Compensation
NILABATI BEHERA V STATE OF ORISSA 1993 SCC 746
Nilabati Behera, a distressed mother, wrote a letter to the Supreme Court asking that she
be monetarily compensated for the death of her 22 year old son in police custody. She
said that her son, Suman Behera was beaten to death at a police post after being detained
in connection with a theft.
The Supreme Court immediately admitted a writ petition on her behalf and took up the
case. Rejecting the police version that Suman Behera was killed by a running train after
he escaped from police custody, the Court asserted that the post-mortem report clearly
showed that he died as a result of being beaten up. The question before the Court was
whether Nilabati Behera had a right to claim compensation for the wrongful acts of the
policemen who caused her sons death.
A. Supreme Court Observations
Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 lays
down that anyone who has been the victim of unlawful arrest or detention shall have an
1
enforceable right to compensation. This Covenant has been ratified by India, which
means that the State has undertaken to abide by its terms.
The Supreme Court asserted that convicts, prisoners or undertrials are not
denuded of their fundamental rights under Article 21 [Right to Life and Personal
Liberty] of the Constitution and there is a corresponding responsibility on the police and
prison authorities to make sure that persons in custody are not deprived of the Right to
Life.
The State has a duty of care to ensure that the guarantee of Article 21 is not
denied to anyone. This duty of care is strict and admits no exceptions the Court said. The
State must take responsibility by paying compensation to the near and dear ones of a
person, who has been deprived of her/ his life by the wrongful acts of its agents.
However, the Court affirmed that the State has a right to recover the compensation
amount from the wrongdoers.
They said that the purpose of law is not only to civilize public power but also to
assure people that they live under a legal system which protects their interests and
preserves their rights. Therefore the High Courts and the Supreme Court as protectors of
civil liberties not only have the power and jurisdiction but also the obligation to repair the
damage caused by officers of the State to fundamental rights of citizens.
1
Though India had expressed reservations to this particular article at the time of ratification, the
reservations have ceased to have meaning as an enforceable right to be compensation has come to be
accepted as a part of international customary law. Also the Supreme Court in various judgements even
before Nilabati Beheras case has upheld the right to be compensated for wrongful acts of State agents. See
Rudul Sah (1983) 4 SCC 141; Sebastian M. Hongray (1984) 1 SCC 339; Sebastian M. Hongray (II) (1984)
3 SCC 82; Bhim Singh (1985) 4 SCC 677; Ravikant S. Patil (1991) 2 SCC 373.
B. Supreme Court Directives
1. The State has an obligation to give compensation to a victim or to the heirs of a
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victim whose fundamental rights have been violated by its agents.
2. The State has a right to recover the compensation amount from the guilty
officials after appropriate proceedings or inquiry.
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3. An order of compensation by the State in a criminal case does not prevent the
victims or their heirs from claiming further compensation in a civil case [for
loss
of earning capacity].
its officers.5 Courts and human rights commissions regularly give directions to the government to monetarily compensate vic
2
This principle has been reaffirmed in D.K Basu v State of West Bengal AIR 1997 SC 610.
3
Section 357 (1) (b) of the Code of Criminal Procedure, 1973 [CrPC] also empowers criminal courts, at
the time of sentencing, to make the perpetrator pay a fine which may in whole or in part be paid to the
victim for any loss or injury caused by the offence committed.
4
Section 176 CrPC
5
In State of Maharashtra v Ravikant S. Patil 1991 SCC 373, the Supreme Court upheld the award of
compensation by the High Court for violation of the fundamental right to Life and Personal Liberty [Article
21of the Constitution] of an undertrial prisoner, who was handcuffed and taken through the streets in a
procession by the police.
