Kerala High Court
M. Gopalan vs State Of Kerala on 10 April, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934
WP(C).No. 24015 of 2011 (B)
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PETITIONER(S):
--------------------------
1. M. GOPALAN, DOOR NO.40/545,
NEAR CUSTOMS OFFICE, AVIKARA,
KANHANGAD P.O., KASARAGOD DT.
2. M. PANKAJAKSHI, W/O.M.GOPALAN,
DOOR NO.40/545, NEAR CUSTOMS OFFICE,
AVIKARA, KANHANGAD P.O., KASARAGOD DT.
BY SRI.RAJU JOSEPH, SENIOR ADVOCATE.
ADV. SRI.J.JULIAN XAVIER.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR,
CENTRAL BUREAU OF INVESTIGATION,
1ST FLOOR, BLOCK NO.4, C.G.O. COMPLEX,
LODHI ROAD, NEW DELHI-110 003.
3. THE DIRECTOR GENERAL OF POLICE,
POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM-695 001.
4. DISTRICT COLLECTOR, COLLECTORATE,
KASARAGODE-671 121.
R1, R3 & R4 BY SRI.TOM JOSE PADINJAREKKARA, ADDL. D.G.P.
R2 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 06-02--2013, THE COURT ON 14-03-2013 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 24015 of 2011 (B)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE JUDGMENT DATED 10/04/2002 IN
O.P. NO. 9131/2002.
EXT.P2 COPY OF THE JUDGMENT DATED 30/01/2006 IN
W.P.(C)NO. 32794/2005.
EXT.P3 COPY OF THE JUDGMENT DATED 13/04/2007 IN
W.P.(C)NO. 29278/2006.
EXT.P4 COPY OF THE JUDGMENT DATED 16/03/2011 IN
W.P.(C)NO. 6140/2011.
EXT.P5 COPY OF THE REPRESENTATION DATED 15/10/2001.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
P. BHAVADASAN, J.
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W.P.(C). No. 24015 of 2011
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Dated this the 14th day of March, 2013.
JUDGMENT
This writ petition raises a very interesting but vexed question for consideration which is not easy to resolve. The writ petition pertains to the duty of the State to provide protection and security to the life of a person, consequence of the failure to do so and the remedy available to the aggrieved person for the breach of right to life and security.
2. It will be only appropriate to refer to the facts first.
3. The petitioners are the unfortunate parents of a person by name Balakrishnan, who was hacked to death by a group of assailants, who belonged to a particular community, at 10.30 p.m. on 18.9.2001. The story is that one Rasina, daughter of Abubacker Haji Malangh of Uppala in Kasaragod had taken a fancy to W.P.(C) 24015/2011.
2Balakrishnan. The relationship became so intense that they eloped on 26.5.2001. It is claimed that Rasina converted to Hinduism and on 1.6.2001 Balakrishnan and Rasina got married as per the Hindu religious rites at a temple in Mettupalayam. This act of the girl was against the wishes of her parents and that created intense dislike in them. The couple remained for a while at Coimbatore. The petitioners would say that during that period, the father of Rasina along with a close relative of her used to make frequent visits to the house of the petitioners enquiring about Balakrishnan's whereabouts. They collected the photograph of Balakrishnan, however, the petitioners would say that they did not reveal the hideout of Balakrishnan.
4. Finding it hard to pull on at Coimbatore, Rasina and Balakrishnan returned to Kasaragod and Balakrishnan resumed his courier business. One W.P.(C) 24015/2011.
3Abdulla, uncle of Rasina, visited the couple giving the impression that he was meeting them to enquire about the welfare of Rasina. The allegation is that Abubacker Haji and other close relatives of Rasina conspired to do away with Balakrishnan under the leadership of one person by name Atha who is a notorious criminal and the execution was carried out.
5. According to the petitioners, at the relevant time, communal fanaticism at Kasaragod was at its peak. There were frequent clashes between the two communities. The State with its enormous resources at its command must have been able to gather information about the possible outburst. According to the petitioners, the conspiracy to do away with Balakrishnan was hatched in the two meetings, one at City Tower on 9.8.2001 and the other at Victoria Lodge on 11.8.2001. The conspiracy so hatched in these two W.P.(C) 24015/2011.
4places ought to have been noticed by the State with its intelligence network and it should have been possible to gather necessary information regarding the intention of the conspirators. This is more so in view of the tense situation that prevailed in the area. They should have taken the necessary precautionary measures. Had the State and its agencies been more diligent, careful, cautious enough, they could have easily come to know about the plot to do away with Balakrishnan and could have averted the same.
6. The apathy on the part of the police during investigation after the incident forced the petitioners to approach this court by way of O.P. 9131 of 2002 for proper investigation. That was disposed of by Ext.P1 judgment. However, the police continued the cold attitude and the petitioners were forced to approach the Human Rights Commission. Finding that, that had little W.P.(C) 24015/2011.
5effect, the petitioners filed W.P.(C) 32794 of 2005 before this court. A statement filed by the Superintendent of Police of C.B.C.I.D., Kannur mentioned about the various steps taken by the police and that finally resulted in Ext.P2 judgment. In the said judgment, there was a direction that the investigation shall be conducted under the direct supervision of Deputy Inspector General of Police, Northern Range. Inspite of the direction given under Ext.P2 judgment, not much progress was made. That compelled the petitioners to approach this court again by way of W.P. (C) 29278 of 2006. After referring to the total lack of commitment and to the indifferent attitude of the investigating agency, this court by Ext.P3 judgment directed the investigation to be conducted by C.B.I. Again the casual attitude of the police force continued and the mother of the deceased approached this court W.P.(C) 24015/2011.
6by way of W.P.(C). 6140 of 2011 which was disposed of by Ext.P4.
7. The specific accusation is that the law and order machinery which is also bound to protect the life of a person and provide security to him completely failed and had the authorities concerned exercised due diligence and promptness and had taken precautionary measures, the mishap could have been prevented. As communal frenzy prevailed in the area and there were instances of sporadic violence and members of two communities had indulged in indiscriminate violence, the police force must have been more alert. Had they been vigilant they could have gathered necessary information about the plot to do away with Balakrishnan. The State, in the light of the surcharged atmosphere and volatile situation that prevailed in the area, should have made necessary arrangements and W.P.(C) 24015/2011.
7efforts to watch movements of people. To be more precise, if the intelligence wing of police force had taken note of frequent visits of relatives of Rasina to the house of the petitioner, the meetings at the two lodges, necessary conclusions could have been drawn.
8. Pointing out the utter failure on the part of the State to provide adequate security and protection and also the failure to properly investigate the case compelling the petitioners to approach this court on several occasions, the petitioners say that the State is liable to pay compensation under the public law doctrine for violation of the fundamental rights guaranteed under Article 21 of the Constitution of India.
9. The State opposes the petition. They filed two counter affidavits. They deny any liability with regard to the incident or liability to pay compensation W.P.(C) 24015/2011.
8to the petitioners. If at all the petitioners have any grievance, their remedy lies under the civil law or as a tortious claim or under the Criminal Procedure Code, and no relief can be granted under the writ jurisdiction. There was no laches or negligence on the part of the State machinery which resulted in the death of Balakrishnan. There was no circumstances to foresee any danger and no such situation as alleged prevailed in the area at any point of time and neither Balakrishnan or his parents nor anybody else had filed any complaint regarding any threat to Balakrishnan or his wife. It is virtually impossible for the State with its limited resources and man power to give security to all persons at all times and no such right is recognized in law. At no point of time it was brought to the notice of the police authorities that there was any threat, intimidation from anybody or that the family of W.P.(C) 24015/2011.
9Balakrishnan had suffered any bitter experience at the hands of the parents or relatives of Rasina. After the incident, proper investigation has been done and the final report has been laid. The case is to come up for trial. If at all the petitioners are entitled to get compensation, they will get the same under Section 357 Cr.P.C. In short, the contention is that this writ petition is misconceived and ill-advised.
10. Learned Senior counsel Sri. Raju Joseph contended that in civilized societies governed by rule of law, right to life and liberty of a person are well recognized. In Article 21 of the Constitution of India the words used are life and liberty, while in International Covenants to which India is a party, the words used are life and security. The word life is given a wide connotation by the Apex Court and is construed as conferring right on all persons from birth till death. W.P.(C) 24015/2011.
10According to the learned Senior Counsel, the State is bound to take measures to protect the life of a citizen. The vibrant Article 21 takes within its fold all aspects of life which include adequate security also. Learned counsel pointed out that it is not his claim that the police should provide security to all, at all times. But when the situation prevailing is such that it gives reasonable apprehension of possible outburst and offensive actions, the police is bound to take adequate precautionary measures. If the police had the knowledge of a possible mishap or outburst, or could have had the knowledge of the same, they are bound to take adequate preventive measures and if due to their negligence, the life or property of a person is lost, the State is certainly liable and is bound to compensate. Honour killing has been deprecated by the Apex Court. W.P.(C) 24015/2011.
11It is by now well settled that in case of violation of Article 21, Public Law remedy is available and in appropriate cases compensation can and infact must be made available to the aggrieved. Learned counsel also emphasized that the public law remedy is in addition to other remedies. In support of his contention, learned counsel relied on the decisions reported in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), Rudul Sah v. State of Bihar (AIR 1983 SC 1086), Bhagwan Dass v. State (NCT of Delhi) ((2011) 6 SCC 396, Arumugham Servai v. State of T.N. ((2011) 6 SCC
405) and N. Nagendra Rao & Co. v. State of A.P. (AIR 1994 SC 2663). On the basis of the decision in Nagendra Rao & Co. (supra), learned counsel for the petitioners contended that the principle that King can do no wrong has no application in India. If at all any such privilege is available, it is only available in regard W.P.(C) 24015/2011.
12to primary functions of the State. The State is liable for the tortious acts of its officers.
11. Coming to the facts of this case, learned Senior Counsel pointed out that had the police exercised reasonable vigil, the incident would not have happened. It has come out that there were two meetings in two lodges where the conspirators had gathered and planned to do away with Balakrishnan. These meetings at the two lodges should have alerted the State which has enormous resources at its command and should have suspected the motive of the participants in the meeting. Moreover, had the police officers been vigilant, they could have noticed the frequent visits of the relatives of Rasina to the house of Balakrishnan at the time of tension prevailing in the area between the two communities and that should have been taken note of. Under normal circumstances, W.P.(C) 24015/2011.
13it may be too much to ask for protection of individual's life and liberty at all times. But in the light of the communal tension and surcharged atmosphere prevailing in the area, the police ought to have been more alert and careful. The indifference and callousness is quite apparent from the lukewarm attitude shown by the police even after the incident. This court had to be approached on several occasions for proper investigation and all these would show the failure on the part of the authorities concerned to exercise necessary caution and care which ultimately resulted in the calamity. The indifference, laches and negligence on the part of the persons concerned cost the life of a person and that constitute breach of right to life and liberty of the victim as well as the applicants who enjoy such rights as guaranteed under the Constitution as well as under the Human Rights Act W.P.(C) 24015/2011.
14and are entitled to compensation under the public law.
12. Per contra, learned Additional Director General of Prosecution Shri. Tom Jose Padinjarekkara contended that the arguments of the petitioners are far fetched and too remote. According to him, it is virtually impossible with the limited resources available to give protection to the life and liberty of every person and the law does not insist so. It is significant, according to the learned Addl. D.G.P., that no incidents are referred to in the writ petition to show that any communal tension prevailed in the area or the life of members of either community was in danger. There was no complaint by either the victim or his parents of any threat or intimidation. There was nothing to show that there was threat to the life of any person. The contention based on conspiracy consequent to the meeting in two lodges is misconceived. It was during the investigation W.P.(C) 24015/2011.
15of the crime after the incident that police force came to know that there were two meetings in the lodges made mention of by the petitioners. Merely because a few people had gathered at a place, the police cannot suspect conspiracy and that by itself is insufficient for a probe. Unless some suspicious activity is noticed or information thereof is passed on, the police cannot intrude into the privacy of persons without any justification. Had the victim or his parents or any of his relatives given intimation or complaint regarding any damage to the life of either Balakrishnan or Rasina, surely appropriate action would have been taken by the officers of the State. Learned Addl.D.G.P. contended that, true the State has a duty to protect the life of its citizens. But it cannot be stretched beyond limits. If the event which resulted in causing damage or loss of life to a person as a result of the violation of the W.P.(C) 24015/2011.
16constitution or human right could have been reasonably foreseen or ought to have been foreseen by the authorities, then there may be some substance in the claim made by the petitioners. In the case on hand, there are absolutely no materials to suspect the alleged move to do away with Balakrishnan. It is true that the State has vast resources in its command. But it is ridiculous to suggest that the police or intelligence wing has to keep track of every movement of a citizen without any justification or suspicion. None of the situation which would attract liability on the State is present or established. It was also pointed out that if at all the petitioners have a grievance and are entitled to compensation, they will have to resort to the ordinary civil remedy or resort to the provisions of Cr.P.C. The learned Addl.D.G.P. relied on the decisions reported in Mangilal v. State of Madhya Pradesh (2004 K.H.C. W.P.(C) 24015/2011.
17
161), Sube Singh v. State of Haryana (2006 K.H.C.
386) and Sarwan Singh v. State of Punjab (1978 K.H.C. 612). The learned Additional D.G.P. wound up by saying that one is compelled to observe that it is an attempt to take undue advantage of what one could say as an unfortunate incident.
13. From the above contentions, the questions that arise for consideration are
(i) Has the State any obligation to provide protection to the life and security of a person from the criminal act of a third person?
(ii) If the answer is in the affirmative, what are the conditions under which the duty arises?
(iii) If there is violation of the right to protection of life or failure of duty on the part of the State, what is the remedy open to the W.P.(C) 24015/2011.
18
person concerned?
(iv) What is the nature of relief that can be granted in such situation?
14. First of all, one has to note whether there exists any right as claimed by the petitioners and a corresponding duty on the State to provide security to the life of a person from the criminal activity of a third person. If one is to locate such a right and corresponding duty, then what are their limitations The next aspect that needs to be considered is, if there is such a duty or right, on the breach of the right or failure to perform the duty, what are the consequences and what are the remedies available to the aggrieved person?
15. The main contention raised by the State is that there are civil, criminal and tortious remedies W.P.(C) 24015/2011.
19available to the petitioners. In a case where a person is aggrieved by the failure on the part of the State or its officers causing loss or damage to a person, he cannot approach the court under the writ jurisdiction seeking compensation especially when there are disputed facts. Such a practice is not to be encouraged and infact is contrary to the well established norms and law.
16. The petitioner bases his claim on Constitutional right, Human Rights Act and duty of police under the Police Act to give adequate and sufficient protection to a citizen. It is contended that it is the constitutional obligation and the statutory duty, violation of which gives rise to strict liability. Being a constitutional and statutory duty, failure to perform such duties would enable the petitioner to avail of public law remedy, which according to the petitioner, is by now well established. The State has to ensure the W.P.(C) 24015/2011.
20security of its citizen and it is one of the prime duties of the State and its officers and if due to the laches or default on the part of the authorities, citizen suffers loss or damage, the State is bound to compensate.
17. Where do we locate the right claimed by the petitioners and what is the remedy available? Are the ordinary remedies put forward by the Sate answer to the claim made by the petitioners ?
18. Every Nation which has a written or unwritten Constitution functioning on conventions give significance and importance and infact primary concern to the life and personal liberty of a person. In most of the Constitutions, right to life and liberty are guaranteed so also in case of violation of those core rights, the aggrieved person has the right to move the appropriate court or tribunal as the case may be for redressal of his grievances.
W.P.(C) 24015/2011.
21
19. Right to life and personal liberty have been recognized as an independent and indefeasible right available to a citizen, deprivation of which can be only under the due process of law. It is an essential limb of human rights also.
20. The concept of human right is nothing new. Human rights are those rights which inhers in every human being merely by virtue of him being a human being. Human rights are not capable of precise definition. It means the right relating to life, liberty, equality and dignity of the individual, guaranteed by the Constitution or embodied in international covenants are enforceable in a court of law. These inalienable rights inheres a person from the time of his birth.
21. Broadly speaking, it consists of
(i) natural rights, W.P.(C) 24015/2011.
22
(ii) fundamental rights,
(iii) legal rights
(iv) economic and social rights and cultural rights.
22. In the Universal Declaration of Human Rights, 1948 Article 3 reads as follows:
"Everyone has the right of life, liberty and security of person."
Article 8 reads as follows:
"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."
23. The International Covenant on Civil and Political Rights, 1966 also recognizes the rights of a human being. Article 6(1) reads as follows:
"Every human being has the inherent right to life. This right shall be protected by W.P.(C) 24015/2011.23
law. No one shall be arbitrarily deprived of his life."
Article 9(1) reads as follows:
"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."
Article 2(3)(a) reads as follows:
"(3). Each State party to the present Covenant undertakes:
(a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.
(b) To ensure that any person claiming such a remedy shall have his right thereto W.P.(C) 24015/2011.24
determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy."
24. The American Convention on Human Rights, 1969 also recognizes the similar rights. Article 7(1) reads as follows:
"Every person has the right to personal liberty and security."
The same Article provides for remedies in case of violation of such rights.
25. Article 6 of the African Chapter of Human Rights and Peoples' Rights, 1981 reads as follows:
"Every individual shall have the right to liberty and to the security of the person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be W.P.(C) 24015/2011.25
arbitrarily arrested or detained."
Article 4 reads as follows:
"Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right."
26. It could thus be seen that the personal liberty, security and life of a person are ensured by Constitutions, conventions, Human Rights Acts etc. They also confirm that a person is assured of the right to approach the appropriate forum in case of violation of such rights seeking appropriate remedies.
27. In India, before the Constitution came into existence, it was the common law right which was available, namely, a person may do or say what he pleases, provided he does not transgress substantive law or infringe the legal rights of others. However, personal liberty enjoyed a key role. According to Dicey W.P.(C) 24015/2011.
26
"The right to personal liberty as understood in England means in substance a person's right not be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification." It must be noticed that the above observation makes mention of a negative aspect. According to Iver Germings right to personal liberty is a genus and all other positive rights are the species.
28. With the advent of the Indian Constitution, common law ceased to have its independent existence. The common law rights recognized till then became constitutionally guaranteed rights. It also provides limits of legislative encroachment. Part III of the Indian Constitution makes mention of various fundamental rights. Legislative check is also provided for, mainly by restrictions and also taking note of the reasonableness W.P.(C) 24015/2011.
27of those restrictions. If a law impinges upon more than one fundamental right, it will have to satisfy all the requirements of all such rights and even if law is severed from the vice of one right, it cannot escape from the lethal rage of other fundamental rights.
29. In A.K.Gopalan's case, a restricted approach was made with emphasize more on the negative aspect on the fundamental rights as expounded by Dicey. But the said approach was rejected in the decision reported in Kharak Singh v. State of U.P. (AIR 1963 SC 1295) where it was held that personal liberty is a comprehensive term taking within its fold all varieties of rights which go to make out the personal liberties of a man. The Apex Court went further ahead and in Maneka Gandhi v. Union of India ((1978) 1 SCC 248) went on to hold that personal liberty is wide enough to comprehend all the W.P.(C) 24015/2011.
28rights including the fundamental rights under Article 19 of the Constitution.
30. Ever since then, the scope and ambit of Article 21 has kept on expanding and it now encompasses all such necessities and needs which are available to a human being to live a life with dignity. There has thus been a transition from a negative approach to a positive approach.
31. India has a written Constitution with constitutionalism firmly embedded in it. The two Articles in the Constitution which have considerable bearing on human rights are Articles 14 and 21 apart from the social justice slate stated in Preamble to the Constitution. They read as follows:
"14. Equality before law.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
W.P.(C) 24015/2011.
29
"21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law."
In fact by virtue of the expositions made by the Apex Court, Article 21 encapsulates the entire bundle of human rights. The Constitution also provides for remedies under Articles 32 and 226 of the Constitution for redressal of grievances in case of violation of human rights and fundamental rights. The Apex Court has held that infact the High Court exercising jurisdiction under Article 226 enjoys wider powers than that is conferred under Article 32, though Article 32 is part of the fundamental rights.
32. Article 21 is couched in negative language. Strictly speaking, it does not confer any positive right. It is only a dictate to the State not to do certain things. According to Hohfeldian analysis "duty W.P.(C) 24015/2011.
30indeed is the gravamen conception." According to that theory, the existence of a right can be recognized with relation to a co-related duty only. Therefore literally Part III of the Constitution of India provides rights as against State interference and does not actually create entitlement to claim positive rights.
33. However, by interpretative process, the Apex court has widened the horizon of Article 21 and has laid down that it encompasses positive rights also. It has been held that Article 21 takes within its fold the right to go abroad, right to unpolluted environment, right to clean water, right to live with dignity and honour, right to education, right to medical treatment, right to shelter, right to privacy etc. In fact the Apex Court has gone on to observe that right to life includes right to live with human dignity and all that goes along with it namely, the bare necessities of life such as food, W.P.(C) 24015/2011.
31clothing, shelter and facilities for reading and writing and express oneself in diverse forms, freely moving about and mixing with fellow human beings. To a considerable extent, the inspiration for expansion of the right guaranteed under Article 21 could be traced to other Articles comprised in Part IV of the Constitution especially Articles, 39, 41, 42, 43, 46 and 47.
34. Section 2(1)(d) of the Protection of Human Rights Act, 1993 reads as follows:
"(d) "Human Rights" means the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India."
35. The principle of protection to be afforded to the individuals finds a place in Mahabharata and Manusmruthi. Dr. M.Rama Jois, former Chief Justice of Punjan and Haryana High Court in his article Human W.P.(C) 24015/2011.
32Rights - Bharateeya Values observes as follows:
".....This directive incorporates duty of the King (State) and recognized in the following rights of the citizens:
(a) Right of a victim of an offence to secure justice by way of getting the offender punished.
(b) Right of a person who has suffered civil wrongs to secure impartial judgment from the State.
(c) Right to secure all welfare measures from the State by law-abiding citizens.
(d) Right of every citizens/subjects against arbitrary taxation.
(e) Right of all subjects/citizens to be protected against external aggression.
36. Shri. V.R.Krishna Iyer, Former Judge, Supreme Court of India, in the article Human Rights and the Common Citizen observes thus:
"Human rights are commonly understood as "inalienable fundamental rights to which a W.P.(C) 24015/2011.33
person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist as natural rights or as legal rights, in both national and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. The idea of human rights states, "if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights." Despite this, the strong claims made by the doctrine of human rights continue to provoke considerable skepticism and debates about the content, nature and justifications of human rights to this day. Indeed, the question of what is meant by a "right" is itself W.P.(C) 24015/2011.34
controversial and the subject of continued philosophical debate."
37. The positive rights recognized by the Apex Court thus impose a co-related obligation or duty on the State to ensure and secure the availability of those rights. They cannot be merely treated as privileges. In fact Article 21 as is now interpreted by the Apex Court takes within its fold other fundamental rights also. But still, the purpose, object and remedies for violation of each right are maintained and the restrictions that can be imposed with regard to the different rights are also distinct and different.
38. It will be useful at this point of time to refer to a few decisions to understand the scope and ambit of Article 21 and especially the words 'life and security'.
W.P.(C) 24015/2011.
35
39. In the decision reported in Parmanand Katara v. Union of India (AIR 1989 SC 2039) it was held as follows:
"7. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond 'the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve ,life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.
8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated W.P.(C) 24015/2011.36
with gradually increasing emphasis on that position. A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute -and paramount, laws of procedure whether in statutes or otherwise, which would interfere with the discharge of this obligation cannot be sustained and must therefore, give way. On this basis, we have not issued notices to the States and Union Territories for affording them an opportunity, of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. W.P.(C) 24015/2011.37
The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. We must make it clear that zonal regulations and classifications cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative. We order accordingly."
40. In the decision reported in Deepak Bajaj v. State of Maharashtra (AIR 2009 SC 628), it was held as follows:
"Every person has a fundamental right of liberty vide Article 21 of the Constitution. W.P.(C) 24015/2011.38
Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these rights in the interest of public order, security of the State, etc., but they are not to be lightly transgressed. If a person against whom a preventive detention order has been passed comes to Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently. The liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be lightly transgressed."
41. In the decision reported in Confederation of Ex-Servicemen Association v. Union of India ((2006) 8 SCC 399) the question as to W.P.(C) 24015/2011.
39what constitute life and liberty was considered.
"61. It cannot be gainsaid that right to life guaranteed under Article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held unconstitutional and ultra vires Part III of the Constitution. Before more than hundred years, in Munn v. Illinois, (1876) 94 US 113 : 24 Law Ed 77, Field, J.
explained the scope of the words "life" and "liberty" in 5th and 14th Amendments to the U.S. Constitution and proclaimed;
"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the W.P.(C) 24015/2011.40
outer world....... by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison."
42. In the decision reported in State of West Bengal v. Committee for Protection of Democratic Rights ((2010) 3 SCC 571) it was held as follows:
"60. Article 21, one of the fundamental rights enshrined in Part III of the Constitution declares that no person shall be deprived of his "life" or "personal liberty" except according to the procedure established by law. It is trite that the words "life" and "personal liberty" are used in the Article as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of person's animal existence. (See : Kharak Singh v. State of U.P.) ......... ........
W.P.(C) 24015/2011.41
66. While observing that the abrogation or abridgement of the fundamental rights under Chapter III of the Constitution have to be examined on broad interpretation so as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure, the Court explained the doctrine of separation of powers as follows : (SCC p.86- 87, paras 64-
66) :
"64.....it was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In The Federalist Nos. 47, 48, and 51, James Madison details how a separation of powers preserves liberty and prevents tyranny. In The Federalist No. 47, Madison discusses Montesquieu's treatment of the separation of powers in Spirit of Laws, (Book XI, Chapter 6). There Montesquieu writes, "When the legislative and executive powers are united in the same person, or in the same W.P.(C) 24015/2011.42
body of Magistrates, there can be no liberty ... Again, there is no liberty, if the judicial power be not separated from the legislative and executive."
Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of Government should not be entirely in the hands of another department of Government.
65. Alexander Hamilton in The Federalist No.78, remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people :
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and W.P.(C) 24015/2011.43
the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." (434)
66. Montesquieu finds that tyranny pervades when there is no separation of powers :
"There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."
43. In the decision reported in Ramlila Maidan Incident, in Re ((2012) 5 SCC 1) the Apex Court observed as follows:
W.P.(C) 24015/2011.44
"The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the state may arrogate to itself powers beyond what is specified in the Constitution."
It therefore follows that life and liberty envisaged in Article 21 is not merely existence but to lead a life with dignity and honour. According to the above decision, all rights which are needed to make the word life and liberty meaningful and productive are also guaranteed.
44. The next question that arises for consideration is what is the extent of protection that is envisaged under Article 21 and what are its contents?
45. The expanded interpretation given to Article 21 must take within its fold the right to W.P.(C) 24015/2011.
45protection also. The word 'life' in the said Article should take in protection to life and prevention of threat to life. This aspect assumes importance in the light of Human Rights Act also. In most of the International Covenants already referred to, security of a person is also emphasized and recognized as a facet of human right. Is a right to be protected and ensuring human right against crime, violence available and recognized?
46. Well, right to education, right to health, right to social and economic security, right to live with dignity, right to work are uniformally recognized. But that has not been the position with regard to the intervention of police force. There have been different considerations like individual security, human security and democratic security etc.
47. There cannot be any doubt that security is one of the main functions of the State. Initially it meant W.P.(C) 24015/2011.
46enforcing law, maintaining order. That concept of security has undergone considerable change. Security in the present context is not just confined to protection and fighting of crime but it means creating an environment conducive to peaceful co-existence. That means it takes in those measures and activities to control these factors and activities which generate violence threatening security and life of a person.
48. Different standards are seen applied in this regard in different countries. In U.S.A., it is seen that the principle appears to be that the police have no duty to protect a person against violence of a third party. According to U.S. Supreme Court nothing in the language of due process clause required the State to protect life literally and property of its citizen against invasion by private sectors. Since the State is under no obligation to provide protection, the State cannot be W.P.(C) 24015/2011.
47held liable for the injuries that could have been averted had it chosen to provide protection.
49. In the article by Jack Ryan, the learned author refers to various decisions rendered by the U.S. Supreme Court and has observed that no such liability on the part of the state is recognized.
50. In the report on Citizen Security and Human Rights by the Inter-American Commission of Human Rights, it is observed as follows:
"In this sense, and for the purpose of this report, the concept of citizen security is the one that best lends itself to addressing the problems of crime and violence from a human rights perspective. In lieu of concepts such as "public security", "internal security" or "public order", it represents an uncontroversial move towards an approach that focuses on building a stronger democratic citizenry, while making W.P.(C) 24015/2011.48
clear that the central objective of the policies established is the human person, and not the security of the State or a given political system. The expression citizen security emerged, for the most part, as a concept in Latin America, as governments made the transition to democracy, as a way to distinguish the concept of security under a democracy from a notion of security under the earlier authoritarian regimes. In the latter case, the concept of security was associated with concepts like "national security", "internal security" or "public security", all of which refer specifically to the security of the State. Under democratic regimes, the concept of security against the threat ofcrime or violence is associated with "citizen serucity"
and is used to refer to the paramount security of individuals and social groups. By contrast to other concepts used in the region, namely "urban security" or "safe city", citizen security refers to the security of all persons and W.P.(C) 24015/2011.
49
groups, both urban and rural. Nevertheless, it is worth highlighting that the concept of "public security" is still widely used in the United States and Canada to also refer to the security of the individuals and groups who make up society. By contrast, as noted above, in Latin America the very same expression, "public security", refers to a different concept altogether, alluding to the security built by the State or, on occasion, the security of the State.
.... The concept of citizen security involves those rights to which all members of a society are entitled, so that they are able to live their daily lives with as little threat as possible to their personal security, their civic rights and their right to the use and enjoyment of their property; on the other hand, citizen security problems occur when a State's failure to discharge, either in whole or in part, its function of providing protection against crime and social violence becomes a generalized situation, which means that the basic W.P.(C) 24015/2011.
50
relationship between those governing and the governed has broken down."
51. In England, though initially, the courts were conservative and did not readily accept the obligation of the State to protect a citizen from the violence of a third person, things changed and now there are instances where the courts have held the authorities liable in the case of negligence and inaction. Initially the House of Lords were of the opinion that the police owed no general duty to a member of the public to identify and apprehend criminals. The courts were of the view that unless there are special circumstances, it would not be proper to fasten liability as it would be against public policy and would expose the police force to considerable danger.
52. However, the above attitude has undergone tremendous change with Human Rights Act W.P.(C) 24015/2011.
51of 1988 and the decision in Osman v. United Kingdom where European Court of Human Rights (ECHR) found such a duty cast on the police under Article 2 of the Human Rights Act, to protect members of the public. In Osman's case, it was held as follows:
"The European court decided that the police, as a state agency, do in principle owe a positive duty under article 2 (right to life) to protect members of the public. This duty will be breached if the authorities knew or ought to have known at the time of the existence of areal and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party, and that the authorities failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. Perhaps surprisingly, in view of the fairly extreme facts in Osman, the duty was found not to have been breached because although disturbing, there was no stage at W.P.(C) 24015/2011.52
which the authorities knew or ought to have known of a real and immediate risk to the life of the Osman family.
Whilst the positive duty to protect life under article 2 does clearly exist, the test is a difficult one to meet because the domestic and European courts have been reluctant to impose too great a burden on the state. Most recently the House of Lords considered the case of Van Colle, in which the defendant in criminal proceedings made various threats against his former employer, the key prosecution witness against him, and ultimately killed him. Some of the threatening behaviour had been reported to the police, who failed to take action. Again, the court found that police's failure to take measures to protect the deceased's life had not breached the positive article duty, because there was insufficient information to alert them to the risk to life presented by the murderer."
W.P.(C) 24015/2011.
53
53. In India, as already stated, the Apex Court and the different High Courts have given wide interpretations to Article 21 and held that Article 21 take within its fold all possible constitutional rights which enables an individual to lead a full life and that liberty, social and economic and allied rights protected.
54. In the decision reported in Ramlila Maidan Incident, in Re (supra) it was held as follows:
"The term "liberty", which is subject to reasonable restrictions, needs to be examined with reference to the other constitutional rights. Article 21 is the foundation of the constitutional scheme. The procedure established by law for deprivation of rights conferred by this article must be fair, just and reasonable. The rules of justice and fair play require that State action should neither be unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law W.P.(C) 24015/2011.54
which prescribed that procedure and, consequently, the action taken thereunder. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards- first, the action be within the scope of the authority conferred by law and, second, it must be reasonable. I any action, within the scope of the authority conferred bylaw is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable. The law itself has to be reasonable and furthermore, the action under that law has to be in accordance with the law so established. Non-observance of either of this can vit6iate the action, but if the former is invalid, the latter cannot withstand."
55. In the decision reported in Vibin P.V. v. State of Kerala (2013(1) K.L.J. 207) it was held as follows:
W.P.(C) 24015/2011.55
"30. .....But, we may say when considering the right and entitlement of fundamental rights especially the right to life under Article 21 of the Constitution and its infringement by the State, according to us, all persons are equal and the status of the person whatever it may be does not make any difference, before us. The high status of the petitioner does not make him more deserving or eligible to get compensation for the infringement of fundamental rights. Each and everyperson has equal rights only whether he is a pavement dweller or lawyer. Therefore, we are not inclined to take the status as a relevant factor or criterion to decide remedy under public law for infringement of right to life, except for fixation of quantum of compensation.
31. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognized and applied in all civilized W.P.(C) 24015/2011.56
countries. The object of Article 21 is to prevent encroachment in the personal liberty of citizens by the Executive save in accordance with law and in conformity with the provisions thereof and in accordance with the procedure established by law. The meaning and content of the "Right to Life" and personal liberty have several facets and attributes and the Apex Court time and again declared the scope and ambit of catena of decisions. Right to life; personal liberty is one of the basic human rights and not even State has the authority to violate that right."
56. In the decision reported in Inspector General of Police v. S. Samuthiram ((2013) 1 SCC
598) it was held as follows:
"Every citizen in this country has the right to live with dignity and honour which is a fundamental right guaranteed under Article 21 of the Constitution of India. Sexual harassment like eve-teasing of women W.P.(C) 24015/2011.57
amounts to violation of rights guaranteed under Articles 14, 15 as well."
57. Thus, on scrutiny of the various decisions and the laws that prevails in various countries, there seems to be consensus that human right envisages personal safety and security as well.
58. The principle of accountability and rule of law means that the State and its force are answerable to the observance of human rights. They have to comply with legal norms and laws enshrined in human right instruments. When they fail to do so, the aggrieved party is entitled to institute proceedings for redressal of grievances before a competent court or adjudicatory body in accordance with the rule and procedure adopted by law.
59. It is now firmly believed that citizens' security must be treated as public policy. Preventive W.P.(C) 24015/2011.
58activities must be of utmost concern and State should be able to deal with violence and crime.
60. But such a right has its limitations. The right cannot be said to be absolute and admitting of no exceptions. The right is circumscribed by two factors. They are :
(i) The authority knew or ought to have known at the time of existence of a real and immediate risk to the life of an identified individual from the hands of a third party, or
(ii) They failed to take the necessary measures within the scope of their power, which judged reasonable might have been expected to avoid that act.
61. Such an obligation must be interpreted in a way which does not impose unreasonable or disproportionate burden on the authority. In other words, the obligation to adopt preventive and protective W.P.(C) 24015/2011.
59measures for individuals in their relationship with each other is conditioned by the awareness of the situation of a real and imminent danger for an individual or a group of individuals and to the reasonable possibilities of preventing or avoiding that danger. Even though an act or omission or deed of an individual has the legal consequence of violating the specific right of another individual, that ought not automatically attribute liability to the State, because the specific circumstances of the case and obligation must be considered.
62. Generally, three criteria are applied in such cases. They are:
(i) Was the victim threatened in a real and immediate way?
(ii) Did the authorities know about it or ought to have known about it?
(iii) Did they take reasonable care to counter the risk?
W.P.(C) 24015/2011.
60If the above three questions are answered in the affirmative, then State is answerable. If one of them is negative, the State is not liable.
63. Thus, it is no longer open to the State to contend that they are not concerned with the protection and safety of an individual against the acts of another individual. But the liability of the State is circumscribed by the circumstances already made mention of.
64. The next question that arises for consideration is, if there is violation of the rights so enjoyed by the person and the duties thus cast on the State, what is the remedy available to the aggrieved person. Common law remedy of damages and compensation and tortious claim are well recognized. But when a constitutional right is infringed, is not the victim entitled to constitutional remedies? W.P.(C) 24015/2011.
61
65. Though rights under the private law was extensive, there are certain area where it could not reach. Instances are not rare when the public authorities may act unlawfully and it may not be possible to hold them liable in all cases. Of course, the declaratory relief was always and is available.
66. The origin of public law is not recent. Long before the courts have developed a system or public law out of the prerogative writ. The remedy by way of writ jurisdiction is of considerable convenience and useful. Relief by prerogative writs or what are now known as public law remedies are quite effective and justice oriented where private law is found to be weak and ineffective. To be precise, public law is a combination of private law and remedies by way of prerogative writs.
W.P.(C) 24015/2011.
62
67. Lord Denning in his Book "The Closing Chapter" would term the change as a revolution, that is, emergence of public law. Lord Denning says "that Dicey law was considered as the Bible in England and there was no difference between public law and private law." This view continued to hold the field for a long time. The only public law known then was the prerogative right namely certiorari, mandamus and prohibition.
68. Lord Denning refers to the changes that were brought about by the subsequent decisions and the request of the Law Commission for reviewing the existing remedies. Lord Denning observes that for judicial control of administrative acts it was necessary that a simple and more effective procedures and remedies will be made available.
W.P.(C) 24015/2011.
63
69. Reference may be made to the dichotomy drawn by the House of Lords. Public authority functions were divided into two parts, (i) public law functions and (ii) private law functions. The difference drawn was public law functions of an authority are those which involve the determination of questions and reaching of decisions, whereas private law functions are those which involve carrying out of contract or other operations. As time passed by, the difference became important in substantive law also. The two different functions and law are governed by entirely different principles.
70. One should here remember that in England sovereignty vests in Parliament, whereas in India it vests in the people of the country. Though constitutionalism imposes checks and balances on organs of the State, the judiciary is conferred with W.P.(C) 24015/2011.
64unfettered powers to ensure that the other two organs function within the allotted sphere.
71. The public law principle in India was developed in the context of deprivation of fundamental rights. The public law serve a different purpose than the private law.
72. The development of public law in India arose out of the discharge of social obligation by the courts. The court of law when confronted with the violation of fundamental rights cannot remain rigid or cling on the conservative orthodox remedies. The traditional remedies under the civil law were found inadequate to meet the standards which call for immediate and urgent reliefs to redress the grievances of the aggrieved party. But however, one should remember that one is not a substitute for the other. In fact public law only supplements the private law. W.P.(C) 24015/2011.
65
73. As far as India is concerned, public law remedies are provided under Articles 32 and 226 of the Constitution of India. Article 32 falls within Part III of the Constitution which deals with fundamental rights. But the Apex Court has observed that in fact the power enjoyed by the High Court under Article 226 are wider in scope and content.
74. In the decision reported in Rudul Sah v. State of Bihar (AIR 1983 SC 1086) it was held as follows:
"9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in W.P.(C) 24015/2011.66
the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such, cases. The petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention arid that we ought to pass an appropriate order for the payment of compensation in this Habeas Corpus petition itself.
10. We cannot resist this argument. We see no effective answer to it save the stale, and sterile objection that the petitioner may, if so advised, file a suit to recover damages from W.P.(C) 24015/2011.67
the State Government. Happily, the State's counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of W.P.(C) 24015/2011.68
the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."
W.P.(C) 24015/2011.
69
75. In the decision reported in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), in paragraph 9 it was observed as follows:
"9. ....It may be mentioned straightway that award of compensation in a proceeding under Art. 32 by this Court or by the High Court under Art. 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, eventhough 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. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle. In the above decision, the Apex Court extensively referred to paragraphs 9 and 10 of the decision in W.P.(C) 24015/2011.70
Rudul Sah's case (supra). In paragraph 14 the Apex Court referred to Privy Council in Maharaj v. Attorney-General of Trinidad and Tobago ((1978)(2) All.E.R. 670) and in para 19 it was held as follows:
"19. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Art. 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enables the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Art. 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to W.P.(C) 24015/2011.71
extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the havenots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by Judicial restraint to avoid circumvention of private law remedies were more appropriate."
76. In the decision reported in N. Nagendra Rao & Co. v. State of A.P. (AIR 1994 SC 2663) it was W.P.(C) 24015/2011.
72observed as follows:
"12. However, since 1965 when this decision was rendered the law on vicarious liability has marched ahead. The ever increasing abuse of power by public authorities and interference with life and liberty of the citizens arbitrarily, coupled with transformation in social outlook with increasing emphasis on human liberty resulted in more pragmatic approach to the individual's dignity, his life and liberty and carving out of an exception by the Court where the abuse of public power was violative of the constitutional guarantee. Such infringements have been held to be wrong in public law which do not brook any barrier and the State has been held liable to compensate the victims. In Nilabati Behera (Smt.) alias Lalita v. State of Orissa, (1993) 2 SCC 746 : (AIR 1993 SC 1960), Hon'ble Mr. Justice J.S. Verma observed as under (at page 1966 of AIR) :
".........It may be mentioned straightway that W.P.(C) 24015/2011.73
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..........."
In the same decision, it was observed by Hon'ble Dr. Justice A. S. Anand :-
"..........The purpose of public 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 above decision, the Apex Court also observed that the doctrine of sovereign immunity has no relevance in the present day. The decision traces the right enjoyed by East India Company and after observing that it was only a delegatee of the Crown in W.P.(C) 24015/2011.
74certain fields, the Company never enjoyed sovereign immunity, it was held that the old and archaic concept of sovereignty does not survive and sovereignty now vests with the people. In paragraph 24 it was held as follows:
"24. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of W.P.(C) 24015/2011.75
law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as "sovereign and non-sovereign" or "governmental and non-governmental" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual, change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its W.P.(C) 24015/2011.76
place either because of the 'financial instability of the infant American States rather than to the stability of the doctrine theoretical foundation,' or because of 'logical and practical ground,' or that 'there could be no legal right as against the State which made the law' gradually gave way to the movement from, 'State irresponsibility to State responsibility.' In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non- sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a W.P.(C) 24015/2011.77
constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued. The liability of the officers personally was not doubted even in Viscount Canterbury (supra). But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State. In paragraph 26 it was held as follows:
W.P.(C) 24015/2011.78
"26. A law may be made to carry out the primary or inalienable functions of the State.
Criminal Procedure Code is one such law. A search or seizure effected under such law could be taken to be an exercise of power which may be in domain of inalienable function. Whether the authority to whom this power is delegated is liable for negligence in discharge of duties while performing such functions is a different matter. But when similar powers are conferred under other statute as incidental or ancillary power to carry out the purpose and, objective of the Act, then it being an exercise of such State function which is not primary or inalienable, an officer acting negligently is liable personally and the State vicariously. Maintenance of law and order or repression of crime may be inalienable function, for proper exercise of which the State may enact a law and may delegate its functions, the violation of which may not be sueable in torts, unless it W.P.(C) 24015/2011.
79
trenches into and encroaches on the fundamental rights of life and liberty guaranteed by the Constitution. But that principle would not be attracted where similar powers are conferred on officers who exercise statutory powers which are otherwise than sovereign powers as understood in the modern sense. The Act deals with persons indulging in hoarding and black-marketing. Any power for regulating and controlling the essential commodities and the delegation of power to authorised officers to inspect, search and seize the property for carrying out the object of the State cannot be a power for negligent exercise of which the State can claim immunity. No constitutional system can, either on State necessity or public policy, condone negligent functioning of the State or its officers. The rule was succinctly stated by Lord Blackburn in Geddis v. Proprietors of Bonn Reservoir (1878) 3 App Cases p. 430 at p. 435 :-
"No action will lie for doing that which the W.P.(C) 24015/2011.80
legislature has authorised, if it be done without negligence, although it does occasion damage to any one; but an action does lie for doing that which the Legislature has authorised if it be done negligently."
77. In the decision reported in Binny Ltd. v. Sadasivan (AIR 2005 SC 3202), it was held as follows:
"9. Superior Court's supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or W.P.(C) 24015/2011.81
person performing public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subha Rao J. expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v. Income Tax Officer 1965(3) SCR 536 at pages 540-41:
"This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in W.P.(C) 24015/2011.82
England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution of India with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with the unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself..."
In the above decision, it was observed that judicial review is designed to prevent abuse of power and neglect of duties by public authorities. In paragraph 16 it was held as follows:
W.P.(C) 24015/2011.83
"16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 or 32 of the Constitution. As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution. In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein."
In paragraph 19 it was held as follows:
"19. In VST Industries Limited v. VST Industries Workers' Union and Anr. (2001) 1 W.P.(C) 24015/2011.84
SCC 298, the very same question came up for consideration. The appellant-company was engaged in the manufacture and sale of cigarettes. A petition was filed by the first respondent under Article 226 of the Constitution seeking a writ of mandamus to treat the members of the respondent Union, who were employees working in the canteen of the appellant's factory, as employees of the appellant and for grant of monetary and other consequential benefits. Speaking for the Bench, Rajendra Babu, J., (as he then was), held as follows:
"7. In de Smith, Woolf and Jowell's Judicial Review of Administrative Action 5th Edn., It is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public when its decisions are subject to duties conferred by statute or when by virtue of the function it is performing or possible its dominant position in the W.P.(C) 24015/2011.85
market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the Court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions:
(1) The test of a whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a "public" or a "private" body.
W.P.(C) 24015/2011.
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(2) The principles of judicial review prima facie govern the activities of bodies performing public functions.
(3) However, not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function
(a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied; and
(b) Where there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, W.P.(C) 24015/2011.
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where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute." In paragraph 29 it was held as follows:
"29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against W.P.(C) 24015/2011.88
any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority W.P.(C) 24015/2011.89
which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point."
78. In the decision reported in Vibin P.V. v. State of Kerala (2013(1) K.L.J. 207) the concept of sovereign immunity and public law remedies were referred to and the power of courts to award compensation when fundamental rights are violated was reiterated.
79. But the power so conferred is not unfettered or absolute. It is subject to self imposed restrictions. For example, the award of compensation is usually resorted to only for violation of Constitutional right guaranteed under Article 21.
W.P.(C) 24015/2011.
90
80. In the decision reported in Confederation of Ex-Servicemen Assns. v. Union of India ((2006) 8 SCC 399) it was held as follows:
"61. It cannot be gainsaid that right to life guaranteed under Article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held unconstitutional and ultra vires Part III of the Constitution. Before more than hundred years, in Munn v. Illinois, (1876) 94 US 113 : 24 Law Ed 77, Field, J.
explained the scope of the words "life" and "liberty" in 5th and 14th Amendments to the U.S. Constitution and proclaimed;
"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the W.P.(C) 24015/2011.91
mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world....... by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison."
81. In the decision reported in Arumugam Servai v. State of T.N. ((2011) 6 SCC 405) it was held as follows:
"11. In Lata Singh v. State of U .P. and Anr. (AIR 2006 SC 2522), this Court observed (vide paras 14 to 18) as under:
"14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the W.P.(C) 24015/2011.92
Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.
15. We are of the opinion that no offence was committed by any of the accused (the couple who had an inter caste marriage) and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.
16. Since several such instances are coming to our knowledge of harassment, W.P.(C) 24015/2011.93
threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.
17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter- caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment W.P.(C) 24015/2011.94
are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter- religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by W.P.(C) 24015/2011.95
instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
18. We sometimes hear of 'honour' killings of such persons who undergo inter- caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism".
13. Hence, we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the W.P.(C) 24015/2011.
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district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection."
82. In the decision reported in Prison Officers Association v. Iqbal (2010 (2) All.E.R. 663) it was held as follows:
"False imprisonment had to result from a direct act of a defendant which deprived the claimant of his liberty. As a general principle, defendants were not to be held liable in tort for the results of their inaction, in the absence of a specific duty to act, a duty which would normally arise out of the particular W.P.(C) 24015/2011.97
relationship between a claimant and a defendant. In the instant case, the withdrawal of their labour by the prison officers did not directly lead to the claimant being confined in his cell on the day in question; the confinement resulted from the governor's decision. The failure of the prison officers to work at the prison, while it might have been a breach of their employment contracts, involved no positive action on their part, and that failure was not the direct cause of claimant's confinement. It accorded both such principle and with practicality to limit claims by prisoners who were left locked in their cells by the inaction of prison officers to cases where the relevant officers were guilty of misfeasance in public office."
83. In the decision reported in R (Gentle) v. Prime Minister (2008(3) All.E.R. 1) it was held as follows:
W.P.(C) 24015/2011.98
"Article 2 of the convention did not contain a substantive duty, owed by the government of the United Kingdom to soldiers whose lives would be put at risk during a war, to exercise due diligence before going to war to ensure that it would be lawful to do so under international law nor, therefore, a procedural duty, in the event of a soldier dying in a war which could arguably have been entered into in violation of that substantive duty, to initiate an effective public and independent inquiry into whether due diligence had in fact been exercised. The legality of an invasion under international law had nothing to do with the state's obligation under art 2(1) to protect the servicemen and women within its jurisdiction. The convention was concerned with securing respect for certain human rights within the domestic legal systems of member states rather than with scrutinising the status of their actions under wider international law."
W.P.(C) 24015/2011.
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84. In the decision reported in Savage v. South Essex ((2009) 1 All.E.R. 1053) it was held as follows:
"Where there was a real and immediate risk of a detained patient committing suicide, ar. 2 of the convention imposed an operational obligation on the medical authorities to do all that could reasonably be expected of them to prevent it. There was no basis in the jurisprudence of the Court of Human Rights for the proposition that medical staff could never be subject to such an operational duty; art.2 imposed on the authorities and their staff an obligation to adopt a framework of general measures to protect detained patients from the risk of suicide and there was no reason why they should not be under the complementary distinct operational obligation to try to prevent a particular suicide in the appropriate circumstances. Patients detained in hospital under the 1983 Act were deprived W.P.(C) 24015/2011.100
of more of their ordinary civil rights than were other detainees. The principles which the Court of Human Rights had developed in relation to prisoners and administrative detainees because of their vulnerability applied mutatis umutandis to detained patients."
85. In the decision reported in Gorringe v. Calderdale MBC (2004(2) All.E.R. 326), it was held as follows:
"The duty imposed on a highway authority by s. 41(1) of the 1980 Act to put and keep the highway in repair was not capable of covering the provision of waring signs. The duty to 'maintain the highway' did not include a duty to take reasonable care to secure that the highway was not dangerous to traffic. In the instant case the accident had not been caused by any defect in the state of repair of the road or by any failure of the authority to maintain the road.
W.P.(C) 24015/2011.101
The existence of the broad public duty in s.39 of the 1988 act did not generate a common law duty of care and thus a private law right of action. A common law duty to act could not be imposed upon a local authority based solely on the existence of a broad public law duty. It was in the public interest that local authorities should take steps to promote road safety, but that did not require a private law duty to a careless driver or to any other road user."
86. In the decision reported in Ramlila Maidan Incident, in Re ((2012) 5 SCC 1), it was held as follows:
"306. Article 355 of the Constitution provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be W.P.(C) 24015/2011.102
perforce, admitted. Nonetheless, the very essence of constitutionalism is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution.
........... ...........
309. Privacy and dignity of human life has always been considered a fundamental human right of every human being like any other key values such as freedom of association and freedom of speech. Therefore, every act which offends or impairs human dignity tantamounts to deprivation pro tanto of his right to live and the State action must be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights."
87. In the decision reported in Van Colle v. Chief Constable ((2008) 3 All.E.R. 977) it was held as follows:
W.P.(C) 24015/2011.103
"Jurisprudence of the Court of Human Rights established that art.2 of the convention implied a positive obligation on national authorities to take preventive measures to protect an individual whose life was at risk from the criminal acts of another where it was established to the court's satisfaction that the authorities knew or ought to have known at the time of her existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they had failed to take measures within the scope of their powers which, judged reasonably, might well have been expected to avoid that risk. No lower test was appropriate where a threat to the life of an individual derived from the state's decision to call that individual as a witness for the prosecution at a criminal trial and in the case of G the courts below had misdirected themselves in law by attaching undue significance to G's status as a witness. It could W.P.(C) 24015/2011.104
not reasonably be said that making a reasonable and informed judgment on the facts and circumstances which were or should have been known to him at the time, the police officer involved should have apprehended violence against G."
88. In the decision reported in Al Hassan-Daniel v. Revenue and Customs Commissioners ((2011) 2 All.E.R. 31), the facts shows that a person was detained on tracing cocaine on his person. He had swallowed packets of cocaine which were in his stomach. He on detention refused to take food. Later he took a small quantity of food. He developed signs of acute cocaine poisoning. An ambulance was brought, by that time he died. The claimants, widow of the detenue and his father brought a claim under the Human Rights Act alleging breach of article 2 and 3 of the European Convention for the W.P.(C) 24015/2011.
105protection of Human Rights and Fundamental Freedoms which provided that everyone's right to life as to be protected by law and that no one should be subjected to inhuman or degrading treatment. According to claimants, with better handling and management of the detenue his life could have been saved. The respondent sought refuge under the maxim "ex turpi causa no oritur actio" (no claim arises from a dishonourable cause of action). Trial court accepted the defence and dismissed the claim. In appeal it was held as follows:
"13. Here the allegation is of breaches of arts. 2 and 3 of the convention. These provide in their material parts that everyone's right to life shall be protected by law and that no one shall be subjected to inhuman or degrading treatment.
14. It is well established that the art.2 right carries an obligation on the state to W.P.(C) 24015/2011.106
investigate any death which may have resulted from a breach of its provisions. In England and Wales this duty is discharged by the coroner's inquest, whose statutory functions are now designed to meet the requirements of the convention. In the present case an inquest returned the cause of death set out above, together with a short narrative account of how the deceased came by his death. The coroner, against pursuant to statute, added a recommendation that a policy be developed for prisoners who are believed to have swallowed drugs and to be retaining them to consult an independent doctor. In the present case, as we have said, this had been done."
In paragraph 6, it was held as follows:
"6. For reasons to which we will shortly come, we have concluded that the appeal has to succeed because it is clear that the common law defence of criminality does not operate in convention law so as to bar a claim. But this finding, while it leaves the claim alive for the W.P.(C) 24015/2011.107
moment, does not address what we consider to be the real, but so far unaddressed, issue of causation. That issue can be put, at its most favourable to the claimants, in this way: did any deficiencies there may have been in the defendants' management of the detention suite play a material part in Mr. Daniel's death, or was his death for all practical purposes the consequence of his own voluntary acts in ingesting potentially lethal matter, doing his utmost to retain it and retaining it for so long that it killed him."
89. The above decisions indicate the duty of State and its officers to give adequate protection to the life of a person which includes property also. Right to medical treatment, right to be secure and safer in hospital, right to have proper enquiries and investigation into crimes etc have come to be accepted or recognized as a part of protection to life and liberty. The decisions referred to above emphasis the need for a W.P.(C) 24015/2011.
108dynamic and effective approach to issues involving breach of fundamental and human rights and the necessity to adopt palliative measures in such cases. Of course, the circumstances of each case will have to be independently evaluated and quantum of damages or compensation amount fixed must be just and reasonable.
90. Having thus traced the law regarding the obligation of the State to give protection to life and property, and having determined the remedy available on the consequences of the breach of duty casts on the State, one may now turn to the facts of the case.
91. The complaint of the petitioners is that considering the tense and communal atmosphere that prevailed in the area at the relevant time and the fact that there used to be several sporadic clashes between the two communities, the State and its authorities ought W.P.(C) 24015/2011.
109to have been very vigilant and should have been able to foresee the conspiracy to do away with Balakrishnan. To be precise, the police force and the State with its large intelligence machinery etc., should have been able to decode the purpose of frequent visits of the relatives of the girl to the house of Balakrishnan and enquiries made about him and then also about the two meetings held by the conspirators in the two lodges already made mention of. Had they been careful and diligent, the mishap could have been easily averted.
92. As rightly pointed out by the learned Addl.D.G.P., the claim seems to be too far fetched. At no point of time either Balakrishnan or his parents or any of his relatives had either alerted or complained about threat to his life or that of the girl. In fact the materials on record would indicate that the relatives of the girl were on friendly and cordial terms with W.P.(C) 24015/2011.
110Balakrishnan and nobody suspected any ill-motive in their conduct. As rightly pointed out by the learned Addl. D.G.P., there was no occasion for the police force to suspect any foul play in the acquaintance developed by the relatives of the girl with Balakrishnan and his family and at no point of time they were given any impression or information by the family members of Balakrishnan that they suspected some foul play.
93. The learned Addl.D.G.P. is justified in his submission that, it is not possible for the police force to barge into a room where some people have gathered without any specific information of any undesirable activity or suspicion about the object and purpose of the meeting. The police came to know about the conspiracy alleged in those places during the investigation and that could not be projected backwards to claim that police ought to have been careful when the meetings had W.P.(C) 24015/2011.
111taken place in the respective lodges. There was no reason for the police to suspect that the meetings held in the two lodges were for conspiring to do away with Balakrishnan. It is too difficult to accept the claim of the petitioners that the police force with its large intelligence network ought to have smelt a rat when the meetings were held. It is not possible for the police to keep track of every meeting by a few people at various places on various occasions unless they have specific information regarding any oblique sinister regarding the meeting.
94. No circumstances are pointed out to show that there was any event or any alert expressed by the parents of Balakrishnan or by Balakrishnan or by his relatives or any incident which would have aroused suspicion in the mind of the police force so as to anticipate the commission of a crime. If only there W.P.(C) 24015/2011.
112were convincing reasons to believe that the authorities concerned had occasion to know that there was an impending danger, or they ought to have known about it, and they had failed to take necessary precautions, they and State could be made liable. Admittedly in the case on hand, there is nothing to show that any complaint was either lodged or any instance was brought to the notice of the authorities concerned regarding the so-called concealed threat in the mind of the conspirators or perpetrators of the crime to the life of Balakrishnan. There was no manifestation of the so concealed intention in the mind of the conspirators which would have alerted the authorities concerned. Even the parents of Balakrishnan or Balakrishnan or his relatives did not suspect any member of the other community. Even in the petition it is averred that the relatives of the girl used to visit the house of W.P.(C) 24015/2011.
113Balakrishnan quite often. Soon after the girl had come back to the house of Balakrishnan, they had enquired about the welfare of both the girl and Balakrishnan. It is significant to notice that there is no averment in the petition that on any of those occasions any threat was meted out to Balakrishnan or that the visitors had indicated to the members of the family of Balakrishnan that Balakrishnan will be dealt with. The petition makes no mention of any incident which made the acts of the visitors suspicious or had generated a feeling in the mind of either the parents of Balakrishnan or Balakrishnan that there was some impending danger to the life of Balakrishnan. Under these circumstances, applying the principles made mention of earlier, it could not be said that the authorities concerned had failed to give adequate protection to Balakrishnan. W.P.(C) 24015/2011.
114
95. But the matter does not end there. After the incident was over and the matter was reported to the police, they were bound to conduct a proper investigation into the incident. The right to have a fair, impartial and proper investigation is part of right to life envisaged under Article 21 of the Constitution. If there was no proper investigation or if there was callousness or indifference on the part of the investigating agency concerned, that amounts to violation of the fundamental rights envisaged under Article 21 of the Constitution.
96. It is here that one has to notice that the petitioners had to approach this court repeatedly for redressal of their grievances. From the decisions which have been referred to, it is evident that the petitioners have a fundamental right to have the investigation properly conducted into the death of their son. That the initial investigation had been very lukewarm and cold is W.P.(C) 24015/2011.
115evident from the fact that the petitioners had to approach this court and the attitude of the investigating agency is evident from a reading of the judgments of this court in the various writ petitions. It will not be inappropriate to refer to a portion of the judgment in W.P.(C) 29278 of 2006 which was disposed of by judgment dated 13.4.2007. The opening paragraph reads as follows:
"The facts revealed in this case are shocking. How absence of a proper and efficient investigation can shock the conscience of the community and leave citizens with the sense of despair and frustration is revealed evidently from the facts and circumstances of this case. I shall carefully avoid any detailed reference to the facts or the allegations. Suffice it to say that after going through the voluminous records in this case, I am left with a deep sense of dissatisfaction about the manner in which the W.P.(C) 24015/2011.116
crime has been investigated. The unfortunate plight of the petitioner, the mother of a deceased person, does evoke great sympathy, anguish and trauma in my mind."
That shows that even after the incident had occurred, the authorities concerned were unmindful of the consequences and impact and did not feel it necessary to identify the persons who were responsible for the extermination of Balakrishnan. The petitioners had to file as many as five writ petitions to get the investigation properly done. One can very well understand the trauma and agony undergone by them.
97. Learned Addl.D.G.P. pointed out that ultimately the investigation was conducted by the C.B.I. and a report has been laid and therefore no grievance subsists.
98. True, ultimately the petitioners were able to get the CBI to conduct investigation. But that was W.P.(C) 24015/2011.
117after running from pillar to post and petitioners had to move the court repeatedly complaining about the indifference, unconcern and apathy of the investigating agency and seeking remedial measures. The lack of application, sincerity and the absolute neglect of duty to conduct a proper investigation is evident from the portion of the judgment extracted above.
99. The mere fact that the family was able to procure orders from this court for a proper investigation, and that final report has been laid by the investigating agency is no answer to their claim that their fundamental rights have been violated. It is a clear case of lethargy, inefficiency whether deliberate or not, and a reflection of indifferent attitude or unconcern of a citizen's right displayed by the investigating agency.
W.P.(C) 24015/2011.
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100. This court had while disposing of the writ petitions noticed the predicament in which the parents were placed and the agony undergone by them. It was only due to the intervention of this court that things were set right and a proper investigation was done. That does not absolve the State from its negligence, laches and the lethargic attitude shown in enquiring into the death of Balakrishnan.
101. The question then arises as to what exactly is the relief to be granted to the petitioners. Of course, the Addl.D.G.P. continues to contend that if the petitioners have suffered any damages, the proper forum for them is to approach the civil court or the criminal court where the trial regarding the murder of Balakrishnan is pending and not to invoke the writ jurisdiction of this court for compensation. W.P.(C) 24015/2011.
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102. The history of the development of public law doctrine has been traced. It is by now well settled that when the court comes to the conclusion that there has been a violation of the fundamental rights of the party concerned, if necessary, monetary compensation may be ordered. In fact Section 18 of the Protection of Human Rights Act, 1993 provides for payment of compensation. Instances are not rare when monetary compensation was awarded like in cases of police atrocities, illegal detention and medical negligence. Public law remedy by way of resorting to judicial review method has now been accepted as an effective mode of rendering quick justice. In some cases, monetary compensation may be the only suitable remedy for redressal of the grievance. In the case on hand, applying the well settled principle, it follows that the only way by which the trauma undergone by the W.P.(C) 24015/2011.
120petitioners and also the loss suffered by them as a result of the violation of the personal liberty is by way of awarding monetary compensation.
103. The compensation awarded under the public law remedy too is only one of the remedies where violation or breach of a fundamental right is alleged and established. The amount awarded as per public law does not preclude the beneficiary from resorting to other forms of remedies available to him. These remedies are not either exclusive or unconnected with each other. The only aspect to be remembered is that if compensation is awarded in different proceedings, the amount awarded in each proceedings will take note of the amount awarded in other proceedings.
104. As to the right to get monetary compensation, in Rudul Sah's case (supra) and in Nilabati Behera's case (supra) it was held that W.P.(C) 24015/2011.
121appropriate relief is monetary compensation and not to drive the parties to civil suit though that may be an additional remedy available to the aggrieved person. There are ample number of instances where courts have awarded monetary compensation in case of custodial death. In this context para 31 of the decision relied on by the Addl.D.G.P. in Sube Singh's case (supra) is relevant and it reads as follows:
"31. Though illegal detention and custodial torture were recognized as violations of the fundamental rights of life and liberty guaranteed under Art.21, to begin with, only the following reliefs were being granted in the writ petitions under Art.32 or 226.
(a) direction to set at liberty the person detained, if the complaint was one of illegal detention.
(b) direction to the Government concerned to hold an inquiry and take action against the officers responsible for the W.P.(C) 24015/2011.122
violation.
(c) If the enquiry or action taken by the department concerned was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation.
Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Art.21 of the Constitution, in addition to the private law remedy under the law of torts, was evolved in the last two and a half decades."
105. Here one has to refer to the decisions cited by the learned Addl. D.G.P. In the decision reported in Mangilal's case (supra) it was held as follows:
"8. The power of the Court to award compensation to victims under S. 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh v. Sukhbir Singh and W.P.(C) 24015/2011.123
others (1988 (4) SCC 351) it was observed that the power under S. 357 is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a recompensatory measure to rehabilitate to an extent the beleaguered victims of the crime, a modern constructive approach to crimes, a step forward in our criminal justice system. In Sarwan Singh and others, etc. v. State of Punjab (AIR 1978 SC 1525) it was held that in awarding compensation, the Court has to decide whether the case is fit one in which compensation has to be awarded. If it is found that the compensation should be ordered to be paid, then while arriving at the quantum to be paid. Courts are obliged to keep into account the capacity of the accused to pay the compensation besides taking into consideration also the nature of the crime in each case, the justness of the claim for compensation and the need for it in the W.P.(C) 24015/2011.124
context of the victim or members of the family of the victim and other relevant circumstances, if any, in so fixing or apportioning the amount of compensation. As noted above, the mode of application of the fine is indicated in sub-section (1) of S. 357. Sub-section (3) contains an independent and distinct power to award compensation.
9. That brings us to the most crucial question, that is, whether the Court was required to hear accused before fixing the quantum of compensation. It is urged by the learned counsel for the State that unlike a sentence of fine before imposition of which a Court is required to hear the accused while considering the question of quantum of sentence, it is but natural that the trial Court after hearing on the question of sentence does not impose a fine, but in terms of sub-section (3) of S. 357 proceed to award compensation, at that juncture or even during the course of hearing as to the quantum of sentence by W.P.(C) 24015/2011.
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sufficient indication made by the Court concerned, the accused gets opportunity to present his version as to the relevant criteria or norms to be applied in the context of the case before the Court on the quantum of compensation. The position cannot be said to be, in any way different while the appellate or revisional Court also does it in terms of sub- section (4), as long as it requires to be done in the light of the criteria indicated as above, unless it is by any agreement or consent of the parties such compensation has been fixed."
106. In the decision reported in Sube Singh's case (supra) it was held as follows:
"49. Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such W.P.(C) 24015/2011.126
occurrences. Following steps, if taken, may prove to be effective preventive measures :
a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.
b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.
c) Compliance with the eleven requirements enumerated in D. K. Basu (supra) should be ensured in all cases of arrest and detention.
d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.
W.P.(C) 24015/2011.
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e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.
f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.
The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc. W.P.(C) 24015/2011.
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CONCLUSION :
50. In this case, there is no clear or incontrovertible evidence about custodial torture, nor any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by the CBI and ensuring that the Police Officers named are prosecuted. The law will have to take own course.
51. This order will not come in the way of any civil court awarding compensation in an action in tort or the criminal court awarding compensation under section 357 CPC in the pending prosecution against any of the officers, if the charges are established. With W.P.(C) 24015/2011.129
the said observations, we dispose of this petition, as no further reliefs/directions are called for."
107. In the decision reported in Sarwan Singh's case (supra) it was held as follows:
"10. The law which enables the Court to direct compensation to be paid to the dependents is found in S. 357 of the Code of Criminal Procedure (Act 2 of 1974). The corresponding provision in the 1898 Code was S. 545. Sec. 545 of the Code of Criminal Procedure (Act 5 of 1898) was amended by Act 18 of 1923 and by Act 26 of 1955. The amendment which is relevant for the purpose of out discussion is 545 (10 (bb) which, for the first time was inserted by Act 26 of 1955. By this amendment the Court is enabled to direct the accused, who caused the death of another person, to pay compensation to the persons who are, under the Fatal. Accidents Act, entitled to recover damages from the persons W.P.(C) 24015/2011.130
sentenced, for the loss resulting to them from such death. In introducing the amendment, the Joint Select Committee stated "when death has been caused to a person, it is but proper that his heirs and dependants should be compensated, in suitable cases, for the loss resulting to them from such death, by the person who responsible for it. The Committee proceeded to state that though S. 545 of the Code as amended in 1923 was intended to cover such cases, the intention was not however very clearly brought out and therefore in order to focus the attention of the courts on this aspect of the question, the Committee have amended S. 545 and it has been made clear that a fine may form a part of any sentence including a sentence of death and it has also been provided that the persons who are entitled under the Fatal Accidents Act, 1855, to recover damages from the person sentenced may be compensated out of the fine imposed. It also expressed its full agreement W.P.(C) 24015/2011.131
with the suggestion that at the time of awarding judgment in a case where death has resulted from homicide, the court should award compensation to the heirs of the deceased. The Committee felt that this will result in settling the claim once for all by doing away with the need for a further claim in a civil Court, and avoid needless worry and expense to both sides. The Committee further agreed that in cases where the death is the result of negligence of the offender, appropriate compensation should be awarded to the heirs. By the introduction of cl. (bb) to S. 545, (1), the intention of the legislature was made clear that, in suitable cases, the heirs and dependants should be compensated for the loss that resulted to them from the death, from a person who was responsible for it. The view was also expressed that the Court should award compensation to the heir of the deceased so that their claims would be settled finally. This object is sought to be given effect W.P.(C) 24015/2011.132
to by S. 357 of the new Code (Act 2 of 1974). Section 357 (3) provides that when a court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount, as may be specified in the order, to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
The object of the section therefore, is to provide compensation payable to the persons who are entitled to recover damages from the person sentenced even though fine does not form part of the sentence. Though S. 545 enabled the Court only to pay compensation out of the fine that would be imposed under the law, by S. 357 (3) when a Court imposes a sentence, of which fine does not form a part, the Court may direct the accused to pay compensation. In awarding compensation it is necessary for the Court to decide whether the W.P.(C) 24015/2011.133
case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay a compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the Court not directing such a compensation. When a person, who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary Mens Rea to pay compensation for the person who has suffered injury."
W.P.(C) 24015/2011.
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108. All the above cases dealt with the scope and ambit of Section 357 Cr.P.C. and the mode of award of compensation under that provision. None of the decisions go on to say that person aggrieved by criminal acts can take recourse to only Section 357 Cr.P.C. for compensation. Section 357(5) says that if compensation is awarded under Section 357, it will be taken account of in a civil suit on the same matter if compensation is awarded. That shows that the respective remedies are not mutually exclusive.
109. The next question that arises for consideration is what should be the quantum. There is no straight jacket formula in this regard. There is no statutory guidelines also regarding this aspect. The quantum has to be determined depending upon the facts of each case. It has already been found that there is no substance in the complaint raised by the W.P.(C) 24015/2011.
135petitioners that there has been total failure on the part of the authorities concerned to protect the life of Balakrishnan. But however, it is seen that there has been a violation of the fundamental rights of the petitioners in so far as there was no proper investigation initially regarding the murder of Balakrishnan.
110. After having given anxious consideration to the various aspects, namely, the agony undergone by the petitioners, the steps that they had to take for redressal of their grievances, the number of occasions they had to approach this court for ensuring a proper investigation etc., it is felt that a sum of Rs.2,50,000/- would be adequate in the form of solatium, ex gratia payment and compensation to meet the ends of justice.
W.P.(C) 24015/2011.
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In the result, this writ petition is allowed and the first respondent is directed to pay a sum of Rs.2,50,000/- as compensation, solatium and ex gratia payment to the petitioners within two months from the date of this judgment, failing which the petitioners are entitled to recover the said amount with interest at 6% from the date of filing of this writ petition and with costs quantified at Rs.15,000/-.
P. BHAVADASAN, JUDGE sb.