Tmt. Rohini Lingam v. State Represented By The Secretary To Government, Chennai And Others

(Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the respondents 1 to 3 to pay the sum of Rs.10,00,000/- to the petitioner, towards compensation for the prematured death of petitioners husband Lingam @ Muthulingam on 09.04.1996 inside the Sub Jail Nagercoil.)

The writ petitioner is the wife of Lingam @ Muthulingam. According to the petitioner, her husband was implicated as an accused in Nesamony Nagar Police Station in Crime No.27/94 for an alleged offence under Section 302 of Indian Penal Code in respect of an occurrence stated to have happened on 07.04.1994. Along with him, there were other accused and the petitioners husband was arrested and remanded to judicial custody during 1996 pending investigation. He was confined in the Sub Jail, Nagercoil as trial prisoner in Cell No.8. The application for bail filed for the petitioners husband was dismissed and therefore, he was in the Sub Jail, Nagercoil pending investigation.

2. According to the petitioner the respondents 1 to 3 are the persons responsible in having overall control over the Sub Jail. On 09.04.1996, at about 3.10 am the husband of the petitioner, who was detained in the Cell, was murdered in the Sub Jail, Nagercoil and the crime was registered in Nesamony Nagar Police Station in Crime No.74/96 under Sections 147, 148, 448, 342, 332, 324, 307, 302 I.P.C. and Sec.25(1) of the Indian Arms Act on the complaint of the Wardon Grade II Thiru.Paul Ponnambalam of Sub Jail, Nagercoil.

3. The petitioners husband was aged about 36 years at the time of his murder and he had left behind him the petitioner being his wife and two minor children and his aged parents. The respondents have the legal duty to keep the petitioners husband, being an accused facing investigation, with proper safety and due to their negligence in not taking proper steps, the petitioners husband was killed. In view of the same, the petitioner has filed the present writ petition, claiming an amount of Rs.10,00,000/- as compensation.

4. The petitioner has also filed an additional affidavit dated 27.03.2008, disclosing certain facts relating to her family circumstances. The deceased has left a daughter Sugi who is now aged about 17 years and son Sujit, aged about 15 years and they are studying in 12th and 7th standard respectively. The third respondent who is the Superintendent of Sub Jail, Nagercoil, under whom the petitioners husband was detained and other respondents ought to have given protection to the petitioners husband as per Constitution of India and it is due to the failure on the part of the respondents, the said incident occurred and the petitioners husband was killed. It is also stated by the petitioner that the third respondents officials have lodged a complaint in Cr.No.74/96 against the 24 assailants under various provisions as stated above. The Sessions Judge, Kanniyakumari has convicted 12 accused out of 24 in S.C.No.157/98. Therefore, the respondent cannot controvert the cause of death of her husband who was detained by the State, in the Sub Jail, Nagercoil.

5. In the counter affidavit filed by the Joint Secretary to Government, Home Department on behalf of all the respondents, it is stated that Lingam @ Muthulingam S/o Vincent, husband of the petitioner was admitted in the Sub-Jail, Nagercoil on 30.07.1995, along with two, as per remand warrant dated 30.07.1995, issued by the Judicial Magistrate-I, Nagercoil in Kanyakumari Police Station Crime No.408/95 under Sections 147, 148, 332, 379, 307 of IPC and in Crime No.447/95 under Section 56 of the Indian Explosive Substances Act and Section 25(1)(b) of the Indian Arms Act. He was released on bail in Crime No.408/95 by the Assistant Sessions Judge, Nagercoil in S.C.No.5/96 dated 19.03.1996 and taken as convict prisoner. On 27.03.1996, he was released on bail in the said case and taken as remand prisoner for five cases pending against him, which are as follows:

Sl.No.

Crime No. & Name of Police Station

Sections and Act under which remanded

Court and case

1.

10/92 of Eraniel Police Station

341, 302, 109 read with 34 IPC

District Sessions, Nagercoil, S.C.No.102/95

2.

27/94 of CBCID

147, 148, 449, 302 IPC 4,5 of Indian Explosive Substances Act

Judicial Magistrate II, Nagercoil, No.19/95

3.

106/87 of Anjugramam Police Station

147, 170, 457, 386, 395 of IPC

Assistant Sessions, Nagercoil, SC.No.72/90

4.

17/94 of Thenthamarai Kulam, Police Station.

147, 148, 506(2) IPC

Assistant Sessions, Nagercoil, S.C.No.31/95.

5.

819/92 of Kaniyakumari, Police Station

341, 302 read with 34 IPC

Assistant Sessions, Nagercoil, SC.No.45/94.

6. On the early hours on 09.04.1996, at 03.15 hours, about 20 persons armed with deadly weapons like Aruval, long knife, pistol, wooden rods etc., entered into the Sub-Jail, Nagercoil by scaling over the compound wall of the Sub-Jail, with the help of a ladder. During that time, there were two Grade-II Warders and one temporary female Escort Warder paid on daily wages. The said outsiders with a preplanned intention have attacked the para warders on duty in the Sub-Jail and snatched the keys from them, opened the cell in which the remand prisoner Lingam was kept and severed his head. They attacked the other prisoners, who were kept in the same cell with Lingam and fled away. In the said attack, remand prisoner Balu Suresh, Ravi, Manimaran and Nagarajan were wounded, out of whom Balu Suresh succumbed to injuries in the Government Hospital, Nagercoil and other remand prisoners were treaded in the same hospital. The severed head of Remand Prisoner Lingam was found by the police near the bus stop situated about 2 kilometers from the Sub Jail. A case under Sections 147, 148, 448, 342, 332, 307, 302 of I.P.C. and 25(1) of Indian Arms Act was registered in Nesamony Nagar Police Station in Crime No.74/96 on 09.04.1996 at 07.00 hours.

7. It is the case of the respondents that it was due to the previous enmity, remand prisoner Lingam was suddenly murdered by his enemies in a preplanned manner with deadly weapons at odd hours and the incident was unexpected. It is the case of the respondents that the petitioners husband was locked up safely and securely in the Sub-Jail, guarded by the warder staff and the cell in which he was lodged along with other remand prisoners was properly searched before the lock up and necessary bar testing was done as per the rules to ensure that all bolts and bars were in order and therefore according to the respondents there was no negligence on the part of the jail staff.

8. According to the respondents, with limited facilities available, the jail staff resisted the miscreants who were armed with deadly weapons and were on a rampage and the resistance put up by the jail staff became ineffective and they were over powered. It is the case of the respondents that during the scuffle, the jail staff also suffered injuries. It is also stated that the departmental disciplinary proceedings have been taken against the Controlling Officer of the Sub-Jail, Nagercoil, and Superintendent, Sub-Jail, Nagercoil for various lapses and ultimately punishment of censure and reduction of pay in two stages for two years with cumulative effect respectively have been passed.

9. According to the respondents there is no provision for payment of compensation to the family of deceased who was killed by his enemies while in custody of police or prison officials. Therefore, the request of the petitioner for payment of Rs.10,00,000/- was not complied with. It is also stated that the petitioners husband was involved in many criminal cases of grave nature and tried by various courts. He has rivals and enemies in his criminal activities outside and it was due to that reason, he was killed. The jail authorities were unaware of the plan and conspiracy hatched by them to do away with the petitioners husband. In spite of utmost vigil which they have exercised and facts of the case would show that the jail authorities have also resisted and in as much as the miscreants were armed with deadly weapons, they were over powered. Therefore, according to the respondents they are not liable to pay any compensation.

10. Heard Mr.P.Vijendran, learned counsel appearing for the petitioner and Mr.N.Senthil Kumar learned Government Advocate appearing for the respondents.

11. Before going to the legal aspects of the matter, it is also relevant to find out some more factual aspects and provisions of the relevant statutes. Under the Prisons Act, 1894 the term prison is defined under Section 3(1), which is as follows:

Section 3(1) Prison means any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include-

(a) any place for the confinement of prisoners who are exclusively in the custody of the police;

(b) any place specially appointed by the State Government under Section 541 of the Code of Criminal Procedure, 1882; or

(c) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail;

Section 4 of thewhich deals about the accommodation for prisoners envisages a duty on the part of the State Government to give accommodation which is as follows:

Section 4. Accommodation for Prisoners:- The State Government shall provide, for the prisoners in the territories under such Government, accommodation in prisons constructed and regulated in such manner as to comply with the requirements of this Act in respect of the separation of prisoners.

Section 19 mandates a jailer to be present at night, which is as follows:

Section 19. Jailer to be present at night:- The Jailer shall not be absent from the prison for a night without permission in writing from the Superintendent; but, if absent without leave for a night from unavoidable necessity, he shall immediately report the fact and the cause of it to the Superintendent.

Section 20 also makes it clear that every Deputy Jailer or Assistant Jailer be competent to perform the duties of the Jailer.

Section 20. Powers of Deputy and Assistant Jailers:- Where a Deputy Jailer or Assistant Jailer is appointed to a prison, he shall, subject to the orders of the Superintendent, be competent to perform any of the duties, and be subject to all the responsibilities of a Jailer under this Act or any rule thereunder.

Section 59 enables the State Government to make Rules. Under sub-section 26 power is given to the Government for extending any or all of the provisions of the Prison Act, 1894 and rules thereunder to subsidiary jails or special places of confinement appointed under Section 541 of the Code of Criminal Procedure, 1882, and to the Officers employed, and the prisoners confined therein.

12. By virtue of the powers conferred under Section 59 (8) to (26) of the prisons Act, 1894, the Government has framed various rules. As per Rule 1 of Chapter 1 which speaks about classes of prisoners who may be confined in subsidiary jails, it is stated as follows:-

1. Subsidiary Jails shall be the ordinary place of confinement for the following classes of prisoners, and no other prisoners shall be confined in them except for special reasons and as a temporary measure:-

(a) all persons committed to custody pending trial or preliminary investigation before the Magistracy;

(b) all criminal prisoners sentenced to imprisonment for one month and under;

(c) all prisoners summoned under Part IX of the Prisoners Act, 1900 (III of 1900);

(d) all persons who have been in the custody of the Police for more than eighteen hours at any place where lock-up wards separate from the Subsidiary Jail are attached to the Police station-house; and

(e) all persons in custody en route through one station to another station.

The Government has inserted Rule 1(A) by way of amendment effected in G.O.Ms.No.199 Home (Prison V) Department, Dated 22.02.2000, which is as follows:

1-A: Persons who are involved in the case of murder, robbery, decoity, narcotic crime, smuggling, terrorist activities, bomb blast offences under the Arms Act, 1959 (Central Act 54 of 1959) and also known notorious rowdies, escapees, dangerous habitual offenders and other persons who, in the opinion of the Superintendent of the Subsidiary Jail, are dangerous from security point of view, shall not be confined in the Subsidiary Jail. If they are committed to the Subsidiary Jail, they shall be transferred to the respective Central Prison of its jurisdiction on for safe custody.

Thereby making it clear that in respect of persons who are involved in serious offences and if they are committed to Subsidiary Jail, they should be transferred to the respective Central Prison of its jurisdiction for safe custody. This was after the above incident.

13. In the communication of the Superintendent of Prisons (i/c), Central Prison, Palayamcottai addressed to the Additional Director General of Prisons, Chennai 2, it is stated that total sanctioned strength of Sub Jail, Nagercoil prior to 1996 was as follows:

1. Assistant Jailor - 1

2. Chief Head Warder - 1

3. Junior Assistant - 1

4. II Grade Warders - 6

5. Temporary Female Escort Warders - 3

The said communication also states that disciplinary proceedings initiated against the Assistant Jailor by Inspector General of Prisons, the punishment of reduction of pay by 2 stages for 2 years with cumulative effect has been inflicted which has been confirmed by the Government in G.O.Ms.No.313, Home (Prison-II) Department, dated 19.03.2002.

14. Clause 3 of Chapter II of the Rules imposes on the Inspector General of Prisons an overall general control over the Subsidiary jail within the State and he shall visit as many Subsidiary Jail as possible.

15. As per the Tamil Nadu Prison Rules, 1983 (Volume -II) the duties of Jailor is mentioned under Rule 32, which is as follows:

Rule 32. General duties of Jailor:- The Jailor is the chief executive officer of the prison and is subordinate to the Superintendent. He shall also be subordinate to the Additional Superintendent and assist him wherever necessary. He shall be generally responsible for observance of all prescribed rules and orders; supervision over security, custody and discipline, supervision over care and welfare of prisoners; supervision over personnel matters, staff discipline and staff welfare assisting the Superintendent in all matters pertaining to institutional management; inspecting kitchen and canteen visit to hospital; admission and release work prison manufacturers; classification of prisoners and their training, etc.

Under Rule 34, it is also stated that Jailor or Deputy Jailor or Assistant Jailor shall not be absent from the prison at the same time during the day, which is as follows:-

Rule 34. Presence of Jailor or Deputy Jailor or Assistant Jailor:- The Jailor, the Deputy Jailor and the Assistant Jailor shall not be absent from the prison at the same time during the day. The hours of their meals shall be so arranged that at least one of them is present in the prison and the absence of the officers, shall, in no case, exceed two hours.

Rule 44 enumerates about inspection of guard, which is as follows:

Rule 44. Inspection of guard:- The Deputy Jailor and the Assistant Jailor shall visit the guard at night at least once a week preferably after 22.00 hours and satisfy themselves that the standing guard is present, the sentries posted are on the alert and that the rounds are being properly maintained. It shall be so arranged that the Jailor, Deputy Jailor, and the Assistant Jailor make night visit on different days within a week.

Rule 71 also enables the Government to fix permanent strength, which is as follows:-

Rule 71. Government to fix permanent strength:- The permanent strength of the warder establishment in each prison shall be determined from time to time by the Government in accordance with ordinary requirements.

16. It is the case of the learned Government Advocate that after the present incident which took place as enumerated in the counter affidavit filed by the respondents, by which gruesome murder has been done on the petitioners husband by a gang of more than 20 persons, the Government has increased the strength and the Government has also passed G.O.Ms.No.199 Home (Prison V) Department, Dated 22.02.2000, by inserting Clause 1-A to the Rules, as per Section 58 (8) to (28) of the Prisons Act as elicited supra.

17. It is also relevant to point out that Section 19 of the Prisons Act, 1894 makes it clear that Jailor shall not be absent from the prison for a night without permission in writing from the superintendent, if absence without leave for a night is due to unavoidable necessity, he shall report the fact and the cause of it to the Superintendent. In the present case, admittedly, the Assistant Jailor, who was heading the strength, was not present at the time when the incident took place on 09.04.1996. In such circumstances, the Government have taken disciplinary action against the Assistant Jailor, who was admittedly not present during the night on 09.04.1996, in the early hours at 3.15 am and therefore, there is a clear violation of Section 19 of the Prisons Act. In such circumstances, it cannot be said that all steps have been taken for the purpose of protecting the undertrails detained in the Sub Jail.

18. The preservation of lives of the accused facing investigation is certainly one of the foremost functions of the Jail authorities and consequently, it is for the Government and administration to see that such Sub-Jails are preserved in such condition that adequate protection is given to the accused who are in the custody. As seen in the narration of facts in the counter affidavit, 20 person were able to climb the walls of the jail and enter into the prisoners cells and are able to threaten the warders and get the key after claiming the outer wall with a ladder which clearly shows that the authorities have not taken necessary steps to protect the accused. In the circumstances of the case, when admittedly the accused was involved in many cases and certainly he can be stated as a notorious person which pre-supposes that he must have rivals and enemies and the authorities should have taken precautionary steps either detaining in the custody with adequate protection or by referring him to the Central Prison. Even assuming otherwise, as against the sanctioned strength as it is given in the letter of the Superintendent of Prisons (i/c), Central Prisons, Palayamcottai only a bare minimum staff viz., two, Grade-II Warders and one temporary female Escort Warder were present on the said night.

19. Even though it is true that the existing staff have resisted, with such inadequate number of staff as against the strength required, certainly it should have been natural that the assailants have over powered them. But in the absence of the required number of strength in the Sub-Jail, it is not possible to presume that even if the total number of officials required to be present, they would have been overpowered by the large number of assailants.

20. When dealing with Article 21 of the Constitution of India, which enshrines right to life, the Honble Supreme Court in Chameli Singh Vs. State of U.P., ((1996) 2 SCC 549 [LQ/SC/1995/1337] ) has held that right to live as a human being is not ensured by meeting only the animal needs of man, in the following words:

In any organized society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civil society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. The civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India, cannot be exercised without these basic human rights.

21. In Ajab Singh Vs. State of U.P. ((2000) 3 SCC 521 [LQ/SC/2000/497] ), the Honble Supreme Court, while considering about the compensation in respect of custodial death of a person who was remanded to judicial custody and while in jail, he was removed to hospital where he died and on consideration of post-mortem report it stated that he died due to shock and hemorrhage due to ante-mortem injuries, while ordering payment of compensation by refusing to accept the defence of the State Government, held that when such deaths occur, it is not only to the public at large that those holding custody are responsible, they are responsible also to the Courts under whose orders they hold such custody. The relevant para 8 is extracted below:

8. If we may be permitted to use the same words, what appears to us to be a concocted story is that set out in the respondents affidavits. They are, to our mind, desperate attempts to avoid responsibility for acts committed while Rishipal was in judicial custody. There can be no doubt that the respondents have not investigated the cause of death of Rishipal as they ought to have done or that, at any rate, they have not placed all relevant material before this Court. They have attempted to pull the wool over the eyes of this Court. We do not appreciate the death of persons in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the courts under whose orders they hold such custody. It is appropriate, therefore, that the cause of Rishipals death should be investigated by the Central Bureau of Investigation. CBI shall register a case and conduct an investigation into the circumstances of Rishipals death. CBI shall forthwith appoint an officer to receive from the respondents all records relating to Rishipal and the respondents shall immediately hand over such records to such officer. The investigation shall be completed expeditiously and a copy of the investigation report shall be filed in this Court. The Registry shall forward a copy of this judgment and order to the Director, CBI.(emphasis supplied)

22. The principle of strict liability as enshrined in Ryland V. Fletcher (1868 LR 3 HL 330) makes it a universal rule and that there is no defence that the thing escaped without that persons willful act, default or neglect or even that he had no knowledge of its existence. Holding that the Rule in Rylands V. Fletcher is universally acceptable authority in the matter of compensation in tort cases, the Constitutional Bench of the Honble Supreme Court has held in Union Carbide Corporation Vs. Union of India (AIR 1992 SC 248 [LQ/SC/1991/523] ) that in fact M.C.Metha Vs. Union of India (AIR 1987 SC 1086 [LQ/SC/1986/544] ) is a deviation from the principle contained in the above judgment holding that escape of toxic gas is a strict and absolute liability and cannot be subject to any of the exception to the the principles of Ryland Vs. Fletcher. The relevant passage is as follows:-

13.....So far as the first aspect is concerned, the main judgment squarely deals with it and nothing more need be said. As far as the second aspect goes, the argument has been that the principle enunciated by this Court in M.C. Mehta v. Union of India should have been adopted. The rule in Rylands v. Fletcher has been the universally accepted authority in the matter of determining compensation in tort cases of this type. American jurisprudence writers have approved the ratio of that decision and American Courts too have followed the decision as a precedent. This Court in paragraph 31 of the Mehta judgment said:

The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that persons wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such things escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsburys Laws of England (Vol. 45, para 1305). Considerable case law has developed in England as to what is natural and what is non-natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry as part of the developmental programme, this rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in the context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence and we cannot countenance an argument that merely because the law in England does not recognise the rule of strict and absolute liability in cases of hazardous or inherently dangerous activities or the rule laid down in Rylands v. Fletcher as developed in England recognises certain limitations and exceptions, we in India must hold back our hands and not venture to evolve a new principle of liability since English courts have not done so. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

It was further held in para 28 as follows:

28..... The liability was also said to arise out of the use of ultra-hazardous chemical poisons said to engender not merely strict liability on Rylands V. Fletcher (1968 LR 3 HL 330) principle but an absolute liability on the principles of M.C.Methas case (AIR 1987 SC 1086 [LQ/SC/1986/544] ).....

23. In D.K.Basu Vs. State of West Bengal ((1997) 1 SCC 416 [LQ/SC/1996/2231] ) the Honble Supreme Court has evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life holding that Ubi jus ibi remedium, does not mean that declaring an act as invalid but it means providing a meaningful remedy. Even though it relates to victims of unlawful arrest or detention, the Honble Supreme Court has evolved the theory of grant of compensation in para 40 and 41 which is as follows:

40. Ubi jus, ibi remedium.There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, 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.

41......

42. Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation. Of course, the Government of India at the time of its ratification (of ICCPR) in 1979 and made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudul Sah v. State of Bihar; Sebastian M. Hongray v. Union of India; Bhim Singh v. State of J&K; Saheli, A Womens Resources Centre v. Commr. of Police.) There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See Nilabati Behera v. State).

Coming down heavily against the old concept of driving the aggrieved person to the remedies available in civil law, the Honble Supreme Court has further held that claim in public law for compensation is a claim based on strict liability and the same is in addition to the claim available in private law for damages for tortious acts of the public servants. The relevant para 44 and 45 are as follows:

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 wrongdoer 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 breadwinner of the family.

It was also held that in such cases the State is vicariously liable, the relevant para 54 being;

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 wrongdoer. 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.

24. Further the defence of the State that occurrence in this case has taken place beyond the control of the authorities has no meaning. Not only due to the reason that number of sanctioned strength of Jail authorities were not available on the fateful night but also due to the reason that the respondents have not taken effective steps to see that such a person who has been facing so many trials having involved in many offences has not been taken care of by providing adequate protection which has resulted in the gruesome murder of the petitioners husband.

25. The availability of such remedy for payment of compensation which can be enforced under Article 226 of the Constitution of India in respect of defiance of public law was also the view taken by the Honble Supreme Court in Nilabati Behera Vs. State of Orissa ((1993) 3 SCC 746).

26. While dealing with the claim of compensation in death cases during encounter with police in Malkiat Singh Vs. State of U.P. ((1998) 9 SCC 351 [LQ/SC/1997/1222] ), under Article 32 of the Constitution of India the Honble Supreme Court has granted compensation of Rs.5,00,000/- the relevant portion is as follows:

4. In a similar case, i.e. in Writ Petition No.632 of 1992 this Court awarded Rs.5 lakhs as compensation. We think that the ends of justice would be met if the respondent-State is directed to pay Rs.5 lakhs to the petitioner by way of compensation for the death of Talvinder Singh. The State shall pay this amount within 8 weeks.....

27. Considering the above said law on the subject there is no distinction between custodial death or encounter death or death caused due to improper action of the respondent including the State in not providing adequate provisions in the Sub-Jail to preserve the accused who is facing trial. Therefore it cannot be said that the facts of the present case is strange and cannot be equated to custodial death. The concept applicable as pointed out by the Honble Apex Court is Ubi jus ibi remedium, wherein by not preserving the accused in a proper manner especially, the accused of the nature which is explained in the present case, certainly the wife of such person is entitled to compensation not only under the principles of Strict Liability but also on absolute liability as enshrined by the Honble Supreme Court in M.C.Methas case (AIR 1987 SC 1086 [LQ/SC/1986/544] ).

28. On the facts of the present case the age of the deceased is stated to be 36 years at the time of the incident and the petitioner should have been aged 29 years. At the time of filing of the writ petition the petitioner is aged 32 years and the same is not in much controversy.

29. In my opinion, ends of justice would be served if an amount of compensation of Rs.6,00,000/- is awarded to the petitioner and her minor daughter Sugi and minor son Sujit. Accordingly, I direct the State Government, the first respondent herein, to pay compensation of a sum of Rs.6,00,000/- to the petitioner with interest at the rate of 6% from the date of filing of the writ petition viz., June 1999. Out of the said amount of Rs.6,00,000/-, Rs.2,00,000/- with interest shall be payable to the petitioner and another Rs.2,00,000/- with interest shall be invested in the name of minor Sugi daughter of the petitioner in a Fixed Deposit initially for a period of three years with Tamil Nadu Power Finance Corporation, with a right to the petitioner to receive the interest accrued on such deposit once in three months for maintenance of said Sugi. Likewise, the remaining amount of Rs.2,00,000/- with interest as stated above shall be invested in Fixed Deposit in the name of minor Sujit with Tamil Nadu Power Finance Corporation, initially for the period of three years with interest, with a right to the petitioner to receive the interest accrued on such deposit once in three months for maintenance of said Sujit. The writ petition stands allowed with the above direction. The above said direction shall be complied within eight (8) weeks from the date of receipt of a copy of this order. No costs.