Compensation for Violation of

Fundamental Rights 1
Introduction
Article 32 of the Indian Constitution is a remedial fundamental right that guarantees all other
fundamental rights of the constitution. Indian Constitution is the only constitution to include as
its fundamental right as a remedy to enforce its fundamental rights. The article has been
described by Dr. Ambedkar as the Heart and Soul of the constitution of India.2

As it is often observed, rights without remedy are a meaningless formality. So, very wisely, the
founding fathers have engrafted Article 32 by which the individual may secure a guaranteed
remedy in case of the infringement of fundamental rights. Article 32 of the Indian Constitution
confers wide powers to the Supreme Court to ensure enforceability of these rights.

Article 32(1) provides for the right to move to Supreme Court in case of infringement of FR
while under 32(2) the SC is free to devise any procedure to enforce said rights as well as issue
any process necessary in a given case. It is under this provision that the SC gives remedial
assistance, which may include compensation. The Supreme Court by interpreting Art.32 of the
Constitution has innovated new methods, techniques and strategies for purposes of securing the
enforcement of Fundamental Rights of the individuals. The purpose of such an activist
interpretation is to entrench rule of law and to secure the sacrosanct nature and inalienability of
the fundamental rights.

The clause (2) has a wide interpretation and extends to issuing of any directions or orders that
may be appropriate for the enforcement of any of the fundamental rights. In the exercise of that
wide power the court has directed state to pay compensation and exemplary costs for breach of
fundamental right. 3

This paper shall try to understand the concept of Compensatory Jurisprudence in case of
violation of fundamental rights and the Judicial Trend surrounding it. It shall review cases and

1
Shubham Soni, B.Com LLB, Nirma University. Email: [email protected]
2
Constituent Assembly Debates, Vol. VII, 953
3
Mahendra Pal Singh, V. N. Shukla’s Constitution of India, Pg 344
seek to understand the history, as well as the rationality behind offering compensation. It shall
also deliberate on the power as well as reasoning of the court in awarding compensation.

Emergence of Compensatory
Jurisprudence:
"Why should the court not be prepared to force new tools and devise new remedies for the
purpose of vindicating the most precious of the fundamental right to life and personal liberty?"4

These lines were the observations made by Justice Bhagwati when the question regarding
monetary compensation was first raised in Supreme Court in Khatri v. State of Bihar 5 in 1981.
The remedy of compensation for violation of fundamental rights by Supreme Court and High
Court under Article 32 and 2266 is well established. It is about the right of an individual to seek
compensation for the violation of the Rights guaranteed to him by the Indian Constitution.

Tracking it back to history the first case where compensation was awarded in India was the
Jalianwala Case in 1919 in which Hunter Commission held the shooting was unjustified and
awarded Rs. 20007. On the other hand the first case in which Supreme Court was confronted
under this provision was Khatri v. State of Bihar 8. There right to life was violated as they were
blinded in police custody. The court asked government to pay their expenses as an interim
measure.

After that various cases came up but breakthrough judgments and precedents were achieved only
in Rudul Shah Case, where compensation was finally awarded. The jurisprudential reasoning
behind the award of damages in cases of violations of fundamental rights was elaborated only at
the time of Nilabati Behra Case and Rudul Shah Case which are considered as a landmark case
for development of law in this area9.
4
Khatri v. State of Bihar A.I.R. 1981 S.C. 928. [Para 3 http://indiankanoon.org/doc/367574/]
5
ibid
6
The Constitution of India, 1949
7
P. Srikrishna Rao, CUSTODIAL DEATHS IN INDIA, (1994) 6 N.L.S.J. 42, 56.
8

9
Sushila Rao, Constitutional rights violation and compensatory jurisprudence in India and USA.: Justification and
Critique, (July 14, 2015), www.nls.ac.in/students/SBR/issues/vol181/18106.pdf
Later, where the fundamental right was available against a private person Supreme Court went
on to award compensation even against private persons.10

The Rationale behind Compensation

Article 32 gives us no right; it actually makes room for the guaranteed remedy in case any other
right is violated. In other words, it is a fundamental right which can be used to protect other
fundamental rights. As Justice Gajendra Gadkar has noted, no other Constitution of the world has
made a remedial article as a Fundamental Right11.

The reasoning behind awarding compensation can be viewed in two ways; one is the
Jurisprudential reasoning another is the Theoretical reasoning. Jurisprudential Reasoning has
been discussed in detail in the judicial pronouncements while theoretical reasoning needs to be
brought to light. One of the reasons why compensation should be granted when violation of
fundamental rights takes place is to make monetary amends. Compensation is not to be
comprehended, as it is for the most part comprehended in a civil action for harms under the
private law yet in the more extensive feeling of giving help by a request of making 'fiscal
amends' under the public law for the wrong done because of breach of obligation, for not
securing the principal privileges of the citizens12

Many believe financial disabilities have taken away the real significance of Article 32. Lack of
means often implies the lack of access to the court and, thus, what is legally granted is
financially denied to the vast majority. 13 Monetary compensation will not only financially
support the aggrieved but also encourage him to seek justice.

It is no secret that the Indian legal system itself is kafkaesque. Even if the case is lodged before
the high court, the aggrieved person has to spend much time and pay a huge sum in order to get
the remedy. This is why, instead of seeking legal redress, most of the affected person choose to

10
Bodhisattwa Gautam v. Subhra Chakreborty, (1996) 1 SCC 490
11
Nirmalendu Bikash Rakshit, Right to Constitutional Remedy Significance of Article 32 Economic and Political
Weekly August 21-28, 1999
12
Smt. Nilabati Behera Alias Lalit ... vs State Of Orissa And Ors on 24 March, 1993
Equivalent citations: 1993 AIR 1960, 1993 SCR (2) 581
13
Nirmalendu Bikash Rakshit, Right to Constitutional Remedy Significance of Article 32 Economic and Political
Weekly August 21-28, 1999
bear with the injustice meted out to them. 14 And why should an aggrieved person seek out justice
when the remedy feeds only to his revenge. Monetary compensation has had an important place
in private law and it is time it enters public law too.

Judicial Trends
Before of 1983, compensation under Art.32 for infringement of Fundamental Rights was not
paid. In such a situation, the victim had to file a civil suit under law of torts for claiming
compensation, which by all methods was slow and tedious and subject to other statutory
constraints. The Court in Khatri v. State of Bihar15 (infamously known as Bhagalpur Blinding
Case) considered the issue of monetary compensation for the first time on infringement of right
to life and liberty. Justice Bhagwati in the case rightly that the Supreme Court should not be
afraid of devising new instruments and devices to safeguard the fundamental rights guaranteed.16

One of the issues raised in the case was whether the state should be liable to compensate for the
acts of its servants outside the purview of their power and authority, which affect the
fundamental rights of the citizens. Though the court in this case granted just interim
compensation, and denied the use of article 32 in this case, it did recognize the power of the
Supreme Court under Art.32 and the High Court’s under Art.226 to award compensation in the
event of infringement of Fundamental Rights.17

But to build the basis of judgments, the Sant Bir v. State of Bihar 18 also raised the question of
compensating the victim for the lawlessness of the state, again in Veena Sethi v. State of Bihar 19
the court delved on the question of whether the petitioners are entitled to compensation from the
state government for the violation of their fundamental right.

These few cases brought about many discussions and enabled the court to finally hold state liable
to pay compensation. But the dynamic move and landmark precedent that set up the basis of

14
Ibid
15
A.I.R. 1981 S.C. 928.
16
AIR 1981 SC 928 at 1068
17
ibid
18
1982 3 SCC 131
19
1982 4 SCC 141
Compensatory Jurisprudence for the violation of fundamental rights came at the time of Rudul
Sah v. State of Bihar20.

The Case of Rudul Sah v. State of Bihar

Rudul Sah v. State of Bihar21 is a milestone in compensatory law developed by the Court. The
State unlawfully imprisoned the applicant in prison for 14 years, a long time, even after his
acquittal by a criminal court, showing total arbitrariness as well as administrative incapacity.
Furthermore, total disregard for the liberty and freedom was observed. The Court in a habeas
corpus petition awarded damages against the State for breach of petitioners’ right of personal
liberty and freedom.
The case discussed various issues. It was pointed out by the court that Article 21 would lose its
significant content if the power of the court was limited to releasing citizens from illegal
detention. The court further observed that "the telling ways to prevent violation of right and to
ensure due compliance from its violators is to ask for monetary compensation"22

Rudul Shah's Case was one of the first concrete decisions with respect to compensation for
violation of fundamental rights and some of the parameters used i.e. such as compensation in
exceptional cases only has given direction to the compensatory jurisprudence. The judgment is
widely appreciated for making a start in this direction.

Sebestian Hongray and Bhim Singh

Sebestian Hongray v. Union of India23 involved two persons taken away by the army officers
missing mysteriously. The liability of govt. was established in this case and the court asked the
govt. to provide "exemplary cost" of 100000 to each of the wives of the missing individuals. The
court maintained that exemplary costs are maintainable in such cases. The court also failed to
cite any basis for the judgment. Though it can be inferred from the judgment that the court
wanted to reflect both a deterrent policy and a relief for such victims.24
20
AIR 1983 SC 1086
21
AIR 1983 SC 1086
22
AIR 1983 SC 1086
23
AIR 1984 SC 571
24
: J.L.Kaul & Anju Vali Tikoo, REVISITING AWARD OF COMPENSATION FOR VIOLATION OF
FUNDAMENTAL HUMAN RIGHTS: AN ANALYSIS OF INDIAN SUPREME COURT DECISIONS
Bhim Singh v. State of J&K 25 involved illegal detention of the petitioner, who was an MLA of
Jammu and Kashmir. The cops got remand orders from the executive magistrate and the sub-
judge without the applicant before them. The law required the presence of the petitioner. He was
detained and kept with malicious intent, and along these lines denied of his right to attend the
Assembly's session. The Court found that there was an infringement of his Fundamental Right
under Art. 21 & 22 of the Constitution. It further observed that in fitting circumstances the Court
has the ability to monetarily compensate the petitioner. The court relied on Rudul Sah and
Sebestian case to award compensation in this judgement. Another pertinent observation is that in
this case the court awarded exemplary costs to compensate the victim’s right in this case, and not
the victim.26

Nilabati Behera v. State of Orissa

Nilabati case was one of the best landmark judgments for compensatory jurisprudence. It takes
away the credit for finally establishing the remedy of compensation in case of violation of
fundamental right. This case involved the death in public custody.
It is for the first time that the Court acknowledged the award of compensation as a remedy under
public law in contrary to a private law claim. It also held that the concept of sovereign immunity
is not applicable in cases of violation of the right to life and liberty guaranteed by Art.21 of the
Constitution.27
The Court observed:
“The purpose of public law is not only to civilize public power but also to assure the citizens that
they live under a legal system, which aims to protect their interest and preserve their rights.
Therefore when the Court moulds the relief by granting “compensation” in proceedings under
Arts.32 or 226of the Constitution seeking enforcement or protection of Fundamental Rights, it
does sounder the public law by way of penalizing the wrong doer and fixing the liability for the
public wrong on the State which has failed in its public duty to protect the Fundamental Rights
of the citizens….”28

http://www.ailtc.org/publications/revisiting_award_of_compensation.pdf
25
AIR 1986 SC 494
26

27
Nilab(1993) 2 SCC 746
28
ibid
The court further observed that the compensation provided is in nature of exemplary damages,
and the victim is free to claim compensation under the tort or penal law.

In M.C. Mehta v. Union of India29 the interpretation of article 13 (2) widened in its horizon, it
was in this case of Bhopal Gas Tragedy, which allowed for compensation against private persons
as well. And with time it is only advancing. In the case of Menaka Gandhi v. Union of India 30,
the court observed that "not only life, but liberty with dignity, when violated must be
compensated" and third degree interrogation was condemned and compensation awarded.

Since, then the compensatory jurisdiction has made quite a headeaway. The Supreme court, in
exercising its power in this regard has included, more categories and devised new interpretation.

29
AIR 1987 SC 1086
30
AIR 1978 ASC 597
Critical Analysis
The Judicial pronouncements regarding compensation definitely have its positive aspects down.
But nothing is perfect. The question that is often raised is that Who will pay the cash? Till now it
is the state government; as such, the taxpayer. This is a viewpoint which merits further thought.
Why not make a request of installment against the authority concerned by and by? In England
the courts arrange the police authority worried to pay harms. On April 23, 1982, for example,
Justice Mars Jones compensated $51,392 to a West Indian couple as harms for strike, wrongful
arrest and malicious prosecution. Indian laws go out of their approach to make such suits
essentially inconceivable. In February 1983 the Supreme Court of Sri Lanka held that the seizure
by the police of a publication two months before was violative of the fundamental right of
freedom of speech and expression and requested the Superintendent of Police to pay to the
distributers Rs 10,000 as remuneration as well as the appeal's expenses. 31

Yet, who pays-the state or the individual? This is a question that requires further deliberation.
The Supreme Court has in several instances made the state government liable to pay
compensation despite it claiming sovereign immunity.32 It is the Judicial Activism of the court
that, if continued may give way to the clash between the sovereign immunity and article 32(2).
Further, it has also been observed by Supreme Court that compensatory remedy would be
available where it is the only practicable mode left for grievance redressal.33

The other thing is the aggrieved party, as observed in Nilabaheti Case is free to pursue other
remedy and compensation available to it in private law, and hence does not stop at the exemplary
damages part.

Though there is much too appraise, there is also a lot to criticize the limitations of our own
judiciary has also set in the compensatory jurisprudence of the violation of Fundamental Rights.
31
A G Noorani Making the State Pay for Violations of Fundamental, ECONOMIC AND POLITICAL WEEKLY
November 30, 1985
32
J. G. Yethirajulu, Article 32 and the remedy of compensation, (2004) 7 SCC J-49, () www.SCConline.com
33
V.K. Sircar, COMPENSATION FOR VIOLATION OF FUNDAMENTAL RIGHTS A NEW REMEDY IN
PUBLIC LAW DISTINCT FROM RELIEF OF DAMAGES IN TORT
But it can also be not denied that the precedent and interpretation is relatively new, and with time
it shall evolve.

Conclusion.
Article 32 has granted wide powers to the Supreme Court to safeguard the fundamental rights of
Indians, and in my opinion it is one of the most liberal article in the constitution of India. Though
our constitution guarantees fundamental rights, they are often referred to as unfundamental. The
reason is that our justice system is diverting, clumsy, slow and expensive. Violation of
fundamental rights often goes unreported because of the sheer amount of time and money one
has to spend to get justice. This is why rather than seeking legal redress people often ignore the
infringement of their fundamental rights. And this is probably one of the strongest reasons why
exemplary damages and compensation should be awarded.

The Judicial activism in this regard to enforce and to ensure that fundamental rights remain
fundamental is a welcome step. The trend is clearly heading towards the right direction. It will be
interesting to see how judiciary, by utilizing its power, makes the machinery smoother, lawful
and just.
BIBLIOGRAPHY
 Constituent Assembly Debates, Vol. VII, 953
 Mahendra Pal Singh, V. N. Shukla’s Constitution of India, Pg 344
 Khatri v. State of Bihar A.I.R. 1981 S.C. 928. [Para 3
http://indiankanoon.org/doc/367574/]
 The Constitution of India, 1949
 P. Srikrishna Rao, Custodial Deaths in India, (1994) 6 N.L.S.J. 42, 56.
 Sushila Rao, Constitutional rights violation and compensatory jurisprudence in India
and USA.: Justification and Critique, (July 14, 2015),
www.nls.ac.in/students/SBR/issues/vol181/18106.pdf
 Bodhisattwa Gautam v. Subhra Chakreborty, (1996) 1 SCC 490
 Nirmalendu Bikash Rakshit, Right to Constitutional Remedy Significance of Article 32
Economic and Political Weekly August 21-28, 1999
 Smt. Nilabati Behera Alias Lalit vs State Of Orissa And Ors, 1993 AIR 1960, 1993 SCR
(2) 581
 Nirmalendu Bikash Rakshit, Right to Constitutional Remedy Significance of Article 32
Economic and Political Weekly August 21-28, 1999
 Ibid
 A.I.R. 1981 S.C. 928.
 AIR 1981 SC 928 at 1068
 ibid
 1982 3 SCC 131
 1982 4 SCC 141
 AIR 1983 SC 1086
 AIR 1983 SC 1086
 AIR 1983 SC 1086
 AIR 1984 SC 571
 J.L.Kaul & Anju Vali Tikoo, REVISITING AWARD OF COMPENSATION FOR
VIOLATION OF FUNDAMENTAL HUMAN RIGHTS: AN ANALYSIS OF INDIAN
SUPREME COURT DECISIONS
http://www.ailtc.org/publications/revisiting_award_of_compensation.pdf
 AIR 1986 SC 494
 9 (1993) 2 SCC 746
 AIR 1987 SC 1086
 AIR 1978 ASC 597
 A G Noorani Making the State Pay for Violations of Fundamental, ECONOMIC AND
POLITICAL WEEKLY November 30, 1985
 J. G. Yethirajulu, Article 32 and the remedy of compensation, (2004) 7 SCC J-49, ()
www.SCConline.com
 V.K. Sircar, COMPENSATION FOR VIOLATION OF FUNDAMENTAL RIGHTS A
NEW REMEDY IN PUBLIC LAW DISTINCT FROM RELIEF OF DAMAGES IN
TORT