M.A.Meeran (died) v. The Government of Tamil Nadu

For Appellants : Mr.Balasubramaniam, Spl.G.P.,(W.A.3961/2003) For Respondents : Mr.K.M.Ramesh for R4 to R9COMMON JUDGMENT(Judgment of the Court was delivered by R.SUBBIAH, J.,)These two appeals are directed against the order dated08.08.2003 in W.P.No.6769 of 1995, whereby, the learned single Judgedirected the State to pay a sum of Rs.3 lakhs as compensation to the1st appellant in W.A.No.3120 of 2003, who was the writ petitioner(died during the pendency of this appeal) for his illegal detentionby the Sub-Inspector of Police, Athirampatnam Police Station. 2. W.A.No.3120 of 2003 is filed by Meeran (writ petitioner) forenhancement of compensation and W.A.No.3961 of 2003 is filed by the State for reduction of compensation. Since both the appeals are filedagainst one order, they are disposed of by a common judgment. Theparties are referred to as they are described in W.A.No.3120 of 2003to avoid confusion.

During the pendency of appeal, the said Meerandied and his legal representatives were brought on record asappellants.3. It is the case of the appellants that on 27.11.1994 at about7.30 PM, the deceased appellant was taken to Athirampatnam PoliceStat6ion pursuant to a complaint lodged by one Tajudeen on theprevious day i.e.26.11.1994 alleging that the deceased appellant andothers waylaid him and decamped with a sum of Rs.70,000/-. Thoughthe deceased was taken to the police station on 27.11.1994, till3.12.1994, the arrest of the deceased appellant was not recorded. Inbetween 27.11.1994 and 3.12.1994, the deceased appellant meted outsevere physical torture at the hands of 5th and 6th respondents. Infact DINA MALAR Tamil daily published a news about the arrest of theappellant in the publication of its issue dated 30.11.1994. Thatapart, when one Palanivel, Advocate visited the police station on02.12.1004 to take the deceased appellant on bail, on theinstructions given by the mother of the deceased appellant; but thepolice officials disputed the arrest of him.

But the said Advocatehad seen the deceased appellant sitting near the window opposite tothe Sub-Inspector's table. Thereafter, the Advocate reported thesame to the mother of the deceased appellant. Subsequently, alawyer's notice dated 02.12.1994 was sent by one Mr.V.Lakshmanan, Advocate to the respondents police for immediate release of the https://hcservices.ecourts.gov.in/hcservices/ deceased appellant. After realising that the matter was going out oftheir control, the 6th respondent produced the deceased appellantbefore the Judicial Magistrate on 03.12.1994 at 5.30 AM. Onproduction, the Judicial Magistrate remanded the deceased appellantto judicial custody. Since the deceased appellant was inflicted withsevere injuries, it was explained by the police before the JudicialMagistrate that when the arrest was sought to be made at 5.30 AM on03.12.1994, the deceased appellant attempted to escape, fell down andsustained severe injuries and for which, he was given treatment.4.

But, the respondents had denied the case of the appellantthat the deceased appellant was taken by the 6th respondent on27.11.1994 at 7.30 PM. In other words, the respondent police totallydenied the illegal detention in between the period 27.11.1994 and03.12.1994 as stated by the appellants. But the deceased appellanthad approached this Court by way of writ petition, namely,W.P.No.6769 of 1995, to punish all the police officials for illegallyconfining him for six days in different police stations and alsodirect the respondents to pay a sum of Rs.5 lakhs as compensation fordeprivation of his fundamental rights, loss of dignity and injuriessustained while he was confined in the illegal custody.5. After going through the documents including the affidavitsfiled by the Advocates and hospital records, the learned single Judgecame to the conclusion that the 6th respondent has effected thecustody of the deceased appellant and kept him under illegal custodyfrom 27.11.1994 at 7.30 PM to 03.12.1994 and directed the 1strespondent to pay a sum of Rs.3 lakhs as compensation to the deceasedappellant for the illegal detention by the 6th respondent.6. The present appeals were filed only questioning the amount ofRs.3 lakhs awarded by the learned Judge. Since in both the appeals, only the quantum of compensation is questioned, now there is no needfor us to go into the aspect of liability of respondents to pay thecompensation.

State of Orissa ((1993) 2 SCC746 a writ petition was filed under Article 32 of the Constitution for determining the claim of compensationconsequent upon the death of the petitioner’s son in policecustody. In view of the denial by the State that death was dueto police harassment when the deceased was in police custody, this Court gave a direction to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report. The District Judge reached the conclusion that it was a case ofcustodial death. In view of the dispute as to the correctness ofthe findings in the report of the District Judge, the matter wasexamined afresh by this Court in the light of the objectionsraised. This Court also reached the same conclusion on areappraisal of the evidence adduced at the enquiry. On thisconclusion, the question arose as to the liability of the Statefor payment of compensation for custodial death.

The Court heldthat: (SCC p.762, para 17)

‘[A] claim in public law for compensation’ forcontravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcementand protection of such rights, and such a claim based onstrict liability made by resorting to a constitutionalremedy provided for the enforcement of a fundamentalright is ‘distinct from, and in addition to, the remedy https://hcservices.ecourts.gov.in/hcservices/ in private law for damages for the tort’ resulting fromthe contravention of the fundamental right.

The Court further observed that,

The defence of sovereign immunity beinginapplicable, and alien to the concept of guarantee offundamental rights, there can be no question of such adefence being available in the constitutional remedy. Itis this principle which justifies award of monetarycompensation for contravention of fundamental rightsguaranteed by the Constitution, when that is the onlypracticable mode of redress available for thecontravention made by the State or its servants in thepurported exercise of their powers, and enforcement ofthe fundamental right is claimed by resort to the remedyin public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.

Justice A.S. Anand (as His Lordship then was) in concurringopinion observed that,“34.

The public law proceedings serve a differentpurpose than the private law proceedings. The relief ofmonetary compensation, as exemplary damages, inproceedings under Article 32 by this Court or under Article 226 by the High Courts, for establishedinfringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available inpublic law and is based on the strict liability forcontravention of the guaranteed basic and indefeasiblerights of the citizen. The purpose of public law is notonly to civilise public power but also to assure thecitizen that they live under a legal system which aims toprotect their interests and preserve their rights. Therefore, when the court moulds the relief by granting‘compensation’ in proceedings under Article 32 or 226 ofthe Constitution seeking enforcement or protection offundamental rights, it does so under the public law byway of penalising the wrongdoer and fixing the liabilityfor the public wrong on the State which has failed in itspublic duty to protect the fundamental rights of thecitizen.

The payment of compensation in such cases is notto be understood, as it is generally understood in acivil action for damages under the private law but in thebroader sense of providing relief by an order of making‘monetary amends’ under the public law for the wrong donedue to breach of public duty, of not protecting thefundamental rights of the citizen. The compensation is inthe nature of ‘exemplary damages’ awarded against thewrongdoer for the breach of its public law duty and is https://hcservices.ecourts.gov.in/hcservices/ independent of the rights available to the aggrievedparty to claim compensation under the private law in anaction based on tort, through a suit instituted in acourt of competent jurisdiction or/and prosecute theoffender under the penal law.” It was further observed that,“35. This Court and the High Courts, being theprotectors of the civil liberties of the citizen, havenot only the power and jurisdiction but also anobligation to grant relief in exercise of itsjurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victimwhose fundamental rights under Article 21 of the Constitution of India are established to have beenflagrantly infringed by calling upon the State to repairthe damage done by its officers to the fundamentalrights of the citizen, notwithstanding the right of thecitizen to the remedy by way of a civil suit or criminalproceedings.

The State, of course has the right to beindemnified by and take such action as may be availableto it against the wrongdoer in accordance with law —through appropriate proceedings. Of course, relief inexercise of the power under Article 32 or 226 would begranted only once it is established that there has beenan infringement of the fundamental rights of the citizenand no other form of appropriate redressal by the courtin the facts and circumstances of the case, is possible.… It is a sound policy to punish the wrongdoer and it isin that spirit that the courts have moulded the reliefby granting compensation to the victims in exercise oftheir writ jurisdiction. In doing so the courts takeinto account not only the interest of the applicant andthe respondent but also the interests of the public as awhole with a view to ensure that public bodies orofficials do not act unlawfully and do perform theirpublic duties properly particularly where thefundamental right of a citizen under Article 21 isconcerned.” This legal position has been reiterated in D.K. Basu v. Stateof W.B".