Report No. 273

Chapter - VI

Compensation for Custodial Torture / Death

6.1 The doctrine of sovereign immunity - a concept of common law principle consistently followed in British jurisprudence in last several centuries that 'King commits no wrong' and, therefore, it was not possible to hold him guilty of personal negligence / misconduct, nor he could be held responsible for the negligence or misconduct of his servants. The doctrine evolved on the principle of sovereignty that a State cannot be sued in its own court.118

6.2 In P & O. Steam Navigation Co. v. Secretary of State for India-in- Council119, the legal position as was explained:-

"If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State of such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose."

6.3 The Law Commission of India, in its first Report (1956) titled "Liability of the State in Tort" observed that at the time of framing the Constitution the question as to what extent, if any, the Union and the States should be made liable for the tortious acts of their servants or agents was left for future legislation. Thus, in the changed circumstances / conditions, the country should also formulate suitable legislation. The old distinction between sovereign and non-sovereign functions should no longer be involved to determine the liability of the State and therefore, State should be subjected to the general law liability for injuries caused to the citizens and also in case if the State employees commit wrong in discharge of their duties.

6.4 In State of Rajasthan v. Vidyavati120, the claim for damages by the dependents of the person who died in an accident caused by the negligence of the driver of the Collector of Udaipur was allowed by the Rajasthan High Court and the Supreme Court, rejecting the plea of sovereign immunity of the State, holding it liable for the tortious act of the driver like any other employer.

6.5 However, in Kasturi Lal v. State of U.P.121, the Supreme Court took a contrary view and the plea of sovereign immunity was upheld. In that case, a partner of the Kasturilal Raliaram Jain, a firm of jewellers of Amritsar was taken into custody by police in Meerut on the suspicion of possessing stolen property. He stood released but the gold jewellery taken from him was not returned. The head constable in charge of the malkhana not only misappropriated the same but fled away to Pakistan. The firm claimed the recovery of ornaments or in the alternative for compensation. The Apex Court rejected the claim on the ground that the act was committed by the employees during the course of their employment which was in the characteristic of a sovereign power.

6.6 In Rudal Shah v. State of Bihar122, the Supreme Court taking a completely opposite stand, rejected the plea of sovereign immunity and awarded the compensation, as the petitioner had been illegally detained in jail for over fourteen years, after his acquittal in full-dress trial.

6.7 In State of Andhra Pradesh v. Challa Ramakrishna Reddy123, the Supreme Court affirmed the view taken by the Andhra Pradesh High Court that where the fundamental right of the citizen is violated, the plea of sovereign immunity would not be available. The Court ruled: "The maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof."

6.8 In Nilabati Behera v. State of Orissa & Ors.124, the Supreme Court said: in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience. 6.9 The UN General Assembly recognised the right of victims of crimes to receive compensation by passing a resolution titled "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985." The relevant part thereof reads:

11. Where public officials or other agents acting in an official or quasi- official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

6.10 The UN General Assembly passed a resolution titled "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005" which deals with the rights of victims of international crimes and human rights violations. The relevant part dealing with compensation reads: 13. Compensation shall be provided for any economically Assessable damage resulting from violations of human rights or international humanitarian law, such as:

(a) Physical or mental harm, including pain, suffering and emotional distress;

(b) Lost opportunities including education;

(c) Material damages and loss of earnings, including loss of earning potential;

(d) Harm to reputation or dignity;

(e) Costs required for legal or expert assistance, medicines and medical services."

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