Compensatory Jurisprudence)
Role
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Name
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Affiliation
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Principal Investigator
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Dr.Gyanendra Kumar sahu
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Asst.Professor Utkal University
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Content Reviewer
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Dr.Gyanendra Kumar sahu
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Asst.Professor Utkal University
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Description of Module
Items
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Description of Module
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Subject Name
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Law
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Paper Name
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Social Transformation and Social Engineering
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Module Name /Title
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Compensatory Jurisprudence
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Module No.
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XI
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(Compensatory Jurisprudence)
As
you are aware by now, there is no meaning of right if no remedy is provided for
its infringement. Preamble of the Constitution of India, which is a part of the
basic structure of the Constitution, secures to all of its citizens
"Justice". It is, therefore, the duty of State to ensure justice to
all. If there is infringement of fundamental rights then right to claim
compensation is secured by the right infringed. This right is specifically
provided under Articles 32 of the Constitution. Article 32( 1 ) provides for
the right to move the Supreme Court. Further, Article
226
provides for similar right to move the High Court by appropriate proceedings
for the enforcement of the fundamental rights. The Supreme Court under Article
32(2) is free to devise any procedure for the enforcement of fundamental right
and it has the power to issue any process necessary in a given case. In view of
this constitutional provision, the Supreme Court may even give remedial
assistance, which may include compensation in "appropriate cases".
A
question regarding awarding of monetary compensation through writ jurisdiction
was first raised before the Supreme Court in Khatri (11) v State
of Bihar (1981, p.627). In this case, Bhagwati, J.
observed: "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?"
Regarding
the liability of the State to pay compensation for infringing Article 2 1, the
Court answered in the affirmative saying that if it were not so, Article 21
will be denuded of its significant content.
The
seed of compensation for infraction of the rights implicit in Article 21 was
first sowed in Khatri case, which sprouted with such a vigorous growth that it
finally enabled the Court to hold the State liable to pay compensation. This
dynamic move of the Supreme Court resulted in the cry: gence of compensatory
jurisprudence for the violation of right to personal liberty through Rudul
Sah case. The Supreme Court of India, in Rudul Sah v State
of Bihar (1983, p.141). brought about a revolutionary breakthrough in human
rights jurisprudence by granting monetary compensation of Rs.30,000 to an
unfortunate victim of State lawlessness on the part of the Bihar Government for
keeping him in illegal detention for over 14 years even after his acquittal of
a murder charge.
"It
may be mentioned straight away that award of compensation in a proceeding under
Article 32 by this Court or by the High Court under Article 226 of the
Constitution is a remedy available in public law, based on strict liability for
contravention of fundamental rights to which the principle of sovereig~im
munity(state cannot commit a legal wrong)
does not apply, even though it may be available as a defence in private
law in an action based on tort." In this case. the son of petitioner was
arrested by the police and next morning his body was found laying down with
several injuries on the railway track. The Hon'ble Supreme Court awarded the
compensation of Rs. 1,50,000 to be paid by the state.
The
case of Bhim Singh v State of J & K (1986, p.494) is
another important case where Bhim Singh, an MLA, was arrested by the police
only to prevent him to attend the Legislative Assembly. The Hon'ble Court not
only entertained the writ petition of his wife but also awarded the
compensation of Rs.50,000 to be paid by the State. The case of Meja Singh v
SHO Police Station Zira (1991, p.439) is another case where High Court
of P & H took the cause of victim and awarded the compensation of Rs.25,000
for illegal detention of son of the petitioner.
Use
of force and misuse of authority by the police on people not in their custody
is another instance where gross violation of basic rights of people was
reported. In the case of Saheli v Commissioner of Police (1990,
p.5 13), the son of Kamlesh Kumari died due to ill-treatment by an S.I. of
Delhi Police. The Hon'ble Supreme Court directed the Delhi Administration to
pay the compensation of Rs.75'000. Another important case is of Gudalure M.
J. Cherian and Ors. v Union Of India (UOI) and Ors. (1992)
where the Hon'ble Supreme Court directed the Govt. of
U.P.
to first suspend the police officials and medical officers who tried to save
the accused and pay compensation of Rs. 2,50,000 to thk victim of rape
and Rs. 1,00,000 to victim of other crime.
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