CHANAKYA NATIONAL LAW

UNIVERSITY,patna

SECULARISM
- A PROJECT
SUBJECT : LEGAL LANGUAGE &COMMUNICATION SKILLS

SUBMITTED TO:DR. Pratyush kaushik

FACULTY of legal language
& communication skills
SubMITTED By:
VIVEK KUMAR MISHRA
ROLL NO 1576
B.A. LLB, 1ST SEMESTER

ACKNOWLEDGEMENT
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Writing a project is one of the most significant academic

challenges, I have ever faced. Though this project has been
presented by me but there are many people who remained in veil,
who gave their all support and helped me to complete this project.
First of all I am very grateful to my subject teacher Dr. Pratyush
Kaushik

without

the

kind

support

of

whom

and

help

the

completion of the project was a herculean task for me. She

donated her valuable time from her busy schedule to help me to
complete this project and suggested me from where and how to
collect data.
I am very thankful to the librarian who provided me several books
on this topic which proved beneficial in completing this project.
I acknowledge my friends who gave their valuable and meticulous
advice which was very useful and could not be ignored in writing
the project. I want to convey most sincere thanks to my 3rd nd year
senior Ashutosh Kashyap , for helping me throughout the project.
Last but not the least, I am very much thankful to my parents and
friends, who always stand aside me and helped me a lot in
accessing all sorts of resources.

I thank all of them !

Vivek Kumar Mishra
R.No. 1576, Sem I
B.A.L.L.B. (H)

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TABLE OF CONTENT

Introduction . 06
Rationale Behind Government Liability.. ....09
Tracing the evolution of Writ Compensation ...... 11
Rudal Shah vs State of Bihar ....14
Judgements..... 17
Concluding remarks. 18
Bibliography .....19

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INTRODUCTION
The Supreme Court of India has advanced the Right to Compensation to prisoners by declaring it to
be a fundamental right under Article 21 of the Constitution of India. Hence a prisoner can approach
the Supreme Court under Article 32 and claim for compensation for the violation of his rights while
in custody of the police or a prison setting. The aspect of compensation to prisoners was
acknowledged and introduced world over by the International Covenant on Civil and Political Rights
in 1976. The two principles laid down in the covenant are as follows:
[I] Article 9, Clause 5 states: Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation.
[II] Article 14, Clause 6 states: When a person has by a nal decision been convicted of a criminal
oence and when subsequently his conviction has been reversed or he has been pardoned on the
ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of
justice, the person who has suered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or
partly attributable to him.
The right to compensation further extends to a prisoner if he/she is subjected to unlawful treatment
and abuse in any form in the prison. The right extends to undertrials, detainees and other prisoners in
custody. The case-laws presented in this chapter highlight the circumstances under which prisoners
have been and can be granted compensation.
In Rudul Shahs case (AIR 1983 SC 1086), the petitioner was released from Tihar jail 14 years after
he was acquitted. The excuse was insanity. The Court noted that no data of any kind was produced to
show that the prison authorities had a basis for either declaring the prisoner insane or for detaining
him on that account. No measures were taken to cure him. Insanity was clearly alleged as an after
thought.
The Court observed that if a prisoner was at all insane, it must have been caused by the jail
conditions itself. It was shocking that such a case should emerge after the Bhagalpur blinding case.
The said case was widely reported all over the world and brought the entire prison system of Bihar
into disrepute. It appears that such publicity had no eect on the criminals who run our prison
systems. In this case the Supreme Court decided to grant monetary compensation for violation of
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right to personal liberty. This was the first time when someone was awarded monetary compensation
under the writ jurisdiction provided in Article 32 of the constitution. In this case the court decided to
award a compensation of Rs. 35,000. The Court awarded this compensation as an interim relief to
Rudul Shah and the court also said that this order wont preclude Rudul Shah from bringing a suit for
recovery of adequate damages from the State and the officers responsible. The honourable court gave
no reasoning for arriving at the specific amount as interim relief.
If the plaintiff has a right, "he must of necessity have a means to vindicate and maintain it; and
indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy
are reciprocal.'"
The world over, a welfare state has been eulogized, resulting in a corresponding expansion of its
powers and functions, and greater encroachment into the domain of individual rights. Thus, the
extent and scope of action against the state for the imposition of state liability for rights violations is
increasing. Furthermore, it is an irrefutable principle of civil and criminal jurisprudence that any
individual who infringes the rights of another is to be punished, and monetary compensation is to be
granted in certain circumstances when the victim is adversely affected by such infringement.2
Similarly, the State, which performs its functions through its huge apparatus of employees, is also
liable, with few exceptions, to pay monetary compensation, whenever its employees contravene
rights, more so in any country governed by the rule of law and democracy. The State is thus liable for
its employees' misdemeanors in the area of their administrative functions.
The concrete manifestation of this principle may be seen in the genesis of the "Constitutional Tort" in
various jurisdictions, in particular, the U.S. In the American context, and as used in this paper, the
term "Constitutional Tort" encompasses all claims for damages brought against government officials
for violating an individual's federal constitutional rights. Closer home, this approach is exemplified
in the creation of the extraordinary remedy of writ compensation by the Supreme Court, by putting
its wide powers under Article 32 to innovative and judicious use. This development must be seen in
the context of the excruciatingly slow, complicated, and often unrewarding process, of pursuing a
claim in tort in a civil court against the government; and the conservative attitude of the Indian legal
system with regard to errors of omission, commission and callousness on the part of the State, "thus
breeding and fostering lack of accountability of the public servant." It is pertinent to note that in
India, even a cursory survey of judicial decisions conclusively establishes that the ambit of writ
compensation has thus far, largely been restricted to compensating victims whose guaranteed
fundamental rights under Part III of the Constitution, have been infringed, as opposed to the
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American position, wherein a violation of any constitutional right can give rise to a valid claim for
pecuniary redressal. This point is further elaborated upon in this paper. The author further submits
that this position must be viewed in the context of the unique status accorded to the fundamental
rights, which were meant to play a pivotal role in the "social revolution" envisaged by the
Constitution-makers, and were meant to be a check on arbitrary state action. Furthermore, the
remedy of writ compensation is still on relatively new ground in India, whereas the U.S. courts
began awarding such a remedy as far as back as in 1961.The rigours of British rule, which resulted in
the complete subordination of liberty and civil rights to the whims of the State, reinforced the
compulsion to ensure that these entrenched rights were capable of being enforced effectively.Thus a
special jurisdiction of the Supreme Court under Article 329 was created, which confers on it the
status of "the custodian of the Constitutional Rights and the protector thereof."What is crucial to note
is that this right to approach the Apex Court for the enforcement of fundamental rights is itself a
fundamental right.
Given this background, the notion of "fundamental" rights would become meaningless, unless the
Constitution is interpreted as requiring some affirmative remedy for their gross violation. If rights are
violated, the violation cannot be undone, and often the only practicable and effective mode to
provide a palliative for the victim's wounds is by way of awarding compensation. As will be
elucidated subsequently by the author, the conventional remedies are often found wanting in several
circumstances, and this virtually necessitates compensation.

RESEARCH METHODOLOGY :Page | 6

This project is based mainly and heavily on written text material. It is based on the doctrinal method
of research. The segments are structured and written actively. The writing style is descriptive as well
as analytical. This project has been done after a thorough research based upon intrinsic and extrinsic
aspect of the assigned topic.

AIMS AND OBJECTIVES :The main aim behind this project is

Page | 7

i.

To discuss (in brief) the facts of the case.

ii.

To study the principles involved.

iii.

To comprehend the arguments.

iv.

To critically analyze the Judgement.

THE RATIONALE BEHIND ESTABLISHING

GOVERNMENT LIABILITY
Traditional tort law recognizes damages as a remedy that affirms rights, provides compensation,
promotes deterrence, vindicates the citizens' reliance on the sacrosanct nature of their rights, and
secures corrective justice." Imposing government liability for constitutional violations attempts to
advance analogous goals, which include:
a. Affirming the plaintiffs rights: When an individual's constitutional rights are violated, remedies,
such as injunctions can only serve to restrict future constitutional harm. Unless he is paid damages
for the past loss he has suffered, his constitutional rights would be meaningless.' Compensations
paid for past violations, as opposed to writs for habeas corpus, etc. (which can be availed of only if
the impugned violation is subsisting, and would be futile if awarded after the violation has come to
an end), serve to underline the sacred nature of the rights concerned, and the stringent outlook of the
judiciary towards any State transgression of the same.1
b. Deterrence of Constitutional violations and the avoidance of overdeterrence: Deterrence is of
prime importance in the context of violations of constitutional rights, because the impugned conduct
is the very action that the framers ofthe Constitution sought to avoid.Unlikean injunction or other
remedies, damages are a tangible result, which forces the government to transfer funds from the
public treasury to the private citizen. This in turn requires either higher taxes or government costcutting. In the process, the government, if held accountable through institutional liability, would then
take the necessary steps to reduce its liability by selecting more competent employees, by providing
them with better and more continuous training, by ensuring more supervision of its employees, and
by creating internal disciplinary rules for violators of the Constitution. Simultaneously, as personal
liability of the officers is removed, government agents can perform their governmental duties
zealously, knowing that any unwitting/unavoidable constitutional infraction will be covered by their
employer and not by their paycheck.132

1 Article 32 and the Remedy of Compensation - Eastern Book Company

2 Article from PRISONERS RIGHT- cyberadvocate
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c. Breach of Social Contract: A Constitution is a social contract through which individuals give up
certain liberties, in exchange for government-provided community services like enforcement of
social norms through criminal law, 3economic infrastructure, and social stability.'4 However, the
government also agrees to certain limitations on its authority in the form of constitutional rights.IS
Whenever the government breaches this contract on which the people have relied to their detriment,
they deserve compensation.16
d. Corrective Justice: The Aristotelian theory of "corrective justice" requires the award of monetary
compensation whenever one party ignores the limitations placed upon its behavior with respect to
another party.'7 In certain cases, when the government oversteps its limitations, the plaintiff suffers
loss while the state may realize gains through more efficient policy implementation. The transfer of
funds from the wrongdoer to the victim restores the balance.18
e. Responsibility as Principal and Employer: Since the government selects its own agents, trains
them, and oversees their employment, the government alone is in the best position to institute the
programs necessary to eradicate constitutional violations.19 Because most constitutional violations
are attributable to systemic flaws in the state, it is the state that should face liability in order to
facilitate correction of those flaws. By selecting the best employees, by providing them with
adequate and continued training, and by disciplining them for their unconstitutional behavior, the
government can substantially reduce the number of constitutional torts.20 Further, it is inconsistent
that the government may be liable for the common law torts of its employees but not their
constitutional misconduct.21
In the U.S.A., it was also felt that the concept of a "Constitutional Tort" implicitly recognizes that
constitutional rights and liberties are specific limitations on governments, and must be
enforceable.22 Thus, it naturally follows that the courts must allow the traditional common law
remedy, that is, damage suits, not because constitutional rights parallel the interests protected by
common law tort actions, but because constitutions are enforceable in their own right.4

3 www.hrln.org/hrln/images/stories/pdf/prisoners%20rights%20volume%20ii.pdf
4 14.139.60.114:8080/.../025_State%20Liability_A%20New%20Dimension%20from%20...
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TRACING THE EVOLUTION OF WRIT

COMPENSATION IN INDIA
A. The Pertinent Constitutional Framework
Article 32 of the Constitution provides for the enforcement of fundamental rights by the Supreme
Court. Enforcement literally connotes "compelling the observance of law."33 Thus, this appears to
include not only the redressal of particular violations, but also ensuring that rights are not violated
with impunity in the future. The Constitution has expressly placed this responsibility on the Supreme
Court, and the Court is the "sole arbiter"34 of the appropriateness of the relief that may be granted.
Conventionally under Article 32, there was not much scope for the award of positive, dynamic relief,
even in cases where traditional methods of relief through writs would be wholly inadequate in
actualizing the objectives of Part III.35 It is submitted, however, that a plain construction of Article
32 does not justify this narrow view. The Article specifically sanctions the passing of directions or
orders independent of the mentioned writs. There is powerful support for the proposition that under
Article 32(2), the Court may issue any direction or orders whatsoever, provided, that they are
"appropriate" for the enforcement of rights. The manner in which this position was indubitably
established by the Court may be seen through a series of cases, which document the shift from an
initially hesitant approach, to an assertive, rights-oriented one.5
B. Judicial Trends
(i) The Diffident Initial Pronouncements
The first case in which the Supreme Court confronted the compensation quandary was Khatri v. State
of Bihar.36 The petitioners in the case had been blinded in police custody and demanded
compensation for violation of their right to life under Article 21. Bhagwati, J. observed that the Court
ought to be prepared to forge new tools and devise new remedies for vindicating the fundamental
right to life and personalliberty.37 Without expounding the law on the point, however, the Court
ordered the government to meet the expenses of housing these men in a blind home in Delhi, as an
interim measure . Similarly in Sant Bir v. State af Bihar,38where a criminal lunatic was detained
unlawfully in prison for sixteen years after regaining sanity, Bhagwati, J. did not rule out the
5 www.hrln.org/hrln/images/stories/pdf/prisoners%20rights%20volume%20ii.pdf
Page | 10

possibility of compensation for State excesses. However, no final decision was given on this point. In
Veena Sethi v. State af Bihar,39 however, Bhagwati, J. chose to remain silent on the issue of whether
damages are permissible for illegal detention.
Hence, it is evident that while the judiciary was cognizant of the need for innovative and effective
mechanisms for shielding life and liberty of individuals from State atrocities, it was reluctant at this
stage, to award damages for the violation of fundamental rights.6
(ii) Breakthrough Decisions: Ambivalent Justifications
The breakthrough was achieved in Devaki Nanda v. State af Bihar.40 Here, the petitioner's pension
had been delayed for twelve years. Without much discussion in the judgment, "exemplary costs"
were awarded to the petitioner for "intentional, deliberate and motivated" harassment of the
petitioner, though no specific rights violation was cited.
In the same year, the precedent-setting case of Rudul Sah v. State af Bihar,41 was decided. Here the
petitioner, who had been acquitted by the Court of Sessions, but not released from prison for fourteen
years, presented a habeas carpus petition, wherein he also sought certain ancillary remedies like
rehabilitation, reimbursement of expenses for medical treatment, and compensation for illegal
incarceration. Since the petitioner was released before the actual hearing of the petition, the mere
issuance of a writ of habeas carpus would have been futile. Under the conventional approach, the
only remedy would have been to file a suit to recover damages from the Government, but the
difficulties of filing such a suit were immense. The Court felt that if it refused to pass an order ~or
compensation, it would be doing only lip service to the fundamental right to liberty,42 and
accordingly ordered the Government to pay the petitioner a sum of Rs. 30,000.
A two-track approach is discernible in this case.43 While on the one hand the Court wished to afford
some "palliative" in the form of a right to compensation, simultaneously it desired to penalize for
their unlawful acts "those instrumentalities which act in the name of the public interest."44 The exact
jurisprudential basis for the award of monetary relief was therefore not clarified.
The path-breaking pronouncement in Rudul Sah was greeted with both bouquets and brickbats. The
judgment was welcomed as the Court had rightly tried to punish an inert and callous executive, and
tried to enforce conformity with constitutional prescriptions. However, the irresolute nature of the
judgment was apparent. The rationale for awarding "damages" in Rudul as opposed to "exemplary
6 judis.nic.in/supremecourt/imgs1.aspx?filename=9759
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costs" in Devaki was not explained, and the Court had explicitly termed the award a mere
"palliative", though the author feels that the tone and tenor of the judgment, culminating in the award
of monetary relief, seemed to be building up a case for the grant of "compensation." Further, the
Court was not prepared to hold that Article 32 per se allows for compensation in all cases of
fundamental rights violations.45 Chadrachud, C.J. made a further qualification. He observed that if
the case had involved disputed questions of fact, then the Court would have been constrained to
direct the petitioner to approach the civil court.46 Rudul Sah was indeed a commendable though
ambivalent beginning, and in several subsequent cases, its ratio was affirmed and expanded by the
Court.
The jurisprudential ambivalence of the Court was again apparent in Sebastian Hongray v. Union of
India,47 where a writ of habeas corpus was issued for the release of two men in army custody, but
never executed. The Court ordered the payment of "exemplary costs"48 to their wives (as the men
were dead by that time). The Court was obviously still not completely at ease with the budding
remedy of compensation, since it used the term "exemplary costs", when in fact it appeared that the
payment was awarded in view of the torture, agony and mental oppression which the wives of the
deceased had to undergo, and was more akin to the concept of "damages" or "compensation." Hence
the jurisprudential basis for the award of the "damages" was still unclear.7
(III) Further Developments
In Bhim Singh v. Jammu and Kashmir,49 the Supreme Court finally averred that it had "the right to
award monetary compensation by way of exemplary costs or otherwise."50 In this case, which
involved a writ of habeas corpus, the Court followed Rudul Sah and Sebastian, and directed the State
to pay compensation. Further, deviating from the rule that habeas corpus is remedial and not
punitive, it stated that in appropriate cases, where merely setting free the victim would not wash
away the mischief perpetrated, it may compensate the victim by awarding suitable monetary
compensation.8
The trend of awarding compensation was well-settled by this time. In many subsequent cases
compensation was awarded to victims of State excesses, which encroached on their fundamental
rightsY Of particular importance were cases, which involved atrocities committed by the police. The
7 www.manupatra.co.in/newsline/.../0C1E402E-740A-4814-B899-DBB53A9020AF.pd...
8 www.lawnotes.in ... 1983 Supreme Court of India Cases January 1983
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Court took a strong view of such excesses, and this helped in further elucidating the concept of
monetary compensation for fundamental rights violati0ns by the State.9
(iv) Custodial Deaths and Torture: Ambivalence Eschewed
The remedy of compensation for violation of fundamental rights takes on special significance in
cases of custodial deaths and torture. Although there is no specific prohibition of torture and
provision for compensation for its victims in the Constitution, such rights have been read into the
jurisprudence surrounding Article 21.5' Besides, cases of torture and custodial deaths, by their very
nature, are likely to involve situations where a writ may not be a sufficient remedy, since the damage
would probably have occurred already. Further, such damage would constitute incontrovertible and
exfacie glaring infringement of fundamental rights.
The reasons for the award of compensation for the' violation of fundamental rights were expounded
in Saheli v. Commissioner of Police, Delhi,53 where the Court held that an action for damages lies
for bodily harm, including battery, assault, false imprisonment, physical injuries and death, since
damages represented a solatium for mental pain, distress, indignity, loss of liberty and death. 54
The jurisprudential reasoning behind the award of damages in cases of violations of fundamental
rights was elucidated in Nilabati Behera v. State of Orissa,55which can truly be considered a
landmark case in the development of law in this area. The Supreme Court in this case eschewed all
hesitation and laid down in lucid terms that Article 32 imposed an obligation on the Court "to forge
such new tools as may be necessary for doing complete justice and enforcing fundamental rights."
Verma, J. enunciated that compensation under Articles 32 or 226 is a remedy available in public law,
based on strict liability for the contravention of fundamental rights to which the principle of
sovereign immunity does not apply, "even though it may be available as a defence in private law in
an action in tort."56
The Court held that this was the correct interpretation of Rudul Sah, and was the basis of subsequent
decisions as well. A hitherto ignored, but extremely pertinent aspect was also touched upon in this
case. The Court referred to Article 9(5)57 of the International Covenant on Civil and Political Rights,
1966 ("I.C.C.P.R."), to buttress its stance that award of compensation is not alien to the concept of
enforcement of a guaranteed right. Reference to the said Article 9(5) was again made by the Supreme
Court in the case of D.K. Basu v. Union of India, 58 wherein it was held that the Government of

9 www.lawctopus.com/academike/theories-of-compensation-in-criminal-law/
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India's reservation to the I.C.C.P.R., on the ground that the India legal system does not recognize a
right to compensation, had lost its relevance in view of the law laid down by the Supreme Court.10
In D.K. Basu, the Supreme Court also reiterated that pecuniary compensation was an appropriate,
effective, and sometimes, the only suitable remedy for redressal for rights violations, and, thus,
leaving the aggrieved at the mercy of remedies available in civil law, would hamper the Court's role
as the protector and custodian of the citizens' indefeasible rights to an unacceptable degree.59
(v) Fencing the Power
Though the remedy of monetary compensation for violation of fundamental rights is now well
established, courts have at the same time imposed limitations on their own power to grant such relief.
For example, the courts may refuse to issue a writ granting compensation, when disputed questions
of facts arise, and the tortious liability is clearly denied by the State.60 In S.P.S. Rathore v. State of
Haryana,61 the Supreme Court accepted the contention that it could grant compensation only when
there is a prima facie or established violation of a guaranteed fundamental right. When the
foundational fact itself is in dispute, the Court will desist from ordering compensation. The exercise
of the power under Articles 32 or 226 for conducting an enquiry to determine compensation in
glaring and clear cases of custodial rape or death or, illegal detention of the poor and helpless, is not
feasible in such a case. M.C. Mehta v. Union of India 1162 saw the Supreme Court take on another
selfimposed restriction. It asserted its power to award compensation for violation of fundamental
rights, but limited this remedy to "appropriate cases", where the infringement was gross and patent,
that is, incontrovertible and ex facie glaring. This would be the case where such infringement either
affects the rights of many persons, or appears unjust, unduly harsh or oppressive, on account of the
disability of the victims to initiate or pursue action in civil courts. Put simply, the infringement's
magnitude must be such as to shock "the conscience of the Court."6312
From the discussion in the above part, it is seen that though the concept of granting compensation for
violation of fundamental rights had an ambivalent entry into Indian constitutional jurisprudence, it is
now a well entrenched concept. It is recognized that courts can and do award writ compensation for
fundamental rights violations. Further, when a court awards damages for infraction of Article 21, "it
10 judis.nic.in/supremecourt/imgs1.aspx?filename=9759
11 https://indiankanoon.org/search/?formInput=rudul%20MCMEHTA
12 Article from Times of India- Reference case
Page | 14

is administering the law of constitutional torts and it is for this reason that it does not have to be
inhibited by concepts peculiar to common law tortS."64

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RUDUL SHAH vs STATE OF BIHAR

(AIR 1983 SC 1086)
The Constitution of India envisages certain provisions exclusive to the interests of the individuals
especially with regard to their personal freedom and infringement on it. The mandate of the
Constitution awards gravity to the entire spectre of rights relating to an individual's personal
freedom. It is under this ambit that the aspect of false imprisonment can be located.
Right to life and personal liberty read through the Article 21 into the Constitution of India is a crucial
provision. The intention is to protect the life and liberty of the people from the wishful acts of the
Executive. The imprisonment of a person cannot be ordered by anyone in the position of power and
authority to do so if there is no law providing for the same. Article 22 derives basically from the
principles of the Article 21 and deals specifically with the aspect of manner of arrest and
imprisonment. While the latter says that, No person shall be deprived of his life or liberty except by
procedure established by law. The former Article says that a person who is arrested should be
informed regarding the grounds of his arrest. At the same time, he should be permitted to seek the
services of his lawyer. And he should be produced before the nearest magistrate within 24 hours of
his arrest. An indirect echo of the above rights is also observed in the Article 20, which provides for
protection against ex-post-facto laws and double jeopardy.
In case of violation of any of these rights, a citizen of India is free to move to
The Supreme Court or the High Court under the writ petitions (Article 32 and Article 226
respectively). Such petitions may be moved under the heads of certiorari, quo-warranto and
prohibition. The only exceptions to the above Fundamental Rights arise with regard to the defence
and security concerns of the nation. The Rudul Shah case assumes special significance in this
discussion on state liability for false imprisonment. In the present case the Supreme Court ordered
the award of compensation of Rs. 35, 000/- apart from the release of the person who had been
illegally detained for a period of 14 years. This was a landmark as it was the first instance of the
Supreme Court linked the constitutional provision of Habeas Corpus with the principle of
compensation.13

13 https://letstalkaboutthelaw.wordpress.com/tag/rudul-shah/
Page | 16

Besides, as is the standard practice, any law in contravention to the

Fundamental Rights guaranteed under the Constitution of India stands void; therefore, any legislation
by the State or Union Legislatures running in contradiction to the above Fundamental Rights with
regard to personal liberty shall stand void. The right to freedom of personal liberty has certain
defences against it, which is basically envisaged keeping in mind the need of the public authorities to
act in the interest of public law and order in particular and the security of the nation in general.
The judiciary is shielded from the consequences of their actions vide the Judicial Officers Protection
Act, 1850. This protection is available basically against the judgments passed by the judges or in the
exercise of their judicial powers in any other manner. However, the above act is not without its own
limitations such that in character and function it doesn't become absolute.
It is clearly observed that the standards laid down by the Supreme Court are strict when it comes to
safeguarding citizens against the malice of false imprisonment.14
To quote:
No arrest should be made without a reasonable satisfaction reached after some investigation into the
genuineness and bonafides of a complaint and reasonable belief as to the person's complicity and
even so as to need to effect arrest, arrest must be avoided if a police officer issues a notice to the
person to attend the station house and not to leave station without permission to do so. The remedy
available under the Constitution is the writ of Habeas Corpus, which is available not just against any
government authority but also against any other instance of unlawful detention. In the words of Dr.
BR Ambedkar: If I was asked to name any particular article in this constitution as the most
important -an article without which this Constitution would be a nullity- I could not refer to any
other article except this one. It is the very soul of the Constitution and the very heart of it.
Executive authorities have to be within the limits prescribed to them by the Constitution or other
legislative enactments while exercising their duties. Failing which the authorities invite the prospect
of false imprisonment. While the conventional statutes like the CrPC. 1898 deal with the regular
instances of crime, with regard to special statutes like the National Security Act, 1980, the limitations
to regulate the powers are laid in the statute itself. 15
14 https://www.escr-net.org/caselaw/2015/rudul-sah-v-state-bihar-1983-4-scc-141
15 www.the-laws.com/Encyclopedia/Browse/Case?CaseId=818002251000
Page | 17

Page | 18

FACTS & JUDGEMENT

Supreme Court of India
Rudul Sah vs State Of Bihar And Another on 1 August, 1983
Equivalent citations: 1983 AIR 1086, 1983 SCR (3) 508
Author: Y Chandrachud
Bench: Chandrachud, Y.V. ((Cj)
PETITIONER:
RUDUL SAH

Vs.

RESPONDENT: STATE OF BIHAR AND ANOTHER

DATE OF JUDGMENT01/08/1983
BENCH: CHANDRACHUD, Y.V. ((CJ)
BENCH: CHANDRACHUD, Y.V. ((CJ)
SEN, AMARENDRA NATH (J)
MISRA RANGNATH
CITATION: 1983 AIR 1086
1983 SCC (4) 141

1983 SCR (3) 508

1983 SCALE (2)103

CITATOR INFO :
F
RF

1986 SC 494 (3)

1987 SC1086 (7)

ACT: Constitution of India-Art. 32-Scope of-Whether in a habeas corpus petition under Art. 32
Supreme Court can grant compensation for deprivation of a fundamental right. Constitution of
India-Art. 21-Scope of-whether covers right to compensation for its violation.16
HEADNOTE: The petitioner who was detained in prison for over 14 years after his acquittal
filed a habeas corpus petition under Art. 32 of the Constitution praying for his release on the ground
that his detention in the jail was unlawful. He also asked for certain other reliefs including
compensation for his illegal detention. When the petition came up for hearing the Court was
16 https://indiankanoon.org/search/?formInput=rudul%20shah
Page | 19

informed by the respondent State that the petitioner had already been released from the jail.
Allowing the petition,
HELD: The petitioner's detention in the prison after his acquittal was wholly unjustified.
Article 32 confers power on the Supreme Court to issue directions or

orders or

appropriate

writs for the enforcement of any of the rights conferred by Part III of the Constitution. Article
21 which guarantees the right to life and liberty will be denuded of its significant content if the
power of this Court were limited to passing orders of release from illegal detention. One of the
telling ways in which the

violation of that right can reasonably be prevented and due

compliance with the mandate of Article 21 secured, is to mulct its a violators in the payment of
monetary compensation. The right to compensation is some palliative for the unlawful acts of
instrumentalities which act in the name of public interest and which present for their protection
the powers of the State as a shield. Respect for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage done by its officers to their rights. [513 AC, 514 B-E]

In the circumstances of the instant case the refusal to pass an order of compensation

in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which
the State Government has so grossly 509 violated. Therefore, as an interim measure the State must
pay to the petitioner a further sum of Rs. 30,000 in addition to the sum of Rs 5,000 already
paid by it. This order will not preclude the petitioner from bringing a suit to recover appropriate
damages from the State and its erring officials. 17
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 1987 of 1982.
(Under Article 32 of the Constitution of India) Mrs. K. Hingorani for the Petitioner.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.: This Writ Petition discloses a
sordid and disturbing state of affairs. Though the petitioner was acquitted by the Court of Sessions,
Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail on October 16, 1982, that is to say,
18

more than 14 years after he was acquitted. By this Habeas Corpus petition, the petitioner asks for

17 www.ebc-india.com/lawyer/articles/2004_7_49.htm
18 shodhganga.inflibnet.ac.in/bitstream/10603/41200/14/14_table%20of%20cases.pdf
Page | 20

his release on the ground that his detention in the jail is unlawful. He has also asked for certain
ancillary reliefs like rehabilitation, reimbursements of expenses which he may incur for medical
treatment and compensation for the illegal incarceration.19
This petition came up before us on November 22, 1982 when we were informed by Shri Goburdhan,
counsel for the State of Bihar, that the petitioner was already released from the jail. The relief sought
by the petitioner for his release thus became infructuous but despite that, we directed that a Notice to
show cause be issued to the State of Bihar regarding prayers 2, 3 and 4 of the petition. By prayer No.
2 the petitioner asks for medical treatment at Government expense, by prayer No. 3 he asks for an ex
gratia payment for his rehabilitation, while by prayer No 4 he asks for compensation for his illegal
detention in the jail for over 14 years.
We expected a prompt response to the Show Cause Notice from the Bihar Government at least at this
late stage, but they H offered no explanation for over four months. The Writ Petition was listed
before us on March 31, 1983 when Shri Goburdhan restated that the petitioner had been already
released from the jail.20
We passed a specific order on that date to the effect that the release of the petitioner cannot be the
end of the matter and we called upon the Government of Bihar to submit a written explanation
supported by an affidavit as to why the petitioner was kept in the jail for over 14 years after his
acquittal. On April 16, 1983, Shri Alakh Deo Singh, Jailor, Muzaffarpur Central Jail, filed an
affidavit in pursuance of that order. Shorn of its formal recitals, the affidavit reads thus:
"2. That the petitioner was received on 25.3.67 from Hazaribagh Central Jail and was being produced
regularly before the Additional Sessions Judge, Muzaffarpur and on 30.8.68 the learned Judge passed
the following order:
"The accused is acquitted but he should be detained in prison till further order of the State
Government and I.G. (Prisons), Bihar."
(A true copy of the same is attached as Annexure I).

19 www.hrln.org/hrln/images/stories/pdf/prisoners%20rights%20volume%20ii.pdf
20 legalperspectives.blogspot.com/2010/04/compensation-for-wrongs-of-state-to.html
Page | 21

3. That accused Rudul Sah was of unsound mind at the time of passing the above order. This
information was sent to the Law Department in letter No. 1838 dated 10.5.74 of the Superintendent,
Central Jail, Muzaffarpur through District Magistrate, Muzaffarpur.
4. That the Civil Surgeon, Muzaffarpur, reported on 18.2.77 that accused Rudul Sah was normal and
this information was communicated to the Law Department on 21.2.77.
5. That the petitioner, Rudul Shah was treated well in accordance with the rules in the Jail Manual,
Bihar, during the period of his detention.
6. That the petitioner was released on 16.10.82 in compliance with the letter No. 11637 dated 14.10
82 of the Law Department."
The Writ Petition came up before us on April 26, 1983 when we adjourned it to the first week of
August 1983 since it was not clear either from the affidavit filed by the Jailor or from the order of the
learned Additional Sessions Judge, Muzaffarpur, which is annexed to the affidavit as Annexure I, as
to what was the basis on which it was stated in the affidavit that the petitioner was of unsound mind
or the reason why the learned Additional Sessions Judge directed the detention of the petitioner in
jail, until further orders of the State Government and the Inspector General of Prisons.
The writ petition has come up for hearing once again before us today. If past experience is any guide,
no useful purpose is likely to be served by adjourning the petition in the hope that the State
authorities will place before us satisfactory material to explain the continued detention of the
petitioner in jail after his aquittal. We apprehend that the present state of affairs, in which we are left
to guess whether the petitioner was not released from the prison for the benign reason that he was
insane, is not likely to improve in the near future.21
The Jailor s affidavit leaves much to be desired. It narrates with an air of candidness what is
notorious, for example, that the petitioner was not released from the jail upon his acquittal and that
he was reported to be insane. But it discloses no data on the basis of which he was adjudged insane,
the specific measures taken to cure him of that affliction and, what is most important, whether it took
14 years to set right his mental imbalance. No medical opinion is produced in support of the
diagnosis that he was insane nor indeed is any jail record produced to show what kind of medical
treatment was prescribed for and administered to him and for how long. The letter (No. 1838) dated
May 10, 1974 which, according to paragraph 3 of the affidavit, was sent to the Law Department by
21 cyberadvocate.in/mod/resource/view.php?id=185
Page | 22

the Superintendent of the Central Jail, Muzaffarpur, is not produced before us. There is nothing to
show that the petitioner was found insane on the very date of his acquittal. And, if he was insane on
the date of acquittal,22 he could not have been tried at all for the simple reason that an insane person
cannot enter upon his defence Under the Code of Criminal Procedure, insane persons have certain
statutory rights in regard to the procedure governing their trial. According to paragraph 4 of the
affidavit, the Civil Surgeon, Muzaffarpur, reported on February 18, 1977 that the petitioner was
normal and that this information was communicated to the Law Department on February 21, 1977.
Why was the petitioner not released for over 5&1/2 years thereafter ? It was on october 14, 1982 that
the Law Department of the Government of Bihar directed that the petitioner should be released. Why
was the Law Department so insensitive to justice ? We are inclined to believe that the story of the
petitioner's insanity is an afterthought and is exaggerated out of proportion. If indeed he was insane,
at least a skeletal medical record could have been produced to show that he was being treated for
insanity. In these circumstances, we are driven to the conclusion that, if at all the petitioner was
found insane at any point of time, the insanity must have supervened as a consequence of his
unlawful detention in jail. A sense of helplessness and frustration can create despondency and
persistent despondency can lead to a kind of mental imbalance.
The concerned Department of the Government of Bihar could have afforded to show a little more
courtesy to this Court and to display a greater awareness of its responsibilities by asking one of its
senior officers to file an affidavit in order to explain the callousness which pervades this case.
Instead, the Jailor has been made a scapegoat to own up vicariously the dereliction of duty on the
part of the higher officers who ought to have known better. This is not an isolated case of its kind and
we feel concerned that there is darkness all around in the prison administration of the State of Bihar.
The Bhagalpur blindings should have opened the eyes of the Prison Administration of the State. But
that bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables.
Perhaps, a Hercules heas to be found who will clean them by diverting two rivers through them, not
the holy Ganga though. We hope (and pray) that the higher officials of the State will find time to
devote their personal attention to the breakdown of Prison Administration in the State and rectify the
grave injustice which is being perpetrated on helpless persons. The High Court of Patna should itself
examine this matter and call for statistical data from the Home Department of the Government of
Bihar on the question of unlawful detentions in the State Jails A tabular statement from each jail
should be called for, disclosing how many convicts have been in jail for more than 10 years, 12
years, 14 years and for over 16 years. The High Court will then be in a position to release prisoners
22 www.thehansindia.com/posts/index/Opinion/2016-04-05/Compensate.../218988
Page | 23

who are in unlawful detention in the jails and to ask the State Government to take steps for their
rehabilitation by payment of adequate compensation wherever necessary.23
That takes us to the question as to how the grave injustice which has been perpetrated upon the
petitioner can be rectified, in so far as it lies within our power to do in the exercise of our writ
jurisdiction under Article 32 of the Constitution. That article confers power on the Supreme Court to
issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by Part III. The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by Part III is "guaranteed", that is to say, the right to move
the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of
the Constitution is itself a fundamental right.
It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations
which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A
money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of
lowest grade competent to try it. But the important question for our consideration is whether in the
exercise of its jurisdiction under article 32, this Court can pass an order for the payment of money if
such an order is in the nature of compensation consequential upon the deprivation of a fundamental
right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison
for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in
this Court for his release from illegal detention. He obtained that relief, our finding being that his
detention in the prison- after his acquittal was wholly unjustified. He contends that he is entitled to
be compensated for his illegal detention and that we ought to pass appropriate order for the payment
of compensation in this Habeas Corpus petition itself.24
We cannot resist this argument. We see no effective answer to it save the stale and sterile objection
that the petitioner may, if so advised, file a suit to recover damages from the State Government.
Happily, the State's Counsel has not raised that objection. The petitioner could have been relegated to
the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense
that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner
files a suit to recover damages for his illegal detention, a decree for damages would have to be
23 cyberadvocate.in/mod/resource/view.php?id=185
24 https://letstalkaboutthelaw.wordpress.com/tag/rudul-shah/
Page | 24

passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise
amount which would be decreed in his favour. In these circumstances, the refusal of this Court to
pass an order of compensation in favour of the petitioner will be doing mere lip-service to his
fundamental right to liberty which the State Government has so grossly violated. 25 Article 21 which
guarantees the right to life and liberty will be denuded of its significant content if the power of this
Court were limited to passing orders to release from illegal detention. One of the telling ways in
which the violation of that right can reasonably be prevented and due compliance with the mandate
of Article 21 secured, is to mulct its violaters in the payment of monetary compensation.
Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected
by any other method open to the judiciary to adopt. The right to compensation is some palliative for
the unlawful acts of instrumentalities which act in the name of public interest and which present for
their protection the powers of the State as a shield. If civilization is not to perish in this country as it
has perished in some others too well-known to suffer mention, it is necessary to educate ourselves
into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore,
the State must repair the damage done by its officers to the petitioner's rights. It may have recourse
against those officers.
Taking into consideration the great harm done to the petitioner by the Government of Bihar, we are
of the opinion that, as an interim measure, the State must pay to the petitioner a further sum of Rs.
30,000 (Rupees thirty- thousand) in addition to the sum of Rs. 5,000 (Rupees five thousand) already
paid by it. The amount shall be paid within two weeks from today. The Government of Bihar agrees
to make the payment though, we must clarify, our order is not based on their consent.
This order will not preclude the petitioner from bringing a suit to recover appropriate damages from
the state and its erring officials. The order of compensation passed by us is, as we said above, in the
nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many
appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which
takes place leisurely in compensation suits will have to await the filing of such a suit by the poor
Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope,
there will be no more Rudul Sahs in Bihar or elsewhere.26

25 https://books.google.co.in/books?isbn=8176294152
26 www.ebc-india.com/lawyer/articles/2004_7_49.htm
Page | 25

The interesting part of the judgment relates to compensation. The Court granted compensation of Rs.
35,000/- as a palliative to the petitioner and specically indicated that a suit for compensation over
and above this amount would lie in an appropriate Court. Article 21 will be denuded of its signicant
content if the powers of the Court were limited to passing orders merely of release. One way in
which due compliance with the mandate of Article 21 is secured is to mulct its violators in the
payment of monetary compensation. It cannot be corrected by any other method. Interestingly for 14
years of illegal custody the poor prisoner was given compensation of only Rs. 35,000/. Why not 35
lacs? Would not the latter amount be more appropriate for such a violation of the Fundamental
Rights of a citizen of India?
OTHER CASES THAT FOLLOWED
Sebastian Hongrays case (AIR 1984 SC 1026) was a habeas corpus petition. Sebastian was a Naga
Priest who was a Head Master of a school. His school was visited by the army. There the army
engaged in certain atrocities and took away certain persons including the petitioner. He was last seen
alive in an army camp. A petition for habeas corpus was led, but the State refused to obey. The
Court asked What is the appropriate mode of enforcing obedience to a writ of habeas corpus?.
Here there was a wilful disobedience of the writ by misleading the Court and by presenting a
distorted version of facts. It was a case of civil contempt. In a landmark judgment the Court ordered
that the State pay Rs. 1 lac each to the wives of the missing persons. Reiterating the principle laid
down in the earlier decisions, the Supreme Court awarded compensation of Rs. 50,000/- in Bhim
Singhs case (AIR 1986 SC 494), for imprisonment with mischievous or malicious intent, where an
MLA was kept in police custody and remand orders were obtained without his production before a
magistrate. In Peoples Union of Democratic Rights vs. State of Bihar (AIR 1987 SC 355), the
Supreme Court enhanced the amount of compensation from Rs. 10,000/- to Rs. 20,000/- to be paid to
the 21 persons belonging to backward classes who died in indiscriminate ring by the police while
holding a peaceful meeting in the District of Gaya, Bihar, and Rs. 5000/- each to the persons injured.
The Court held that payment of such compensation does not absolve the liability of the wrong-doer
but such compensation is being paid as a working principle and for convenience and with a view to
rehabilitating the dependants of the deceased. 2728

27Article from Human Rights Law Network

28 Article from Compensation through Writ Petitions - Manupatra
Page | 26

In Peoples Union of Democratic Rights and another vs. Police Commissioner, Delhi Police and
another (1989 (4) SCC 730), the Supreme Court directed the payment of Rs. 50,000/- to the family of
the person killed by the police ocers at the police station for demanding payment for their labour.
A woman who was stripped was paid Rs. 500/- and Rs. 25/- to eight others. The amount was ordered
to be recovered from the salaries of the ocers found guilty aft er investigation and inquiry. In
Saheli, A Womens Resource Centre Vs. Commissioner of Police, Delhi (AIR 1990 SC 513), the
Supreme Court directed that compensation be paid to the mother of a nine year old child who died
because of beating and assault by a police ocer. In P.V. Kapoors case (1992 Cri. LJ 128), the
Delhi High Court, extending the principle laid down in Nilabati

Beheras case, awarded

compensation to the victims of police ring on the illegal assemblies during the Mandal agitation.
The law regarding strict liability of the State for violation of fundamental rights to which the defence
of sovereign immunity is not applicable was laid down by the Supreme Court in Nilabati Beheras
case (JT 1993 (2) SC 503). In this case where compensation was awarded to the mother of a victim
of custodial death, the Supreme Court expressed the need of the Court to evolve new tools to give
relief in public law by moulding it accordingly to the situation with a view to preserve & protect the
rule of law. The Supreme Court in Arvinder Singh Baggas case (JT 1994 (6) SC 478), directed that
the state pay compensation to persons illegally detained and directed prosecution of the concerned
police ocers for the blatant abuse of law. The Andhra Pradesh High Court also awarded
compensation in case of illegal detention and quashed the prosecution pending against the
detenuled subsequently as being an abuse of the process of Court in S. Seshaiah vs. State of Andhra
Pradesh (1994 Cri. LJ 1469). The Gauhati High Court awarded compensation to the father of
deceased against whom no case had been registered in Nagantangkhuis case (1995 Cri. LJ 347). In
Re: death of Sawinder Singh Grover (1995 (SU4) SCC 450), the Supreme Court directed that a sum
of Rs. two lakhs be paid as an interim measure by the Union of India/ Directorate of Enforcement to
the widow of the deceased. This direction was based on the report of the Additional Sessions Judge
which suggested a strong suspicion of some misfeasance including torture by the o cers of the
Directorate who had wrongfully conned the deceased. The Central Bureau of Investigation was
asked to conduct the prosecution and further investigation in the matter.
COMPENSATION 5
In Smt. Kewal Pati s case (1995 Cri LJ 2920), the Supreme Court held that the legal heirs of
deceased are entitled to compensation from the State if a prisoner is killed in jail by a co-accused.
The facts of the case in Postsangbam Ningol Thokchom (Smt) and another vs. General O cer
Page | 27

Commanding and others (1997 (7) SCC 725) being similar to that of the Nilabati Beheras case, the
Supreme Court directed the Union of India to deposit an amount of Rs. 1,25,000 in the names of the
mothers of the two boys who were not released from custody aft er being picked up for interrogation
by the Army in Imphal, and were suspected to be killed. In another similar case, Kaushalya and
another vs. State of Punjab and Others (1999 (6) SCC 754), the Supreme Court awarded a sum of Rs.
2 lakhs to the mother of the deceased Amrik Singh who was killed in police custody. In Malkiat
Singh vs. State of Uttar Pradesh (1989 (9) SCC 351), the Supreme Court awarded a compensation of
Rs. ve lakhs to the father whose son was killed in an alleged encounter between the police and four
sikh youths. 29The compensation was made based on a similar case, Writ Petition No. 632 of 1992,
where the Supreme Court had awarded Rs. 5 lakhs as compensation. In Mrs. Meena Singh vs. State
of Bihar and others (2001 Cri. LJ 3573), the High Court of Jharkhand awarded a compensation of Rs.
3 lakhs to the wife of an undertrial prisoner, noti ng that it was the prime duty of the jail authority to
provide security and safety to the life of prisoners while in jail custody. The order was passed based
on the principle expounded in Smt. Kewalpatis case. 30 In Prem Bangar Swamy vs. State of
Maharashtra and Others (2004 ALL MR (Cri) 636), the High Court of Bombay awarded an amount
of Rs. 2 lakhs as compensation for wrongful detention of the petitioner for 2 years 9 months inspite
of her acquial by the Special Court in Mumbai and that order being conrmed in appeal by the High
Court. The High Court referred to the apex court judgements in Rudal Sah and D.K. Basus cases for
illegal detention, while deciding the amount which was awarded as an interim measure noting that
the same was not a punitive compensation. State of Andhra Pradesh vs. Challa Ramkrishna Reddy
and Others (AIR 2000 SC 2083) was led against the order of the High Court whereby a sum of Rs.
1,44,000/- was awarded to the son whose father died while in custody for the negligence of the
authorities. The case was challenged on two grounds, as being barred due to limitation and that the
State would not be liable in damages as it was immune from any legal acti on in respect of its
sovereign acts. The Supreme Court held that the present case would invoke the provisions of Article
113 and not Article 72 of the Limitation Act, 1963 which prescribed a period of three years, as the
action of the ocers was wholly malade, and thus the suit was within limitation. With regards to
the second plea relating to the immunity of the State Government, the Court relied on various
judgements on deciding the issue of a person being deprived of his personal liberty (Article 21) in
accordance with the procedure established by law, and that the same must be reasonable, fair and just
as laid down in Maneka Gandhi vs. Union of India (1978 (1) SCC 248), D. Bhuvan Mohan Patnaik
29 https://letstalkaboutthelaw.wordpress.com/tag/rudul-shah/
30 judis.nic.in/supremecourt/imgs1.aspx?filename=9759
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vs. State of Andhra Pradesh (AIR 1074 SC 2092), Charles Sobhraj vs. Superintendent, Central Jail,
Tihar (AIR 1978 SC 1514), Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi
(1981 (1) SCC 608), Sunil Batra vs. Delhi Administration ( AIR 1980 SC 1579), N. Nagendra Rao &
Co. vs. State of A.P. (AIR 1994 SC 2663), and Common Cause, A Registered Society vs. Union of
India and Ors. (1999 (6) SCC 667). The Court rejected the plea of immunity and further held that in
the instant case, two vital factors, namely police negligence as also the Sub-Inspector being in
conspiracy were established as a fact, therefore the decisions in Nilabati Behera, In Re: Death of
Sawinder Singh Grover, and D.K. Basu, would hold so far as fundamental rights and human rights or
human dignity are concerned, and that the law has marched ahead like a Pegasus but the Government
attitude continues to be conservative and it tries to defend its action or the tortious action of its
ocers by raising the plea of immunity for sovereign acts or acts of State, which must fail. In
Ravikant Patils case [1991 (2) SCC 373], the Supreme Court rejected the appeal of the State against
the decision of the Bombay High Court directing that compensation be paid to the undertrial prisoner
for handcung and being taken through the streets as the police ocers were guilty of violating a
fundamental right under Article 21.31

31 www.lawctopus.com/academike/theories-of-compensation-in-criminal-law/
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CONCLUDING REMARKS
What is truly striking about India is the lack of respect for the rule of law, not just among the people,
but also among those who make and those who enforce them.
Torts committed by State employees, resulting in rights violations, would be actionable wrongs for
which a remedy would lie in a civil court for damages. However, the Supreme Court, perhaps taking
a cue from judicial trends in contemporaneous liberal democracies, has been prepared to forge
innovative and expedient devices for vindicating the fundamental rights, by interpreting the
constitutional remedy under Articles 32 and 226, to include the grant of monetary compensation,
which is an apposite, effective, and perhaps, the only suitable remedy for redressal of the established
infringement of fundamental rights.
Jurists have assailed this novel public law remedy by questioning the competence of the court to
award "Writ Compensation." As we have seen, the authority to evolve this mode of Constitutional
reparation may be derived directly from the language and purpose of Article 32 itself.81 Further, the
court will be unable to effectively fulfill its role of protector and guarantor of the citizens'
indefeasible rights, if it leaves those aggrieved of fundamental rights infringements, to seek civil
remedies.
However, the judiciary in its well-intentioned zeal to alleviate public wrongs through an approach
analogous to Constitutional Tort, is now finding itself bereft of guidance in determining issues of
compensation for fundamental rights violations. Given the glaring anomalies in compensatory
jurisprudence, the author submits that there is a need for legislation for fixing the parameters of the
State liability, and for a novel reorientation of the doctrine of "Constitutional Tort."
The rules of compensatory jurisprudence applicable to prisoners have not been codied by the Indian
legislature. Considering that many cases of abuses in prisons go unreported it is a necessity to ensure
just and fair treatment of prisoners to expressly include the right to compensation in either Prisoners
Act, 1894 or the jail manuals of every State. Imparting justice by the means of compensation can be
successful only if the prisoners are specically made aware of their right to claim compensation.
Though compensation is not completely sucient to avoid prisoners getting abused, it is a means to
provide partial solace to the victims and their heirs.

Page | 30

BIBLIOGRAPHY
Website referred
https://indiankanoon.org/search/?formInput=rudul%20shah
https://www.escr-net.org/caselaw/2015/rudul-sah-v-state-bihar-19834-scc-141
https://letstalkaboutthelaw.wordpress.com/tag/rudul-shah/
judis.nic.in/supremecourt/imgs1.aspx?filename=9759
https://www.scribd.com/doc/93455925/Rudal-Shah-v-State-of-BiharAman-Agrawal
www.legalservicesindia.com/articles/dct.htm
www.lawctopus.com/academike/theories-of-compensation-incriminal-law/

Journal referred
Dhume, Sadanand (20 June 2010). "The Trouble with Compensation".
The Wall Street Journal
Madan, T. N. (1987), The Pertinent Constitutional Framework, Journal
of Asian Studies

Articles referred

Article
Article
Article
Article

from Compensation through Writ Petitions Manupatra

from Human Rights Law Network
from PRISONERS RIGHT- cyberadvocate
32 and the Remedy of compensation- Eastern book company

Newspaper referred

TIMES OF INDIA
THE INDIAN EXPRESS
THE HINDU
HINDUSTAN TIMES

Books referred

Cases and Materials on the English Legal System

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Professor Michael

Constitution of India

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