Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Art. 21 of the Constitution, in addition to the private law remedy under the law of Torts was evolved in the last two and half decades by the Courts in India. The concept first recognized by the Apex Court in BHAGALPUR BLINDING CASE , KHATRI (II) 1981 (1)SCC 627 & BHAGALPUR BLINDING CASE , KHATRI (IV) 1981 (2)SCC 493 and evolved through cases of Rudul Shah ( 1983) 4 SCC 141,Bhim Singh ( 1985) 4 SCC 677, Peoples’ Union for Democratic Rights ( 1989) 4 SCC 730, Nila Bati Behera ( 1993)2 SCC 746 , D. K. Basu case ( 1997 ) 1 SCC 416 & Sube Singh Case ( decided on 3-2-06). It is now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Art. 21 , by a public servant. The quantum of compensation will , however, depend upon the facts and circumstances of each case. Award of such compensation by resorting to public law remedy will not come in the way of the aggrieved person claiming additional compensation in a Civil Court, in enforcement of the private law remedy in tort, nor come in the way of the Criminal Court ordering compensation under section 357 of the Indian Criminal Procedure Code.
Illegal detention and custodial torture are recognized as one of the violations of the fundamental rights of life and liberty guaranteed under Article 21 of the Indian Constitution. In case where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 of the Indian Constitution is established , Courts may award compensation in a Writ proceeding under Article 32 or 226 of the Indian Constitution. The violation ought be gross and of a magnitude to shock the conscience of the Court. Before the Court can award compensation as a public law remedy under Art. 21 or 226, custodial torture alleged should result in death and should be supported by medical report or other corrobation evidence. Where the allegations are false or exaggerated fully or in part, Courts may not award compensation as a public law remedy under art. 21 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action. It ought to be a fit case for award of the compensation.
Custodial violence requires to be tackled from two ends, that is by taking measures that are remedial and preventive . Award of compensation is one of the remedial measures after the event. Efforts should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurrences. The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures and at the same time , firmly deal with organized crime , terrorism, white collared crime, deteriorating law and order situation etc. Courts of the day have adopted the award of compensation as a public law remedy wherever negligence is apparent on the face of the incidents. Concrete cases which have come before the Courts for resorting to this remedy of compensations are blindings at Bhagalpur due to Bhopal Gas Tragedy , deaths due to custodial violence in police custody. The proposed endeavour to incorporate the concept of reimbursement by the public servant concerned against their wrongdoing in the coming LOK PAL ACT to counter rampant corruption by the public servants, is another manifestation of awarding compensation by way of a public law remedy.