Damages notes

1) 2) Violation of article 14. The violation of the right to livelihood is required to be remedied. But the right to livelihood as contemplated under article 21of the Constitution cannot be so widely construed which may result in the defeating the purpose sought to be achieved by the aforesaid article. It is also true that the right to livelihood would include all attributes of life but the same cannot be extended to the extent that it may embrace or take within its ambit all sorts of claim relating to the legal or contractual rights of parties completely ignoring the person approaching the court and the alleged violation of the said right; State of Himachal Pradesh v.Raja Mahendra Pal, AIR 1999 SC 1786: (1999) 4 SCC 43.

ludes: (a) the right to live with human dignity; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608: 1981 Cri LJ 306. (a) the right to live with human dignity; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608: 1981 Cri LJ 306.

ludes:

3) 4) 5) 6)
l 7) 8) 9)

Compensation under 367A Violation of international human right Vilation of iccpr Loss of dignity etc etc.

(a) the right to live with human dignity; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608: 1981 Cri LJ 306.

10) (a) the right to live with human dignity; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608: 1981 Cri LJ 306. 11) 12) (a) the right to live with human dignity; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608: 1981 Cri LJ 306.

13)

the part of the Bihar Government for keeping him in illegal detention for over 14 years after his acquittal of a murder charge.

14)Article 5(5) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that "everyone who has been the victim of arrest or detention in contravention of the A question regarding the awarding of monetary compensation through writ jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar In this case, Bhagwati, J. observed: 15)"Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty." 16)Regarding the liability of the State to pay compensation for infringing Article 21, the Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its significant content. The Court further observed that where there are issues of the gravest constitutional importance involving as they do the exploration of a new dimension of the right to life and personal liberty, it has to lay down the correct implications of the
1 2

constitutional right in Article 21 in the light of the dynamic constitutional jurisprudence, which the Court is evolving. 17) The Supreme Court of India in Rudul Sahv. State of Bihar5 brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of State lawlessness onprovisions of this article shall have an enforceable right to compensation". This right must be provided for within the national legal system, that is, a remedy must be made available under the domestic law and enforceable in a domestic court. The basic duty of the State is to ensure that a breach of Article 5 may be remedied by way of compensation in the domestic legal system. Where, under the law of a State the Convention forms part of the law of the land, there is less likelihood of difficulty in complying with this paragraph, but where "transformation" or specific adaption is required constitutionally, and if this has not occurred, a problem may arise. In the case of Brogan and others of 1988, the detention of the applicants had been in conformity with British law but was ruled to have breached the Convention provisions. The Court rejected the UK Government's argument that "lawfulness" referred to in the text applied only to domestic law. Thus compensation was payable, and failure to provide this as of right resulted in a breach of the article. But even where the Convention is part of the law of the land, the Human Rights Commission and Human Rights Court at Strasbourg have the duty to consider the legal effect of incorporation to ensure that the practical result was indeed to confer an effective right on individuals to compensation, a point made in the 1989 case of Ciulla v. Italy Mere incorporation or replication may not thus suffice
6 7

. rticle 9(5) of the International Covenant on Civil and Political Rights of 1966 indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as follows: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." India adopted the Covenant with a reservation regarding the enforceable right to compensation. The Declaration by the Government of India dated 10-4-1979 in respect of Article 9(5) is as under: Declaration II.-With reference to Article 9 of the International Covenant on Civil and Political Rights, the Government of the Republic of India takes the position

that the provisions of the article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India. Further under the Indian legal system, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State. The Supreme Court of India in D.K. Basu made the following observation with reference to the above Covenant:
8

The Government of India at the time of its ratification of International Covenant on Civil and Political Rights, in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen.
9

Article 32 of the Constitution of India confers power on The compensatory jurisprudence introduced by the Supreme Court of India by invoking powers under Article 32 gained tremendous importance in recent times due to the increase of the incidents of State lawlessness, police lawlessness, custodial violence, violence in jails, unlawful detentions and other violations. This innovation made by the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to render speedy justice to victims of the infringement of right to life and personal liberty.
39 40 41 42 43

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18)

BSc, MA, LLM, PhD Judge, High Court of Andhra Pradesh. Return to Text 1 (1981) 1 SCC 627 Return to Text 2 Ibid., p. 630, para 4. Return to Text 3 (1982) 3 SCC 131 Return to Text 4 (1982) 2 SCC 583 Return to Text 5 (1983) 4 SCC 141 Return to Text 6 See Murdoch, Jim, "Safeguarding the Liberty of the person recent Strasbourg jurisprudence", International and Comparative Law Quarterly, Vol. 42, Part 3, July 1993.Return to Text 7 Judgment dated 22-2-1989, European Court of Human Rights, Ser. A, No. 148, para 44. Return to Text 8 D.K. Basu v. State of W.B., (1997) 1 SCC 416 Return to Text 9 Ibid., p. 438, para 42. Return to Text 10 (1965) IR 70 (122) Return to Text

11 (1972) IR 241 at p. 264 Return to Text 12 Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670 Return to Text 13 Jaundoo v. Attorney General of Guyana, 1971 AC 972Return to Text 14 Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670 at p. 680c-d. Return to Text 15 1994 NZLR 667 Return to Text 16 (1993) 2 SCC 746 Return to Text 17 Supra fn 5, p. 147, para 10. Return to Text 18 (1984) 1 SCC 200 Return to Text 19 Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 Return to Text 20 Ibid., pp. 186-87, para 12. Return to Text 21 Ibid., at pp. 187-88, para 13. Return to Text 22 M.C. Mehta v. Union of India, (1987) 1 SCC 395 Return to Text 23 Ibid., at p. 405. Return to Text 24 Ibid., at p. 408. Return to Text 25 Id. Return to Text 26 P&H High Court Bar Assn. v. State of Punjab, (1996) 4 SCC 742 Return to
Text

27 (1984) 3 SCC 82 Return to Text 28 (1985) 4 SCC 677 Return to Text 29 (1990) 1 SCC 422 Return to Text 30 Nilabati Behera v. State of Orissa, at p. 758, para 10.Return to Text 31 Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 Return to Text 32 Ibid., p. 761, para 14. Return to Text 33 Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42 Return to Text 34 D.K. Basu v. State of W.B., (1997) 1 SCC 416 Return to Text 35 Parmanand Katara v. Union of India, (1989) 4 SCC 286Return to Text 36 M.C. Mehta v. Union of India, (1987) 1 SCC 395 Return to Text 37 Common Cause v. Union of India, (1996) 6 SCC 593;Shiv Sagar Tiwari v. Union of India, (1996) 6 SCC 599Return to Text 38 Nilabati Behera v. State of Orissa, (1993) 2 SCC 746;Death of Sawinder Singh Grover, In re, 1995 Supp (4) SCC 450; People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 433 Return to Text