India: Nilabatibehera v State of Orissa, 1993 SCC 746

Petitioner's  son,  aged about 22 years was taken  from  his home  In  police  custody at about 8 a.m.  on 1.12.1987  by respondent  No.6, Assistant Sub-Inspector of Police  of  the Police  Outpost in connection with the investigation  of  an offence of theft.  He was detained at the Police outpost. On 2.12.1987, at about 2 p.m. the petitioner came  to   know that the dead body of her son was found on the railway track. There  were multiple injuries on the body and his death was unnatural, caused by those injuries.

The petitioner alleged in her letter dated 14.9.1988, which was  treated as  a writ petition under Article 32 of  the Constitution,  that it was a case of custodial  death since her son died as a result of the multiple injuries  inflicted to  him   while he was in police custody and  thereafter his dead body was thrown on the railway track.  It was prayed in the petition that award of compensation be made to her, for contravention  of the fundamental right to  life  guaranteed under Article 21 of the Constitution.

This Court directed the District Judge to hold an  inquiry into the matter and to submit a  report. After hearing  the  parties  and  appreciating  the  evidence  the District Judge submitted the Inquiry Report dated  4.9.1991. The  District  Judge  found that petitioner's son  died  on account  of multiple injuries inflicted to him while he  was in police custody at the Police Outpost.

Court ruling:

Award  of  compensation  in  a  proceeding   under Article 32 by this Court or by the High Court under  Article 226 of the Constitution is a remedy available in public law, based  on strict liability for contravention of  fundamental rights to which the principle of sovereign immunity does not apply, even  though  it may be available as a defence  in private  law  in an  action  based  on  tort. This  is  a distinction  between  the two remedies to be borne  in mind which  also  indicates the basis on  which  compensation is awarded in such proceedings.

Enforcement of the constitutional right and  grant of  redress  embraces award of compensation as part  of the legal consequences of its contravention. A  claim  in  public  law  for  compensation  for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for 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  from the contravention of  the   fundamental right. The defence of sovereign 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.  It is this   principle   which   justifies  award  of  monetary compensation for contravention of fundamental rights 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.