Nilabati Behera v. State of Orissa
Supreme Court of India · 24 March 1993 · 3 judges · 1993 AIR 1960; 1993 SCR (2) 581; 1993 SCC (2) 746
Compensation under Articles 32 and 226 for violation of fundamental rights is a public law remedy based on strict liability, to which sovereign immunity does not apply; Orissa was ordered to pay Rs. 1,50,000 for a custodial death.
Facts
The petitioner's son, aged about 22, was taken into police custody at 8 a.m. on 1.12.1987 by an Assistant Sub-Inspector in connection with a theft investigation and detained at the Jaraikela Police Outpost. The next day his body, handcuffed and with multiple injuries, was found on a railway track. Her letter of 14.9.1988 to the Supreme Court was treated as a writ petition under Article 32 seeking compensation for violation of Article 21. The State's defence was that he had escaped from custody by chewing off the rope tying him and was run over by a train. On the Court's direction, the District Judge, Sundergarh held an inquiry and reported that he died of injuries inflicted while in police custody. The State disputed this finding.
Questions before the Court
- Was the death of the petitioner's son a custodial death caused by injuries inflicted in police custody?
- Can the Supreme Court or a High Court award monetary compensation under Article 32 or 226 for violation of the right to life, and is sovereign immunity a defence to such a claim?
What the Court held
- On reappraisal of the evidence, it was a custodial death. The postmortem evidence excluded a train accident, the forensic report on the rope negatived the escape story, and there was no cogent evidence of any search. A Section 176 CrPC inquiry is for a Magistrate alone, not jointly with a police officer, where the police's role is in question.
- Award of compensation under Article 32 or 226 for contravention of fundamental rights is a public law remedy based on strict liability. It is distinct from, and in addition to, the private law remedy in tort, and sovereign immunity is no defence to it.
- Kasturilal, which upheld sovereign immunity for torts of State servants, is confined to liability in tort and does not apply to the constitutional remedy.
- Article 32 obliges the Court to forge new tools, including monetary compensation where that is the only practicable mode of redress; Article 142 also enables it. The remedy must be used with restraint so that private law remedies are not circumvented.
- The State was directed to pay Rs. 1,50,000 by a three year term deposit in the petitioner's name, and Rs. 10,000 as costs to the Supreme Court Legal Aid Committee. The award is to be adjusted in any other proceeding for compensation on the same ground. The State was expected to fix responsibility and act against those responsible, including prosecution.
Why it matters
The judgment explains the basis of compensation in writ jurisdiction that Rudul Sah had allowed: it is a public law remedy based on strict liability, not vicarious liability in tort, so sovereign immunity does not apply. It confines Kasturilal to private law claims in tort. It also holds that the remedy is distinct from and in addition to civil and criminal remedies, with adjustment of amounts to prevent double recovery.
In the Court's words
Copied from the official judgment; each passage links to its page.
“It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, 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 for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy.”
“In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution”
“The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen.”
Provisions interpreted
Related judgments
- Distinguishes Kasturilal Ralia Ram Jain v. State of Uttar Pradesh (1964)“Kasturilal is, therefore, inapplicable in this context and distinguishable” (page 14)
- Followed in D.K. Basu v. State of West Bengal (1996)
- Followed in Vishaka v. State of Rajasthan (1997)
- Followed in Chairman, Railway Board v. Chandrima Das (2000)
Case and bench
- Parties
- Smt. Nilabati Behera alias Lalit Behera v. State of Orissa
- Case
- Writ Petition (Crl.) No. 488 of 1988
- Decided
- 24 March 1993
- Bench
- Jagdish Saran Verma, A.S. Anand, N. Venkatachala
- Opinions
- Unanimous. Verma, J. delivered the main judgment; Dr. A.S. Anand, J. wrote a concurring opinion agreeing with it in all respects. Venkatachala, J. wrote no separate opinion.
Questions on this case
4 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Law of Torts Practice Set 1
With reference to Nilabati Behera v. State of Orissa (1993), consider the following statements: 1. Compensation awarded under Article 32 or Article 226 for contravention of fundamental rights is a public law remedy based on strict liability. 2. Sovereign immunity is not a defence to such a public law claim, though it may be available in a private law action in tort. 3. Award of such compensation bars the claimant from bringing a civil suit for damages in tort. Which of the statements given above is/are correct?
- A. 1 and 3 only
- B. 2 and 3 only
- C. 1, 2 and 3
- D. 1 and 2 only
Show the answer
D. 1 and 2 only
Nilabati Behera (AIR 1993 SC 1960) held that public law compensation for violation of fundamental rights rests on strict liability and that sovereign immunity does not apply to it. The Court described this remedy as distinct from, and in addition to, the private law remedy in tort, so statement 3 is wrong.
Question 2 · Law of Torts Practice Set 1
In State of Rajasthan v. Vidyawati (1962), the State was held vicariously liable for:
- A. the loss of gold seized by the police and kept negligently in their custody
- B. the detention of a prisoner in jail for several years after his acquittal
- C. the death of a man knocked down by a Government jeep driven rashly
- D. the death of a man in police custody as a result of injuries inflicted on him
Show the answer
C. the death of a man knocked down by a Government jeep driven rashly
In Vidyawati ([1962] Supp 2 SCR 989) a Government jeep being taken from the repair shop for the Collector's use was driven rashly and killed a man; the State was held liable like any other employer. The gold seizure is Kasturilal, the custodial death is Nilabati Behera, and the post-acquittal detention is Rudul Sah.