of the children needed

and calculated the compensation as Rs10,00000/-. However the

entire amount was to be deposited in the nationalized bank in the

name of the mother and minor children should have no right to

withdraw any part of compensation money till they reached

majority. And the petitioner could withdraw an amount of Rs. 2.5

L'akh and she would be at liberty to take it and in case of marriages

and in the interest of education of their children if they brought

record and furnished proof regarding the requirement to

the concerned bank they could withdraw the amount. Thus the

Petition was allowed with no order as to costs.

It was already proved beyond doubt that death was due to

excesses and abuse of power .As the evidence was weak, as the state

did not seek permission to file an appeal, even after serving a copy

to the G.P. as requested by him, he W e d to fde counter within the

time expressing his inability clue to lakhk of instruction .The court

took a bold step to treat that the decision of the judicial

commissioner attained finality. In the case of threat to fundamental

right due to state atrocities resulting in constitutional torts the

creative attitude of the Suprenle Court would be a welcome step and

help to promote justice to the victim and the legal heirs.

It took 12 to 13 years of delay in getting the compensation for

the violation of fundamental rights by the state ,that was also

because of filing two writ petitions .In the first instance only some

ex-gratia payments were given on the ground of pending case in the

Sessions court .To some extent granting of ex-gratia p'ayments

would be helpful to the victim to meet their immediate expense .

After the incident though the complaints were submitted before the

concerned officials by the legal heirs of the victim only after the

inkwention of the writ court they registered the case and charged for

the wrong against them. In this situation, the purpose of writ court is

admirable.

C) Custodial rape and atrocities against women

Atrocities against women happen because of excesses or

abuse of power by the officers of the state. The Irony lies in the fact

that even though we celebrate international women's year, custodial

violence by the police against women are on the increase. This was

admitted by the police officials in a seminar on 'the role of police in

settling the dispute' conduct~xi by the Institute of Management and

the women were even afraid to approach the court thinking abut the

dficulties they had to fact: in the police station16' This heinous

crime is cruel than murder, mpe reduces a woman to a state of a

living ~orpse..'~' This is the study to see whether tlw state would be

16' The Editorid . The Muthnrbhun ,, Cohin Edition, 2znd January 2004.p.J. '" L.K .Advani .Former Union Home Minista ;luumal qfIndianLrnv InshNre . volume

41,2 1999 viotim of rape and their righi to live p. 222.

liable if the custodial violenu: is committed by the officials of the

state in the course of employment or the present writ court is

&cient to provide remedy with the existing legal system to the

victims of human rights violation.

There are certain instances in which the court took action on

the basis of paper report about the alleged incident of atrocities

against women committed by the agencies of the state, the police.

One such incident happened in Gauhati where the Bodo tribal girls

were raped. In Re a police Gang Rape ofBodo ~ i r l s ' ~ , Justice

Guman Ma1 Lodha of High court severely criticized the role of

district administration particularly the Superintendent of police who

had given a report, and tried to shield the mty. It rejected the

argument of the Advocate geneml that the details of the case were

not established in granting rehabilitation amounts to the victims. The

court clarified that even thou{$ only a fraction of the facts alleged

by the social organization are found correct it is competent and has

jurisdiction to allow rehabilitation grant. In this case.for the

infringement of the honor of the girls, the court granted ex-gratia

payment in the form of compensation for rehabilitating the rape

victim. The Amount awarded by the court were Rs. 25,0001- made to

'69 (1988)l Guwa LR 489,499. See also Annual S w e y of Indian Law 1988;See also Hindicrtan T~mes Jan 26,1988.p.6.

seven victims and Rs. 15,000f- made to two other victims to be

increased to Rs. 25,0001- when the investigation proved that they

were victims and Rs. 10,000/- made to one victim was also

increased later The High Court considered the bonafide help given

by the lawyers, women's organization and others.

The writ court serious1:r considered the plight of the victims

and after conducting summar{ trial it granted interim relief to the

victims, this speedy remedy gven by the writ court should be really

a solakhe to the rape victim. It is also necessary to take steps to

prevent similar crimes in future .For this follow up action is

necessary, so writ court thould institute further proceedings

investigating the allegation of rape by a judicial commission.

The next case reveals how human rights violation against

woman can be caused by the police in different ways. By using

physical and mental torture a married woman was forced to write a

complaint against her husband. In Arvinder Singh Bagga, v. State of

U P . and others,'70 this writ petition was filed for prosecuting the

ening oacials and to grant (:ompensation for the violation of right

to privacy, illegal detention and humiliation The Petitioner was

pressurized by the police officers to write a letter which was dictated

by the police officers and their intention was to abandon her

marriage. She was continuously tortured by the police several days

by using physical force like jolting out ffom sleep, abusing,

threatening and assaulting on her leg with Danda , poking at her

stomach , and hitting on her head . Ultimately they succeeded in

making her write the letter as dictated by them and those contents

were incorporated by the investigating officer in his case diary as her

own statementunder section 16:1 of Cr. P. C.

When the petition filed by Nidhi for illegal detention and

harassment of the petitioner by ihe police officers, after bringing her

before the Magistmte, she was again brought into the station

violating the order of Magistrate: to take her to the Nari Niketan. She

was threatened that if she did not make her statement accord~ngly

she would not be spared by them and so she went through a

miserable time during those days and reminded her of the

consequences she would have to face if she cultivated enmity with

the police and the torture contimled up to 29-7-93.

The writ court found tllat a good work was done by the

district judge by conducting a thorough enquiry and also taking

evidence from witnesses to arrive at the truth. This court found the

report as a fair one and de~erved to be accepted. The report

concluded: that she was tortured to abandon her marriage with

Chamnjit Singh Bagga which had been duly performed in &a

Smj Bhoor and had been duly registered in the ofice of the

Registrar of Hindu Marriages under the U.P. Hindu Maniage

Registration Rules, 1973 framed by the Governor in exercise of the

powers conferred by section 8 of the Hindu Marriage Act, 1955. She

was made to write a statement as commanded by J.C. Upadhyay

S.H.O. and Sukhpal Singh SSI on 26-7-93 which was reproduced by

the LO. in the case dialy as her statement under Section 161, Cr. P.

C. The physical and mental to~ture meted out to Nidhi on 24th and

25th July' 1993 by J.C. Upadlyay S.H.O., Sukhpal Singh and SSI

and Narendrapal Singh S.I. but on 26-7-93 it was done by only J.C.

Upadhyay S.H.O. and Sukhpal Singh and there was no participation

of K.C. Tyagi LO. in the t o m e and harassment dated 24th25th and

26-7-93 ."

On perusal of the repon the Court directed the state of Uttar

Pradesh to take steps to conduct prosecution against the police

officers involved in the alleged crime and directed the state to pay

compensation of Rs. 10,0001- to Nidhi Rs. 10,0001- to Charanjit

Singh Bagga and Rs. 5,0001- to each other persons who were

illegally detained and humiliated for no fault of theirs. The Court

also directed to recover the amount of compensation from the

concerned police officers.

When threats proceeded from a person in Authority and that

too by a police officer the nlental torture caused by it would be

graver This clearly brings out not only the high-handedness of the

police but also the uncivil~zed behavior of the police. After

conducting a lawful marriage the police oficers interfered in their

right to privacy. Here the police man, committed a breach of duty by

taking her to the police station instead of sending her to Nari

Nikethan. and caused mental and physical pain, and interfered in the

right of privacy etc which amounted to human rights violation by the

state. If it was proved beyond doubt the court would have taken

action against the concernecl official without waiting for getting

permission for conducting prosecution against the concerned police

officials. While determining liability of the state, the writ court

would have determined the liability of the individual erring officials

also, such a procedure woulcl help to save the time of the court as

well as save the financial stability of the state also. In the case of

atrocities against women, if ihere is clear proof there is no need of

waiting to get sanction from the department to take action against the

officials. Breach of duty of the official by not complying with the

order of the Magistrate is clear. The writ court expressed that by

relying the report submitted by the judge, it could have taken action

against the officials. In the case of constitutionaj torts compensation

must be according to the responsibility for the damage committed by

each person.

The next case deals mith the pathetic plight of six domestic

servants who were subjected to indecent sexual assault and rape by

seven army personnel while they were in a moving train.In Delhr

Domestic Working ClTomenS Forum. v. llnion of India and others "' a public interest litigation was brought before the bench consisting

of M.N. Venkatachaliah ,C.J, and S.Mohan and S.B.Majmudar ,J.J.It

invoked under the provisions of Article 32 and 21 of the constitution

at the instance of the petitioners forum . While these domestic

servants were travelling in the Muri Express on 10-2-1993 from

Ranchi to Delhi and while the Express was at Khurja Railway

station, some army men came there and began to tease, and later

they were raped by these army men. However the amly men

involved in this alleged crime was caught, when the train stopped at

the New Delhi railway station.

The members of the petitioner forum went in group and they

were helpless tribal women belonging to the state of Bihar. This

court felt the need of speedy trial in this matter and so issued notice

to the respondents. Only two of the accused were identified and

Naresh singh and Constable Shiv Satup Singh were arrested as they

were on guard duty in this Express at the time of the incident and

failed to provide necessary protection to the tribal women who were

the victims.

In this case the court expressed the defects of the existing

system that the complaints are handled roughly and are not given the

attention as warranted .The victims are humiliated by the police and

they faced the tramx~tic experience and prolonged psychological

stress during the time of trial and it would be worse than the rape.

By considering all thes: aspects the Court issued direction to

the Union of India and the state government to evolve a scheme in

this line Assisting the victim with legal representative to assist them

in the police station and in the court, mind counseling and medical

assistance, and providing legal assistance while she was being

questioned, and the police should be under a duty to inform the

v i a m of his right to representation, and prepare a list of advocates

willing to act in such cases sl~ould be kept at the police station, the

Advocate should be appointed by the court, and anonymity of the

victim should be maintained. A criminal Injuries compensation

Board is to be set up. So that the victim who had suffered substantial

financial loss and those who were traumatized to continue in

employment, compensation could be awarded to the victim whether

or not conviction had taken plakhe. The Criminal Injuries

Compensation Board must tme into consideration the loss, pain,

suffering, shock, loss from the earning due to pregnancy, and the

expense of the child.

The only remedy provided by the writ court was that it issued

direction to third respondents lo evolve scheme to wipe out the tears

of the victims and to imp1emt:nt the scheme by the Union of India

.But in this case the court failed to grant compensation to the victims

of human rights violation. This gross human rights violation was

committed by the army men and it was clearly proved beyond doubt.

This incident occurred while they were travelling in the Express

train; it shows the negligence of the guard in protecting the travellers

from the criminals .If the ordinary principle of vicarious liability was

applied in this case the state would be liable for this human rights

violation. Even though there is no suff~cient law to protect the rights

of rape victim, the writ court would have applied the ordinary

vicarious liability principle to determine the liability of the state.

In Vishaka &others v. State of Rajasthan a writ petition

had been filed to enforce the fundamental rights of working women

under Article 14, 19 and 21 of the constitution, to prevent sexual

harassment in all working plakhes and to make necessary legislation

for the protection of women. In this case, the petitioner wanted to lay

AIR 1997 SC 301 1.

down some guidelines for the protection of working women and to

eradicate this social evil.

This case was brought before the Supreme Cowl (bench

consisting of J.S. Verma. C.J. Mrs. Sujata V. Manohar and B.N.

Kirpal .J.J.) to focus the attention towards the societal abenation and

sexual harassment of worki~ig women. The cause for filing this

petition was due to the alleged brutal gang rape of a social worker in

the village of Rajasthan and after that willful delay in investigation

and prosecution of the suspected rapists.

In this case it was contended that it was an accepted rule of

judicial construction that regad must be paid to the international

conventions and norms for c:onstructing the doniestic law. In the

absence of domestic law :o check the social evil of sexual

harassment of working women at the work plakhe and to take

effective measures, an international convention consistent with

fundamental rights and in harmony with the spirit must be read into

the provision to enlarge the mecaning and content of the

constitutional guarantee, it is necessary to formulate law in the light

of international conventions and norms can be used for the guarantee

of gender equality ,right to work with human dignity under Article

14,15.19 (1) (g) and 21 of the Constitution and the safeguards

against semi hamssment which is implicit in Article 51(c) and this

enabling power of the Parliament to enact laws for implementing the

international conventions and norms by virtue of Article 253 read

with entry 14 of Union list in the seventh schedule of constitution. It

is the enabling provision which provides for the promotion of

international peace and securrty which would endeavour to foster

respect for international law and treaty obligation in the dealings of

organized people with one another. Article 253 provides for making

legislation to give effect to the international agreement The seventh

schedule of union list 14 provides for entering into treaties and

agreements with foreign countries and implementation of treaties

and agreements and conventio~is with foreign countries.

This writ petition w.is filed under Article 32 of the

Constitution for the enforcement of fundamental right under Article

14, 19 and 21 of the Constitution of India .The present action was

also brought by social activists and N.G.O's focusing all attention

towards the social aberrations and to prevent sexual harassment

.Immediate cause for filing thts petition was an incident of alleged

brutal gang rape of a soclal worker in a village of Rajasthan This

was to invite the urgency for an alternative mechanism in the

absence of legislative mechan~sm. So this case reveals the lakhk of

alternative mechanism. The Union of India gave its consent through

the Solicitor General indicating that there should be guidelines and

nornis declared by the court to govern the behavioun of employers

and all others at the workplakhe to curt, this evil. So the international

conventions and norms have a great significance in the formulation

of guidelines to achieve this purpose.

(1) It shall be the du@ of the employer to prevent sexual

harassment

(2) Deals with definition

(3) To take preventive measures

(4) Criminal proceeding

(5) Disciplinary action

(6) Complaint mechanisjn

(7) Complaint committer:

(8) Working mechanism

(9) Awareness

(10) Third pa@ harassment

(1 1 ) The Central and the state governments are reqwred to

take slutable measures including legislation

(12) These gtlidelines will not prejudice human rights

protection act 1993

The Supreme court dire~~ted h t guidelines and norms would

be strictly observed in all workplakhe for the preservation of their

rights and to enforce guarantee 3f equality.

According to the convention on the Elimination of All Forms

of Discrimination against women, the state parties had to take

appropriate measure to elimnate discrimination. At the fourth

conference on women in Beijing, the Government of India had made

an official commitment to formulate a national policy on women .So

in the absence of domestic laws, regard must be had to these

international conventions and norms.

The court referred Nilebati and concluded that there is no

reason why these international conventions and norms cannot be

used for construing fundamental rights expressly guaranteed in the

constitution which embody the basic rights of the people.

In this case the Apex court directed the Union of India. to

appoint, in consultation with the women's group and individuals as

well as lawyers, a committee headed by the NCW, to prepare and

submit guidelines for the prevention of sexual harassment and abuse

of women's right. The Court dso laid down certain guidelines and

norms to be followed by the employer in the work plakhe.

A suitable legislation is required to protect the rights of the

women to live with dignity and to compensate the victim by taking

steps, to strengthen and ensure the fundamental right to life and

liberty of women. The wm had given directions to the centml

government and the state government to follow certain guidelines

and norms to be observed in all work plakhe to protect the rights of

working women.

Here the petitioner sousht relief only to enact law to protect

the rights of working women in the light of international law but the

court would have enquired into the reason for filing the suit and

would have given remedy to her. Being a social worker she was

denied to exercise her right under Article 19 (1) (g) of the

constitution. The court did rtot go into the cause of it because a

criminal case linking to this was pending in the session's court. This

type of gross hunm rights ~iolation against women musl be dealt

with special human rights courts, having the power of sessions and

civil court. This serious offence of violating the honesty and dignity

of the social worker is committed against the society infringing the

guaranteed right of Article 2 1 of the constitution.

P.Rathina .v.Clnion ofIndia and others"3 facts of the case is

that Kalpana Sumathi was taken into custody in comection with the

kidnapping of a relative, she was stripped naked by the police before

the crowd and subsequently was mped by several persons in the

cabin of a truck when it was rerouted to the local police station.

"' 1989Supp(2) SCC 716.

The Writ petition ( befo~e the bench consisting of Ranganath

Misra and M.N.VenkatacMiah ,J.J) filed indicated that four of the

police officers of different grades involved in the incident of rape

had been suspended and taken ~nto custody and are being proceeded

against The learned counsel informed that as soon as investigation

was over and the case was found out the charge sheet should be

submined without delay. Their bail was cancelled by the High Court

and the Court directed to the state government to pay an interim

compensation of Rs.20,0001- to the victim Kalpana Sumathi as she

had to face physical and mental suffering due to custodial rape. In

this case doubt arose whether she was entitled to claim for further

sum and the court disposed 06 the suit by directing the victim to

apply to this court after the criminal trial reaches finality.

This humanitarian decis~on of the court is commendable as it

had taken into consideration the sufferings of the victim while

imposing punishment to the accused. If the same court had

conducted the trial and determined the compensation the court could

have saved its precious time. So we have to establish and develop

the functioning of the judiciary in such a way as to deal with the

civil and criminal cases of human rights violation in one m'bunal.

The next case is civil appeal from the judgment and order of

Calcutta High Court in W.P before the Supreme Court. Chairman,

Rallway Board. 1. Mrs Chandrima Das and was brought

before the bench consisting of S.Saghir Ahmad &R.P.Sethi,JJ. MIS

Chadrinu Das a pract~cing advacate filed this petition under Article

226 of the Constitution against the Chairman, Railway Board. and

others claiming several relief's including direction to the respondent

to eradicate anti-social and cruninal activities at Howrah Railway

station and claiming compensation from the Central government to

Smt. Hanuffa Khatoon a Bangladeshi National who was gang raped

by the employees in the building of Railways.

She ,an elected represer~tative of the Union board, arrived at

Howrah station on 26 the Feb 1998 at about 14 hours to avail

express. As she had only a wait listed ticket, the train ticket

examiner asked her to wait in the ladies waiting room. On being

certit3ed by the lady attendants engaged on duty at the ladies waiting

room, she accompanied railway staff to Yathri Niwas and then to the

rented room where she was raped by these employees.

On the basis of the above facts the High Court awarded a sun1

of RslO lakhks as compensation to Hanufa Khatoon as the rape was

at the building of Yathri Nivar belonging to the Railways and was

perpetrated by the railway employees.

AIR 2000 SC 988.

The Apex court made a distinction between public law and

private law. Under Article 220 of the Constitution the High Court

has been given power and jurisdiction to issue appropriate action for

the enforcement of the Fundamental rights. So the High Court has

jurisdiction not only to grant relief for the breach of enforcement of

fundamental rights but also to enforce any other legal rights

including the enforcement of public duties by Public bodies.

In this case the conter~tion raised was that if Smt.Hanuffa

Khatoon had approached the c:ivil court for damages and the matter

had not been considered in a petition under Article226 of the

constitution could not be accepted. Where public law functionaries

are invoked and the matler relates to the violation of the

Fundamental right or enforct:ment of duties by public bo&es the

remedy would still be available under public law notwithstanding

that a suit could be filed for damages under private law. It is not a

matter of violation of an or- right of a person but the violation

of the Fundamental rights which is involved.

The question whether the state is bound to protect non -

citizens was decided in the light UDHR, the declaration of protection

of human dignity and the Declalation on the Elimination of Violence

against Women. This has to be respected by all the signatories and

has to be read into if need be even into the domestic laws. The court

175 . referred Anwar v. .state of J&k ~n which'it was held that Article

20,21 and 22 are available not only against the citizen but also

against the noncitizen and these are in consonance with the Article

3 ,7 9 of the UDHR 1948. According to which not only the citizen

but also the tourist even though she is a foreigner is entitled to enjoy

right to life and so state is under an obligation to protect the life of

every citizen in the country. In a welfare state, the theory of

sovereign power pronounced in Kasthurilal is no longer applicable

and besides these running railways is a commercial activity which

provides lodging and boarding .facilities to passengers on payrllent of

charges. If any activity of tort is committed by the employees, the

railways would be vicariously llable for the act. So the court directed

the Union of India that the amount of conlpensation shall be made

over to the High Commissioner for Bangladesh in India for payment

to the victim Hanuffa Khatoon.

Here the court had to consider several points relating to

jurisdiction of the court, app1ic;ition of international laws, protection

of the rights of noncitizen and the theory of sovereign immunity of

the state in case of determining: the liability of the state. If the writ

court is doubtful about the application of international law of which

India is a signatory what is the use of becoming a signatory lo that

"' AIR 1971 SC 337

convention or W t y ? In that case by taking into consideration the

difficulty the writ court could have given direction to the

government to include those kiws into the domestic laws. Nex? doubt

was regarding the theory of sovereign immunity. in this case also the

court considered that incident happened in the railway's house,

railway conducts commercial function and not the sovereign

function so the activity cannot be equated to sovereign function.It

shows that even in the year 2000 writ court is doubtful about the

application of sovereign imrnunity even in case of gross human

rights violation. This system has to be modified to determine state

liability and also for giving adequate remedy by the writ court.

There are certain instances where mere allegation may be

made against the investigating officers. While conducting

investigation, the chances of interference with the rights of the

citizen are common. The first point the court has to consider whether

the wrong was committed while exercising their duty it was

committed in the course of it then the next question is whether

officials exceeded the power or not. Such an incident happened in

Rajasthnn Kisan Sangthan 1,. where in the Police went to

the village in search of persons escaped from prison.

AIR 1989 Raj. 10

A letter written by Srilatha district president of mjasthan

Kisan Sangatahn addressed to the Chief Justice was treated as writ.

The cause of action is that police took several persons including two

women into custody, detained them unlawfdly tortured and

committed rape on these ladios and the police allegedly destroyed

their house and crops. She prayed to appoint a conipetent person, to

enquire into this incident, and claimed suitable compensation for

this. The Administrative authorities admitted that they had

conducted an operation there:, in search of one Ramachader and

others, who had escaped from. jail. Doctor, said that the victim had

not nmde any complaint of rape during the time of treatment and

complainants were the mother and the sister of Ran~achander.

It is natml that the police have to investigate the prisoner

those escaped from the prison and they were doing their duty. There

was no medical evidence to prove that police officers had committed

rape. Here the only thing the court had to consider was that whether

these officers had exceeded the power while exercising their duty

.This can be gathered only by conducting enquiry into the allegation.

The court ( bench consisting of S.N. Bhargave and G.K.

S h a m JJ,) entrusted the Commissioner of that region to conduct

local investigation r e m n g the allegation of destruction of their

huts and crops .It also made it clear that if the allegation is found

genuine the victims of police atrocities should be compensated by

the state. The court referred the cases like Sunil Batra ,Rudul Sah

,Sebastian Hongrqy ,Bhing Singh ,iZ%C.Mehta etc where the

compensation was granted in case of violation of fundamental rights

committed by the state.

If there is any illegality or inaction on the part of the

investigating officer and the victim approach the court, such a matter

to be investigated as early as possible to provide immediate remedy

to the victim. Such maltreatment would affect the human right and

dignity. Such a decision would ensure confidence among the people

about the judiciary and the legal system. The custodial torture of the

women can be prevented by recruiting the investigating officers with

good moral character.The Victim must be provided with financial

assistance for medical treatment and engage non-governmental

organization to conduct case, on behalf of them. Lakhk of human

rights awareness among the citizen is the main cause of such

atmcities. Even though directions are issued by the writ this is

seriously considered or follow up action is not taken to see whether

it is properly implemented or not. In most cases women victims aie

not a party to the suit. Establishment of women police station can

prevent human rights violation against wonien.

d) Custodial torture

Most of the cases relaling to custodial death were due to

torture and gross human rights violation committed by the

enforcement agencies. While fixing the liability this is considered as

one of the grounds for fixing the liability.

In Shheli V. (:ommissioner of ~olice'", while fixing t l ~

liability the court considered the torture suffered by the petitioner

and her son. Death was also clue to torture. In most of the cases

custodial torture ends in death. Here a seven year old boy and his

mother were tortured before taken to custody. Khatri 17. state of

~ihar'" is the best example for custodial torture. This writ petition

against the state of Bihar was for the violation of the fimddamental

right g u m t e e d under Articlt: 21 of the Constitution. The issue

sought before the court was whether the state had been entitled to

claim the privilege of disclosure of docunients with respect to the

investigation report of blinding of prisoners.

The Prisoners in Bhagdpur prison alleged that they were

blinded by the members of the police, after their arrest. When the

matter was under investigation the attorney Geneml contended thaf

the state could not be held liable to pay compensation if the police

officers acted beyond the course of employment and the law.

The Supreme court (Bench consisting of Justice P.N.

Bhagawati and Bahanll Islam J.J )said h i t the issue was main@

relating to how, in what manner and by whom the under trail

prisoners were blinded and which police officer was directed to

blind prisoners by the state government etc were the relevant rnaners

in this case so the state could not resist the production of such report

before the court.

The Court observed that the argument of the attorney

General threatened that there was no guarantee of the fundamental

right under Article 21. The interpretation went in such a way that if

the officer was acting within the law provided under Article 2 1 there

would be no breach of law and if the officer exceeds his power it

was outside the law so state was not responsible. Then the doubt

arose about the purpose of Article 32 in case of violation of the

fundamental rights of the citizen. If the Court permitted such an

attitude of the state it would affect the dignity of the court itself. In

this case the court criticizeti the attitude of the state even after

violating the rights of the citizen. The Court took a revolutionary

step to promote human rights jurisprudence if the court failed to

protect the guaranteed right it would be denial of justice and article

21 would be reduced to null@ and would become a mere rope of

sand and the court declined to aIlow immunity in case of human

rights violation. In this case tht: state was held liable for blinding the

prisoners in Bhagalpur by its prison officials. This inhuman act was

treated as violation of the fundamental right to life guaranteed under

Article 21 of the Constitution. The Supreme Court also directed the

state of Bihar to provide thcm the best treatment at state cost.

Therefore the blinded prisoner; were sent to the All India Institute of

Medical Sciences, New Delhi, for granting Medical relief at state

cost.

In this case the court considered the suffering of the prisoners

due to the inhuman and blood(:urdling attitude of the agencies of the

state and applied compensatoyr jurisprudence.

e) Illegal arrest and detentxon

In Aryendra Nath Gupta v .,State ofMegahalqya and others"9

this writ petition had made a prayer for declaring the arrest and

detention for the period from :!Oth to 29* Januaq 1997 as illegal and

praying for the direction on the respondents to grant Rs 2lakhs and

RslLakh for the suffering of the members of his fanlily n~embers.

However he was released on bail on 29th January 1997 In vlew of

the reglstrauon of the cast. against the petitioner, the central

government class 1 employee was suspended from service as he

could not come out on bail within 48 hours and he suffered both

financial and otherwise during his custody period. Though the

charge sheet filed against him was dropped, the mtioner was tried

for the rest of the offence and later on he was acquitted. The

petitioner filed a writ petition for malicious prosecution .When sued

it was resisted on the ground that it was not miintainable as there

was alternative remedy available in criminal procedure code for

taking action for Section 250 which deals with provision for

accusation without reasonable cause and section 21 1 of the IPC also

provided to institute any proceeding against the person who took

action of false charge was made As there was an alternative remedy

for it, writ court could not entertain while exercising its jurisdiction

under Article 226 of the constitution and so the writ petition was

dismissed.

There are a number of cases which deals with remedy granted

for illegal detention of enforcement agencies, out of which Rudul

Shah .v. State of ~ihar'" discloses the way the state disturbs the

rights of citizens. In this case lhe petitioner brought the writ petition

before the bench consisting of Y.V. Chandrachud .C.J, Amarendm

Nath Sen and Ranganath Msra,J.J, he stated in it that he had

already completed his sentence and the prison officials did not take

care to release him. He was kept in illegal incarceration for many

AIR 1983 S.C.1086.

years. When the petitioner approached the court the state contended

that even though he was acquitted by Sessions Court, he was

illegally detained in jail for a period of fourteen years on the ground

of insanity. But the jailor could not produce evidence before the

court to show that he was insme at the time of detention. When the

petition came before the court he was already released and the writ

petition became infractuous even then the court interfered to show

the reason for his illegal d~:tention and why he was not given

compensation for the infringement of his fundamental right to

freedom.

The 'ivil surgeon cenified that he was normal at the time of

acquittal. The Jailor couid not give any sufficient reason for his

detention and so his detention in jail was wholly unjustified. Even

insane persons have got statutoly right to be produced for trial.

AAer going though the injustice shown by the jail authorities

the court wanted to r e c w it by exercising the power under Article

32 of the constitution. Accortling to the version of writ court money

claim could be instituted in a lowest competent court. But here in

this case the petitioner had been detained in the prison for a period of

fourteen years after his acquittal. He contended for getting

compensation for the illegal detention.

The Writ court expressed that if the claim was not given by

this court if the facts of the cas: was controversial in nature and then

the claim may or may not upheld .Then it would be denial of the

guamteed right provided in Article 21. Taking into consideration of

all these things the Court arolved a new remedy of providing

compensation to the victim of tortious acts done by the government

during savereign functions and issued a direction to the State of

Bihar to award appropriate t:ompensation and denial of justice

amount to mere lip service reg'vding fundanlental right. So the state

was directed to pay Rs. 30,0001- in addition to Rs. 5,0001- and alsb

clarified that this order would not preclude the petitioner from

claiming compensation from the civil court. The Writ court made an

innovatory step to promote human rights jurisprudence.

In this case ChandraChud C.J .clearly expressed that even

though our precious rights guaranteed under Article 21 have been

violated by the instrumentalities of the state, due to their unlawful

act in the name of public interest, the only method available to the

court is to apply compensatory justice to the victim. In this landmark

case, the court without refening the sovereign immunily, explained

the need of respecting the fundamental right in a democratic country.

After going through all these facts and evidence, it is not fair

on the part of the writ court, to tell the petitioner to approach the

civil court for getting damages for the injury suffered by him. Here

the writ court expressed that this order did not preclude him from

claiming compensation from civil court. Actually this would result

in resjudicata and time consuming. This happens because of the

lakhk of law or uncertainty of law in this line. The Writ court can

serve its purpose only if i: takes immediate action in case of

emergency to prevent human rights violation. To get justice the

aggrieved has to surmount two hurdles. This must be avoided by

finding out alternative remedy to the victin~ of human rights

violation by state.In my opinion; only the writ court can serve the

purpose of giving immediiite remedy to the victim. The Main

purpose of the writ court must be to protect the life of a person in

danger and only urgent c a w must be dealt with in the writ court

then only court can give immediate remedy.

Shri Pranab Jyothi ~Gogi 1,. State of ~ s s a n ~ " ' . This writ of

Habeas wrpus petition dated 18-3-1991 was filed by Dhruba Jyothei

Petitioner, for the illegal arrest and detention of his brother by an

army personnel on 17-3-1519 1. This petition became infractuous as

he died in the custody of the army authority on 19-3-1991. before

delivering the court order on 20-3-1991. The purpose of the writ

itself was defeated due to the delay, in deciding the case. This could

have been avoided if immediatl: steps were taken by the writ court.

Inder Singh. v. State c?f Punjah and others'x" ,is was a

habeas corpus petition to secure the release of the seven persons

abducted by the senior police officer and other police men by using

the official machinery. In this case the police officers admitted that

crime was committed by the Deputy Superintendent and his

accomplice. In this case also ii'the official had taken immediate step

to release the persons taken into custody the crime would have been

prevented.

Bhim Siningh .v. State o j J and K. and others"', a member of

legislative Assembly of Jarmnu &Kashmir was arrested and not

produced before the magistrate. within the requisite time and was

prevented from attending the session of the legislative Assembly.

This writ petition by his wife was to declare his detention as illegal

and to set him free. When the court directed to produce the petitioner

before the court he was released on bail on September 16, 1985 by

the Sessions Judge. He then fiied an affidavit that he was unlawfully

detained in the lock-up from 10" September to 14" .September

1985.

'" AIR 1995 SC312. 18) AIR 1986 SC494.

Defence of the state wi~s that a case was registered against

him on 9b September 1985 in connection with an inflammatory

speech made at a public meeting on Sep8th 1985and so requisition

for arrest was sent from the control room on SeplOth 1985.

From the evidence it was made clear that even before

receiving information about the case registered against him the

officer in charge of the police station had instructed to arrest him.

Application of remand order and the endorsement of these officers

reveal that without producing him before the migistrate the police

got remand order from the Magistrate and the Sub Judge. Further

subniission of remand for two days was on the ground of illness of

the accused. Bhim singh denied the fact that he was examined by a

doctor. In a case relating to illegal detention and arrest, the affidavit

of the officer who arrested, officer in charge of the police station, is

essential and inevitable but this was not produced before the cowt

Bhim Singh was not produced before the nugistrate and sub judge

and the application was brought before them after the office hours at

their residence. Officers who granted remand was not bothered

whether the person whom they were renicanding to custody had been

produced before them. The police officers. acted deliberately.

maliciously, and the Magistrate and the Sub-Judge aided them. The

Police were alerted to arrest hini and to prevent hini from proceeding

to attend the Session of the Legislative Assembly. All these incidents

reveal the high handedness oi' the police in the citizens guaranteed

rights. The Supreme Court was shocked when it learnt that a

member of legislative assernbly of Jamnlu and Kashmir was

wrongfully arrested with the sole object of stopping him from

attending the Session.

The Court referred Rudul L ~ h ' 8 4 , and Sebashnn M.

~ o n ~ r a ~ v ' * ~ , while determining the compensation. When a person

approaches the court with a complaint that he had been arrested and

imprisoned with mischievouc or malicious intent and that his

constitutional and legal rights were ~nvaded, the mischief or malice

and the invasion may not be washed away or wished away by his

being set free. In appropriate cases the court has the jurisdiction to

compensate the victim by awarding suitable monetary compensation.

The Court directed the State of Jammu and Kashrnir to pay Shri

Bhim Singh a sum of Rs. 50,0001- within two months.

If the constitubonal nght of a member of the

legislative Assenibly was denied due to the excesses of the police

officer and negligence of the magistrate and Judge, what would be

the position of a common cibzen? In this case the court referred

lS4 Supra note49 Seep..38

Sebastian Hongray in which the court had stated the need of

implementing international conventions in India. Otherwise there

was a chance of flouting the law by the officials with power. In the

case of writ petition if the court found that enforcement agencies

failed to comply with directions issued, it was necessary to issue an

order to release the person as early as possible to avoid human rights

violation otherwise it would defeat the purpose and at the same time

the court must take contempt proceeding against the alleged police

officers and there was no need for departmental enquiry to take

action against it because every thing could be proved on the basis of

documentary evidence. These directions evolved from the Article 21

and 22 (2) of the constitution if the officers complied with the

constitutional provision there was no need of further directions by

the court. These reveal the 1ak)lk of enforcement machinery to insist

the machinery to comply with this provision.

The Apex court treated it as a gross violation of fundamental

right under Article 2 1 and 22 and awarded Rs. 50.0001- as

compensation to the detained ImA. Any order of release was of no

meaning for Mr Bhin~ Singh because he had been already released.

Therefore to safeguard the civil liberties. an order of this m t ~ u e for

giving lesson to the state was given so that their employees do not

conunit tortious acts in the name of sovereignty.

There were a number of cases relating to the arrest and illegal

detention and in all these casc:s the court found that if proper and

immediate action was taken or preventive measures were taken as

early as possible this could have been avoided. In most of the cases.

the petition relating to Habeas Corpus ended in victim's death. Only

in certain cases the court took action against the alleged officers. The

direction issued by the cowl and its con~pliance must make it

mandatory. It is necessq to strengthen the administrative

machinery to be active in accordance with the direction of the court

otherwise it would be impossible to prevent custodial torture and

custodial deaths .Day today pmceedings and directions should be

published in the department then only officials would be familiar

with the directions of the cowt.

f). Not protecting the rights of citizens during riots.

If the police failed to protect the citizens <and their property

from the rioters, this breach of duty by the police, amount to human

rights violation. In India al~;vays such an attitude invites criticism

from the media and the public. Anti social elements exploited the

situation by looting and plunder and so the courts made the state

responsible for the acts and misfeasance or any harm caused to the

victim. In some cases the agencies of the state, the police itself were

involved in the looting and firing and the police firing may cause

loss to life of innocent people and damage their property and violate

the nght guaranteed under Article 21. Now let us see the remedy

provided by the writ court in cases of riot.

R.Gandhi and others .I*. Union of India and another'*. the

report gave a graphic description of the extent of the injuries

inflicted on the members of the Sikh Comn~unity in Coinlbatore

during the assassination of fornler Prime Minister Indira Ghadhi,

with reference to their properties and seriously affecting their

business and avocation besides causing damage to their plakhe of

worship. These incidents violaled the fundamental rights p ~ m n t e e d

under Article 14, 19 (I) (e) and (g) and Article 21 of the constitution.

They were deprived of the constitutional protection guaranteed

under Article 300 (A) of the Constitution of India. It was the

bounden duty of the state in the interests of secularism to give

speedy aid to the affected persons and to rehabilitate them in a

substantial measure. Article 38 of the constitution says that the state

was bound to promote the welfare of the people by securing and

protecting as effectively as it may maintain social order in which

justice. social, economic and political interests of all the institutions

of the National Life. So the petitioner prayed to issue a writ of

mandamus and give direction to appoint a conimission consisting of

'"AIR 1989 Mad 205

district judge, a competent technical personnel to report on the

incidents which took plakhe on 31st October 1984. The Collector

conducted an enquiry and submined a report on 11 -2-1 985 and the

total amount of compensatior~ was recommended for Rs.33,19,033/-.

The Petitioner contended that there was total failure of law and order

in the state and the state was under a constitutional duty to

compensate the victim 3 1" day was a blaMtk day whiiclt witnessed

the brutal assassination of the Father of our nation. The same way

the assassination of Indim Gandhi by her own body =rds who

belonged to the Sikh comniunity sent a shock wave among the

people. The members of the Sikh comnlunity who stood in danger of

annihilation and the state fiiiled to give protection to them. If a

public wrong or public injury committed by the act or omission of

the state or public authority which was contrary to the constitution or

the law any member of the public acting bonafide and having

sufficient interest could maintain an action for redress of such public

wrong or public injury. Tht: members of the Sikh community in

Coimbatore, socially in ;I disadvantaged position formed a

microscopic minority, who had been the target of attack for no fault

of their own but this was due to the sudden outburst of enlotion.

Miss Geetha Ranlaseshan had stated in her report the truth of

averments that a fire raged for three days and the fire engine did not

come there and after three ciays when the fire engine came, they

found it dimcult to operate clue to stone throwing by the mob and

due to the inefficiency of tht: police action, there had been virtual

breakdown of law and order. Mecanwhile the collector had calculated

the compensation which was not challenged by anybody and so the

state of Tamil Nadu was bound to pay conlpensation to the victims

as assessed and recommended by a senior official. Instead of it the

government of Tamil Nadu issued G.O. Ms No 913 dated 29-4-1986

awarding ex-gmtia payment of a beggarly amount of Rs. 7501- to

each of the twenty persons affected in the Coimbatore riots who

however refused to receive the payment. The State of Tamil Nadu

Wed to carry out its function of enforcing public order and ihey

treated the victim of its own lapse as beggars with bowl for alms.

The court cmed that it was not charity but the legal re-

compensation for the wrong done to them for the injuries inflicted on

them on account of the breakdown of the governmental machinery.

So that the state of Tamil Nadu could not shirk its responsibility for

those unfortunate happenings or try to escape from its obligation as a

social welfare state to make s~dtable amends. The Court issued a writ

of mandamus directing the stilte of Tamil Nadu to pay compensation

to the victims of the Coimbatcre riot strictly as per the report of the

collector of Coimbatore dated 11-2-1985 in the sum of Rupees as

assessed by the collector.

In this case the court also observed that if the fundamental

rights were guaranteed in the constitution to the people of India they

were not allowed to remain as paper promise or fleeting promise but

if it had a plakhe in the constitution the court must try to bring all the

activities of the instrumentalities of the state subject to it. The Court

observed that as and when the life and property was taken away by

any individual or organization a duty was cast upon the state

representing the will of the people to compensate the victim by

granting adequate compensation.

In this case the court o\)served that "Under Article 300(A) of

the constitution no person should be deprived of his property save by

authority of law and to allow his properties to be reduced to ashes by

the force of darkness and evil c:onstitution. The members of the Sikh

community an integral part of Indian society had the right to settle

down in Coimbatore and cany on their profession. They had the

constitutional right to live and could not be deprived of their means

of livelihood. Their right to property was inviolable. All these

constitutional rights of the Sikh's and a few members of the other

communities had been flagranlly violated due to the imction of the

law enforcing authorities. These unfortunate victims of arson and

violence were therefore entitled to seek reasonable conipensation

from the state of Tamil Nadu, which had failed in its duty to protect

their wnstitutional and legal rights".

In M/S Inder Puri General Stove and others v. Union oflndia

and an~ther'~'writ petition filed by the members of the Sikh

community ,who suffered loss of property in the unfortunate

communal riot which took plakhe in the holy city of Janinlu in 1989

for compensation by the statt: for the loss suffered by them. Here

there was no abuse or misuse of power and there was no question of

torture and illegal detention 'arrest but the rioters caused untold

miseries to the people. A cor~lmittee was appointed by the state to

assess and determine the loss juffered by each victim. This case was

heard by Justice R.P. Sethi J he stated that Article 21 provides that

no person shall be deprived clf his life and liberty except according

to the procedure establishecl by law. This guarantees the most

essential rights enshrined in Part 111 of the Constitution. This Article

is the limitation on the power:; of the executive. As and when the life

and property of the person is deprived a duty is cast on the state

representing people to compensate the victim. Here deprivation of

right to livelihood happene* because of the lakhk of adequate

"'AIR 1992 J&K 11.

protection to that community and the required security arrangenlents.

It was the responsibility of the state to maintain law and order and

the state failed to provide the requisite protection. The State was

under an obligation to compensate the victim of riot. The quantum of

compensation was determined by the Collector of Coimbatore.

In this case the court liad to refer to a number of cases in

deciding this case to compensate the victims of riot. This was

because of vagueness in shaping the law relating to the liability of

the state.

In P. P:Kapoor and othcrs v. Union ~ f / n c l a ' ~ ~ , a writ petition

filed under Article 226 of the constitution by two advocates after the

Mandal riot based on Oct0~3er 1990. The Police firing on the

unamled students was illegal and Devikumar was killed in that

incident. After the shot students were not provided transport to the

hospital by the police and asked Rs. 5 Lakhs as compensation for the

death of Adhithya Narayan aged 15 years . In this case the court

clarIfied that excessive use of force could be arbitrary and even

resulted in violation of Articlt: 21 of the constitution. In this case the

court made a ~ l a ~ c a t i o n that one wrongdoer could not be benefited

from other pany's wrong so ;IS to lead one to believe that the use of

excessive force was malafide. Here in this incident Devikumar was

part of the armed crowd and it. was the duty of the police to prevent

the crowd from using the excessive use of force and damage the law

and order in the state howeveir in this case the wurt did not award

Rs50,000/- as compensation to the next of Devikurnar, but because

of the manner in which the police handled him after he was injured.

Compensation of Rs.2,50,000C1/- was directed to be paid to the next

of kin of Adhithya Narayan who was not a member of an unlawful

assembly and was only 15 years of age. Both these amounts were

paid by the Delhi police.

In Gangadharan Pillai v. Stale of Kerala and othersJm this

petition under Article 226 filed. by the Petitioner the proprietor of a

vegetarian hotel by name New Anand Bhavan at Kalvathy road, Fort

Cochin, 20 years experience i r~ this field,contended that he suffered

loss on account of mob attack on 16-10-19110 which would have

been prevented if appropriate action had been taken by the

authorities, directing the respondents to compensate the petitioner to

the extent of Rs.86,000/- for the destruction of property and loss of

business, negligence on the part of respondents and he sought

direction to the other persons in the locality who were affected at

Mattanchery and Palghat The Riot took plakhe because of the

murder of a priest of a Mosque in a locality at Kaloor. Even though

the respondents were aware of the communal distuhance in the area

at Fort Cochin and Mattancheny, the police did not take any

precaution to prevent the riot .On 16" Oct 1990 there was harthal

and the plaintFffclosed the shop on that day but persons armed with

dcadly wcapon entered into the hotcl and destroyed the property and

they threatened the elnployees and destroyed the furniture fridge and

pass book and other important utensils etc worth Rs.7,40,000/-. He

could not reach there because of lakhk of conveyance but he

reported to the police station to take necessary action but they failed

to do their duty. Even though they had information regarding this

they had not taken any precautionary measures to prevent the attack.

Later a meeting was conducted in the Presence of R.D.O. to prevent

such an incident in future anti Rajeev Gandhi visited this plakhe to

witness the loss and suffering of the people, due to the riot. In spite

of the knowledge about this incident they had not taken any

precautionaly measures in this area and when questioned about this

the only reply received from thein was that it was impossible for

them to prevent the riot. So the violation of public duty was already

proved in this case and the liability for the breach of public duty

based on strict liability principle, where sovereign immunity was not

a defence as decided in Nilabeti, Rudul sah and lucknow

Development authority. Ther~: was no reason to deny compensation,

to the victim. The respondents themselves admitted the loss of

property of the petitioner worth Rs.35, 0001-. Even though the first

respondent was directed to pay an amount of Rs.35,000/- as

compensation to the petitioner with m a period of one month with

interest at the rate of 13 % from 1-5-1991 till the date of payment

and it was also open to the first respondent to realize this amount

from those officers who were responsible for the negligence and thus

the petition was allowed.

In A.K. Stngh v. (Ittarakhand Jan ~ o r c h a ' ~ three Bench

judges, judgment delivered by K.T. Thomas J. relating the denland

of separate state of Uttarkhand comprising of hilly regions of Uttar

Pradesh and the confrontation ensured between the government and

the agitators resulting in the loss of many lives and injuries to

several persons and outraging the modesty of women.

The Allahbad High Court ordered the government to pay

Rs.10 Lakh each to the dependents of all persons who died in police

firing Rs.10 Lakh each to the victims of molestation and Rs.

50,0001- to each for 398 persons who were detained by the police.

But on appeal to the Supreme Court it was found that the people of

Kumaun and Garliwal require upliftment as other regions of India

required .But there was no justification for using the judicial power

'"AIR 1999 SC 2193.

for imposing such burden of extracting money from the common

man's funds to meet mass financial burden. Here the writ court

quashed the direction issued by the High Court on the ground that

the huge amount of compensation imposed on the state at the

premature state of proceeding of the case.

Here writ court could have allowed ex-gmtia payments

instead of dismissing the direction issued by the High Court. The

purpose of writ court is to give speedy remedy to the victim or to

help the victim with interim relief . Here the High Court also failed

to anticipate the fmancial burden imposed on the state.

By this decision the writ court was legitimizing the human

rights violation committed by the state against men women and

children. Here in this case the writ court failed to consider the

atrocities committed by the state. Any way it had directed the victim

to approach the competent civil court for money claim but the

diffculty lies in the fact that in civil court defence of sovereign

immunity would prevail aver the claim of the victim.

Recently the riot broke out following the gazette notification

regarding the interim award of the Cauvery water dispute tn5unal

gave in1991 .Agitators attacked Tamils in the state and properties

belonging to Tamils in Karnataka were looted, ransacked and several

lives were lost. This incident made an impact in Tamil Nadu and

K'annadigas were attacked aid 93 persons became victims .The

Supreme Court directed t h ~ Karnataka and the Tamil Nadu

government to pay compensatilon of Rs.2.34 Crore to 9,669 victims

of the Cauvery river riots between December 1991 and January

1992. This direction was iss~ted afler hearing the reports of the

cauvely riots relief authority, which was appointed by the court on

April 15, 1999."'

g) Breach of duty by Public authorities

Next is the remedy provided by the writ court for the

sufferings of the victim and legal heirs due to the breach of duty

committed by the agencies of the state and the liability of the state,

determined by the writ court in such circumstances.

1. Failure to take precautionary measure.

In TNElectriity Boarti v. b urn at hi"^ the respondents in the

present writ appeal legal hein; of persons whose death had been

caused by electrocution. They filed a writ petition before the High

Court under Article 226 of the Constitution claiming compensation,

contending that electrocution had resulted from improper

maintenance of electric wire or equipment. Then the High Court

appointed an arbitrator to decide compensation. While the case was

'" Repat from the Hindu .March 10,200/ ... IP2 (2000)4 SCC 543.

pending, an interim compensation of Rs. 30,0001- was awarded to

the respondent. In an appeal before the Supreme Court it was

contended that the High Court strayed beyond authority by referring

the matter to arbitration. The Bench consisting of D.P. Wadhwa and

Syed Shah Mohammed Quadri ,J.J.clalified that when there was

violation of right to life under Article 21 High Cowl had the

jurisdiction under Article 226 of the Constitution and this Article did

not make a limitation on the High Court m esercising the power and

the writ remedy was the pubhc law remedy. It was submitted that

the award of compensation by the High Court was in the domain of

public law in that it ultimately fixed liability for the public wrong on

the state itself for its failun: in carrying out its public duty of

protecting the fundaniental rights of the citizen. As regards the issue

both the parties had given their consent to ahitration and the High

Court had examined the arbitration proceedings according to the law

and then passed the decree and the provision of the Arbitration and

Conciliation Act 1906 had been complied with and there was no

error in the award and nor in the order of the High Court passing a

decree on its basis. So the appellant was restrained from recovering

from the respondents any amount which had been paid to them in

terms of the impugned judgment of the High Court.

2. Not providing timely medical aid

Legal Aid Committee! v. State of ~ i h a r ' ~ ~ . this is an

application under Article 32 of the constitution before the Supreme

w u a (Bench consisting of Ranganath Misra ,CJ and

~ . ~ . ~ a w a n t , J ) o n behalf of the Supreme Court Legal Aid Committee

alleging on the basis of intonnation published in the illustrated

weekly of India of July 2,1989, the inhuman behavior meted out to a

person in police custody.

In this case the Deputy Superintendent of Railway Police.

Jamalpur, State of Bihar namted the incident that the victim Mahesh

Mahto had been injured when the passengers of the milway train

were looted by a crowd and they had been beaten up several persons

including the victim. Mahto had received serious injuries and had to

be taken to the hospital for trfatn~eni.

There was negligence and failure to give proper medical aid

to an injured person taken into police custody resulting in his death.

In this case there was no vehicle available and they hired a rickshaw

for the purpose of removing the injured to the hospital. At that time

the victim became ui~conscious and the Havildar tied him with a

rope to the footboard of the rickshaw. The Court considered that if

appropriate action had been taken to give timely medical aid. death

would not have happened in this case.

In this case the Supreme Court said that it was an obligation

of the police, particularly after taking a person in custody to ensure

appropriate protection for him in custody including medical care if

such a person needed it and so breach of duty was committed by the

state and directed that co~llper~sation Rs20,000/- should be paid by

the state of Bihar to the legal representative of Mahesh Mahto. The

amount had to be deposited with the Dist. judge Munger and Dist.

Judge was directed to constitute a proper inquiry to satisfy himself as

to who the heirs of the deceas:d Mahesh Mahto were and to furnish

a compliance report in the reg~stry of the court within three months.

This was a clear case cf negligence or breach of duty of the

state agencies in providing proper medical aid to the victim in time

and there was two years delay in deciding the case also.

3. Not protecting the rights of passengers

Delhi Domestic working women's Forum 12. [Inion of Indin

nnd others'", this was a petition under Article 32 by Domestic

working women. While the complainant and six other women were

travelling in a tmin on 10-2-1 993 army men raped them. When the

train stopped at New Delhi they caught hold of the army men who

lW (1995)l SCC 14.

had raped them. Some army officers overpowered them and handed

over to the MCO oEce and Yater to the Police and charged for the

offence. On 1 1-2-1 993 six rape victims were sent for medical check

up. The Victims were tribal women of state of Bihar they were at the

mercy of the employer and the police. The Centml government and

State government did not provide serious attention as to the need for

the provision of rehabilitation and compensatory justice for women.

In this case the police personnel who were on duty were arrested as

they failed in guarding the rain and protecting the rights of the

passengers at the time of the incident. In most cases the victim

belonged to the weaker sections of the society. They were not in a

position to secure justice thl-ough civil courts. In order to give

justice to the victim. IPC and Indian Evidence Act have to be

amended and reformed as victim oriented. The court directed the

Union of India to evolve a scheme on this basis and the writ petition

was disposed off by giving directions to the concerned.

4. Not protecting the prisoners from co-accused

In Kewal Patil. v. State of I1.P. and o~hers"~ it was a petition

filed before the Supreme Court ( bench consisting of R.M.Sahaj and

S.B.Majmudar J.J.) by the wife and the children of Ranjit

Upadhayaya who was killed by co-accused while serving out his

sentence under section 302 of IPC in the Central Jail Varanasi.The

Petitioner claimed compensation. Inspector of Centml Prison U.P.

and Superintendent of Central Jail confirn~ed that he was killed by

co- accused Happu against 1~hom a case was registered under

section 303. This was also confirmed by Deputy Jailor Central Jail,

Varanasi .

Ramjit Upadhayaya was a convict and was working as a

Nambardar in the jail. He was strict in miintaining discipline

amongst the co-accused .It was due to strictness in his behaviour as

Nambardar that he was attacked and killed by Happu- a co-accused

.Even though he was a convict and was sewing his sentence yet the

authorities were not absolved o:F their responsibility to ensure his life

and safety in the jail. A prisoner is also entitled to enjoy the right

guamnteed under Article 21. But there was no provision in the U. P.

jail manual for granting compensation to the family of the deceased

convict. He was working in the ,jail and was strict in maintaining law

and order. Yet the authorities were not absolved from their

responsibility to ensure his life and safety in the jail, a prisoner did

not cease to have his constitutional right except in accordance with

law. Deprivation of his right or killing took plakhe with in the jail,

while he was sewing in the jail and he was survived by his wife and

children so they were entitled to compensation. Allowing the

petition the court directed the state of U.P. to deposit Rs.I,00,000/-

within three months a id to deposit Rs.50, 000/- as fixed deposit in

the nationalized bank and interest to be paid off to the wife and

children. The remaining amount should be paid to the wife. The

amount deposited should be paid to the wife on her option after all

the children became major. In case of the Petitioners death prjor to

the children become majors, the amount should be equally divided

among the children.

Here in this case he wa; sewing in the jail and his right to live

was denied due to lakhk of pmtection From the authority. There was

no sufficient mle in U.P. jail Manuel to determine the liability that

defence of immunity was brought up at the time of dealing with a

case. If there was a rule in fixing the liability of the state such an

argument could have been avtaided. It is high time to prevent such a

violatjon which occurred due to the negligence and breach of duty of

the police officers.

5. Negligence of the officers of the state

In the MP. Electrici~~ board v. Shial Kirmari and others'" a

cyclist was electrocuted from the live electric wire, which fell on the

public road. The claim for clamages filed by the defendant of the

deceased was resisted. High Court directed to pay compensation of

'%(2002) .2 SCC 162.

Rs4.351akh to the claimants. Before the Supreme Court appellant

sought exception to the rule of strict liability .Even assuming that all

safety measures had been adopted m the undertaking actlvity of

hazardous or risky exposure tc human life was liable under the law

of torts to pay compensation *'or the injury suffered by the victim.

The basis of such liability was a foreseeable risk inherent in the very

nature of such activity .One of the exceptions provided was the act

of stranger that also did not avail to the board as the act attributed to

the third respondent should hilve anticipated and should have been

prevented by the appellant board.

Irn . In Dwarika Prasad v. .';tatale o f Jhar Khand and others in

the writ application the petiooner prayed for the direction to the

respondent to pay compensation to him and to provide appointment

to the dependent of the deceased %jneesh Prasad Dab1 who died in

a bomb explosion. The Petitioner stated that Dablu died in Bomb

blast in the house of one Brahdev Sharma and this incident occurred

on account of the negligence of the police who had directed the

deceased to open the parcel containing a live bomb. On a fateful &y

one Sharma informed the police that he had received a parcel which

was delivered by a post man. Considering the size of the parcel he

kept the same at the back of tlle house on a wooden log and tried to

remove the cover. He found a lunch box inside the parcel and the

corners were sealed with leucoplast. The Inspector then called the

son of the petitioner and asked him to open the box. Under the order

of a police officer he opened ir and no sooner had he done so there

was a sudden explosion .Rajneesh died on the spot. This was due to

utter negligence they should have done the same under explosive

expert, the state must perfornl its duties with due care and the

petitioner was paid compensation of RslLakh.

11. Non-compliance of direction of the court

There are cases in which the instrumentalities repeatedly

failed to comply with the directions of the court. The Court had

stated that handcuffing is inhuman and this can be done only in

exceptional cases. In the same way certain directions were issued by

the wurt to be followed by the i:nforcement agencies while arresting

a person

a)Handcuffing

In Prem Shanker v. Delhr ~ d m m r s t r a t r o n ~ ~ ,Knshna 1yer.J

and Chinnappa Reddy J observed that handcuffmg was inhuman and

unreasonable and over harsh at !he first flush, arbitrary. Reasons for

handcuffing was drawn in that case that the prisoner was likely to

jump jail or break out of custody or play the vanishing mck or the

19' AIR 1980 SC 1535.

under trial was a crook, rowdy or maniac cannot d i c e . So the onus

was on the person who puts the person under irons to show that there

was a proof readily available of dangerousness of that person. The

clear and present danger of esclpe breaking out of police control was

the determinant factor to be considered by the court while allowing

the order for restraint. In Sun11 Gupta v .,State o f ~ a d h ~ a ~radesh'"

court had to repeat and re-r:peat and decry the conduct of the

escorting police, for their unjusifiable acts of hand cuffing.

Citizen for Dernocracj/ through its Pre~ident. v. State of

Assam and othersm, In this case detenues were hand cuffed and tied

with a long rope to allow his movement when he was lodged in the

ward of a hospital. There was no material evidence to show that he

was likely to jump jail or break out custody and the only reason

shown by them was that he was a hardcore ULFA activist and earlier

in 1991 and 94, frfty one detenues, 13 terrorists and 7 other persons

had escaped from hospital when they were under treatment. The

Court found there was no material reason to keep them under fetter

and held it as improper.

The Supreme Cowt fbrther directed that where the police or

jail authorities have well grounded basis for drawing a strong

inference that a pa~ticular prisoner was likely to jump jail or break

out of custody then the said prisoner be produced before the

Magistrate concerned and a pmyer for permission to handcuff the

prisoner be made before the said Magistrate. The Magistrate may

grant permission in rare cases such as concrete proof regarding

proneness of the prisoner regarding violence, and if there was a

tendency to escape because of his being dangerous 'and desperate etc.

In all the cases a person arrested by the police, must be produced

before the Magistrate and remanded under judicial or non-judicial

custody. A person should not be handcuffed unless getting special

orders from the Magistrate. When police arrested a person by

warrant of arrest obtained from a Magistrate, the person arrested

should not be handcuffed ur~less getting special order from the

magistrate. Where a person is arrested by the police without warrant,

the police officer concerned may, if he was satisfied, on the basis of

the guidelines given above, that it was necessay to handcuff such a

person, he may do so till the time he was taken to the police station

and thereafter his production before the Magistrate. Further, use of

fetters could only be under the orders of the Magistmte as already

indicated. The Supreme Court further directed that all ranks of police

and the prison authorities should meticulously obey the above

mentioned directions. Any violation of any of the aforesaid

directions by any rank of police in the country or member of the jail

establishment should be summarily punished under the Contenipt of

Courts Act (1971) apart from crther penal consequences under law.

The Increase in the number of cases, dealing with

handcuffing of an under trial prisoner by the police wjthout

complying with the directions issued by the court even after repeated

warning by the court and issued direction to the officials of the state

indicated it's inability to erjforce its own direction and so the

enforcenient machine~y was not proper 'and adequate. There was a

Recent paper report and a photograph of transporting four accused

persons in a cage like animal:!''. This inhuman act was shocking to

the conscience of every civilized state and was a violation of

constitutional guarantee undcr Article21 of the constitution. The

Accused should be treated with dignity and honor. The Supreme

Court issued notice to the Punjab government.

Aeltemesh Rein, Advocate, Supreme Court of India, v. Union

of lndiP2. This was a writ petition alleging the handcuffing of the

petitioner in connection with a criminal case, the Court issued notice

to the Union of India to show cause why it should not be directed to

implement faiWly the decision of this Court in Prem Shankar

w' The Hindu, Feb 18,2003.p.l M2AIR1988 SC 1768.

Shukla v. Delhi ~dministration:"~, with regard to the handcuffing of

the accused arrested under the provisions of the Criminal Law.

The question arose on account of the allegations

relating to the alleged handcuffing of an advocate practicing in Delhi

contrary to law while he was being taken to the Court of the

Metropolitan Magistrate at Delhi after he had been arrested on the

charge of a criminal offenc.:. It was urgued that the Union

Government and the Delhi Administration had not issued necessary

instructions to the police authorities with regard to the circumstances

in which an accused, m s t e d in a criminal case, could be handcuffed

or fettered in accordance with the judgment of this Court in Pren~

Shnnkar Shukla v. Delhi Administration. The learned Attorney

General of India conceded that it was for the Union of India to isaie

instructions to all the State Governments and the Governments of

Union Territories. So the Coun directed the Union of India to frame

rules or guidelines, circurnstimces in which handcuffi~ng of the

accused should be resorted to in conformity with the judgment and

to circulate among State Governments and the Governments of

Union Territories. This part oi' the order should be complied with

within three months.

m3 AIR 1980 SC 1535

The direction issued to the Union government by the Court

was not communicated to the State government. Without issuing the

circular regarding the circums~ances in which handcuff could be

used, how could the court test whether the police exceeded its

powers or not? In thw case there was a failure on the part of

administrative authorities in implementing the hw. When we follow

the separation of powers and the privilege of this department it

would be to question the lakhk of administrative efficiency

etc.

Actually it affects the inkingement of the rights of the people

even though all these machinelies act for the welfare of the people.

In such a case what is the remedy available to the people. The court

again repeated the same dinxtion to the Advocate general to

implement the law by circulahg these directions to all the state

governments. This direction was already issued while deciding a

case in 1980 and this violation was again committed in 1988. The

Paper report revealed that the *same violation was repeated recently

by producing the accused persons before the magistrate in a cage and

it was published in a newspapta with a photograph. The Directions

issued by the Court was not complied with in the present day also

then what was the remedy available to the aggrieved living in

democratic country In Sfate oj Maharashtra .v. Ravjhmt S. ~ a t z l ~ ~ ,

the High Court directed the state government to award compensation

for the violation of human right by handcuffing an under trial

pnsoner when taken through the streets by the police during

investigation.

The case relating to vislation of direction issued in case of

handcuffing can be brought through publlc interest litigation or

N.G.O. So that the enforcement of direction issued by the court is

complied or not can be implenlented by the PIL.

b) Failure to follow the formalities while arresting a person

In D.K. Basu the court issued several directions to be

followed by the officials of the state while arresting the persons.

Now it is a common phenonlenon that officials always ignore the

directions and nobody can question it and even though somebody

comes forward to file a suit that is going to give evidence against the

police that they are threatened and discouraged by reminding them

about the future consequences they would have to faces. Such a

thing happens in this procedure. Can the writ court implement and

enforce its directions on these instrumentalities of the state for the

protection of human rights of the people.

AIR 1991 SCW 871.

D. K. Basu .v. State o f W. B."~ this was a writ petition

to prevent the increasing number of custodial death custodial torture

illegal detention ,arrest etc, Ashok R John, .v. State of C1.P. The writ

petition, was based on letters sent by the Executive Chairman, Legal

Aid Services, West Bengal, a non-political organization registered

under the Societies Registration Act, on 26th August, 1986 and Shri

Ashok Kumar Johri on 29-7-1987 addressed 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 the Statesman

and Indian Express dated 171h August, 1986 regadmg deaths in

police lock-ups and custody death of one Mahesh Bihari of

polkhana, Aligarh., in police custody. This report revealed that even

though safety measures were provided in Article 21 and 22, they

were not *cient to protect the human rights of the people. The

Executive Chairman after reproducing the news items submiaed that

it was imperative to examin: the issue in depth and to develop

"custody jurisprudence" and formulate modalities for awarding

compensation to the victim and the family members of the victim for

atrocities and death caused to the victim in police custody and to

provide for accountability of the officers concerned.

On 14-8-1 987 the Cou~t made the following order:

ZO' AIR 1997 SC 610.

In almost every States there are allegations of deaths in

custody described generally b i newspapers as lock-up deaths. At

present there does not appear to be any machinery in India to deal

with such allegations. It issued notice to all the states concerned. The

Court made certain suggestion:; for the formulation of guidelines by

this Court to minimize custodial violence and for awarding the

compensation to the victims of custodial violence and to the kith and

kin of those who died in custody on account of t o m e .

The Court issued requirements to be followed in all

cases of arrest or detention till legal provisions were made in that

direction as preventive measures:

(1) The police personnt:l canying out the arrest and handling

the interrogation of the amstee should bear accurate, visible and

clear identifi~cation and name tags with their designations. The

particulars of all such police personnel who handle interrogation of

the arrestee must be recorded rn the register.

(2) That the police officer canying out the arrest of the

amstee should prepare a memo of arrest at the time of arrest and

such memo should be attestedl by at least one witness, who might be

either a member of the ftunilj of the arrestee or a respectable person

of the locality fkom where the arrest was made. It should also be

countersigned by the arrestee and should contain the time and date of

arrest.

(3) A person who had been arrested or detained and was

being held in custody in a police station or interrogation centre or

other lock-up, should 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 practicabie, that he had been arrested and was

being detained at the particular plakhe, unless the auesting witness

of the memo of arrest was himself such a friend or a relative of the

arrestee.

(4) The time, plakhe of arrest and venue of custody of an

arrestee must be notified by the police where the nex? friend or

relafive of the m s t e e lived outside the district or and through the

Legal Aid Organization in the District and the police station of the

area concerned telegraphically within a period of 8 to I2 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 was

put under arrest or is detained.

(6) An entry must be made in the diary at the plakhe of

detention regarding the arrest of the person which should also

disclose the name of the nert friend of the person who had been

informed of the arrest and the names and particulars of the police

officials in whose custody the arrestee was.

(7) The arrestee shoulcl, he so requested, be also examined at

the time of his arrest and major and minor injuries, if any, present on

hisfher body, must be recorded at that time. The "Inspection Memo"

must be signed both by the zurestee and the police officer affecting

the amst 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 Temtory. Director,

Health Services should prepare such a panel for all Tehsils and

Districts as well.

(9) Copies of all the ciocuments including the memo of arrest,

referred to above, should be sent to the Magistrate for his record.

(10) The arrestee might be pernutted to meet his lawyer

dunng interrogation, though not throughout the interrogation.

(1 1) A police control room should be provided at all district

and State headquarters, where information regarding the arrest and

the plakhe of custody of the arrestee should 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 a conspicuous

police board.

Failure to comply with the requirements should apart

from rendering the concerned official liable for departmental action,

also render him liable to be punished for contempt of court and

contempt proceedings might be instituted in any High Court of the

country, having territorial jurisdiction over the matter.

The requirements, referred to above flow from Articles

21 and 22 (I) of the Constituti~~n and need to be strictly followed and

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 the ;urestee. The Supreme Court suggested

that the court should change its outlook and attitude, palticularly in

cases involving custodial crimes. They should exhibit more

sensitivity and adopt realistic rather than narrow technical approach,

while dealing with cases of custodial crime, so that the guilty should

not escape and the victim of' the crime should have the satisfaction

by way of protecting their rights.

At present there are certain laws which protect the rights of

the detained person in Article 21 & Article 22 (2). There are certain

provisions in Indian Penal Code which impose punishment for the

wrong committed by the enforcement agencies while extorting

confession. The requirement issued by the court is a linlitation on the

police power. But the question is whether this is properly

implemented or not. After going through a number of cases we

found that in order to protect and safeguard the liberty of the people

or to prevent the encroachment on the rights of the people, the court

issued direction in addition to Article 21 and 22. In most cases the

enforcement agencies failed tc con~ply with these provisions or

failed to follow the directions eti;. The only available remedy in case

of violation of Article 2 1 and 22 is to compensate the victim. So the

court could issue direction to the governments to grant

compensation. It was found that the instructions of the conrt was not

carried out by the Central government and the circular regarding the

instructions to be complied by the enforcement agencies were not

circulated to the state govemnients. So the court reminded the

authority to circulate the same to the state government and the

concerned departments.

After going through the case laws it was found that the

remedy provided in the name of ex-gratia is not adequate. This

issued as an interim remedy only after conducting a summary trail.

In certain cases the court directed the petitioners to approach civil

court for getting remedy where tht: sovereign immunity is a defence.

Besides these we found that in case of continuing human rights

violation like arrest, illegal detention custodial torture it could not

take preventive measures. So the implementation mechanism

available through the writ court is not sufficient.

Conclusion

The effort througli this topic was to see whether the

remedy provided by the writ court was ample to compensate the

victims of human rights violation by the state and whether the

present legal system is satisfactory to settle on the state liability.

The main purpose of the writ court is to give immediate

remedy to the aggrieved in case of human rights violation but most

of the cases become infiactuous due to delay in deciding the cases.

For example the cases relating to arrest, illegal detention and torture

resulted in custodial death, q:. Delay in deciding the case would

become a denial of justice to the m e s .

In case of human rights violation by the state the only remedy

available to the aggrieved is to file a writ petition under Article 32 or

226 of the constitution. Now the Judiciary use Article 2 1 to pron~ote

compensatory jurisprudence. Even though there is no express

provision in the constitution the apex court is very much in favour of

granting relief in case of violation of fight so that the reservation

made in Article 9(5) has lost its relevance also. In short the victim's

claim for compensation or right remains on the paper. So the

compensation is determined by the court according to their

discretion. At present, the compensation for the violation of the

riqllts del~ci:ds oil 1111: iilcr~:> o 'lhe c o ~ ~ i i

The writ court, after conducting summary trial grants ex-

gratia payments or interini relief. The court itself felt the

compensation issued in the name of interim relief or ex-gatia

payment was not adequate. So the writ court itself expressed

inability in granting the full compensation and it expressed that

issuing the interim relief would not preclude the petitioner from

claiming the compensation from the civil court. In some cases it

directed the petitioner to approach the civil court for getting

compensation. Even then the court itself expressed its doubt of

getting compensation from the civil court where sovereign immunity

of the state was a defence, because in civil court the theory of

sovereign immunity is recognized better than public law domain.

Thus the aggrieved has to face several hurdles for getting justice

from the court.

In the case of arrest, even the judicial officers are not

bothered to see whether the person taken into custody are produced

before him or not while gmtirtg remand.

While taking a person into custody or into the trial court, they

may be han-ed, without complying with the directions issued by

the court. Thus the officers fail to comply with the directions

repeatedly issued by the court, officials failed to comply with it and

acted contrary to the rule amounting to violation of human rights. It

was found that the directions issued by the court was repeatedly

ignored by the concerned adnlinistrative authority. The same thing

happened in the case of direction issued by the court regarding the

formalities to be followed by the police while arresting a person and

its direction to set up Criminal Injuries Compensation Board. It

indicates that the total failure on the part of the court in

implementing its own direction by the administrative authority.

Difficulties found by the victim is that the very same cause of

action is pending in different courts, one for getting speedy justice

and other for getting compensation then for giving punishment to the

wrongdoer. It is time consuming. Remedy from the writ court is

expensive. Now the judiciary is reluctant to apply sovereign

immunity and the immunity is not a defence in case of the public

wrong committed by the state. It is alien to the concept of human

right or inapplicable to the lets done in contravention of human

right.

Now the judiciary has begun to take bold steps in applying

compensatoly jurisprudence without considering the privilege of the

state but in most cases interim relief was given. The Writ is a

valuable right which cannot he allowed to be stripped to the willful

defiance of the authorities UI cases of state atrocities or willfully

flouted by the state authorities and which results in shaking the

confidence .It is high time to make modifications in the procedural

system as well as in the legal system. Even though the wron@l act

is committed by the enforcement agencies, according to the pment

system it is necessary to get permission form the department to take

action against them.

The Supreme Court d~stinguished the cases of deprivation of

fundamental right from that of liability intort. This is a new liability

in public law created by the Constitution and is not hedged by

sovereign immunity. So in case of constitutional torts sovereign

immunity is not a defence In appropriate cases it means that where

there were gross human rights violation affected on a large scale in

such a case the aggrieved approaches the Supreme Court with a writ

petition then there is no justification in telling the aggrieved to

approach the civil court for claiming the compensation.

Suggestions

1. There must be certainty of law to fuc the liability of the

state in case of human lights violation committed by the

instrumentalities of the state. For that India must raw Article 9(5)

of ICCPR which guarantees the right to claim compensation in case

of violation of right to lifc. This has to be included in our

constitution as an express provision for claiming the compensation

in case of violation of rights. If there is a specific law based on

compensatory justice, the present situation of determining the

victim' compensation according to the mercy of court can be

avoided and the victim can claim compensation in case of human

rights violation, as a right.

2. India failed to ralify the convention of prevention of

Torture and cruelty and other degrading and inhuman treatment and

punishments. It claimed that it became a signatory to that convention

which indicated its moral support of that principle .But there is no

legal obligation to comply with it. Even though the Judiciary took a

bold step in interpreting national laws in the light of international

laws, according to our legal !bystem based on dual regime there is no

need of carrying out this principle in reality. If there is a specific law

in the light of this conventior~ the creative interpretation does not

arise. The Certainty of law with regard to constitutional torts is

essential to protect human rights and to take action in of human

rights violation.

3. It is necessary to modify the present implementation

mechanism. There must be a special forum in High Court and the

Supreme Court to deal with the urgent matters relating to human

rights. Then only the court can prevent the continuing human rights

violation. Otherwise most of the cases become infractuous as

revealed in the case study. If' the present system is modified, the

fuller compensation can be given by the writ court itself by

conducting a summary trial The same special bench can also

monitor the compliance by the government authorities and the

various directions issued by the court from time to time.

4. In order to take immediate action on the basis of evidence

it must have independent impartial bodies. The Departnxental

enquiry should be avoided ant1 instead an, enquiry by NHRC; CBI or

impartial enquiry by ombudsman can be encouraged in case of

custodial death and custodial rape. Ombudsman should have an easy

access to any office. The Officers who conduct investigation in case

of human rights violation should be familiar with the human rights

law then it would help them to collect evidence.

5. It is necessary to see that the police officers comply with

the directions issued by the court. In case of violation strict action

must be taken against the alleged police officers. In order to verify

the police officer's breach of duty it is necessary to insist the officers

keep daily report in the home station. In case of violation of their

duty contempt proceeding shoilld be instituted for any indignities to

the courts of justice.

6. Establishment of human rights tribunal. with human rights

experts will help to determine the liability of the state. According to

the present system the writ court directs the victim to approach the

civil court for compensation, after granting interim relief to the

victim and thereafter civil proceedings as well as criminal

p r d g s as instituted agajl~st the state and the alleged officials.

This can be avoided by establishing such courts and it must also start

from the lowest level, so that even though the victim belong to the

poor economic strata or illiterate he can easily approach the court to

get justice for the human rights violation. If every thing is decided in

one court, it can save the time of the writ court. Compensation will

be according to the responsibility for the damage conlmitted by each

person .This would help tcl make the alleged officials more

responsible, and can keep the economic equilibrium of the state

.Otherwise it would affect the very existence of the state.

7. Human rights awareness at all levels is needed. If the

citizens are not familiar with it in case of violation they cannot

challenge it. Our constitution guarantees basic and fundamental

human rights guaranteed in the U.D.H.R. It is also the vital duty of

an independent judiciary to interpret and apply national constitution

in the light of international human rights and norms. The State is

under an obligation to protect and safeguard the rights of citizen as

well as non-citizen. At the atme time the rights guaranteed under

Part 1 11 is not absolute it is subject to the reasonable restriction, and

so those are available subjects to the interest of the Nation and

security of the state.

8. Establishment of Criminal Injuries Con~pensation Board is

the other suggestion. Then the court can direct the board to fix the

amount of compensation in cases of human rights violation.

9. Insurance for the state employees against third i#uty risk is

also essential so that compensation for the wrong committed by the

accused depending on his financial capacity will not affect the

victim. This inmmce system can be introduced in sensitive areas of

human rights violation ,and then the department has to contribute

their own share for the damage or loss caused to the victim. So that

the Victim can claim compensation from the insurance company for

the wrong cornmined by the ofrending officials.

10. In a welfare stak: it should not hesitate to own the

responsibility for the damage committed by it. The scope of public

accountability has to be enlarged by considering the principle

evolved in the environmental laws as polluter must pay.

11. While suppressing, the rebellion, repression, crime. or

maintenance of public orde~ there is cltance of encroaching or

trampling on the guaranteed rights of citizen by enforcement

agencies. Claiming sovereign immunity in such case is an utter

disregard to humanitarian laws and universal declaration of human

rights. So there must be an express provision in our national laws to

provide compensation for the violation of human rights. The

constitutional courts must consider the rights of tie victims of riot or

caste clashes and the state and its agencies are expected to anticipate

the loss or damage to the private and public property.