Badar Durrez Ahmed, J.

1. Uday Singh was an electrician who dealt in the sale and repair of electrical goods in his native village Wazirpur in district Gurgaon, Haryana. He did not know that the 20th day of April, 1996 would be a fateful one. Also oblivious of this catastrophic day were his wife Kamla Devi (the petitioner) and his infant son (Mukesh) aged about 4 months. After closing his shop in the evening of 20.4.1996, Uday Singh bade farewell to his wife and son and left for Pahar Ganj, Delhi to make purchases for his small business which provided him with an income of about Rs. 3,000/- per month. It was to be the last time that they would see him alive.

2. At about 9 p.m. that night, while Uday Singh was on a public road in the Paharganj area in the vicinity of Arjun Guest House, a massive explosion brought the building crashing down. This resulted in the death of Uday Singh amongst 16 others. The blast originated in the building itself. As revealed by the additional affidavit (filed on 22.5.2001) on behalf of the respondent No. 2, the explosive (RDX) was brought by a person named Manzoor Ahmed Khan, an active member of a J&K terrorist organisation. The said terrorist also died in the blast which occurred while he was assembling an improvised explosive device in the said building. The petitioner was paid an ex gratia amount of Rs. 50,000/- by the the Govt. of NCT of Delhi through the SDMs office. Initially, only an amount of Rs. 20,000/- was paid. Subsequently, a further amount of Rs. 30,000/- was handed over to the petitioner. Would this amount wipe the anguish, the hurt, the agony of the widow Would this amount be a tangible substitute for a father insofar as the infant Mukesh is concerned Certainly not. No amount of money can be a replacement for a husband, a father, a person, a life. The bonds, the emotions and the ties have no monetary value. But, when a person dies, it is not just that these relationships terminate, it may even mean economic devastation for the near and dear who were solely dependant on the departed soul. What is to become of Kamla Devi (the widow) Where will she reside How will she make ends meet How will she bring up her son Mukesh all by herself Where will she get the finances necessary to put him through education And, can a sum of Rs. 50,000/- be an answer to all these questions

3. Surely, for Kamla Devi it is not an answer at all and, accordingly, in this petition, she seeks the issuance of a writ of mandamus or any other appropriate writ or order directing the respondents to pay to the petitioner compensation of Rs. 10 lakhs or any such amount which this Court may deem adequate. The respondents say that the ex gratia payment of Rs. 50,000/- was not in recognition of any right to compensation that the petitioner claims but, was an act of compassion, as a part of their policy in such situations. In any event, they submit that there was no dereliction of duty on the part of the State. Constables had been deployed on the beat. They maintained a constant vigil. They had no information regarding the terrorist in the said Arjun Guest House. It was also suggested that the Guest House was private property and the liability was of the owner of the guest house.

4. There can be no doubt that in the death of Uday Singh consequent upon the bomb explosion a wrong has been committed and the fundamental right of protection of life and personal liberty enshrined in Article 21 of the Constitution has been violated. When such a thing happens the old and accepted maxim Ubi jus, ibi remedium (There is no wrong without a remedy) comes into play. But, where is the remedy Surely, not the sum of Rs. 50,000/-

5. Let us see who re the persons responsible for the wrong. Primarily it is the terrorist who was assembling the bomb. Next, it is the State as it failed in living up to its guarantee that no person shall be deprived of his life ... except according to procedure established by law. The State failed to prevent the terrorist from harming innocent citizens like Uday Singh. Terrorism itself is an indicia of the inability of the State to curb resentment and to quell fissiparous activities. Social malaise in itself is a reflection of the States inefficiency in dealing with the situation in a proper manner. Apart from the general inability to tackle the volatile situation, in this case, the State agencies failed in their duty to prevent terrorists from entering Delhi. It was their responsibility to see that dangerous explosives such as RDX were not available to criminals and terrorists. The incident occurred as there was a failure on the part of State to prevent it. There was failure of intelligence as they did not pick up the movement of this known and dangerous terrorist. So, it would be extremely difficult even to suggest that the State did not fail in its duty towards the late Uday Singh and his family. The other players in this sad drama could be the owner of the Guest House. Did he take due care in permitting such a dangerous person to enter and reside in the guest house Did he maintain his guest house in good repair so as to have prevented the same from collapsing under the impact of the explosion Then, the municipal officials may also be roped in. Did they inspect the property from time to time Did they take any action if the building was in any way not in accordance with the regulations and law Did they find the building to be structurally sound Of course, these are questions which need a thorough investigation and cannot be gone into in this writ petition. But, this does not mean that without these questions being answered the petitioner is to be left without a remedy.

6. A crime has been committed. A wrong has been done and a citizen has lost his life because the State was not vigilant enough. A fundamental right has been violated. But, mere declarations such as these will not provide any succour to the petitioner. She needs to be compensated. It is too late in the day to now suggest, that in a situation such as this, the petitioner should be relegated to the ordinary Civil Courts to seek her tort law remedy. In D.K. Basu v. State of W.B., (1997) 1 SCC 416 (para 41), the Supreme Court held that, The Court, where the infringement of the fundamental right is established, therefore, 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. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

The Supreme Court cleared the ground for the grant of compensation under article 226 in situations where there was a dereliction of public duty on the part of the State. The following passages from D.K. Basu (supra) clarifies the legal position:

44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. 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 Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising 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 the fundamental rights of the citizen.

45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread-winner of the family.

54. Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong-doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal Courts in which the offender is prosecuted, which the State, in law, is duty-bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

Earlier, in Nilabati Behera v. State of Orissa, II (1993) CCR 107 (SC)=(1993) 2 SCC 746 [LQ/SC/1993/275] the Supreme Court had held:

35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course, has the right to be indemnified by and take such action as may be available to it against the wrong-doer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the Court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the Courts found that grant of such relief was warranted. It is a sound policy to punish the wrong-doer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the Courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the Courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law.

The current position of the law is stated by the Supreme Court in M.S. Grewal v. Deep Chand Sood, VI (2001) SLT 275=(2001) 8 SCC 151 [LQ/SC/2001/1840] as under:

28. Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the Civil Courts obligation to award damages. As a matter of fact the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of justice-oriented approach. Law Courts will lose their efficacy if they cannot possibly respond to the need of the society technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.

7. It is true that the cases which came up before the Supreme Court related to custodial death, death of school children on a picnic, death of a passenger in a train as a result of the inaction on the part of the railway employees. In all these cases it could be said that the victims were under some sort of State custody, punitive or protective. It could be argued that Uday Singh was not in any such situation. He died as a result of a terrorist act and, perhaps, contributed, in part, due to the structural defect in the guest house building. What has the State got to do with this I am afraid, the State has everything to do with this. The State owed a duty to protect the life and liberty of an innocent citizen such as Uday Singh. The State owes a duty to the widow (Kamla Devi) and the child (Mukesh), now that Uday Singh has been snatched away from them, that they live their lives with dignity. Compensation, in this case, would not only be a balm on their scars, it would also provide them with hope for the future. The fact of the matter is that Uday Singh lost his life on account of an act of terrorism. The State failed to prevent it. The Primary duty of the State is to maintain peace and harmony amongst its citizens. If for some reason, it is unable to put the lid on simmering discontent, then it is its duty to protect innocent citizens from harm. If it fails in this duty, then it must compensate the citizens who have been wronged.

8. The criminal commits the crime. The State apprehends the accused and brings him to trial. If found guilty, he is convicted and sentenced to undergo punishment. Does this complete the wheel of criminal justice What about the crime victims Traditionally, it may have been sufficient that the criminal is caught and punished. But, the modern approach is to also focus on the victims of crime. It is all very well that the accused is given a fair and just trial, that the guilty are punished, that the convicts and prisoners are given a humane treatment, that jail conditions are improved and the erstwhile criminals are rehabilitated, but, what about the crime victim In State of Gujarat v. Honble High Court of Gujarat, VIII (1998) SLT 70=(1998) 7 SCC 392 [LQ/SC/1998/989] [ at page 434], the Supreme Court observed as under:

99. In our efforts to look after and protect the human rights of the convict, we cannot forget the victim or his family in case of his death or who is otherwise incapacitated to earn his livelihood because of the criminal act of the convict. The victim is certainly entitled to reparation, restitution and safeguard of his rights. Criminal justice would look hollow if justice is not done to the victim of the crime. The subject of victimology is gaining ground while we are also concerned with the rights of the prisoners and prison reforms. A victim of crime cannot be a forgotten man in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injury. This is apart from the factors like loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.

Keeping this in mind, it needs to be examined as to what are the avenues available to the crime victims and their families for seeking compensation. The tort law remedy made possible under the Fatal Accidents Act, 1855 is one such avenue. But, that is a civil law remedy where the victim is relegated to the rigours of a full-blown civil action against identified defendants (wrong-doers). In the context of the Bhopal gas tragedy, the Supreme Court found the 1855 Act grossly inadequate. It observed in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 [LQ/SC/1989/648] [ at page 727] that the Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. In my view, this observation would apply with equal vigour to the case at hand. So, this avenue, is not an avenue at all and, if not a dead-end street, is too long, convulated and winding to provide any relief to the crime victim or his family.

9. The next avenue is in the shape and form of Section 357 of the Code of Criminal Procedure, 1973. It reads as under:

357. Order to Pay Compensation.

(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied

(a) in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court,

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

(3) 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.

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

Reading the foregoing provision, it becomes clear that compensation, whether out of the fine imposed [see Sub-section (1)] or independently [see Sub-section (3)], is payable by the convicted person, upon the completion of the trial, at the time of sentencing. Moreover, such compensation is subject to appeal and remains suspended for the duration of the appeal. From the crime victims perspective this provision would be inadequate on several counts. Firstly, the interval between the commission of the crime and the conclusion of the trial and ultimate disposal of the appeal is not short and likely to run into several years. Assuming that compensation is ultimately awarded and that it is of a reasonable sum, the delay in making it available to the crime victim would itself defeat the purpose. Secondly, before an order of compensation can be made under this provision, the criminal needs to be apprehended, put to trial and to be convicted. Unsolved crimes would leave the crime victim without recourse to this provision. Similar would be the situation as in the present case where the offender also dies while committing the crime. Thirdly, if the convicted person is a person of no means or little means then how is the compensation to be realised by the crime victim In awarding compensation under Section 357, the Courts power, insofar as the quantum is concerned, is constrained by the convicts ability to pay. So, although compensation is provided for under Section 357, it is riddled with limitations.

10. There is a similar provision in the Probation of Offenders Act, 1958 though it is applicable only in cases where offenders are directed to be released on probation. It is similarly beset with the aforementioned limitations as in the case of compensation under Section 357 of the Cr.P.C.

11. This is the position in India. World-wide, however, there is a greater awakening to the problems and difficulties faced by the victims of crime. Let me take the example of the United Kingdom where the Criminal Injuries Compensation Act, 1995 is in place. Section 1 of this act enjoins that the Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries and that any such arrangements shall include the making of a scheme providing, in particular, for (a) the circumstances in which awards may be made; and (b) the categories of person to whom awards may be made. Section 2 of theprovides the basis on which compensation is to be calculated. It stipulates that the amount of compensation payable under an award shall be determined in accordance with the Scheme to be formulated under Section 1 wherein provision shall be made for (a) a standard amount of compensation, determined by reference to the nature of the injury; (b) in such cases as may be specified, an additional amount of compensation calculated with respect to loss of earnings; (c) in such cases as may be specified, an additional amount of compensation calculated with respect to special expenses; and (d) in cases of fatal injury, such additional amounts as may be specified or otherwise determined in accordance with the Scheme. There are other provisions in the dealing with claims, claim officers, awards, appeals, etc., which need not be alluded to as they deal with the procedural aspects of payment of compensation to crime victims. However, Section 9(4) of thedoes merit mention at this juncture inasmuch as it provides for the source of funding of the Scheme for payment of compensation. It stipulates that sums required for the payment of compensation in accordance with the Scheme shall be provided by the Secretary of State out of money provided by Parliament. So, the funding is by the State and not by the offender.

Pursuant to the manadate of Section 1 of the said Act of 1995, the Secretary of State made the Scheme known as The Criminal Injuries Compensation Scheme (2001). The Scheme contains elaborate provisions dealing with administration of the Scheme, eligibility to apply for compensation, eligibility to receive compensation, consideration of applications, types and limits of compensation, standard amount of compensation, compensation for loss of earnings, compensation for special expenses, compensation in fatal cases, effect on awards of other payments, decision on the application, reconsideration of the decision, review, appeal, etc. The Scheme includes a Tariff which, inter alia, specifies the standard amount of compensation payable in respect of each type of injury. Some illustrative entries in the Tariff are as under:

TARIFF OF INJURIES

Description of InjuryLevelStandard Amount ()

Fatal injury

One qualifying claimant 1311,000

Each qualifying claimant if more than one 105,500

xxxxxxxxxxxx

xxxxxxxx

Major paralysis

Hemiplegia (paralysis of one side

of the body) 2155,000

Paraplegia (paralysis of the lower limbs)24175,000

Quadriplegia/tetraplegia

(paralysis of all four limbs) 25 250,000

xxxxxxxxxxxx

xxxxxxxx

Tongue

Impaired speech

slight52,000

moderate 105,500

serious 1311,000

severe 1619,000

Loss of speech permanent1933,000

Loss of tongue 2044,000

xxxxxxxxxxxx

xxxxxxxx

Arm

Loss of:

one arm 2044,000

both arms23110,000

Paralysis of or equivalent loss of function of:

one arm1933,000

both arms 2282,000

xxxxxxxxxxxx

xxxxxxxx





Apart from the standard compensation payable as per the aforesaid Tariff, where the victim has died in consequence of the injury, compensation may be payable to a qualifying claimant in respect of dependency where a claims officer is satisfied that the claimant was financially or physically dependent on the deceased. The amount of compensation payable in respect of dependency is to be calculated on a basis similar to that employed for loss of earnings and cost of care.

12. The brief survey of the statutory provisions in the UK relating to compensation for criminal injury reveals that an elaborate scheme has been put in place. Compensation is payable irrespective of the criminal being apprehended or not and independent of the trial of the accused. It is payable by the State out of its funds without it being linked to the ability to pay of the offender. At least insofar as fatal injury is concerned, it is payable on a two-part system A standard compensation based on the amounts as specified under the Tariff and an additional amount in respect of dependancy and loss of parent. The amount of dependancy compensation being granted on the same principle as applicable for loss of earnings. Of course, it must be noted that a maximum limit of 500,000 has also been put in place. I am not so much concerned with the quantum but the principles which are applicable for the grant of compensation for a criminal injury.

13. USA has a federal structure and each state has a separate criminal justice system and each has a crime victim compensation program to provide financial assistance to victims of violent or personal crime. Similar laws find place in Canada, Australia, France, UAE and a host of other countries.

14. The international norm in respect of justice to crime victims is embodied in the 1985 General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly Resolution 40/34 of 29 November, 1985). Paragraphs 12 and 13 of the Declaration relate to compensation and read as under:

12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

In the Guide for Policy Makers on the Implementation of Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power with regard to the aforesaid paragraph 12 it is stated as under:

The number of jurisdictions that allow for State compensation to victims of crime is growing, a trend which has been promoted by international conventions such as the European Convention on the Compensation of Victims of Violent Crime. Such compensation, which is paid in cases where restitution is not fully available from the offender or other sources (such as private insurance), is provided either within the framework of general programmes of national insurance and welfare or through special compensation programmes covering victims of crime. One of the earliest national programmes is often cited as an example for other States to follow. It provides victims of crime with the same level of awards as the victims of industrial and motor vehicle accidents. Some programmes provide the possibility of emergency payments pending the final determination of the award. Several jurisdictions are considering expanding the scope of coverage in respect of what offences and what types of losses are covered and in respect of the territorial coverage. On this last point, some jurisdictions cover all incidents that occur in their territory (regardless of the citizenship of the victim) and all incidents where a citizen of these jurisdictions is the victim (regardless of where the incident occurred). Many jurisdictions have devoted special attention to informing victims about compensation programmes, preferably as soon as possible after the incident.

15. The international norm is a move towards crime victim compensation. Unfortunately in India there is no legislation (other than the few provisions referred to above) providing for a full-blown compensation scheme for victims of crime. But, would it mean that till such a legislation is put in place, if at all, this Court is powerless in granting compensation to crime victims and their dependants particularly when the fundamental right under article 21 has been infringed In the celebrated case of Vishaka v.State of Rajasthan, III (1997) CCR 126 (SC)=(1997) 6 SCC 241 [LQ/SC/1997/1113] [ at page 249] the Supreme Court was of the following view :

7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the evil.

8. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.

In Heil v. Rankin, [2000] 3 ALL.ER 138, Lord Woolf MR speaking for the Court of Appeal succinctly summed up the situation in the following words:

In summary, our conclusion is therefore that it is appropriate for the Court to consider the Commissions recommendation. What is involved is part of the traditional role of the Courts. It is a role in which juries previously were involved. Now it is the established role of the judiciary. It is a role which, as a result of their accumulated experience, the judiciary is well qualified to perform. Parliament can still intervene. It has, however, shown no inclination that it intends to do so. If it should decide to do so then the fact that the Courts have already considered the question will be of assistance to Parliament. Until Parliament does so, the Courts cannot avoid their responsibility. While a public debate on this subject would no doubt be salutary, the contribution which it could make to the actual decision of the Court is limited. The Court has the report of the Commission. It also has the other material which the parties have placed before it. It is in as good a position as it is likely to be to make a decision in the context of the present appeals. We see no reason to accede to Mr Havers submission that we should postpone doing so. To postpone would be to neglect our responsibility to provide certainty in this area as soon as it is practical to do so.

In M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd., 1993 Suppl. (2) SCC 433 [LQ/SC/1992/193] [at page 473], the Supreme Court observed as follows:

86. The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by Courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to Court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.

16. The public law demand, as distinct from the private law tort remedy, is that crime victims be given compensation even in no-fault situations by the State. Compensation cannot be limited to cases of police torture or custodial deaths. It must extend to riot victims and victims of terror, indeed, it must ultimately cover all victims of crime and all criminal injuries. Legislation is lacking in this field. But, that should not deter High Courts, which are Courts of unlimited and plenary jurisdiction, from intervening and redressing grievances according to principles of justice, equity and good conscience. Not to intervene would amount to shirking the responsibilities which High Courts are expected to shoulder. So, compensation is payable to the petitioner by the State for the death of Uday Singh for the breach of the constitutional guarantee of Article 21 that no person shall be deprived of his life ... except according to procedure established by law.

17. Now comes the difficult task of computing or calculating the amount of compensation that should be awarded to the petitioner (Kamla Devi). In the petition the amount claimed is Rs. 10 lakhs. The learned Counsel for the petitioner submitted that the income of the deceased Uday Singh was Rs. 3,000/- per month. He was 29 years old at the time of his death and it could be reasonably expected that he would continue to work for another 30 years. Therefore, in this period he would have earned Rs. 10,80,000/- (= 30 x 3000 x 12). And, this figure has been rounded off to Rs. 10 lakhs, which is claimed as the compensation amount. I am afraid, the compensation amount cannot be computed in this manner for several reasons which will become clear from the discussion that follows. On the other hand, following the UK model as also the decisions of the Supreme Court, a two-tier compensation ought to be awarded. Thus, Kamla Devi (for herself and her minor son Mukesh) would be eligible to receive a standard compensation for the fatal injury caused to her deceased husband Uday Singh. Over and above this, the two of them would be entitled to receive additional compensation in respect of loss of dependancy. The amount of dependancy compensation being granted on the same principle as applicable for loss of earnings. On what principle is the standard compensation to be awarded In India there is no Tariff as in UK. This standard compensation can be equated to the measure of non-pecuniary losses such as pain and suffering and loss of amenities. The principles on which, and the difficulties in awarding compensation under this head, have been pointed out in the English decision in Andrews v. Grand and Toy Alberta Limited, (1978) 83 DLR (3d) 452 [at p. 475-476] where Dickson J said:

There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. Money can provide for proper care: this is the reason that I think the paramount concern of the Courts when awarding damages for personal injuries should be to assure that there will be adequate future care.

However, if the principle of the paramountcy of care is accepted, then it follows that there is more room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses. In particular, this is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest.

The compensation for non-pecuniary losses is what is otherwise termed as general damages or as the conventional sum or conventional amount. In G.M., Kerala SRTC v. Susamma Thomas, I (1994) CCR 346 (SC)=(1994) 2 SCC 176 [LQ/SC/1993/4] , the Supreme Court [at page 187] assessed the conventional sum to be Rs. 15,000/- in the following words:

... to which is added the usual award for loss of consortium and loss of the estate each in the conventional sum of Rs. 15,000.

In the case Ward v. James, (1965) 1 ALL.ER 563 it was said:

Although you cannot give a man so gravely injured much for his lost years, you can, however, compensate him for his loss during his shortened span, that is, during his expected years of survival. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money.

And, this passage was quoted with approval by the Supreme Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd., I (1995) ACC 281 (SC)=(1995) 1 SCC 551 [LQ/SC/1995/17] [ at page 557]. So too, the following portion from Halsburys Laws of England, 4th Edn., Vol. 12 regarding non-pecuniary loss [at page 446]:

Non-pecuniary loss: the pattern.Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.

The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.

In U.P. State Road Transport Corpn. v. Trilok Chandra, (1996) 4 SCC 362 [LQ/SC/1996/946] , the Supreme Court assessed the conventional sum to be Rs. 10,000/-. The Court observed as under[at page 370]:

To this may be added a conventional amount by way of loss of expectation of life. Earlier this conventional amount was pegged down to Rs. 3000 but now having regard to the fall in the value of the rupee, it can be raised to a figure of not more than Rs. 10,000.

A higher conventional sum of Rs. 50,000/- was settled by the Supreme Court in the case of Lata Wadhwa v. State of Bihar, II (2001) ACC 316 (SC)=V (2001) SLT 826=(2001) 8 SCC 197 [LQ/SC/2001/1757] . It held [at page 210]:

...and so far as the conventional amount is concerned, the same should be Rs. 50,000 instead of Rs. 25,000 given under the Report.

The Supreme Court, in Nagappa v. Gurudayal Singh, III (2002) ACC 766 (SC)=VII (2002) SLT 101=(2003) 2 SCC 274 [LQ/SC/2002/1279] , [at page 283] held that:

While calculating such damages, the Tribunal/Court is required to have some guesswork taking into account the inflation factor. This aspect is well discussed by M.J. Rao, J. (as he then was) in P. Satyanarayanav. I. Babu Rajendra Prasad.

The whole idea behind the quantification of the conventional sum being that its real value should not get eroded through time due to inflation. Thus, a sum of Rs. 50,000/- in 1989 may be just and fair but the same sum of Rs. 50,000/- in the year 1996 would be worth much less in real terms because of inflation in the intervening years. The years 1989 and 1996 were purposely mentioned by me for the reason that in Lata Wadhwa (supra) the Supreme Court set the conventional sum to be Rs. 50,000/- and, in that case the year of the fatal incidents was 1989, whereas in the present case Uday Singh died in 1996. Thus, if the figure for the conventional sum has to be worked out for 1996, the base figure of Rs. 50,000/- as on 1989 has to be enhanced by factoring in the inflation and consequent decline in the real value of the rupee in the intervening years. A good index to work with is the Consumer Price Index for Industrial Workers CPI (IW) (Source: Labour Bureau, Government of India:http://labourbureau.nic.in/indtab.html). With the base year 1982 (= 100), the average CPI (IW) for the year 1989 was 171 and for 1996 it was 334. Hence, the inflation corrected value of Rs. 50,000/- in 1989 would work out to Rs. 97,660.82 in 1996, which can be rounded off to Rs. 97,700/-. So, in this case the conventional sum for non-pecuniary loss would be Rs. 97,700/-.

18. That leaves us with the computation of compensation for pecuniary loss of dependancy. This is to be calculated on the same principles of loss of earnings and the Supreme Court has for this purpose employed the multiplier method. In essence, through this method, Courts try to compute the capital sum which would be sufficient to provide the claimant with a stream of annual sums (out of the capital sum and the income thereon) equal to the estimated annual loss over the period during which the loss is likely to continue. Of course, factors such as rate of returns (or simply the interest rates at which the capital sums are likely to be invested) and the rate of inflation have to be taken into account if the computation is to be real and practical. In G.M., Kerala SRTCv. Susamma Thomas (supra), [at page 183], the Supreme Court held that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.

Advocating the use of the multiplier method and denigrating the practice by some Courts of employing alternative criteria, the Supreme Court, in the aforesaid case (G.M., Kerala SRTC v. Susamma Thomas) observed as under:

16. It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years virtually adopting a multiplier of 45 and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lumpsum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier-method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be just, the statutory determination of a just compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a just compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases.

Reiterating the necessity to stick to the multiplier method, the Supreme Court in U.P. State Road Transport Corpn. v. Trilok Chandra, I (1996) ACC 592 (SC)=(1996) 4 SCC 362 [LQ/SC/1996/946] [ at page 370] observed as under:

15. We thought it necessary to reiterate the method of working out just compensation because, of late, we have noticed from the awards made by tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realised that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused. The two English decisions to which we have referred earlier provide the guidelines for assessing the loss occasioned to the victims. Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependants of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier. Let us illustrate: X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3,500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for an adult and one unit for a minor. Thus X and his wife make 2 + 2 = 4 units and each minor one unit i.e. 3 units in all, totalling 7 units. Thus the share per unit works out to Rs. 3,500/ 7 = Rs. 500 per month. It can thus be assumed that Rs. 1,000/- was spent on X. Since he was a working member some provision for his transport and out-of-pocket expenses has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs. 1250 per month leaving a balance of Rs. 3500-1250=Rs. 2250 per month. This amount can be taken as the monthly loss to Xs dependants. The annual dependency comes to Rs. 2250 x 12=Rs. 27,000. This annual dependency has to be multiplied by the use of an appropriate multiplier to assess the compensation under the head of loss to the dependants. Take the appropriate multiplier to be 15. The compensation comes to Rs. 27,000 x 15 = Rs. 4,05,000. To this may be added a conventional amount by way of loss of expectation of life. Earlier this conventional amount was pegged down to Rs. 3000 but now having regard to the fall in the value of the rupee, it can be raised to a figure of not more than Rs. 10,000. Thus the total comes to Rs. 4,05,000 + 10,000 = Rs. 4,15,000.

After the enactment of The Motor Vehicles Act, 1988, compensation for pecuniary losses could be calculated on basis of the structured formula given in the Second Schedule to the. But, the Supreme Court in U.P. State Road Transport Corpn. (supra) [at page 371], pointed out that the calculation of compensation and the amount worked out in the Schedule suffers from several defects and that neither the tribunals nor the Courts can go by the ready reckoner. It can only be used as a guide.

19. Thus, the structured formula given in the Second Schedule to the Motor Vehicles Act, 1988 cannot be relied upon as a ready reckoner but, this does not mean that it is to be debunked all together. For instance, it may be used for arriving at the appropriate multiplier. In the present case Uday Singh was aged 29 years, hence the multiplier, according to the said Second Schedule, would be 18. Uday Singh was earning about Rs. 3000/- per month. He is survived by Kamla Devi (widow) and Mukesh (minor son). Following the workings given in the illustration in U.P. State Road Transport Corpn. (supra) and actual computation in Mrs. Sudha Rasheed v. Union of India, 1995 (1) SCALE 77, the calculation of compensation for loss of dependency would be as follows:

Annual income of Uday Singh was Rs. 36,000/- (Rs. 3,000 x 12). The family could be divided into 5 units: 2 units each for the adults (Uday Singh and Kamla Devi) and 1 unit for the minor (Mukesh). Thus, the value per unit would come to Rs. 7,200/-. If the two units of the deceased Uday Singh are deducted, the balance amount would be Rs. 21,600/- (= Rs. 36,000 - [2 x 7,200]). This is the amount that could be said to have been expended on the petitioner and the minor son out of the deceased Uday Singhs annual income. This is the dependency amount which they have lost on account of Uday Singhs death and would be the multiplicand to which the multiplier of 18 is to be applied for arriving at the figure of compensation for the pecuniary loss of dependency. And, that amount comes to Rs. 3,88,800/-. To this, the so called conventional sum or standard amount of Rs. 97,700/- computed above is to be added and after such addition the total compensation amount comes to Rs. 4,86,500/-. Against this, the ex gratia amount of Rs. 50,000/- already paid ought to be adjusted, leaving a balance amount of Rs. 4,36,500/- payable by the State to the petitioner. Since, this amount ought to have been paid in 1996 and has not been paid till date, it must be paid with simple interest thereon @ 7 % per annum. The resultant amount be paid to the petitioner within a period of four weeks from the date of this judgement.

20. Although this compensation which is being awarded under the public law jurisdiction is in addition to other statutory remedies (outlined above) and tort law remedies available to the petitioner, the same may be adjusted against any amount which the petitioner would be entitled to by way of compensation or civil damages in a civil or criminal action. In D.K. Basu (supra) [at page 442], the Supreme Court observed as under:

... The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

In fact, if, whether by an action under torts or otherwise, any amount becomes payable to the petitioner by way of compensation or damages and the same is recoverable from a third party, the respondent (Govt. of NCT of Delhi) would be entitled to recover the amount, instead of the petitioner, to the extent of the compensation paid as a consequence of this judgment. To this extent, on the payment of the compensation amount hereby fixed, the Respondents would stand subrogated in place of the petitioner. In Mrs. Sudha Rasheed (supra), the Supreme Court endorsed such a proposition in the following words:

...learned Counsel for the State of Karnataka, rightly pointed out that the tort feasors would be respondents 4, 5 and 6 who have since been convicted for the commission of the offence. It would be open to the State Government to take an appropriate action, if it so desires, to recover the amount from the Provident Fund and other benefits available to respondents 4, 5 and 6 depending upon the outcome of the appeal.

21. The principles which emerge can be summarized as follows:

1. Whenever an innocent citizen is killed as a result of a crime, particularly when it is an act of terror or communal violence or a case of custodial death, the State would have failed in its public duty to ensure the guarantee enshrined in Article 21 of the Constitution.

2. The modern trend and the international norm is to focus on the victims of crime (and their families) by, inter alia, ensuring that they are promptly compensated by the State in adequate measure under a well laid out Scheme.

3. In India, there is no such criminal injury compensation scheme in place and the private law remedies of damages and compensation are grossly inadequate. Legislation on this aspect is not forthcoming.

4. In such a situation the High Court, in exercise of its powers under Article 226 of the Constitution can and ought to direct the State to compensate the crime victim and/or his family.

5. The compensation to be awarded by the Courts, based on international norms and previous decisions of the Supreme Court, comprises two parts

(a) standard compensation or the so-called conventional amount (or sum) for non-pecuniary losses such as loss of consortium, loss of parent, pain and suffering and loss of amenities; and

(b) Compensation for pecuniary loss of dependency.

6. The standard compensation or the conventional amount has to be revised from time-to-time to counter inflation and the consequent erosion of the value of the rupee. Keeping this in mind, in case of death, the standard compensation in 1996 is worked out at Rs. 97,700/-. This needs to be updated for subsequent years on the basis of the Consumer Price Index for Industrial Workers (CPI-IW) brought out by the Labour Bureau, Government of India.

7. Compensation for pecuniary loss of dependency is to be computed on the basis of loss of earnings for which the multiplier method is to be employed. The table given in Schedule II of the MV Act, 1988 cannot be relied upon, however, the appropriate multiplier can be taken therefrom. The multiplicand is the yearly income of the deceased less the amount he would have spent upon himself. This is calculated by dividing the family into units - 2 for each adult member and 1 for each minor. The yearly income is then to be divided by the total number of units to get the value of each unit. The annual dependency loss is then calculated by multiplying the value of each unit by the number of units excluding the two units for the deceased adult member. This becomes the multiplicand and is multiplied by the appropriate multiplier to arrive at the figure for compensation of pecuniary loss of dependency.

8. The total amount paid under 6 and 7 above is to be awarded by the Court along with simple interest thereon calculated on the basis of the inflation rate based on the Consumer Prices as disclosed by the Government of India for the period commencing from the date of death of the deceased till the date of payment by the State.

9. The amount paid by the State as indicated above would be liable to be adjusted against any amount which may be awarded to the claimants by way of damages in a civil suit or compensation under the Criminal Procedure Code.

22. In view of the foregoing discussion, it is directed that the respondents shall, within a period of four weeks from today, pay to the petitioner (for herself and her minor son, Mukesh) an amount of Rs. 4,36,500/- along with simple interest thereon @ 7% for the period 20.4.1996 (i.e., the date of the explosion) till date. The writ petition stands disposed of accordingly.