Central Information Commission
Mro P Gandhi vs Gnctd on 25 July, 2016
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August KrantiBhawan, BhikajiCama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Central Information Commissioner
CIC/SA/A/2016/000884
O P Gandhi v. PIO, Tihar Jail
Important Dates and time taken:
RTI: 20.12.2015 Reply: 25.01.2016 FAO: 12.02.2016
SA: 15.03.2016 Hearing: 01.07.2016 Decision: 25.07.2016
Result: Issued directions and Show Cause.
Parties Present:
1. Appellant is present. None represented the Public authority.
FACTS:
2. Appellant sought information on the following:
a. When shall I receive compensation for the extra 18 days detained in jail? b. Is the government in agreement with the Commission order no. 431 and 432 dated 04.07.2015?
c. Does the government agree with the reply given by Central Jail5 to the Commission by letter number F5/SCJ5/EJ5/NTI/2015/ dated 06.08.15?
d. Does the Government agree with the Judgment of Rudul Shah v. State of Bihar? (AIR 1983 SC 1086) 1
3. The PIO replied on 25.01.2016. FAA directed the PIO, CJ5 to send reply to the appellant within 10 days. Appellant approached the Commission.
4. Appellant's submission: The appellant was convicted under Section 138 of the Negotiable Instruments Act for dishonour of cheque for insufficiency, etc., of funds in the account. He was first arrested on 23rd November 2010 and was granted bail on 24th December 2010. The trial went on for 3 years and the appellant was convicted on 26 th November 2013 on the above grounds for a period of one year simple imprisonment and fine.
Month Total Remission Government Special Special Remission Admission by Jail
days of as per jail Remission Remission by by Director Authorities to
Remiss rules Superintendent General Remissions
ion
December 2013 2 2 Yes
January 20 5 15 Yes
2014
February 5 5 Yes
2014
March 5 5 Yes
2014
April 5 5 Yes
2014
May 5 5 Yes
2014
June 5 5 Yes
2014
July 5 5 Yes
2014
August 15 15 Yes
2014
Other 16 15 1 Yes
Remission
2
Total 83 37 30 15 1
Remission
5. As per the term of imprisonment, he was supposed to be released on 24th October 2014. However, the appellant contended the release date to be 2nd August 2014 as per the remissions provided by the Jail authorities and others. The appellant filed 36 RTI applications concerning the gross injustice meted out to him in Jail. As per Commission's order number CIC/SA/A/2015/000640 dated 23.6.2015, the appellant was supposed to compile all his complaints and file the same with the Jail authorities for comprehensive redressal. The authorities were asked to respond to the same within 30 days. The jail authorities, in reply to the various RTI applications, have admitted to all the remissions as provided below, which sets the release date at 2nd August 2014 as contended by the appellant.
Note: Scanned copy of the response by the jail authorities attached herewith.
6. Seeking timely release of appellant, his son wrote to the Jail authorities intimating them about the exact release date. Further, the appellant also wrote to the authorities on 4th August 2014, two days after the supposed release date. The Jail authorities have denied receipt of any such letter. The Jail authorities did not inquire about the appellant's bail status in an ongoing case in the court of Judicial Magistrate Ist Class, Faridabad, Haryana which was required as per law before the release of the convict which has further delayed the release of the appellant.
Vicarious liability of state for wrongs of employees:
7. Whether the Government should be made liable for the wrongs of its employees that caused damage to the citizen? This question generated lot of debate and jurisprudence by wisdom of learned judges of Constitutional Courts in India.
8. In the case of State of Rajasthan v Mst. Vidhyawati & Anr, 1962 AIR 935, the court stated that: "Now that we have by a constitution established a republican form of government and one of the objectives is to establish a socialistic state with its varied industrial and other 3 activities, employing a large army of servants, there is no justification, in principle or in public interest that the State should not be held liable vicariously for the tortious acts of its servants."
9. This was real justice needed in democracy. But almost at the same time, a ridiculous state of affairs prevailed as reflected in Kasturilal vs. State of U.P. (AIR 1962 SC 933). In this case a gold merchant Kasturilal was suspected by police to be a thief, was detained and his gold ornaments were put in safe chest. When a police constable stole them and fled the country, Kasturilal sought return of gold or cost of it. State pleaded immunity saying it was not liable for theft committee by its constable. The Chief Justice of Supreme Court Justice Gajendra Gadkar has unfortunately laid down that if constable had committed wrong while exercising his sovereign police function, state was not liable. But understanding the most unjustifiable nature of this rule, CJI advocated for policy of state liability of such wrongs committed by its employees including police. The archaic principle of state immunity is criticised and removed by the Supreme Court in several orders. Now there is no state immunity and state is in principle liable. But unfortunately the state in practice is escaping from its liability and enjoying virtual immunity by not having any policy to pay compensation to victims like appellant. This injustice is going on because state is exploiting the poverty of prisoners, increased cost and time of litigation and burden of pendency on courts which almost denies the remedy.
10. In plethora of cases, the Supreme Court has generated prisoner rights jurisprudence valuing the life and liberty of unfortunate people. Prisoner's rights have been recognized not only to protect them from physical discomfort or torture in person, but also to save them from mental torture. The Right to Life and Personal Liberty enshrined in Article 21 cannot be restricted to mere animal existence. In Hussainara Khatoon vs. Home Secretary, Bihar (AIR 1979 SC 1377), the Supreme Court has held that it is the Constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the state and the state is under Constitutional duty to provide a lawyer to such person if the needs of justice so require. In Kedra Pahadiya and others vs. State of Bihar [(1981) 3 SCC 671], the Supreme Court directed that the petitioners must provided legal 4 representation by a fairly competent lawyer at the cost of the state, since legal aid in a criminal case is a Fundamental Right implicit in Article 21, and the Fundamental Right has merely remained a paper promise and has been grossly violated.
11. In Khatri's case, the Supreme Court initiated the jurisdiction of payment of monetary compensation under Public Interest Litigation to the victims on violation of their life and personal liberty. Therefore a question of great Constitutional importance as to what relief could be given for violation of Constitutional rights was before the court. Bhagwathi .J., speaking for the court observed: "the court can certainly inject the state for depriving a person of his life or Personal Liberty except in accordance with the procedure established by law but, if life or Personal Liberty is violated otherwise than in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new and devise new remedies for the purpose of vindicating the most precious Fundamental Right to life and Personal Liberty? Otherwise Article 21 would be reduced to a nullity, a "mere rope of sand". The court described this issue as of gravest Constitutional importance involving exploration of new dimension of the Right to Life and personal liberty. (Khatri vs.State of Bihar (II) (1981 SC 928 at page 930 Para 3)
12. In the landmark decision of Rudul Shah v State of Bihar, AIR 1983 SC 1086, the Supreme Court held that the state has to compensate for such extra detention. In this case, prisoner Rudul Shah, though acquitted by the Court of Sessions, Muzaffarpur, Bihar, on June 3, 1968, was released from the jail only on October 16, 1982, i.e., for more than 14 years he remained in jail even after acquittal. Supreme Court awarded him Rs 35,000 as compensation.
13. In Bhim Singh, MLA vs State of J & K and Ors. AIR 1986 SC 494, Mr. Bhim Singh legislator was detained by police illegally. Supreme Court awarded him compensation. The court stated that "We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or 5 malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case and direct the first respondent, the state of Jammu and Kashmir, to pay to Bhim Singh, a compensation of Rs. 50,000 within two months from today."
14. After Bhim Singh, another landmark order came from AP High Court which was later confirmed by the Supreme Court. In State of A.P. v. Challa Ramkrishna Reddy and Others Civil Appeal No. 3969 of 1989, bomb was hurled in the Jail cell of Kurnool, causing death of a prisoner and injuring his son. Father's dying declaration was recorded by the Judicial Magistrate wherein he stated: that they had received information that a conspiracy was hatched to kill them in the jail itself and that the SubInspector of Police was a party to that conspiracy. The court held that Article 21 is available to prisoners. The court has concluded that there was negligence on the part of the government officers which resulted in the death of a prisoner in jail. The court further stated that the principle of sovereign immunity cannot be invoked in this case because adequate security was not provided to the prisoner prisoners were attacked. A suit for compensation was filed in district court of Kurnool in AP. against the state. State raised issue of limitation along with pleading sovereign immunity, which were rejected. AP High Court held if the act or omission of the officer was mala fide, the shorter period of limitation under Article 72 would not apply to the suit claiming compensation. Both High Court and Supreme Court finally held to be maintainable by the Supreme Court. The High Court, on the question of compensation, said:
"This court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortious act. Though most of the cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the SubInspector being in conspiracy are established as a fact. The crown in England does not enjoy 6 absolute immunity and may be held vicariously liable for the tortious acts of its officers and servants. The maxim that the king can do no wrong or that the crown is not answerable in tort has no place in Indian Jurisprudence where the power vests, not in the crown, but in the people who elect their representatives to run the government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof."
15. The appellant in this case is seeking this answerability from the Jail Authorities and the State. If he was detained negligently beyond the term after deducting the remissions, who accounts for it and how?
16. Article 9 of the International Covenant on Civil and Political Rights, 1966 says that the state is liable to pay compensation for police atrocities. Nilabeti Behara vs. state of Orissa and others (AIR 1993 SC 1960) the Supreme Court further explained that the said provision indicates that an enforceable right to compensation is not alien to the concept of a guaranteed right. It is also pertinent to mention that the provision of compensation to the crime victims is crying need of the honour. The International Covenant on Civil and Political Rights, 1966 indicates that an enforceable right to compensation is conceptually integral to Human Rights. In this case a distinction is made between the remedy of compensation available under the public law i.e., Constitution and the private law, i.e. civil law of Tort. In this case Anand J, in his concurring judgment further explained the distinction by observing that "the payment of compensation in such cases not to be understood, as it is generally understood in a civil action for damage under the private law, but in the broader sense of providing relief by an order of making "monetary amends", under public law for the wrong done due to breach of public duty of not protecting the Fundamental Rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and it is independent of the rights available to the aggrieved party to claim compensation under the private law in action based on tort through a suit instituted in a court of competent jurisdiction or to prosecute the offender under the penal law.
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17. The law is very clear about the human right of the appellant. As per Article 21 of the constitution and various judgments, the appellant is entitled to compensation for illegal detention. In the case of Sunder Patel & Anr. V The High Court of Chhattisgarh, through the Registrar General, Chhattisgarh High Court & Ors., W.P.(Cr.)No.29/2014, the convicts were illegally detained for an extra 113 days beyond their actual release date. The court took into account the deprivation of personal liberty, the mental agony and the pain caused due to the extra detention, hence awarding a compensation Rs.50,000 to each of the petitioners to be paid by the State holding it vicariously liable for the tort committed by its servants acting in the course of employment.
18. With the above orders, the Indian judiciary has significantly created compensatory jurisprudence to remedy the poor people like appellant, who suffered loss of life or liberty at the hands of negligent or malicious public servants. The authorities should understand that the principle of vicarious liability of state replaced the archaic principle of sovereign immunity.
19. The scope of writ jurisdiction has also been expanded to uphold the Human Dignity and other Fundamental Human Rights. Consequent upon the expansion of writ jurisdiction, the Compensation as a mode of redressel of violation of Human Rights gained importance. The Supreme Court made a departure from the ordinary civil law, where the right to claim compensation is only through a civil suit instituted by the aggrieved party before the court of first instance.
20. It is internationally recognized principle that right to compensation is not alien to the concept of enforcement of guaranteed right. Article 9(5) of the International Covenant on Civil and Political Rights states that "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".
21. In above cases the Constitutional courts talked about remedy that they could provide under writ jurisdiction without depriving the citizen to approach civil courts for compensation based on the loss calculated. But the point here is that an ordinary citizen like appellant cannot afford to either go to civil court nor Constitutional Court for ordinary damages or exemplary 8 damages. The state should have a remedy within its policy. Either the department of Jails or Home or the Government in general should come up with a policy of compensating the prisoners who suffer wrongs at the Jail including extraillegaldetention. Jail authorities cannot plead helplessness quoting absence of policy as an excuse and drive them to courts of law.
22. It is inhuman, improper governance and not acceptable administration. Instead of driving appellant to courts, the jail authorities should have an internal remedy to breach of remission policy resulting in violation of Article 21 rights. State is expected to give peoplefriendly administration. If this educated and courageous appellant has not brought out this issue of extra detention in spite of the admitted remission, it would have been not possible for anyone to know breach of constitutional and human rights of detenues. It is possible that thousands of prisoners might be languishing in jail for no fault of them beyond their entitled release date, because of miscalculation. Their right to liberty will depend on the knowledge of concerned officer's efficiency in additions and subtractions. If a human being has to lose his precious personal liberty for such silly reasons, it can never be called a good administration. No person shall be deprived of life and liberty except in accordance with procedure established by law, is the time tested principle of life and liberty guaranteed by all democratic constitutions in the world, which cannot be violated everyday in every jail. The 'established procedure' is the jail term determined by the court of law should not be extended by mistakes or negligence or red tape or lethargy or inaction or indecision of the authorities.
23. The appellant was sentenced to one year imprisonment on the charge of dishonour of cheque. He claims that he was entitled to remission for 83 days on various counts, which was agreed to and confirmed by the authorities through responses to his RTI applications, but he was detained for 18 extra days, for which he is entitled to compensation. The CIC observed that the public authority should have a policy to compensate for unjustifiable or extra detention either by mistake or by miscalculation or malice. It will amount to false imprisonment under law of Torts and 'Wrongful Imprisonment' under Indian Penal Code. The appellant could collect information through several RTI applications and second appeals, to prove the extra detention, and filed petition for compensation under RTI Act. There was no response from the authorities. 9
24. First Appellate Authority mentioned that: "The appellant had filed an application before PIO, PHQ seeking information about the time period in which he will get the amount of compensation in lieu of his illegal confinement (18 days) in jail. The reply was sent by the PIO, PHQ mentioning that information is not covered under section 2 (f) of RTI Act. Now he has filed an appeal mentioning that he was illegally detained for 18 days in the Jail and SCJ5 has given his report to the Commission on the appeal filed by the appellant vide order no. 431 and 432 dated 04.07.2015, then why the reply is not given to him. He has requested to direct the concerned PIO to send correct reply. In this regard PIO, CJ5 is directed to send reply to the appellant within 10 days of the Order.
25. First Appellate Authority (FAA) also stated that "the present appeal be treated as MOST URGENT since under section 19, sub section (i) or section 2 of the RTI Act, we are bound to disposed of the appeal within the specified time failing to furnish the information asked for under the Act within the time specified is liable for penalty".
26. From the above facts, contentions and the legal position, besides Jail Rules, it can be inferred that the appellant was admittedly detained 18 days extra than he was supposed to be confined, taking into account the remissions which were legally granted and admitted to be so by the authorities, and that he was not paid any compensation, and that the Jail Authorities or Home Department had no policy at all to deal with such situations in various jails. There is no reason to doubt appellant's claim as per the responses given by the authorities to his various RTI requests.
27. The rejection of RTI request on the ground that what he sought was not 'information' under RTI Act, is illegal and unreasonable. He has a right to know as to what their policy is regarding compensation to illegal detention or false imprisonment in jargon of law of Torts, or when he would be paid the same or at least what action was taken on his petition for compensation, which was to be considered by the Jail Authorities in pursuance of FAA and this Commission's order. This RTI request revealed the Jail administration, or Governance of the public authority, maintenance of jail manual and implementation of the policy as reflected in 10 their remission rules. When remission is admitted to be legal right of appellant, what is the remedy, if not implemented? Remission policy is like a citizen charter of the Jail and breach of the same should have a consequence. Not only appellant, but the public in general also have a right to know about this policy to respect human rights of liberty and compensation in case of breach. It is surprising that Jail Authorities are guiding appellant to court of law saying that he should get an order from court of law, for compensation.
28. The term of imprisonment of appellant minus legally accepted and admitted remission of 83 days entitle him to release on August 2nd itself, which did not happen. The detention of 18 days was deprivation of personal liberty of appellant not in accordance with procedure established by law.
29. Instead of sending the appellant like victims of extra detention to court and providing the legal aid, the authorities themselves can have a policy to compensate so that they approach courts only if compensation is rejected illegally.
30. It is the duty of state and Jail authorities to have the policy of paying compensation for breach of their own remission policy resulting in deprivation of liberty of citizen. The Jail authorities have a duty not to drive the citizen to courts. They know that legal rights of prisoners to be released on due date, after meticulously calculating the remissions are under violation. The state is unmindful of the difficulties, delays and poverty of the jailed persons who cannot afford to spend thousands or lakhs of Rupees and to wait for 2 or more years for relief. While the Government will also be spend more than that amount from public exchequer on lawyers, travel of officers, besides spending several work hours to deny payment of damages for illegal detention. Though under Article 32 and Article 226, Constitutional right to remedy is available in the statute book, it is practically not available because of high costs, huge lawyer fees and large period of pendency to an average citizen. In fact, most of the accused are in jail because they could not afford to hire the services of reputed lawyers with face value. Because Article 226 is not available, the right to life under Article 21 along with the preamble becomes futile piece of poetry. All slogans such as minimum government and maximum governance, 11 state will not be a litigant; reduction of pendency to speed up justice will be empty if there is no policy in place to pay for extra detention.
31. The Jail Authorities called the Commission on the evening of 04.07.2016, explaining the absence of the PIO, Pramod Kumar Gupta, for the hearing dated 01.07.2016, stating late receipt of the hearing order and further informing that they shall submit their representation on 08.07.2016. It was not submitted. There was no response to calls from the office of the Commission. It is compelled to infer that they have nothing to say.
32. Hence, the Commission directs the jail authorities, and the GNCTD to explain why they should not be ordered to pay suitable compensation for causing loss and for other detriment caused by denial of information, besides Rs. 1,000 as costs to appellant for attending the hearing. The Commission directs Mr. Pramod Kumar Gupta, PIO to showcause why maximum penalty should not be imposed against him for wrongfully denying the information to appellant, within 30 days from the receipt of this order.
33. The Commission also directs the Jail authorities and the GNCTD to declare their policy in the form of citizen charter under Section 4(1)(b), (c) and (d) of Right to Information Act, 2005 explaining rights of prisoner in the jail especially with regard to remission and remedy for wrongful extra detention like this, as to the amount they will entitled per day and explain the procedure to claim that compensation, on their website as required to be disclosed voluntarily under Section 4(1)(c) of Right to Information Act, within 30 days from the date of receipt of this order.
34. This second appeal is posted on 22nd August 2016, at 2.30 pm for compliance and penal proceedings.
(M.Sridhar Acharyulu) Central Information Commissioner Authenticated true copy 12 (Dinesh Kumar) Deputy Registrar Addresses of the parties:
1. The CPIO under RTI, O/o Director General of Prison, Prison HQ, Tihar, Ianakpuri, New Delhi (RTI Cell).
2. Shri O. P. Gandhi, 2034, Sec7, BlockD, Faridabad121006.
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