DAMAGES IN WRIT PROCEEDINGS
This blog originated in the felt need for a EFFICIENT remedy that may be available to Citizens who are victims of gross misuse of powers and negligent acts and omissions of public authorities / public officials / police, resulting in loss of life or of property or of liberty of an individual.
Do Citizens who are victim of irresponsible & reckless misbehavior of Police or of other Public officials, has any effective remedy against these government people ? ? ? The answer is astounding yes by Apex Court in good number of cases that came before it.
When the constitutional and legal rights of a person are invaded with a mischievous or malicious infant, the court has jurisdiction to compensate the victim, by awarding suitable monetary compensation. Bhim Singh versus State of J & K, AIR 1986 SC 494.
Apex court has used the Writ Jurisdiction to award compensation to victims of State wrongful acts. Usually a victim has to start from the lower court to reach the Highest Bench. By using Writ Jurisdiction the remedy has been made cheap and fast. The obvious idea is to check the irresponsible and reckless behaviour of authorities in dealing with people and putting brakes to growing misuse of power by the holder of authority and at the same time securing relief to the needy, victims of abuse of powers.
Offenders are to suffer by punishment not because they were malignant or mischievous, but because others may not behave malignant and mischievous. Punishment is thus a method of forcing good behaviour. However, the deterrence is zero if there is no certainty to the punishment. The gravitation of sin to sorrow should be as certain and analogous as that of earth to the sun.
In 1897, Justice Holmes, an American Jurists issues a paper in which he put forward a novel way of looking at law. He says- if one wishes to know what law is, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things in deviation to established laws. .
Sir Lionel Fox, an acclaimed Penologist (20th Century) of England, quotes the example of an eighteenth century Judge who passed the sentence of death, saying, you are to be hanged not because you have stolen a sheep, but in order that others may not steal. So evident is the truth of this perciptible simple logic, if applied generously by presiding Hon'ble Judges, may virtually end disorder in the society.
In the case of Rudal Shah versus State of Bihar, in the backdrop of excesses of the police officials, Justice Chandrachud, the then Chief Justice of India said – if civilisation is not to perish, as it has perished, in some other too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of the individual 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.
SOME SUPREME COURT RULINGS DIRECTING COMPENSATION / DAMAGES FOR ILLEGAL ACTS OF GOVERNMENTAL PEOPLE RESULTING IN VIOLATION OF FUNDAMENTAL RIGHTS OF PEOPLE OF LIFE & LIBERTY GUARANTEED UNDER ARTICLE 21 OF CONSTITUTION OF INDIA.
(i) In Rudal Shah v State of Bihar , the Apex Court held that Writ courts while exercising jurisdiction under Art. 32 or 226 of the Constitution can award compensation and examplary cost for the violation of person's fundamental rights and for abuse of powers by the State. (1983) 4 SCC141: AIR 1983 SC 1086
(ii) The principle of accountability through compensation was reinforced by Apex court in Nilabati Behara v State of Orissa. The court laid down that concept of sovereign immunity is not applicable to the cases of violation of right to life and personal liberty guaranteed under Article 21 of Constitution.
In this case, the Apex Court held that a claim in public law for compensation for violation of human rights and abuse of power is an acknowledged remedy for the enforcement and protection of such rights. Every individual has an enforceable right to compensation when he is victim of violation of his fundamental rights and abuse of power. In such a situation the court observed, that leaving the victim to the remedies available in civil law, limits the role of constitutional courts as protectors and guarantors of fundamental rights of the citizens. Thus courts are under an obligation to make the State or its servants accountable to the people by compensating them for the violation of their fundamental rights.
In this case Article 9(5) of the International Covenant on civil and political Rights was considered. The said Article said that anyone who has been victm of unlawful arrest or detention shall have an enforceable right to compensation. This Article was referred to in support of the view that damages could be allowed under Article 32 & 226 of Constitution of India for violation of fundamental right enshrined in Article 21. India is a sigantory to this International Covenant. In Vishaka V State of Rajasthan the Apex court observed: Any International covenant not inconsistent with the fundamental rights and in harmony with its spirit with the Constitution of India, must be rad into to enlarge the meaning and content thereon to promote the object of Constitutional guarantee. (1993) 2 SCC 746
(iii) The Apex Court in Bhim Singh V State of J & K awarded examplary cost of Rs.50,000 on account of the authoritarian manner in which the police played with the liberty of the appellant. These measures are not damages in the strict sense of the term, for which only the Ordinary Civil court process is the remedy. These measures are only for making the fundamental rights of the people meaningful and effective. (1958) 4 SCC 677; AIR 1986 SC 494.
(iv) In SAHELI, A Women's Resource center v Commr of Police, a Writ was filed against the Govt for compensation on behalf of two poor women who had been mercilessly beaten by the landlord in collusion with the Police. The Court not only awarded Rs.75,000 as compensation but also opined that the amount can be recovered from the police officers responsible for the act. (1990) 1 SCC 422.
(v) In Lucknow development authority v M .K.Gupta the Apex Court held that when public servants by malafde, opperssive and capricious acts in performance of official duty causes injustice harassment and agony to common man, renders the State or its instrumentality liable to pay damages to the person aggrieved. And the State or its instrumentality is duty bound to recover the amount of compensation so paid from the public servant concerned. In this case compliance was to be reported to the Apex court. (1994) 1 SCC 24,
(vi) In Common Cause v UOI (1999) 6 SCC 667, the Apex Court empahtically stressed that Kasturilal case has, apart from being criticised, not been followed by the Apex court in subsequent cases and therefore much of its efficacy has been eroded . Same remark was also made in Chairman Rly Board v Chandrima Das (2000) 2 SCC 465.
(vii) The Apex Court in N Nagendra Rao v State of A.P. , observed that no civilized system can permit the executives to play with the lives of people and claim that it is entitled to act in any manner as sovereign. (1994) 6 SCC 205, 235
(viii) Causing death due to open sewerage tank – (1992) 1 UJSC 527; AIR 1988 HP 13; AIR 1992 Ori 68 (para 9); Nilabati versus St of Orissa, (1993) 2 UJSC 94 (paras 10, 12, 14, 18, 33, 36, 37); (1991) 2 SCC 373 (para 3)
WHAT IS REMARKABLE ABOUT THESE CASES IS THAT THE APEX COURT HAS USED THE WRIT JURISDICTION TO AWARD COMPENSATION TO VICTIMS OF STATE WRONGFUL ACTS. USUALLY A VICTIM HAS TO START FROM THE LOWER COURT TO REACH THE HIGHEST BENCH. BY USING WRIT JURISDICTION THE REMEDY HAS BEEN MADE CHEAP AND FAST. THE OBVIOUS IDEA IS TO CHECK THE IRRESPONSIBLE AND RECKLESS BEHAVIOR OF AUTHORITIES IN DEALING WITH PEOPLE AND PUTTING BRAKES TO GROWING MISUSE OF POWER BY THE HOLDER OF AUTHORITY AND AT THE SAME TIME SECURING RELIEF TO THE NEEDY, VICTIMS OF ABUSE OF POWERS.
COMPENSATION / DAMAGES FOR ILLEGAL ARRESTS –
The Independence of India has come but Police in India continues to inspire fear. In fact, it appears that Police is the instrumentality to carry out corruption, that is to say– safe corruption with coercion. Talk about Police Institution- Without Law, they rule us by fear. A Judge stands firmly as a thick wall between “Little Man” and “mighty transgressing State”. If this Hon’ble Court doesn’t grant the reliefs prayed herein, it will akin to approving the act of violence of Police Officials on the Citizens.
CASE: Bhim Singh versus State of J & K – AIR 1986 SC 494. In this case, the Petitioner was an MLA from J &K. The Police arrested him on the night of 10-10-1985 when he was enroute from Jammu to Sringar. He was by said arrest prevented from attending the on going Assembly Session. He was produced before the Magistrate on 14-10-1985. He was released on 16-10-1985 by the Order of Add. Session Judge. This is what the J & K High Court said, among other things, if the personal liberty of an MLA is to be played with in this fashion, one can wonder what may happen to lesser mortals. The Court further said that when the person comes to the Supreme Court with the complaint that he had been arrested and imprisoned with mischievous and malicious intent and that his Constitutional and legal rights have been invaded, the mischief or the malice and the invasion might not be washed away or wished away by his being set free. In appropriate cases like the present one, this Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation. The Apex Court said- The power in the hands of public authorities which must be exercised in the best interests of the people.
ILLegal Arrests – COMPENSATION / damages - other important judgments
AIR 1983 SC 1086
AIR 1986 SC 494
(1997) 7 SCC 725
AIR 1984 SC 1026
Ghulam versus UOI AIR 1967 SC 1335 (1337)
It is no exaggeration if the person victim of illegal detention were to say that shame attached to a imprisonment, though may be for a day, the intense feeling of humiliation, the continuous fear of separation from family, the terror of subjection of custodial torture, the difficulty of being accepted as a normal member of the community after release in the Indian settings, is enough to ask for heavy compensation from defaulting Police Officer effecting illegal detention.
However, it may deserve mention here that no amount of money will ever bring back the glory lost of the citizen imprisoned, but the object is to deter the man who in the fancy of his assumed powers seeks to abuse it at his whim.
COMPENSATION / DAMAGES FOR OTHER “FAILINGS” OF POLICE
The ‘State’ is found fascinated to enact stricter Penal laws ostensibly to prevent crime, for the whole purpose of having penal laws is that they may not be applied at all by, among other things, by effectively preventing the commission of same by powerful street presence of well equipped force.
The law of the land obliges Police force and in particularly the Constabulary, to prevent Commission of offences like Rioting, Murder, Robbery, Dacoity, Kidnapping, Extortions, Rape, Organized drug trafficking, human trafficking, Crimes of Slumlords, AK-47/56 armed terrorists including other petty offences.
Given the lawless order of the day we observe, leave alone the history sheeters, even petty offenders appear to have not feared of present symbolic Police force of the country. Yet the Police institution have been fairly successful in terrorizing the common men. Nevertheless, the Cane Constabulary themselves work in continuous danger to their own life whilst their counterpart are armed with modern day weapons and incentives.
Further, it is seen that the State Govts find their Police force admittedly incapable of handling emerging emergency situations. Army is roped in severe law and order times, during floods and by the time Central forces arrive to the scene much damage has been achieved.
When it is found that Police station concerned was found failed in due discharge of its entrusted legal duty to prevent an offence of nature which could have been avoided had the Policeman remained present at the place of incidence where the offence is alleged to have committed, resulting in consequences of loss of life or of liberty or of dignity or of property to any Citizen. FOR REASONS-
1) Protecting life and property of every person is the prime responsibility of every government of the world for which taxes are paid by Citizens.
2) Our Police laws cast categorical and unambiguous duty on Police machinery to prevent cognizable offences.
3) The Police is not supposed to rest in police station and should run to place of offence when it is called upon. Quite the contrary, they should be on toes at every stretch of land to inspire fear to potential criminals.
4) The duty of Police station concerned thus includes to create an atmosphere within its jurisdiction wherein the potential criminal will compel to think thrice before venturing the path of criminality.
As I see, offences like of robbery, theft, street violence, kidnapping and any offence committed within public eye can be deemed as offence which could have been avoided had the policeman existed at the time & place of offence committed.
QUESTION THAT MAY BE RAISED: The police can not be present at all places.
In my view it is instead much easy for Police to create an impression of being present at all places at all the time in comparison to what they do are to do while investigating any crime..... Filing charge sheet ... proving guilt of the accused beyond reasonable doubt.... maintaining prisoners and prison....
Moreover the shortcomings of manpower cannot be a ground BECAUSE nobody has prevented the State to employ needed man power.
Moreover Hon’ble Justice Swatanter Kumar, the then Chief Justice of Bombay High Court in a case before it observed- "in fact police should have been present at every corner of the city"
In Ajmal Kasab's trial 11,000 page chargesheet was filed. Next, the media makes a big deal about his letter to his magistrate about requiring toothpaste and permission to take a walk!! And then finally, he claims NOT GUILTY to 86 charges and the "TRIAL" still continues??
Moreover, if the plea of paucity of manpower is allowed as defense in failure of legal duty entrusted, then, one may find State Govts taking another stand of incompetency of the Policeman, that is, the present constabulary are fat thin old. They have merely danda, how they will counter the armed criminal.
But, then, who has handed this danda to Policeman to deal with armed criminals. And who has positioned this fat thin old constabulary.
COMING TO STATUTORY PROVISIONS:
SECTION 23 THE POLICE ACT 1861: [THE CENTRAL ACT]
DUTIES OF POLICE-OFFICERS:- It shall be the duty of every police-officer promptly, to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offences to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant to enter and inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly characters.
SECTION 64(B) OF THE BOMBAY POLICE ACT 1951 [THE STATE ACT]
It shall be the duty of every police officer to the best of his ability to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences, and to lay such information and to take such other steps, consistent with law and with the orders of his superiors as shall be best calculated to bring offenders to justice or to prevent the commission of cognizable offences and within his view of non-cognizable offences;
All public servants are under the same liability as that of the private citizens for all their unjustified acts and omissions. Cases decided by Apex locating the personal accountability of Public Officer
1. For abusing the process of court the public officer was held responsible and was liable to pay costs from his own pocket; Where the public servant has caused a loss to the public exchequer, the court has allowed the government to recover such loss personally from the erring officer. State of keraka V Thressia 1995 Supp (2) SCC 449.
2. For adopting casual approach by which land could not be purchased by the authority and instead purchased by private builder, held officer personally liable. State of Maharashtra v P K Pangare, 1995 Supp (2) SCC 119.
3. For irregularities committed in auction of land resulting in loss to public held official held responsible for the loss. DDA v Skipper construction co. (1996) 1 SCC 272.
4. For oppressive, arbitrary and unconstitutional actions of public servants, held exemplary damages can be awarded. Common Cause (Petrol pump matter) v UOI. (1996) 6 SCC 593.
5. For abuse of power while exercising discretionary power in granting State largesse in an arbitrary, unjust, unfair and malafide manner, public servant can be held personally liable. Shivsagar Tiwary v UOI (1996) 6 SCC 558.
6. For granting illegal promotion with retrospective effect resulting in frittering in huge public funds, held that erring officers shall be personally liable. H R Ramachandriah v State of Karnataka (1997) 3 SCC 63.
7. For abuse of power for extraneous reason in acceptance of tender, held all public officers concerned including Minister shall be liable to punishment. Dutta Associates v Indo Mercantiles (1997) 1 SCC 53.
8.Departmental Head is vicariously responsible for the actions of his subordinates. State of Punjab v G S Gill (1997) 6 SCC 129.
9. Liability of State Executives when they infringe fundamental rights. The Jurisdiction of SC and HC. Kharak Singh versus State of U P – AIR 1963 SC 1295.
By seeking damages for illegal act and omissions, the State Govts may be pressurized to strengthen & rejuvenate the Police force, in particularly the Constabulary who form the foundation of the entire Police structure having street presence, to a degree where they inspire confidence of the society and instill fear in the mind of potential offenders, so that they can effectively carry out duties expected from them. All it may sound idealistic, but this is the bare minimum to have peace and thus progress.
The alacrity with which we constitute various committees and commissions is matched only by the inaction on the voluminous reports laboriously produced by our finest brains and from men of eminence in Public Life and there should be equally outstanding and compelling grounds to say that they do not deserve to be adopted or if they are not practical to be adopted.
It is akin to say that an ailing patient is enthusiastically attended by all Specialists, illness diagnosed and patient left un-administered and ailing.
Bottom-line is: Ensuring safety of life & Property of every men & women is the very first duty of every Govt of the world. All duties come later.
The remedy lies in us exploring the laws holding the land and asserting our rights in the Judicial forum. At this point, one may stare at me wherein I suggest to move courts when it is admitted fact that moving court is a luxury which few can afford. And therefore, I have prepared a literature to guide Citizens to file Writ in the High Court by themselves, without the help of advocate. Whoever is interested may seek and may send mail at email@example.com