SEPTEMBER 10, 2020
Violation of human rights by the state, through wrongful confinement and arrest, imposes a liability on the state, one being of compensation. However, does the victim have a right to claim compensation? RAVI NAIR of South Asia Human Rights Documentation Centre examines the Indian jurisprudence on compensation to victims of state negligence and persecution.
INDIAN citizens, who are unlawfully arrested, detained, tortured, and even killed while in police custody are not guaranteed a right to compensation. International standards require reparations and compensation for victims of violations of fundamental rights.
In India compensation for these offences is rarely issued and only at a judge’s discretion. India has made a declaration on the Right to Compensation when it signed the International Convention on Civil and Political Rights (ICCPR). In India, compensation is not an enforceable right. An effective compensation system would deter government officials from criminal activity and encourage victims to bring their cases to court. Currently, the system or lack thereof does neither in India. A mandatory right to compensation must be established for the victims of State imposed abuse.
The South Asia Human Rights Documentation Centre (SAHRDC) highlighted the reality that without compensation democracy is seriously threatened: “The protection of the state from having to pay just compensation for human rights violations undermines the legitimacy of the government.”
Indian Jurisprudence
Article 32 of the Indian Constitution, entitled “Remedies for Enforcement of Rights Conferred”, states:
- (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
- (2) the Supreme Court shall have the power 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.
RudulSah v. State of Bihar (1983) was the first case in which the Supreme Court of India interpreted the Constitution, specifically Article 32, to include a right to compensation for victims of unlawful imprisonment. In this case, the petitioner was acquitted on 3 June 1968, but not released from jail until 16 October 1982 fourteen years later. RudulSah petitioned the court seeking his release as well as compensation for fourteen years of unlawful imprisonment. The Court held that the petitioner’s right to life and liberty under Article 21 of the Constitution had been violated and that compensation for the deprivation of a fundamental right could be granted under Article 32. Article 21 of the Constitution states: “no person shall be deprived of his life or personal liberty except according to the procedure established by law.”
The court granted Rs.35,000 in compensation.
The amount of compensation awarded and if any is awarded at all depends on the circumstances of the case and the judge that is hearing it. This discretion has resulted in many victims not receiving or not even seeking the compensation they deserve.
In Sebastian M. Hongray v. Union of India (1984), the Supreme Court issued a writ of habeas corpus for the production of two missing persons. When the army failed to produce the individuals, the Court directed the State to pay Rs 100,000 to each of the families.
In Bhim Singh, MLA vs. State of J&K and Ors. (1986), the Supreme Court ordered the state of Jammu and Kashmir to grant Mr. Bhim Singh, a Member of the Legislative Assembly of Jammu and Kashmir, Rs. 50,000 for his illegal detention from 10 September 1985 to the 14 September 1985. The Court stated, “If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals!”
The Court went on to write, “Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct.” Citing RudulSah as precedent the Court found within its power the right to award Bhim Singh monetary compensation holding that there was “no doubt” that his constitutional rights were violated. The Court stated, “In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case.”
Although these cases helped establish a right to compensation, the Supreme Court has not interpreted this right as absolute or mandatory.
In the 1989 case Rajasthan Kisan Sangthan v. State, the Supreme Court held, “that a person who was mistreated by the police in custody was entitled to monetary compensation regardless of the legality or illegality of detention.” Similarly, the Supreme Court supported the right to compensation in Saheli A Women’s Resource Centre v. Commissioner of Police, Delhi (1990). This case resulted in the death of a nine-year-old child at the hands of police. The Court denied the State’s argument of immunity and awarded a sum of 75,000 rupees in compensation.
In NilabatiBehera v. State of Orissa (1993), the petitioner’s son was taken into police custody and killed; his body was found on a railway track. Once again the Supreme Court utilised Article 32 to grant monetary compensation. In this decision, the Supreme Court also established that High Courts could issue compensation under Article 226 of the Constitution. The Court ordered the State of Orissa to pay Rs. 1, 50,000 to the petitioner, the deceased’s father, for violation of human rights.
Although these cases helped establish a right to compensation, the Supreme Court has not interpreted this right as absolute or mandatory. In Sube Singh v. State of Haryana (2006), the Court held that “before ordering compensation, courts will examine whether the violation of the right to life is ‘patent and incontrovertible’, shakes the conscience of the court, and results in the death or disability of the arrested person.”
Parliament has only enacted legislation establishing immunity, such as the Armed Forces Special Powers Act (AFSPA), and has not passed any legislation limiting it.
The amount of compensation awarded and if any is awarded at all depends on the circumstances of the case and the judge that is hearing it. This discretion has resulted in many victims not receiving or not even seeking the compensation they deserve.
On top of this jurisprudence, there is de facto and de jure sovereign immunity for government officials in many respects. The Constitution, under Article 34, grants Parliament the power to establish immunity for anyone acting in support of the government in territories under martial law. Moreover, Article 300 allows the Central or State governments to be sued but simultaneously grants Parliament the power to enact immunity legislation. Parliament has only enacted legislation establishing immunity, such as the Armed Forces Special Powers Act (AFSPA), and has not passed any legislation limiting it.
Compensation and the State
In the 1996 case, D.K. Basu v. State of West Bengal, the Supreme Court held, “for the violation of the fundamental right to life or the basic human rights… this Court has taken the view that the defense of sovereign immunity is not available to the State… for the established violation of the rights guaranteed by Article 21 of the Constitution of India.” However, awards for compensation and determinations that a case involves a violation of a fundamental right and thus, sovereign immunity is inapplicable are still decisions made by individual judges on their discretion. As SAHRDC reported, “courts often unjustly dismiss compensation claims in fundamental rights cases.” Thus, de facto and de jure immunity remains an additional barrier, aside from the lack of mandatory compensation, which drastically limits reparation for victims and allows human rights abuses to continue throughout India.
Although the NHRC sounds great in theory, in practice members of the human rights community have criticised the NHRC for not recommending compensation in enough cases and for many times recommending too small of an award.
Nonetheless, within this limited right to compensation, some courts have granted awards in the following situations: where the victim died in police custody, where the victim was raped, where the victim was unlawfully handcuffed, where the victim has been falsely arrested, where the victim was fired upon and killed by police in a public place, where the victim was illegally detained and abused, where the victim was beaten by police, and where the victim was killed in prison or “disappeared.”
In addition to seeking compensation in court, the National Human Rights Commission (NHRC) can grant compensation to the victims of police brutality. This power is granted to the NHRC under the Protection of Human Rights Act 1993. Although the NHRC sounds great in theory, in practice members of the human rights community have criticised the NHRC for not recommending compensation in enough cases and for many times recommending too small of an award. For example, a 17-year-old girl who was gang-raped by police received a recommendation of only 50,000 rupees. As the SAHRDC reported, “If the Commission is correct in its analysis of the permanent psychological and social effects of rape, as we believe it is, then why limit compensation to only 50,000 rupees? There is (supposed to be) a punitive component to these awards, not just a compensatory one.”
Tick Tack Toe- Round I go- If I miss- I get this.
In 2018, the Supreme Court awarded Nambi Narayanan, former Indian Space Research Organisation (ISRO) scientist Rs 5 million. An additional 10 lakhs was recommended by the NHRC. In August 2020, the Kerala Government gave Rs 1.3 Crore additional compensation.
Earlier, the Supreme Court had refused to entertain a plea of six persons, who have been acquitted by the apex court in the 2002 Akshardham terror attack case, seeking compensation for their “wrongful’ arrest”.
A bench of comprising Justices Dipak Misra and R Banumathi said it would set a dangerous precedent if the acquitted persons are allowed to seek compensation for their “wrongful’ arrest”.
In an otherwise excellent order by the Allahabad High Court on 1 September 2020, awarded no compensation was given to Dr Kafeel Khan for his unjustified detention. The court granted him bail and declared his detention under the National Security Act as illegal. He was arrested by the Uttar Pradesh government that alleged he had delivered a hate speech promoting enmity among the people and inciting students on the basis of religion. The judgment observed that Dr. Khan had instead given a call for national integrity and unity and had deprecated violence. After months in jail for a crime he did not commit, there was no compensation awarded.
Tick Tack Toe- Round I go- If I miss- I get this.
The lottery continues.
(Ravi Nair is Executive Director, South Asia Human Rights Documentation Centre, New Delhi.)