Nilabati Behera v State of Orissa (Supreme Court, 1993) — compensation as a public-law remedy

Rudul Sah (1983) awarded compensation in a writ proceeding for the first time; Nilabati Behera explains the basis. It is the authority that compensation for the violation of a fundamental right is a remedy in public law, distinct from a tort claim, to which sovereign immunity is no defence.

Suman Behera, aged about twenty-two, was taken from his home into police custody at about 8 a.m. on 1 December 1987 by an Assistant Sub-Inspector in connection with a theft investigation and detained at the police outpost. At about 2 p.m. the next day his mother learnt that his body had been found on the railway track, with multiple injuries. Her letter to the Court was treated as a writ petition under Article 32 claiming compensation for the violation of Article 21. The Court directed the District Judge to hold an inquiry; the finding was that the injuries were inflicted in custody and that the death was a custodial death. The Bench was Verma, Venkatachala and Anand JJ.

1. Was this a custodial death?
2. Can the Supreme Court under Article 32, or a High Court under Article 226, award compensation for the contravention of a fundamental right, and on what basis?

Custodial death. On the evidence the Court found that Suman Behera died of injuries inflicted while in police custody.

The public-law remedy. "Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings." Enforcement of a constitutional right "embraces award of compensation as part of the legal consequences of its contravention." Such a claim "is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right." The defence of sovereign immunity is "inapplicable, and alien to the concept of guarantee of fundamental rights", and compensation is justified "when that is the only practicable mode of redress available for the contravention made by the State or its servants".

The Covenant. The Court cited Article 9(5) of the International Covenant on Civil and Political Rights: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

The award. The deceased earned between Rs. 1,200 and Rs. 1,500 a month. The State was directed to pay Rs. 1,50,000 to the mother, by a three-year term deposit in her name, and Rs. 10,000 as costs to the Supreme Court Legal Aid Committee, and the State was left free to recover the amount from the officers responsible.

Under Articles 32 and 226 the courts may award monetary compensation for the violation of a fundamental right. The liability is strict and public-law in character, distinct from and in addition to a tort claim, and sovereign immunity, whatever its place in private law, is no answer to it. Custodial death is the clearest case.