IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 5703/2012
(Arising out of SLP (C) No. 34702 of 2010)
Dr. Mehmood Nayyar Azam ….. Appellant
Versus
State of Chattisgarh and Ors. … Respondents
J U D G M E N T
Dipak Misra, J
Leave granted.
2. Albert Schweitzer, highlighting on Glory of Life, pronounced with
conviction and humility, “the reverence of life offers me my fundamental
principle on morality”. The aforesaid expression may appear to be an
individualistic expression of a great personality, but, when it is
understood in the complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the fundamental perception of
a thinker about the respect that life commands. The reverence of life is
insegragably associated with the dignity of a human being who is basically
divine, not servile. A human personality is endowed with potential
infinity and it blossoms when dignity is sustained. The sustenance of such
dignity has to be the superlative concern of every sensitive soul. The
essence of dignity can never be treated as a momentary spark of light or,
for that matter, ‘a brief candle’, or ‘a hollow bubble’. The spark of life
gets more resplendent when man is treated with dignity sans humiliation,
for every man is expected to lead an honourable life which is a splendid
gift of “creative intelligence”. When a dent is created in the reputation,
humanism is paralysed. There are some megalomaniac officers who conceive
the perverse notion that they are the `Law’ forgetting that law is the
science of what is good and just and, in very nature of things, protective
of a civilized society. Reverence for the nobility of a human being has to
be the corner stone of a body polity that believes in orderly progress.
But, some, the incurable ones, become totally oblivious of the fact that
living with dignity has been enshrined in our Constitutional philosophy and
it has its ubiquitous presence, and the majesty and sacrosanctity dignity
cannot be allowed to be crucified in the name of some kind of police
action.
3. The aforesaid prologue gains signification since in the case at hand,
a doctor, humiliated in custody, sought public law remedy for grant of
compensation and the High Court, despite no factual dispute, has required
him to submit a representation to the State Government for adequate relief
pertaining to grant of compensation after expiry of 19 years with a further
stipulation that if he is aggrieved by it, he can take recourse to
requisite proceedings available to him under law. We are pained to say
that this is not only asking a man to prefer an appeal from Caesar to
Caesar’s wife but it also compels him like a cursed Sisyphus to carry the
stone to the top of the mountain wherefrom the stone rolls down and he is
obliged to repeatedly perform that futile exercise.
4. The factual matrix as uncurtained is that the appellant, an Ayurvedic
Doctor with B.A.M.S. degree, while practising in West Chirmiri Colliery,
Pondi area in the State of Chhattisgarh, used to raise agitations and
spread awareness against exploitation of people belonging to weaker and
marginalized sections of the society. As a social activist, he ushered in
immense awareness among the down-trodden people which caused discomfort to
the people who had vested interest in the coal mine area. The powerful
coal mafia, trade union leaders, police officers and other persons who had
fiscal interest felt disturbed and threatened him with dire consequences
and pressurized him to refrain from such activities. Embedded to his
committed stance, the petitioner declined to succumb to such pressure and
continued the activities. When the endeavor failed to silence and stifle
the agitation that was gaining strength and momentum, a consorted maladroit
effort was made to rope him in certain criminal offences.
5. As the factual narration further unfolds, in the initial stage, cases
under Section 110/116 of the Criminal Procedure Code were initiated and
thereafter crime No. 15/92 under Section 420 of the Indian Penal Code (for
short ‘the IPC’) and crime No. 41/92 under Sections 427 and 379 of the
IPC were registered. As the activities gathered further drive and became
more pronounced, crime No. 62/90 was registered for an offence punishable
under Section 379 of the IPC for alleged theft of electricity. In the said
case, the appellant was taken into custody.
6. Though he was produced before the Magistrate on 22.9.1992 for
judicial remand and was required to be taken to Baikunthpur Jail, yet by
the time the order was passed, as it was evening, he was kept in the lock
up at Manendragarh Police Station. On 24.9.1992, he was required to be
taken to jail but instead of being taken to the jail, he was taken to Pondi
Police Station at 9.00 a.m. At the police station, he was abused and
assaulted. As asseverated, the physical assault was the beginning of ill-
treatment. Thereafter, the SHO and ASI, the respondent Nos. 4 and 5, took
his photograph compelling him to hold a placard on which it was written :-
“Main Dr. M.N. Azam Chhal Kapti Evam Chor Badmash Hoon”. (I, Dr.
M. N. Azam, am a cheat, fraud, thief and rascal).
7. Subsequently, the said photograph was circulated in general public
and even in the revenue proceeding, the respondent No. 7 produced the same.
The said atrocities and the torture of the police caused tremendous mental
agony and humiliation and, hence, the petitioner submitted a complaint to
the National Human Rights Commission who, in turn, asked the Superintendant
of Police, District Koria to submit a report. As there was no response
from the 2nd respondent the Commission again required him to look into the
grievances and take proper action. When no action was taken by the
respondent or the police, the petitioner was compelled to invoke the
extraordinary jurisdiction of the High Court of Judicature at Bilaspur,
Chattisgarh with a prayer for punishing the respondent Nos. 4, 5 & 7 on the
foundation that their action was a complete transgression of human rights
which affected his fundamental right especially his right to live with
dignity as enshrined under Article 21 of the Constitution. In the Writ
Petition, prayer was made for awarding compensation to the tune of Rs. 10
lakhs.
8. After the return was filed, the learned single Judge passed a
detailed order on 3.1.2003 that the Chief Secretary and the Director
General of Police should take appropriate steps for issue of direction to
the concerned authorities to take appropriate action in respect of the
erring officers. Thereafter, some developments took place and on
24.3.2005, the Court recorded that the writ petitioner was arrested on
22.9.1992 and his photograph was taken at the police station. The learned
single Judge referred to Rule 1 of Regulation 92 of Chhattisgarh Police
Regulations which lays down that no Magistrate shall order photograph of a
convict or other person to be taken by the police for the purpose of
Identification under Prisoners Act, 1920, unless he is satisfied that such
photograph is required for circulation to different places or for showing
it for the purpose of identification to a witness who cannot easily be
brought to a test identification at the place where the investigation is
conducted or that photograph is required to be preserved as a permanent
record. Thereafter, the learned single Judge proceeded to record that not
only the photograph of the writ petitioner had been taken with the placard
but had also been circulated which had caused great mental agony and trauma
to his school going children. Thereafter, he referred to Regulation 737 of
the Chhattisgarh Police Regulations which relates to action to be taken by
the superior officer in respect of an erring officer who ill-treats an
accused.
9. After referring to various provisions, the learned single Judge
called for a report from the Chief Secretary. On 18.11.2005, the Court was
apprised that despite several communications, the Chief Secretary had not
yet sent the report. Eventually, the report was filed stating that the
appellant was involved in certain cases including grant of bogus medical
certificate and regard being had to the directions issued in 1992 that the
photograph of the offender should be kept on record, the same was taken and
affixed against his name and after 7.9.1992, it was removed from the
records. It was also stated that the Sub-Inspector had been imposed
punishment of “censure” by the Superintendent of Police on 19.11.2001. It
was also set forth that on 3.5.2003, a charge-sheet was served on all the
erring officers and a departmental enquiry was held and in the ultimate
eventuate, they had been imposed major penalty of withholding of one annual
increment with cumulative effect for one year commencing 27.5.2004. That
apart, on 19.7.2005, a case had been registered under Section 29 of the
Police Act against the erring officers.
10. It is apt to note here that when the matter was listed for final
hearing for grant of compensation, the learned single Judge referred the
matter to be heard by a Division Bench.
11. The Division Bench referred to the prayer clause and various orders
passed by the learned single Judge and eventually directed the appellant to
submit a representation to the Chief Secretary for grant of compensation.
We think it appropriate to reproduce the relevant paragraphs of the order
passed by the Division Bench: -
“4. Learned counsel for the petitioner submits that during the
pendency of the writ petition, Relief Clause No. 7.3 was
fulfilled under the directions of this court and now only the
compensation part, as claimed in Relief Clause No. 7.5A,
remained there.
5. In the instant case, it is an admitted position that the
respondent State authorities have taken cognizance of the
harassment meted out to the petitioner by the erring personnel
of the police department and initiated departmental enquiry
against them in which they were found guilty and punishment has
also been awarded to them.”
12. After issuing notice, this Court, on 17.2.2012, thought it apposite
that the appellant should submit a representation within a week which shall
be considered by the respondents within four weeks therefrom.
13. In pursuance of the aforesaid order, the appellant submitted a
representation which has been rejected on 19.3.2012 by the OSD/Secretary,
Government of Chhattisgarh, Home (Police) Department. In the rejection
order, it has been stated as follows: -
“In the aforesaid cases, the arrest and the action
regarding submission of chargesheet in the Hon’ble Court was in
accordance with law.
(2) On 24.9.92 the police officers taking your photograph and
writing objectionable words thereon was against the legal
procedure. Considering this, action was taken against the
concerned guilty police officers in accordance with law and two
police officers were punished.
(3) In your representation, compensation has been demanded on
the following two grounds:
A. Defamation was caused due to the police officers taking
photograph.
B. Your wife became unwell mentally. She is still unwell.
C. Difficulty in marriage of daughter.
Regarding the aforesaid grounds, the actual position is as
follows:
A. Defamation is such a subject, the decision on which is
within jurisdiction of the competent court. No decision
pertaining to defamation has been received from the court
of competent jurisdiction. Therefore, it would not be
proper for the State Government to take a decision in this
regard.
B. Regarding mental ailment of your wife, no such basis has
been submitted by you, on the basis of which any conclusion
may be drawn.
C. On the point of there being no marriage of children also
no such document or evidence has been produced by you
before the Government along with the representation, on the
basis of which any decision may be taken.
Therefore, in the light of the above, the State Government
hereby rejects your representation and accordingly decides your
representation.”
14. Mr. Niraj Sharma, learned counsel appearing for the appellant,
submitted that when the conclusion has been arrived at that the appellant
was harassed at the hands of the police officers and in the departmental
enquiry they have been found guilty and punished, just compensation should
have been awarded by the High Court. It is further urged by him that this
Court had directed to submit a representation to grant an opportunity to
the functionaries of the State to have a proper perceptual shift and
determine the amount of compensation and grant the same, but the attitude
of indifference reigned supreme and no fruitful result ensued. It is
canvassed by him that it would not only reflect the non-concern for a
citizen who has been humiliated at the police station, but, the manner in
which the representation has been rejected clearly exhibits the imprudent
perception and heart of stone of the State. It is argued that the reasons
ascribed by the State authority that defamation is such a subject that the
issue of compensation has to be decided by the competent court and in the
absence of such a decision, the Government cannot take a decision as
regards the compensation clearly reflects the deliberate insensitive
approach to the entire fact situation inasmuch as the High Court, in
categorical terms, had found that the allegations were true and the
appellant was harassed and thereby it did tantamount to custodial torture
and there was no justification to adopt a hyper-technical mode to treat it
as a case of defamation in the ordinary sense of the term and requiring the
appellant to take recourse to further adjudicatory process and obtain a
decree from the civil court.
15. Mr. Atul Jha, learned counsel appearing for the State, has supported
the order of the High Court as well as the order passed by the competent
authority of the State who has rejected the representation on the
foundation that when the appellant puts forth a claim for compensation on
the ground of defamation, he has to take recourse to the civil court and,
therefore, no fault can be found with the decision taken either by the High
Court or the subsequent rejection of the representation by the authority of
the State.
16. The learned counsel appearing for the private respondents has
submitted that they have already been punished in a disciplinary proceeding
and, therefore, the question of grant of compensation does not arise and
even if it emerges, the same has to be determined by the civil court on the
base of evidence adduced to establish defamation.
17. At the very outset, we are obliged to state that five aspects are
clear as day and do not remotely admit of any doubt. First, the appellant
was arrested in respect of the alleged offence under Indian Penal Code,
1860 and the Electricity Act, 2003; second, there was a direction by the
Magistrate for judicial remand and thereafter instead of taking him to jail
the next day he was brought to the police station; third, self-humiliating
words were written on the placard and he was asked to hold it and
photographs were taken; and fourth, the photographs were circulated in
general public and were also filed by one of the respondents in a revenue
proceeding; and five, the High Court, in categorical terms, has found that
the appellant was harassed.
18. In the aforesaid backdrop, the singular question required to be posed
is that whether the appellant should be asked to initiate a civil action
for grant of damages on the foundation that he has been defamed or this
Court should grant compensation on the bedrock that he has been harassed in
police custody.
19. At this juncture, it is condign to refer to certain authorities in
the field. In D.K. Basu v. State of W.B.[1] it has been held thus: -
“10. “Torture” has not been defined in the Constitution or in
other penal laws. “Torture” of a human being by another human
being is essentially an instrument to impose the will of the
“strong” over the “weak” by suffering. The word torture today
has become synonymous with the darker side of human
civilization.
“Torture is a wound in the soul so painful that
sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is
anguish squeezing in your chest, cold as ice and heavy as a
stone, paralyzing as sleep and dark as the abyss. Torture
is despair and fear and rage and hate. It is a desire to
kill and destroy including yourself.”
- Adriana P. Bartow
11. No violation of any one of the human rights has been the
subject of so many Conventions and Declarations as “torture” –
all aiming at total banning of it in all forms, but in spite of
the commitments made to eliminate torture, the fact remains that
torture is more widespread now than ever before. “Custodial
torture” is a naked violation of human dignity and degradation
which destroys, to a very large extent, the individual
personality. It is a calculated assault on human dignity and
whenever human dignity is wounded, civilization takes a step
backward – flag of humanity must on each such occasion fly half-
mast.
12. In all custodial crimes what is of real concern is not
only infliction of body pain but the mental agony which a person
undergoes within the four walls of police station or lock-up.
Whether it is physical assault or rape in police custody, the
extent of trauma, a person experiences is beyond the purview of
law.”
20. We have referred to the aforesaid paragraphs to highlight that this
Court has emphasized on the concept of mental agony when a person is
confined within the four walls of police station or lock-up. Mental agony
stands in contradistinction to infliction of physical pain. In the said
case, the two-Judge Bench referred to Article 5 of the Universal
Declaration of Human Rights, 1948 which provides that “No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment”. Thereafter, the Bench adverted to Article 21 and proceeded to
state that the expression “life or personal liberty” has been held to
include the right to live with human dignity and thus, it would also
include within itself a guarantee against torture and assault by the State
or its functionaries. Reference was made to Article 20(3) of the
Constitution which postulates that a person accused of an offence shall not
be compelled to be a witness against himself.
21. It is worthy to note that in the case of D.K. Basu (supra), the
concern shown by this Court in Joginder Kumar v. State of U.P.[2] was taken
note of. In Joginder Kumar’s case, this Court voiced its concern regarding
complaints of violation of human rights during and after arrest. It is apt
to quote a passage from the same: -
“The horizon of human rights is expanding. At the same
time, the crime rate is also increasing. Of late, this Court
has been receiving complaints about violations of human rights
because of indiscriminate arrests. How are we to strike a
balance between the two?
A realistic approach should be made in this direction.
The law of arrest is one of balancing individual rights,
liberties and privileges, on the one hand, and individual
duties, obligations and responsibilities on the other; of
weighing and balancing the rights, liberties and privileges of
the single individual and those of individuals collectively; of
simply deciding what is wanted and where to put the weight and
the emphasis; of deciding which comes first – the criminal or
society, the law violator or the law abider…”
22. After referring to the case of Joginder Kumar (supra), A.S. Anand, J.
(as his Lordship then was), dealing with the various facets of Article 21,
stated that any form of torture or cruel, inhuman or degrading treatment
would fall within the ambit of Article 21 of the Constitution, whether it
occurs during investigation, interrogation or otherwise. If the
functionaries of the Government become law-breakers, it is bound to breed
contempt for law and would encourage lawlessness and every man would have
the tendency to become law unto himself thereby leading to anarchy. No
civilized nation can permit that to happen, for a citizen does not shed off
his fundamental right to life, the moment a policeman arrests him. The
right to life of a citizen cannot put in abeyance on his arrest. The
precious right guaranteed by Article 21 of the Constitution of India cannot
be denied to convicts, undertrials, detenus and other prisoners in custody,
except according to the procedure established by law by placing such
reasonable restrictions as are permitted by law.
23. At this juncture, it becomes absolutely necessary to appreciate what
is meant by the term “harassment”. In P. Ramanatha Aiyar’s Law Lexicon,
Second Edition, the term “harass” has been defined, thus: -
“Harass. “injure” and “injury” are words having numerous and
comprehensive popular meanings, as well as having a legal
import. A line may be drawn between these words and the word
“harass” excluding the latter from being comprehended within the
word “injure” or “injury”. The synonyms of “harass” are: To
weary, tire, perplex, distress tease, vex, molest, trouble,
disturb. They all have relation to mental annoyance, and a
troubling of the spirit.”
The term “harassment” in its connotative expanse includes torment and
vexation. The term “torture” also engulfs the concept of torment. The
word “torture” in its denotative concept includes mental and psychological
harassment. The accused in custody can be put under tremendous
psychological pressure by cruel, inhuman and degrading treatment.
24. At this juncture, we may refer with profit to a two-Judge Bench
decision in Sunil Gupta and others v. State of Madhya Pradesh and
others[3]. The said case pertained to handcuffing where the accused while
in judicial custody were being escorted to court from jail and bound in
fetters. In that context, the Court stated that the escort party should
record reasons for doing so in writing and intimate the court so that the
court, considering the circumstances may either approve or disapprove the
action of the escort party and issue necessary directions. The Court
further observed that when the petitioners who had staged ‘Dharna’ for
public cause and voluntarily submitted themselves for arrest and who had no
tendency to escape, had been subjected to humiliation by being handcuffed,
such act of the escort party is against all norms of decency and is in
utter violation of the principle underlying Article 21 of the Constitution
of India. The said act was condemned by this Court to be arbitrary and
unreasonably humiliating towards the citizens of this country with the
obvious motive of pleasing ‘someone’.
25. In Bhim Singh, MLA v. State of J & K[4], this Court expressed the
view that the police officers should have greatest regard for personal
liberty of citizens as they are the custodians of law and order and, hence,
they should not flout the law by stooping to bizarre acts of lawlessness.
It was observed that custodians of law and order should not become
depredators of civil liberties, for their duty is to protect and not to
abduct.
26. It needs no special emphasis to state that when an accused is in
custody, his Fundamental Rights are not abrogated in toto. His dignity
cannot be allowed to be comatosed. The right to life is enshrined in
Article 21 of the Constitution and a fortiorari, it includes the right to
live with human dignity and all that goes along with it. It has been so
stated in Francis Coralie Mullin v. Administrator, Union Territory of Delhi
and others[5] and D.K. Basu (supra).
27. In Kharak Singh v. State of U. P.,[6] this court approved the
observations of Field, J. in Munn v. Illinois[7]:-
“By the term “life” as here [Article 21] used something more is
meant than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which
life is enjoyed.”
28. It is apposite to note that inhuman treatment has many a facet. It
fundamentally can cover such acts which have been inflicted with an
intention to cause physical suffering or severe mental pain. It would also
include a treatment that is inflicted that causes humiliation and compels a
person to act against his will or conscience.
29. In Arvinder Singh Bagga v. State of U.P. and others[8], it has been
opined that torture is not merely physical but may even consist of mental
and psychological torture calculated to create fright to submit to the
demands of the police.
30. At this stage, it is seemly to refer to the decisions of some of the
authorities relating to a man’s reputation which forms a facet of right to
life as engrafted under Article 21 of the Constitution.
31. In Smt. Kiran Bedi v. Committee of Inquiry and another[9], this Court
reproduced an observation from the decision in D. F. Marion v. Davis[10]:-
“The right to enjoyment of a private reputation, unassailed by
malicious slander is of ancient origin, and is necessary to
human society. A good reputation is an element of personal
security, and is protected by the Constitution equally with the
right to the enjoyment of life, liberty and property.”
32. In Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and others[11], it has been ruled that right to
reputation is a facet of right to life of a citizen under Article 21 of the
Constitution.
33. In Smt. Selvi and others v. State of Karnataka[12], while dealing
with the involuntary administration of certain scientific techniques,
namely, narcoanalysis, polygraph examination and the Brain Electrical
Activation Profile test for the purpose of improving investigation efforts
in criminal cases, a three-Judge Bench opined that the compulsory
administration of the impugned techniques constitute ‘cruel, inhuman or
degrading treatment’ in the context of Article 21. Thereafter, the Bench
adverted to what is the popular perception of torture and proceeded to
state as follows: -
“The popular perceptions of terms such as ‘torture’ and ‘cruel,
inhuman or degrading treatment’ are associated with gory images
of blood-letting and broken bones. However, we must recognize
that a forcible intrusion into a person’s mental processes is
also an affront to human dignity and liberty, often with grave
and long-lasting consequences. [A similar conclusion has been
made in the following paper: Marcy Strauss, ‘Criminal Defence in
the Age of Terrorism – Torture’, 48 New York Law School Law
Review 201-274 (2003/2004)].”
After so stating, the Bench in its conclusion recorded as follows: -
“We have also elaborated how the compulsory administration of
any of these techniques is an unjustified intrusion into the
mental privacy of an individual. It would also amount to
‘cruel, inhuman or degrading treatment’ with regard to the
language of evolving international human rights norms.”
34. Recently in Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath
Agrawal[13], although in a different context, while dealing with the aspect
of reputation, this Court has observed as follows: -
“……..reputation which is not only the salt of life, but also the
purest treasure and the most precious perfume of life. It is
extremely delicate and a cherished value this side of the grave.
It is a revenue generator for the present as well as for the
posterity.”
35. We have referred to these paragraphs to understand how with the
efflux of time, the concept of mental torture has been understood
throughout the world, regard being had to the essential conception of human
dignity.
36. From the aforesaid discussion, there is no shadow of doubt that any
treatment meted to an accused while he is in custody which causes
humiliation and mental trauma corrodes the concept of human dignity. The
majesty of law protects the dignity of a citizen in a society governed by
law. It cannot be forgotten that the Welfare State is governed by rule of
law which has paramountcy. It has been said by Edward Biggon “the laws of
a nation form the most instructive portion of its history.” The
Constitution as the organic law of the land has unfolded itself in manifold
manner like a living organism in the various decisions of the court about
the rights of a person under Article 21 of the Constitution of India. When
citizenry rights are sometimes dashed against and pushed back by the
members of City Halls, there has to be a rebound and when the rebound takes
place, Article 21 of the Constitution springs up to action as a protector.
That is why, an investigator to a crime is required to possess the
qualities of patience and perseverance as has been stated in Nandini
Sathpaty v. P. L. Dani[14].
37. In Delhi Judicial Services Association v. State of Gujarat[15], while
dealing with the role of police, this Court condemned the excessive use of
force by the police and observed as follows:-
“The main objectives of police is to apprehend offenders, to
investigate crimes and to prosecute them before the courts and
also to prevent commission of crime and above all to ensure law
and order to protect citizens’ life and property. The law
enjoins the police to be scrupulously fair to the offender and
the Magistracy is to ensure fair investigation and fair trial to
an offender. The purpose and object of Magistracy and police
are complementary to each other. It is unfortunate that these
objectives have remained unfulfilled even after 40 years of our
Constitution. Aberrations of police officers and police
excesses in dealing with the law and order situation have been
subject of adverse comments from this Court as well as from
other courts but it has failed to have any corrective effect on
it. The police has power to arrest a person even without
obtaining a warrant of arrest from a court. The amplitude of
this power casts an obligation on the police and it must bear in
mind, as held by this Court that if a person is arrested for a
crime, his constitutional and fundamental rights must not be
violated.”
38. It is imperative to state that it is the sacrosanct duty of the
police authorities to remember that a citizen while in custody is not
denuded of his fundamental right under Article 21 of the Constitution. The
restrictions imposed have the sanction of law by which his enjoyment of
fundamental right is curtailed but his basic human rights are not crippled
so that the police officers can treat him in an inhuman manner. On the
contrary, they are under obligation to protect his human rights and prevent
all forms of atrocities. We may hasten to add that a balance has to be
struck and, in this context, we may fruitfully quote a passage from D. K.
Basu (supra): -
“There can be no gainsaying that freedom of an individual must
yield to the security of the State. The right of preventive
detention of individuals in the interest of security of the
State in various situations prescribed under different statutes
has been upheld by the Courts. The right to interrogate the
detenus, culprits or arrestees in the interest of the nation,
must take precedence over an individual’s right to personal
liberty. …….…The action of the State, however, must be “right,
just and fair”. Using any form of torture for extracting any
kind of information would neither be ‘right nor just nor fair’
and, therefore, would be impermissible, being offensive to
Article 21. Such a crime-suspect must be interrogated-indeed
subjected to sustain and scientific interrogation-determined in
accordance with the provisions of law. He cannot, however, be
tortured or subjected to third degree methods or eliminated with
a view to elicit information, extract confession or derive
knowledge about his accomplishes, weapons etc. His
constitutional right cannot be abridged except in the manner
permitted by law, though in the very nature of things there
would be qualitative difference in the method of interrogation
of such a person as compared to an ordinary criminal.”
39. In the case at hand, the appellant, while in custody, was compelled
to hold a placard in which condemning language was written. He was
photographed with the said placard and the photograph was made public. It
was also filed in a revenue proceeding by the 7th respondent. The High
Court has recorded that the competent authority of the State has conducted
an enquiry and found the erring officers to be guilty. The High Court has
recorded the findings in the favour of the appellant but left him to submit
a representation to the concerned authorities. This Court, as has been
indicated earlier, granted an opportunity to the State to deal with the
matter in an appropriate manner but it rejected the representation and
stated that it is not a case of defamation. We may at once clarify that we
are not at all concerned with defamation as postulated under Section 499 of
the IPC. We are really concerned how in a country governed by rule of law
and where Article 21 of the Constitution is treated to be sacred, the
dignity and social reputation of a citizen has been affected.
40. As we perceive, from the admitted facts borne out on record, the
appellant has been humiliated. Such treatment is basically inhuman and
causes mental trauma. In “Kaplan & Sadock’s Synopsis of Psychiatry”,
while dealing with torture, the learned authors have stated that
intentional physical and psychological torture of one human by another can
have emotionally damaging effects comparable to, and possibly worse than,
those seen with combat and other types of trauma. Any psychological
torture inflicts immense mental pain. A mental suffering at any age in
life can carry the brunt and may have nightmarish effect on the victim.
The hurt develops a sense of insecurity, helplessness and his self-respect
gets gradually atrophied. We have referred to such aspects only to
highlight that in the case at hand, the police authorities possibly have
some kind of sadistic pleasure or to “please someone” meted the appellant
with this kind of treatment. It is not to be forgotten that when dignity
is lost, the breath of life gets into oblivion. In a society governed by
rule of law where humanity has to be a laser beam, as our compassionate
constitution has so emphasized, the police authorities cannot show the
power or prowess to vivisect and dismember the same. When they pave such
path, law cannot become a silent spectator. As Pithily stated in Jennison
v. Baker[16]:-
“The law should not be seen to sit by limply, while those who
defy if go free, and those who seek its protection lose hope.”
41. Presently, we shall advert to the aspect of grant of compensation.
The learned counsel for the State, as has been indicated earlier, has
submitted with immense vehemence that the appellant should sue for
defamation. Our analysis would clearly show that the appellant was
tortured while he was in custody. When there is contravention of human
rights, the inherent concern as envisaged in Article 21 springs to life and
enables the citizen to seek relief by taking recourse to public law remedy.
42. In this regard, we may fruitfully refer to Nilabati Behera v. State
or Orissa[17] wherein it has been held thus: -
“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. It is this
principle which justifies award of monetary compensation for
contravention of fundamental rights guaranteed by the
Constitution, when that is the only practicable mode of redress
available for the contravention made by the State or its
servants in the purported exercise of their powers, and
enforcement of the fundamental right is claimed by resort to the
remedy in public law under the Constitution by recourse to
Articles 32 and 226 of the Constitution.”
43. Dr. A.S. Anand J., (as his Lordship then was), in his concurring
opinion, expressed that the relief of monetary compensation, as exemplary
damages, in proceedings under Article 32 by the Supreme Court or under
Article 226 by the High Courts for established infringement of the
indefeasible right guaranteed under Article 21 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. The purpose of
public law is not only to civilize public power but also to assure the
citizen that they live under a legal system which aims to protect their
interests and preserve their rights. Therefore, when the court moulds the
relief by granting ‘compensation’ in proceedings under Article 32 or 226
seeking enforcement or protection of fundamental rights, it does so under
the public law by way of penalizing the wrongdoer and fixing the liability
for the public wrong on the State which has failed in its public duty to
protect the fundamental rights of the citizen. The payment of compensation
in such cases is not to be understood, as it is generally understood in a
civil action for damages under the private law but in the broader sense of
providing relief by an order of making ‘monetary amends’ under the public
law for the wrong done due to breach of public duty, by not protecting the
fundamental rights of the citizen. The compensation is in the nature of
‘exemplary damages’ awarded against the wrongdoer for the breach of its
public law duty and is independent of the rights available to the aggrieved
party to claim compensation under the private law in an action based on
tort, through a suit instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law.
44. In Sube Singh v. State of Haryana[18], a three-Judge Bench of the
Apex Court, after referring to its earlier decisions, has opined as
follows: -
“It is thus now well settled that award of compensation against
the State is an appropriate and effective remedy for redress of
an established infringement of a fundamental right under Article
21, by a public servant. The quantum of compensation will,
however, depend upon the facts and circumstances of each case.
Award of such compensation (by way of public law remedy) will
not come in the way of the aggrieved person claiming additional
compensation in a civil court, in enforcement of the private law
remedy in tort, nor come in the way of the criminal court
ordering compensation under Section 357 of Code of Civil
Procedure.”
45. At this stage, we may fruitfully refer to the decision in Hardeep
Singh v. State of Madhya Pradesh.[19] The appellant therein was engaged
in running a coaching centre where students were given tuition to prepare
for entrance test for different professional courses. On certain
allegation, he was arrested and taken to police station where he was
handcuffed by the police without there being any valid reason. A number of
daily newspapers published the appellant’s photographs and on seeing his
photograph in handcuffs, the appellant’s elder sister was so shocked that
she expired. After a long and delayed trial, the appellant, Hardeep Singh,
filed a writ petition before the High Court of Madhya Pradesh at Jabalpur
that the prosecution purposefully caused delay in conclusion of the trial
causing harm to his dignity and reputation. The learned single Judge, who
dealt with the matter, did not find any ground to grant compensation. On
an appeal being preferred, the Division Bench observed that an expeditious
trial ending in acquittal could have restored the appellant’s personal
dignity but the State instead of taking prompt steps to examine the
prosecution witnesses delayed the trial for five long years. The Division
Bench further held there was no warrant for putting the handcuffs on the
appellant which adversely affected his dignity. Be it noted, the Division
Bench granted compensation of Rs. 70,000/-. This Court, while dealing with
the facet of compensation, held thus:-
“Coming, however, to the issue of compensation, we find that in
light of the findings arrived at by the Division Bench, the
compensation of Rs. 70,000/- was too small and did not do
justice to the sufferings and humiliation undergone by the
appellant. In the facts and circumstances of the case, we feel
that a sum of Rs. 2,00,00/- (Rupees Two Lakhs) would be an
adequate compensation for the appellant and would meet the ends
of justice. We, accordingly, direct the State of Madhya Pradesh
to pay to the appellant the sum of Rs. 2,00,000/-(rupees Two
Lakhs) as compensation. In case the sum of Rs.70,000/- as
awarded by the High Court, has already been paid to the
appellant, the State would naturally pay only the balance amount
of Rs.1,30,000/- (Rupees One Lakh thirty thousand)”.
Thus, suffering and humiliation were highlighted and amount of compensation
was enhanced.
46. On a reflection of the facts of the case, it is luculent that the
appellant had undergone mental torture at the hands of insensible police
officials. He might have agitated to ameliorate the cause of the poor and
the downtrodden, but, the social humiliation that has been meted to him is
quite capable of destroying the heart of his philosophy. It has been said
that philosophy has the power to sustain a man’s courage. But courage is
based on self-respect and when self-respect is dented, it is difficult even
for a very strong minded person to maintain that courage. The initial
invincible mind paves the path of corrosion. As is perceptible, the mindset
of the protectors of law appears to cause torment and insult and tyrannize
the man who is helpless in custody. There can be no trace of doubt that he
is bound to develop stress disorder and anxiety which destroy the
brightness and strength of the will power. It has been said that anxiety
and stress are slow poisons. When torment is added, it creates commotion
in the mind and the slow poisons get activated. The inhuman treatment can
be well visualized when the appellant came out from custody and witnessed
his photograph being circulated with the self-condemning words written on
it. This withers away the very essence of life as enshrined under Article
21 of the Constitution. Regard being had to the various aspects which we
have analysed and taking note of the totality of facts and circumstances,
we are disposed to think that a sum of Rs.5.00 lacs (Rupees five lacs only)
should be granted towards compensation to the appellant and, accordingly,
we so direct. The said amount shall be paid by the respondent State within
a period of six weeks and be realized from the erring officers in equal
proportions from their salary as thought appropriate by the competent
authority of the State.
47. Consequently, the appeal is allowed to the extent indicated above.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
August 03, 2012.
-----------------------
[1] AIR 1997 SC 610 : (1997) 1 SCC 416
[2] (1994) 4 SCC 260
[3] [4] (1990) 3 SCC 119
[5] (1985) 4 SCC 677
[6] (1981) 1 SCC 608
[7] (1964) 1 SCR 332
[8] (1877) 94 US 113
[9] AIR 1995 SC 117
[10] (1989) 1 SCC 494
[11] 55 ALR 171
[12] (1983) 1 SCC 124
[13] AIR 2010 SC 1974
[14] 2012 (6) SCALE 190
[15] AIR 1978 SC 1025
[16] (1991) 4 SCC 406
[17] (1972) 1 All ER 997, 1006
[18] (1993) 2 SCC 746
[19] AIR 2006 SC 1117
[20] (2012) 1 SCC 748
