Report No. 273

6.11 The Law Commission of India in its 41st Report (1969) titled 'Criminal Procedure Code, 1898', discussed Section 545 of the Code of Criminal Procedure of 1898 extensively and suggested:

"46.12. Under Clause (b) of Sub-section (1) of Section 545, the Court may direct "in the payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court."

6.12 The 154th Law Commission Report (1996) on the Code of Criminal Procedure, 1973 devoted an entire chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials was discussed extensively as under125:

"1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied. 9.1

The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for "securing the right to public assistance in cases of disablement and in other cases of undeserved want." So also Article 51A makes it a fundamental duty of every Indian citizen, inter alia 'to have compassion for living creatures' and to 'develop humanism'. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology."

6.13 At the time of accession to International Covenant on Civil and Political Rights, 1966 (ICCPR) on 10 April 1979, India made a reservation to Article 9(5) - the provision on compensation stating that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention.

6.14 In D.K. Basu case 126 the Supreme Court held that since compensation was being directed by the courts to be paid by the State holding it vicariously liable for the illegal acts of its officials the reservation to clause 9(5) of ICCPR by the Government of India had lost its relevance. Thus an enforceable right to compensation in case of "torture" including "mental torture" inflicted by the State or its agencies is now a part of the public law regime in India.

6.15 In Ram Lakhan Singh v. State of U.P127, the Supreme Court dealt with a case under Article 32 of the constitution for compensation for loss of professional career, reputation, great mental agony, heavy financial loss and defamation - Illegal detention by respondent authorities after implicating petitioner, an Indian Forest Service officer in false vigilance cases at instance of the then Chief Minister of respondent State dishonouring the High Court Orders.

6.16 The High Court had recorded the finding that the petitioner had illegally been detained by the authorities after implicating him in false vigilance cases. It was a clear cut case of abuse of legal process. He and his family members had to suffer a great mental agony and heavy financial loss besides being defamed in the society. The Supreme Court awarded him the compensation of Rs.10 lakhs observing:

"12. In such a scenario, until and unless we maintain a fine balance between prosecuting a guilty officer and protecting an innocent officer from vexatious, frivolous and mala fide prosecution, it would be very difficult for the public servant to discharge his duties in free and fair manner. The efficiency of a public servant demands that he should be free to perform his official duties fearlessly and without any favour. The dire necessity is to fill in the existing gap by protecting the honest officers while making the corrupt officers realize that they are not above law. The protection to an honest public servant is required not only in his interest but in the larger interest of society. This Court time and again extended assurance to the honest and sincere officers to perform their duty in a free and fair manner towards achieving a better society."

6.17 The Supreme Court, exercising its power under Article 32 and High Courts under Article 226 of the Constitution have awarded damages to the petitioners for the injuries suffered both on account of the tortious act of servants of the State and also on the ground that the State is liable to pay compensation for the violation of Fundamental Rights of the victims. A survey of the decided cases would reveal that the Courts in their judicial activist role adopted two ways to redress the victims of abuse of power by the public servants as palliative to the victims by way of right of compensation and to penalise the State for negligence of its servants.128

6.18 The Supreme Court in the case of custodial torture while exercising jurisdiction under Article 142 of the Constitution, in Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble,129 directed the State Government to pay compensation of Rs.1,00,000/- to the mother and children of the deceased. It was observed:

'This amount of compensation shall be as a palliative measure and does not preclude the affected person(s) from bringing a suit to recover appropriate damages from the State Government and its erring officials if such a remedy is available in law.'

6.19 While deciding the aforesaid case, the Court referred to a Queen's Bench judgment in Jennison v. Backer,130 wherein it was observed:

'The law should not be seen to sit limbly, while those who defy it go free and, those who seek its protection lose hope.'

6.20 In Dr. Rini Johar v. State of Madhya Pradesh131 the Court held that arrest in violation of due procedure seriously jeopardises the dignity of the person arrested and the law does not countenance abuse of power which causes pain and trauma. The court, after considering the facts, awarded a compensation of five lakh rupees.

6.21 In State of Maharashtra v. Christian Community Welfare Council of India 132 , the Supreme Court held that "the question whether such compensation paid by the State can be recovered from the officers concerned will depend on the fact whether the alleged misdeeds by the officer concerned is committed in the course of the discharge of his lawful duties, beyond or in excess of the same which will have to be determined in a proper enquiry".

6.22 The Compensation has to be determined by the Court by taking into consideration various aspects like the nature of injury caused; manner in which the injury is caused; the purpose for which the injury was inflicted; the extent to which the victim has suffered due to such injury. The Court may also take into consideration the nature of torture which could be physical, mental and psychological.

The Court will have to keep in mind the amount required by the victim for the follow up treatment of the injuries suffered and the amount which may be required for rehabilitation of the victim to come out from the agony of torture. While undertaking this exercise of determining the compensation, the Court will have to keep in sight the socio-economic background of the victim which will be a determining factor while reaching to an amount of just and adequate compensation.

6.23 Thus it is evident that the Courts have rejected the plea of sovereign immunity, which contradicts the essence of law of torts. The law of torts provides that liability follows negligence and the individuals and the States are responsible for the negligence of their agents / employees acting in the course of their employment. Since the negligence / torture which are unlawful and opposed to Article 21 of the Constitution, and since the statutory concept of sovereign immunity cannot override the constitutional mandate, the claim for violation of fundamental rights by the statutory authorities or their agents is not acceptable. Such authorities, therefore, cannot claim sovereign immunity.

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