SARDAR PATEL INSTITUTE OF LAW

SWAMI VIVEKANAND SUBHARTI UNIVERSITY,

MEERUT, U.P.

SUBJECT: Administrative Law

Case comment

On

Nilabati Behera Alias Lalita v. State of Orissa & Ors

SUBMITTED TO:

Assistant Professor: - Miss. Ana Sisodia

SUBMITTED BY:

Subham Tyagi

B.A. LL.B VIth SEMESTER

SARDAR PATEL SUBHARTI INSTITUTE OF LAW

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ACKNOWLEDGEMENT

I would like to give special thanks to my teacher Assistant Prof. ‘Miss. Ana Sisodia
’ who gave me the golden opportunity to do this case comment on “Nilabati Behera
Alias Lalita v. State of Orissa & Ors.” which helped me in doing a lot of research
and I came to know about so many new things I am really thankful to her. Secondly
I would like to thanks my parents and friend who helped me a lot in finalizing this
project within the limited time fit.

………………………

Subham Tyagi

B.A. LL.B.

VIth SEMESTER

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TABLE OF CONTENTS

1. INTRODUCTION ………………………….…………………………….………….4
2. HISTORICAL BACKGROUND ………………………………………...………..5-6
3. FACTS OF THE CASE …………………………………………………..………….7
4. BENCH………………………………………………………………..……...………8
5. ISSUES ………………………………………………………………………………9
6. ARGUMENTS…………………………………………………………….………10-12
7. LAWS INVOLVED IN CASE………………………………………………..…….13
8. COURT JUDGMENT ……………………………………………………..……….14
9. COMMENT & CASE ANALYSIS …………………………………………...…15-16
10. CONCLUSION…………………………………………………………………17-18

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INTRODUCTION

The present case renders CONSTITUTION OF INDIA - Articles 21, 32, 142 and 226--

International Covenant on Civil and Political Rights, 1966; Article 9(5)--Contravention of human

rights and fundamental freedom by State and its agencies--Claim for monetary compensation

under Article 32 or 226--Court has obligation to grant such relief and the plea of sovereign

immunity will not be available since a claim in public law for compensation for contravention of

human rights and fundamental freedoms, the prefection which is guaranteed in the Constitution is

an acknowledged remedy or enforcement and protection of such right and such a claim based on

strict liability made by resorting to a constitutional remedy provided for the enforcement of a

fundamental right is distinct from and in addition to the remedy in private law. The power available

to the Supreme Court the Court is not helpless and the wide powers given to the Supreme Court

by Article 32 which itself is a fundamental right, imposes a constitutional obligation on the court

(Supreme Court) to forge such new tools which may be necessary for doing complete justice. The

power under Article 142 is also an enabling provisions in this behalf. If the guarantee that

deprivation of life and personal liberty cannot be made except in accordance with law is to be real,

the enforcement of the right in case of every contravention must also be possible in the

constitutional scheme, the mode of redress that which is appropriate in the facts of each case. The

deceased was 22 years old having monthly income between Rs. 1200 and 1500. Award of

compensation in the proceeding would be taken into account for adjustment in the event of any

other proceeding taken by the petitioner for recovery of compensation. The State directed to pay

Rs. 1,50,000 to the petitioner and a further sum of Rs. 10,000 as a cost to be paid to the Supreme

Court legal aid committee.

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HIS TORICAL BACKGROUND

CONSTITUTION OF INDIA - Articles 142--Contravention of human rights and fundamental

freedom--Claim for monetary compensation on that account under Articles 32 and 226--The

compensation can be allowed against the State--Defence of sovereign Immunity held not available

to the respondent. The Supreme Court is not helpless and has wide powers under Article 32 and

imposes a constitutional obligation on the court to forge new tools which may be necessary for

doing complete justice and enforcing fundamental rights guaranteed by the Constitution. The

power available to the court under Article 142 is also enabling provisions in this behalf. The

contrary view not merely render the court powerless and the Constitution guarantee a mirage but

may in certain situation, be incentive to extinguish life, if for the extreme contravention the court

is powerless to grant any relief against the State except by punishment for the extreme

contravention, the court is powerless to grant any relief against the statement except by the

punishment of the wrong doer for the resulting offence and recovery of damages under private

law.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHT, 1966 - Article 9(5)--

Constitution of India, Articles 21, 32, 142 and 226--Contravention of human fundamental freedom

by state and its agencies--Claim for monetary compensation under Articles 32 and 226--

Compensation can be demanded in the writ petition and the same would be maintainable. A claim

in public law for compesnation for contravention of human rights and fundamental freedom, the

protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement

and protection of such right and such a claim based on strict liability made by reasoning to a

constitutions remedy provided for enforcement of a fundamental right is distinct and in addition

to the remedy in private law for damages for the tort resulting from the contravention of

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Fundamental Right. The defence of sovereign immunity being inapplicable and allien to the

concept of guarantee of fundamental right, there can be no question of such defence being available

in the constitutional remedy. The power of the Supreme Court under Article 142 is also an enabling

provision and contrary view would notmerely render the court powerless and constitutional

guarantee a mirage but may, in certain situation be an incentive to extinguish life, if for the extreme

contravention, the court is powerless to grant any relief against the state, except by punishment of

wrong-doer for the resulting offence and recovery of damages under private law by ordinary

process. Article 9(5) of International Covenant, 1966 indicates that an enforceable right to

compensation is not alien to the concept of enforcement of a guarantee right. In such

circumstances, the principle on which the court's power under Articles 32 and 226 is exercised to

award monetary compensation for contravention of fundamental rights. On the findings reached

in the instant case, it is a clear case for award of compesation to the petitioner for custodial death

of her son.

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FACTS OF THE CASE

1. That Petitioner’s son suman Behera aged 22 years was taken into the police custody at

around 8 a.m. on 1.12.1987 by Assistant Sub-Inspector of Police of the Police Outpost for

the investigation of an offence of theft. He was confined at the Police outpost on 2.12.1987.

2. That at about 2 p.m. on the same day it came to the knowledge of the petitioner that the

corpse of her son was found on the railway track, there have been multiple injuries on the

body and his death was unnatural, the reason behind the death was the injuries on his body.

3. That the Petitioner alleged that it had been a case of custodial death since her son died as a

result of the multiple injuries inflicted to him while he was in police custody and thereafter

his body was thrown away on the railway track in her letter written on 14.9.1988, which

was treated as a writ petition under Article 32 of the Constitution.

4. That It had been prayed within the petition that award of compensation be made to her, for

contravention of the elemental right to life guaranteed under Article 21 of the Constitution.

The defending argument of the respondents was that the petitioner’s son managed to flee

from police custody at about 3 a.m. on 2.12.1987 from the Police Outpost where he was

detained and thereafter, he couldn’t be apprehended in spite of a research. After a brief

search his body was found on the railway track on 2.12.1987 with multiple injuries, which

indicated that he was run over by a train.

5. That the Respondents denied the allegations of the custodial death and their responsibility

for the unnatural death of the petitioner’s son. On 4.3.1991, this Court directed the District

Judge to carry an inquiry into the matter and to submit a report. After hearing to both the

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parties and going through their sets of evidences the District Judge submitted the Inquiry

Report on 4.9.1991.

6. That the District Judge found that the petitioner’s son died because of the multiple injuries

suffered by him while he was in the police custody. The correctness of the finding of the

District Judge in his report was assailed during this Court. The respondents stated that the

petitioner’s son managed to escape from police custody at about 3 a.m. on 2.12.1987 and

he was run over by a passing train and hence he sustained the fatal injuries. They also stated

that that the responsibility of the respondents for his safety came to an end the instant he

escaped from the police custody.

7. That this was the factual foundation for State’s liability for payment of compensation for

violation of the elemental right to life under Article 21 was absent.

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BENCH

 Name of the judges : (Supreme Court of India)

 HON'BLE JUDGES :JUSTICE JAGDISH SHARAN VERMA, JUSTICE A.S.

ANAND, JUSTICE, N. VENKATACHALA

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ISSUES

Issue 1- Whether there is a right to life under Article 21 of the Indian Constitution, and
whether the Supreme Court of India and the High Courts can issue monetary compensation
in case of (or if it is given in compensation for) violation of fundamental right under Article
32 and 226 of the Indian Constitution respectively, if the case is with regard to “Sovereign
Immunity”.

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APPELLANT ARGUMENT

1. Whether there is a right to life under Article 21 of the Indian Constitution, and

whether the Supreme Court of India and the High Courts can issue monetary

compensation in case of (or if it is given in compensation for) violation of fundamental

right under Article 32 and 226 of the Indian Constitution respectively, if the case is

with regard to “Sovereign Immunity”.

The counsel on behalf of the Petitioner contended that that the District Court judge’s findings on

the matter of the case cannot be rejected, and that there was enough evidence to prove that a

petitioner’s son was in custody of the police when he was inflicted with the injuries that has caused

his death. It was also argued that the petitioner’s son’s right to life under Article 21 of the Indian

Constitution has been deprived by the police, and then compensation was claimed.

It is further submitted that the counsel for petitioner argued that the evidence adduced during the

inquiry by the learned District Judge were not in consonance with the arguments of the Additional

Solicitor General arguing on behalf of the Sate (Respondents). Further, the was no reason to reject

the findings of the report submitted by District Judge, Sundergarh, Orissa which clearly specified

that Suman Behara had died due to the multiple injuries inflicted on him during the police custody

at Police Outpost, Jeraikela.

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RESPONDENT ARGUMENT

1. Whether there is a right to life under Article 21 of the Indian Constitution, and

whether the Supreme Court of India and the High Courts can issue monetary

compensation in case of (or if it is given in compensation for) violation of fundamental

right under Article 32 and 226 of the Indian Constitution respectively, if the case is

with regard to “Sovereign Immunity”.

1. The Counsel on behalf of the respondent contend that the Additional Solicitor General, claimed

that the petitioner’s son had escaped the police custody at around 3a.m., on the morning of 2nd

of December, 1987, and was not to be found in spite of the police having searched for him. He

also claimed that the petitioner’s son reached near the railway station soon after his escape

from the police, and was hit by a train that was crossing, and stated that it was those injuries

that has caused the death of the petitioner’s son. He argued that this was not a case of custodial

death, as the petitioner’s son has escaped the police custody, and also denied the District

Court’s evidence.

2. It is further contented that the very factual foundation for the liability of the State was absent.

The respondents argued that Suman Behera managed to escape from police custody at about 3

a.m. on the night between the 1st and 2nd December 1987 from the Police Outpost Jeraikela.

They, further, argued that despite the search he could not be apprehended and thereafter his

dead body was found on the railway track. According to the respondents , the injuries which

resulted into his death may have occurred due to train passing over him. The respondents, thus,

denied the allegation of custodial death and consequently the respondents’ responsibility for

the unnatural death of Suman Behera

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LAWS INVOLVED IN CASE

1. Constitution of India 1950- Arts.21, 32 & 226

2. Protection for Human Rights Act, 1993.

3. International Convention on Civil and Political rights 1966

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COURT JUDGMENT

Judgment- The court noted that there was no cogent evidence of any search by the police to find

Suman Behara and of his escape from police custody. The police also reached much later to the

take charge of the body, after it was reported by railway men, which raised questions as to its

credibility. Further, a doctor before the court deposed that the injury was caused by a blunt object,

which may have been lathi blows. All the injuries found on his body could not have been caused

by train accident. The court also drew the distinction between the liabilities of the State in public

law as opposed to private law. It clearly mentioned that that a proceeding under Article 32 before

the Supreme Court or any High Court is a remedy available in public law and the principle of

sovereign immunity does not apply in case of public law. It is only a defence in private law based

on tort. It also stressed that it would be highly unjust to expect a person socio-economically

disadvantaged person to pursue ordinary civil proceeding under the private law.

Held- It awarded a compensation of Rs.1,50,000 to the petitioner and a sum of Rs.10,000 to be

paid to the Supreme Court Legal Aid Committee. The Supreme Court also ordered the State of

Orissa to initiate criminal proceedings against those who killed Suman Behara.

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CASE ANALYSIS

Prior to the judgment there was no structured formulation to grant compensation in case of

custodial deaths. There were numerous cases where no or very little compensation was granted in

such cases. In Bhim Singh v. State of Jammu and Kashmir AIR 1986 SC 494, 1986 CriLJ 192,

1985 (2) SCALE 1117, (1985) 4 SCC 677, 1986 (1) UJ 458 SC, where a member of the legislative

assembly was taken into custody to prevent him from attending an assembly session, the court

granted a compensation of 50,000 rupees but did not explain how the amount was calculated.

Similarly, in Saheli v. Commissioner of Police 1990 AIR 513, 1989 SCR 488, the Delhi Police

colluded with the landlord to evict two female tenants unlawfully. They were beaten and a nine

year old son of one of the two females died. The Supreme Court awarded a compensation of mere

10,000 rupees. The decision in Nilabati Behara v. State of Orissa AIR 1993 SC 1960 , therefore

made sure that the state could no longer escape liability in Public law and had to be compelled to

pay compensation when it committed such gross violation of one’s fundamental rights as well as

the very basic human rights .

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal

liberty except according to procedure established by law”. It is pretty evident with this particular

law that no one can snatch away the right to life of a person. Not unless the Law states, which

happens in the rarest of the rarest cases; It was not just culpable homicides and murders, but

custodial deaths were also pretty frequent and in fact, increased in the 1980s. And most of the

times, they couldn’t be proved. In a Country where its Constitution even talks about the rights of

the persons detained, it is pretty apparent that the rights that they are vested to already, cannot be

taken away. And the judgment of this case of Nilabati Behera v. State of Orissa , is undoubtedly

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one of the landmark judgments of the country, for the court stated in its judgment that

compensation can be claimed in case of a custodial death, and it definitely does stand as a

testimony to the fact that in spite of all the drawbacks of the setup of the Government of this

country, there is still a hope for justice.

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CONCLUSION

‘”I am dealing with article 21 and Sovereign Immunity

 Sovereign Immunity--Concept of sovereign immunity is not applicable to a case of violation

of Fundamental Right-Defence of sovereign immunity being inapplicable and alien to the

concept of guarantee of Fundamental Right, there can be no question of such defence being

available in the constitutional remedy--Where claim made for monetary compensation under

Article 32 or Article 226 on account of contravention of human rights and fundamental

freedom by the State and its agencies, the State cannot claim sovereign immunities. A claim in

public law for compensation for contravention of human right and fundamental freedom, the

protection of which is guaranteed in the constitution is an acknowleged remedy for

enforcement and protection of such a claim based on strict liability made by resorting to an

constitutional remedy provided for the enforcement of F.R. is distinct from and an addition to

the remedy in private law for damages for the tort resulting from the contravention of

Fundamental Right. For the death of deceased Suman who was 22 years having monthly

income of Rs. 1200-1500, direction issued to the State to lay Rs. 1,50,000 to the petitioner and

further Rs. 10,000 as costs, since said Suman died in the Police custody.

 It is clear that there’s no evidence of any search made by the police to apprehend Suman Behera

if the defence of his getaway police custody is true. Contradictory to which the invention of

the body on the railway track within the morning by some railway men, it had been much later

within the day that the police reached the spot to require charge of the body. This conduct of

the concerned law enforcement officials, is additionally a major circumstance to assess the

credibility of the defence version. it had been stated by the doctor that while all the injuries

couldn’t be caused in a very train accident, it had been possible to cause all the injuries by lathi

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blows. There is a difference between the liability of the state publicly law and therefore the

liability of the state in camera law for payment of compensation in action on tort. It is

mentioned that award of compensation in a every proceeding under Article 32 by this court or

by the state supreme court under Article 226 of the Constitution may be a remedy available

publicly law, supported strict liability for contravention of fundamental rights to which the

principle of exemption doesn’t apply, while it’s going to be available as a defence in camera

law in an action supported tort. The court isn’t helpless and therefore, the wide powers given

to the current Court by Article 32, which itself may be a fundamental right, imposes a

constitutional obligation on this Court to forge such new tools, which can be necessary for

doing complete justice and enforcing the elemental rights guaranteed within the Constitution,

which enable the award of monetary compensation in appropriate cases, where that’s the sole

mode of redress available. the ability available to the current Court under Article 142 is

additionally an enabling provision during this behalf.

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