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    Constitutional Tort Law: Law or Logic

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    Sajid Sheikh
    The document discusses the inconsistent amounts awarded by Indian courts as compensation in cases involving human rights violations. While opening up writ jurisdiction to allow for monetary damages was welcome, the supreme court has arbitrarily awarded amounts from 35,000 rupees to 5 lakhs with no clear guidelines. There is a need for the supreme court to establish definite guidelines for compensation in constitutional tort cases to bring consistency and logic to the amounts awarded.

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    © All Rights Reserved
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    Constitutional Tort Law: Law or Logic

    Uploaded by

    Sajid Sheikh
    82 views5 pages
    The document discusses the inconsistent amounts awarded by Indian courts as compensation in cases involving human rights violations. While opening up writ jurisdiction to allow for monetary damages was welcome, the supreme court has arbitrarily awarded amounts from 35,000 rupees to 5 lakhs with no clear guidelines. There is a need for the supreme court to establish definite guidelines for compensation in constitutional tort cases to bring consistency and logic to the amounts awarded.

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    The logic behind constitutional torts.

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    The document discusses the inconsistent amounts awarded by Indian courts as compensation in cases involving human rights violations. While opening up writ jurisdiction to allow for monetary damages was welcome, the supreme court has arbitrarily awarded amounts from 35,000 rupees to 5 lakhs with no clear guidelines. There is a need for the supreme court to establish definite guidelines for compensation in constitutional tort cases to bring consistency and logic to the amounts awarded.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    82 views5 pages

    Constitutional Tort Law: Law or Logic

    Uploaded by

    Sajid Sheikh
    The document discusses the inconsistent amounts awarded by Indian courts as compensation in cases involving human rights violations. While opening up writ jurisdiction to allow for monetary damages was welcome, the supreme court has arbitrarily awarded amounts from 35,000 rupees to 5 lakhs with no clear guidelines. There is a need for the supreme court to establish definite guidelines for compensation in constitutional tort cases to bring consistency and logic to the amounts awarded.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 5

    LaworLogic~Becauselawandlogicarenot

    alwaysthesame.

    ConstitutionalTortLaw
    26 Monday Nov2012
    POSTEDBYKARTIKDMONGAINCONSTITUTIONALLAW,COURTJUDGMENTS,HUMANRIGHTS
    LEAVEACOMMENT
    Tags
    CourtJudgments,Damages,humanrights,India,Judiciary,PeoplesUnionforCivilLiberties,Supreme
    CourtofIndia

    English:Thesupremecourtofindia.Takenabout170mfromthemainbuildingoutsidethe
    perimeterwall(Photocredit:Wikipedia)

    In this piece the author discusses how the opening of writ jurisdiction as a source for monetary
    compensation in cases of Human Rights infringements has led some very arbitrary amounts being
    awardedascompensation,especiallyintheabsenceofanysetrulesorjurisprudence.Theproblemwould
    bediscussedthroughsomespecificcaselaws.


    Thevictimsofanywronggenerallyseekcompensationunderthelawoftortsatthelocalcivil
    courts.Thisprocessistediousandinsufficientatmosttimesbutthedamagesawardedunder
    torts are well defined and categorized under the heads of Compensatory, Nominal and
    Punitive.Theleastamountcourtsprovideisthedirectfinanciallosssufferedbythevictimin
    termsofmedicalcostorthecosttorepairthepropertyoranysuchsimilarloss.

    Inthepastfewdecades,Indiawitnessedthebirthofanewmechanismfordamagesinspecific
    casesofHumanRightsinfringement.Theriseofthisnewjurisprudenceofcompensationwith
    respect to Human Rights is welcome step from the constitutional courts but the various
    amountsawardedbythehighestcourthasstartedanewdebate.

    TheArticle32(2)providestheSupremeCourtwithpowertoissuedirections,ordersorwritsfor
    enforcementofanyfundamentalright.Allthecaseswhichwillbediscussedbelowarehabeaus
    corpuspetitions.

    It all began with the landmark judgment in the case of Rudul Shah vs State of Bihar[1](Rudul
    Shahwaskeptinillegaldetentionforover14yearsafterhisacquittalinamurdercase).Inthis
    case the Supreme Court decided to grant monetary compensation for violation of right to
    personalliberty.Thiswasthefirsttimewhensomeonewasawardedmonetarycompensation
    under the writ jurisdiction provided in Article 32 of the constitution. In this case the court
    decided to award a compensation of 35,000. The Court awarded this compensation as an
    interimrelieftopoorRudulShahandthecourtalsosaidthatthisorderwontprecludeRudul
    Shah from bringing a suit for recovery of adequate damages from the State and the officers
    responsible. The honourable court gave no reasoning for arriving at the specific amount as
    interimrelief.

    ThisnewremedywasusedinthecaseofSebastianM.HongrayvsUnionOfIndia[2](C.Daniel
    and C. Paul, were last seen alive at an army camp. The court held that this was a case of
    custodialdeathandthestateisresponsiblefortheirmysteriousdisappearance).Inthiscasethe
    courtorderedtheStatetopay1lakhasexemplarycost,thiswasgiventoboththewidowsas
    compensation. In this case again, the court arrived at the amount in a completely arbitrary
    mannerwithoutanydiscussionandevengaveitthecolourofexemplarycosts.

    NextisthecaseofSmt.NilabatiBeheraAliasLalitBeheraV.StateOfOrissa&Ors[3].Inthiscase
    ofcustodialdeathfromOrissa,theSupremeCourttriedtodisplaysomereasoninginarriving
    attheamountofcompensation.TheCourtsaidthattheThedeceasedwasagedabout22yearsand
    hadamonthlyincomebetween1200to1500.Atotalamountof1,50,000wouldbeappropriateas

    compensation.Thementionoftheincomeandagegivesahintthattheamountarrivedat,may

    compensation.Thementionoftheincomeandagegivesahintthattheamountarrivedat,may
    be based on the principles set out in private torts law but the amount is again arbitrary and
    withoutanyreasoningorlogic.

    InthecaseofPeoplesUnionforCivilLibertiesv.UnionofIndia[4],Thepolicepicked5persons
    fromthevillageandlatershotdeadtwoofthem.Thoughthecircumstanceswerequitesimilar
    to the previous two cases and this judgment came 17 years after the Sebastian Hongray
    judgment,theSupremeCourtfounditfittoprovide1lakhincompensation.Itsimpossible
    to comprehend how even after 17 years, the Supreme Court thinks that the same amount
    wouldbesufficientforcompensatingacustodialdeath.

    OneyearlaterthesamecourtinthecaseofMalkiatSinghv.StateofU.P.[5],awarded5lakhas
    compensationtothefamilyofeachvictim.Thiscasealsohadsimilarfactsaspreviouscase,10
    sikh youths were killed in a fake encounter by UP police. Again the Supreme Court gave no
    reasoningastohowitarrivedattheamountof5lakhsandwhyayearback1lakhwasthe
    sufficient amount for a similar case and now suddenly the same court thinks that 5 lakh
    shouldbesufficient.InthesameyeartheinthecaseofAmitadyutiKumarv.StateofW.B.[6]
    the Supreme Court gave only 70,000 as compensation to the wife for custodial death of
    husband.

    In 2003, the Supreme Court again went back to the amount it awarded 20 years back in the
    Hongray case. In the case Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble[7], the
    victim died because of the torture inflicted on him while in police custody. Its beyond
    comprehensionhowtheSupremeCourtfoundtheamountof1lakhascompensationforthis
    heinousviolationofHumanRights.

    Inthepastthreefouryearsthecompensationawardedinsuchcaseshasbeenintherangeof1
    to10lakhrupeesbutagaintheseamountsarehighlyarbitraryanddependonthewhimsofthe
    judges.[8]TheSupremeCourttouchednewhighsofarbitrarinesswheninthefamouscaseof
    Sohrabuddin Sheikh fake encounter the court left it to the whims of Gujarat government to
    decidetheamountofcompensationeventhoughinallsimilarcasesinpastthesamecourthas
    awardedcompensation.[9]

    TheHonourableDelhiHighCourtinthetragiccaseofUphaarCinemafiretriedusetheprivate
    lawtechniquetodecidetheamountofcompensationunderpubliclaw.HighCourtframedout
    the average income of the deceased persons, and thereafter multiplied it with the digit 15 in
    ordertoconcludethefinalamounttobeawardedtoeachoftheclaimants.Inthismatter,High
    CourtawardedRs.18lakhstothelegalheirsofthosedeceasedaged20yearsormore,andRs.
    15 lakhs to the legal heirs of those deceased persons aged 20 years or less.[10] The Supreme
    CourtoutrightlyrejectedtheuseofthismethodtoawardcompensationunderaPublicLaw
    remedy(Article32and226oftheConstitution).SupremeCourt,inthecase,wasoftheopinion
    thatconsiderableamountofcompensationbymeansofPublicLawRemedyisnotsafeandthis

    thatconsiderableamountofcompensationbymeansofPublicLawRemedyisnotsafeandthis
    turnedouttobethereasonforthereductionofcompensationbytheSupremeCourtbutthe
    Court at least laid down the factors which should be borne in mind while arriving at the
    amountofcompensation.Thesefactorswere

    Thefirstistheageofthedeceased,thesecondistheincomeofthedeceasedandthethirdisnumberof
    dependants(todeterminethepercentageofdeductionforpersonalexpenses).

    The sad truth is that the court has repeatedly ignored these factors and has arrived at
    extremelydifferentamountsincaseswithsimilarcircumstances.

    Its time for the highest court in this country to lay down some definite guidelines for
    compensationunderconstitutionaltortslawforitselfandalltheHighCourtstofollow.Justice
    Radhakrishnan himself recommended that a specific legislation is urgently required so as to
    addressthecompensationclaimunderPublicLaw.

    [1]1983AIR1086.
    [2]1984SCC(3)82.
    [3](1993)2SCC746
    [4](1997)3SCC433
    [5](1998)9SCC351
    [6](2000)9SCC404
    [7](2003)7SCC749
    [8]DeputyCommissioner,DharwadDistrict,Dharwadv.Shivakka(2),(2011)12SCC419,R.P.Tyagi
    v.State(GovernmentofNCTofDelhi),(2009)17SCC445,DeputyCommissioner,DharwadDistrict,
    Dharwadv.Shivakka(2),(2011)12SCC419,PrithipalSinghv.StateofPunjab,(2012)1SCC10.
    [9]http://articles.timesofindia.indiatimes.com/20090803/india/28167980_1_fakeencounter
    sohrabuddinsheikhgujaratgovernment
    [10]http://legaljunction.blogspot.in/2011/10/compensationunderpubliclawremedy.html

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