Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P on 18 December, 1996
The
Apex Court in the case of D.K.Basu v. State of West Bengal
(supra) has held that a mere declaration of invalidity of an action
or finding of custodial violence or death in lockup, does not by
itself provide any meaningful remedy to a person whose fundamental
right to life has been infringed. Much more needs to be done. It was
held that where the infringement of the fundamental right is
established, the Court cannot stop by giving a mere declaration. It
must proceed further and give compensatory relief, not by way of
damages as in a civil action but by way of compensation under the
public law jurisdiction for the wrong done due to breach of public
duty by the State of not protecting the fundamental right to life of
the citizen. The Court observed that to repair the wrong done and
give judicial redress of legal injury is a compulsion of judicial
conscience. It was held that the award of compensation for
established infringement of the indefeasible rights guaranteed under
Article 21 of the Constitution is a remedy available in public law
since the purpose of public law is not only to civilise public power
but also to assure the citizens that they live under a legal system
wherein their rights and interests shall be protected and preserved.
Grant of compensation in proceedings under Article 32 or 226 of the
Constitution of India for the established violation of the
fundamental rights carried out under Article 21, is an exercise of
the courts under the public law jurisdiction for penalizing the
wrong doer and fixing the liability for the public wrong on the
State which failed in the discharge of its public duty to protect
fundamental rights of the citizen.