COMPENSATORY JURISPRUDENCE

INTERIM REPORT

TAPAJYOTI DEB06LS192ICFAI LAW SCHOOL, DEHRADUN

MEANING

Judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

Regarding the liability of the State to pay compensation for infringing Article 21, the Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its significant content.

ARTICLES

21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

226 .Power of High Courts to issue certain writs.— habeas corpus, mandamus, prohibition, quo warranto

and certiorari, Clause (1) of Article 300 of the Constitution provides

first, that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State;

ORIGIN

P. & O. Steam Navigation Co. Vs. Secretary of State -- Plaintiff met with an accident, caused by negligence of the servants of the Government.

“King can do no wrong”, had no application to the East India Company. Co. And secretary of India can be sued.... Sec 65 of G.O.I act 1858

if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government.

In pre-constitutional cases Kasturi lal case-- (a)  The act was done in the

purported exercise of a statutory power.(b)   The act was done in the exercise of a sovereign function.

Vidyawathi case --

Rudal shah case – granting moneytary compensation to an unfortunate victim of state lawlessness. The concern of the highest court to do justice rather than mechanically applying the law based on precedents is reinforcing the credibility of the judiciary among the public, especially the helpless have-nots.

In England and Europe

Crowns proceedings act, dismissed “ king can do no wrong”.

European Union -- The EU law breached must have been intended to confer rights on individuals,

The breach must be sufficiently serious,

There must be a direct causal link between the state's breach and the loss suffered.

Recent Case

Sonaullah Dar and Others vs. Union Of India

Bijbehara firing incident in 1993, the judgement was given in 2007.

Petitioners have filed the present petition for directing the respondents to pay compensation to the tune of Rs. 50 lacs each to the petitioners who are the legal heirs of the deceased.

An enquiry committee was placed.

Counter view

Parties were raising anti-India slogans and getting aggressive.

S.I Malhar Singh was shot and his weapon was taken away.

Militants started firing at the BSF. No intention was there.

Victims

The petitioners have in the rejoinder stated that the deceased persons were having their aim of life to rise very high and thereby earn a good amount for the benefit of their families.

Most of them were students and wanted to be a doctor, some were Govt. employees and few were carrying their own business.

Court’s observations

Respondents are liable to compensate. Sanctioned ex- gratia relief of Rs. One lac in

favour of the next of the kin of the deceased.

No dispute over the fact that the incident has taken place.

No medical report on SI Malhar Singh. Respondents claimed that JK Special Power

of Act, and sanction of law. Involvement of the militants.

Mob was peaceful.

Committee report

firing upon the procession was absolutely un-provoked

Plea of Retaliation of militants firing for self defense is baseless and concocted.

 51 bullet fired, 31 killed and 73 injured.

no causalities from the BSF side , and no militants or armed person in the crowd.

offence out of vengeance and their barbarous act is deliberate and well planned.

Previous cases ref.

In Nilabati Behera's case it was observed by the Supreme Court that where there is a contravention of human rights and fundamental freedoms by State and its agencies, court has obligation to grant compensation in petition under Art. 32 or 226 i.e. in public law.

Rudul Shah v. State of Bihar, ( 1983) 3 SCR 508: ( AIR 1983 SC 1086) granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India.

Decision

There is gross violation of the human rights which caused an irreparable loss to the petitioners .

Most of them were students having a bright career. Some of them were doing business and earning a handsome income to sustain their family.

pay a compensation of Rs. 4 lacs to each petitioner for the loss of life of their close relatives/dependants who have been killed in the incident and whose particulars are given in the petition.

This amount shall be in addition to the ex-gratia relief paid to them.

Thanking you

Questions .