This article was written by Reeti Tripathy a student of University Law College, Utkal University


The foundations of justice can be traced to the notions of social stability, interdependence between liberty-equality-fraternity, and inherent dignity. The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary era.

In the era of human rights consciousness, the habeas corpus writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability. The compensatory jurisprudence introduced by the Supreme Court of India by invoking the powers conferred under Article 32 of the Constitution of India gained tremendous importance in recent times due to the increase of the incidents of political anarchy, custodial torture, police lawlessness, illegal detentions, atrocities against women, hostilities in jails and other crucial human rights’ infringements.

Pecuniary compensation is a judicially recognised and an endorsed mode of enforcing fundamental rights by the courts of law for serving the lawful entitlements of persons on being victimized of crimes-offences-human rights’ abuse.

Traditional law of torts recognizes damages as a remedy that affirms rights, provides compensation, promotes deterrence, vindicates the citizens’ reliance on the sacrosanct nature of their fundamental rights and secures corrective justice. The Aristotelian theory of “corrective justice” requires the award of monetary compensation whenever one party ignores the limitations placed upon its behaviour with respect to another party.

International Recognition of the Right to Compensation-

A host of international covenants on human rights and the concern for effective implementation of them are radical and revolutionary steps towards the guarantee of liberty, equality and justice.

  • Article 8 of the Universal Declaration on Human Rights, 1948 recognizes the right to appropriate compensation.
  • Article 13 of the European Convention on Human Rights, 1950 provides the right for an effective remedy before national authorities for violations of human rights contained therein.
  • Article 9 (5) of the international Covenant on Civil and Political Rights, 1966: ‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’
  • Article 5, Para 5 of the American Convention on Human Rights, 1969: Right to Compensation which is enforceable by victims of arrest or detention.
  • Article 10 of the American Convention on Human Rights, 1969: Right to Compensation for miscarriage of justice.
  • Article 3 of the Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1984: Right to Compensation for wrongful conviction.
  • UN Declaration of Basic Principles of Justice for the Victims of Crime & Abuse of Power, 1985 provides  for:
  1. Access to justice and fair treatment;
  2. Restitution;
  3. Compensation; and
  4. Assistance.

Indian Constitutional Safeguards enshrining the Right to Effective Compensation-

The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the public interest and which presents protection as a shield. The compensation is available to a victim of State aggression under three heads of the Constitution of India, 1950:

  • Article 32: Right to Constitutional Remedies enforceable in  the Supreme Court of India;
  • Article 226: Right to effective remedy enforceable by the aggrieved citizens in the High Court of the States; and,
  • Article 300: Tortious liability of the State.

In addition to the existing provisions under the Indian Criminal Laws[1], a considerable importance was given in the Report of the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath on the need to provide “justice to victims of crime and abuse of power”. The report stated “medical justice to the Bhagalpur blinded victims”, “rehabilitative justice to the communal violence victims” and “compensatory justice to the Union Carbide victims” are examples of the liberal package of reliefs and remedies forged by the Apex Court.

The National Human Rights Commission and the State Human Rights Commissions can mark excellence in reinforcing statutory capabilities of laws and functions to provide interim compensa­tion to victims of human rights’ violations as against the State or public functionaries.

Judicial Response to the Right to Compensation (Constitutional Jurisprudence relating to Compensatory Justice)-

The legal dogmatics and reformative judicial precedents of the Judiciary prove to play a major role in enforcement of human rights and fundamental freedoms of individuals in the largest democracy of the world.

The breakthrough was achieved in Devaki Nanda v. State of Bihar[2]. Herein, the petitioner’s pension had been delayed for twelve years. “Exemplary costs” were awarded to the petitioner for ‘intentional, deliberate and motivated’ harassment of the petitioner.

In Khatri v. State of Bihar, [3] (the Bhagalpur Blinding Case), it was alleged that the police had blinded certain prisoners and that the State was liable to pay compensation to the victims.

Justice Verma enunciated that compensation under Articles 32 or 226 is a remedy available in public law, based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply.[4]

Even in Rudal Shah v. State of Bihar[5], the courts awarded compensation only after completely satisfying themselves that the authority blatantly exceeded their power and acted with utter disregard for law.[6] The Court referred to Article 9 (5) of the International Covenant on Civil and Political Rights, 1966, i.e.:

“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”;

to buttress its stance that award of compensation is not alien to the concept of enforcement of a guaranteed fundamental right.

In Sebastian Hongray v. Union of India,[7] the Supreme Court awarded compensation in respect of persons missing from army custody. The Court awarded Rs. 1 lakh to the widows as exemplary costs.

In Mohan Lal Sharma v. State of U. P., [8] it has been observed that the detenue is entitled to the right to monetary compensation under the patronage of Article 21 of the Constitution of India.[9]

Handcuffing has been held to mandate compensation as a consequence in the case of State of Maharashtra v. Patil.[10]

Reference to the said Article 9 (5) of the I.C.C.P.R. was again made by the Supreme Court in the case of D. K. Basu v. Union of India[11], wherein it was held that the pecuniary compensation was an appropriate, effective and sometimes, the only suitable remedy for redressal of grievances on human rights’ abuse, and thus, leaving the aggrieved at the mercy of remedies available in civil law, would hamper the Court’s role as the protector and custodian of the citizen’s indefeasible rights to an unacceptable degree.

In R. S. Sodhi v. State of U. P.[12], officials pulled out ten young Sikhs from a bus carrying Sikh pilgrims, took them to an adjoining jungle and shot them dead. However, the State was made liable for the compensation awarded to the petitioners. There have been several such cases, especially of army and custodial violence, where gross irregularities on the individual officer’s part went unpunished, and the State was made bound by law to pay the compensation.[13]

The reasons for the award of compensation for the violation of fundamental rights were expounded in Saheli v. Commissioner of Police, Delhi[14], wherein the Court held that an action for damages lies for bodily harm, including battery, assault, false imprisonment, physical injuries and death, since damages represented a solatium for mental pain, distress, indignity, loss of liberty and death.[15]

The jurisprudential reasoning behind the award of damages in cases of violations of fundamental rights was elucidated in Nilabati Behera v. State of Orissa[16], which can truly be considered as a landmark case in the development of law in this area. The Supreme Court laid down in lucid terms that Article 32 imposed obligation on the Court “to forge such new tools as may be necessary for doing complete justice and enforcing fundamental rights of the individuals having juristic personality”.

The Supreme Court has observed in M. C. Mehta v. Kamal Nath,[17] that it has power under Article 32 to award compensation to the victims of pollution. The damages were appropriated under:
a. damages for restoration of the environment and ecology;

  1. damages to those who may have suffered loss on account of the act of pollution;
  2. exemplary damages so that other people are detained from causing environmental pollution.

Dealing with the power of the Human Rights Commissions to award compensation under Section 18 (a) of the Protection of Human Rights Act, 1993, the Allahabad High Court in U. P. Power Corporation Ltd. v. National Human Rights Commission, [18] held that Commission has jurisdiction to recommend compensation as the Commission may consider necessary.


The penologists and criminologists define compensatory justice to be rehabilitative & restorative in nature and tendency. The right to compensation as an entitlement to guarantee the enforcement of other fundamental freedoms and human rights enshrined in constitutional & statutory laws of the nation covers within its ambit the concepts of restoration, restitution, rehabilitation and correction. The right to compensation remains rudimentary to the justice delivery mechanism to the victims of crimes and abuse of power. The constitutional and human rights’ jurisprudence relating to the elementary right to compensation is praise-worthy and elucidates the intellectual-legal-logical gymnastics of the principles of the rule of law with the changing modalities of administration & its mounting oppression.

[1] See Sections 357, 357A, 357B, 357C, 358 of the Code of Criminal Procedure, 1973.

[2] AIR 1983 SC 1134.

[3] AIR 1981 SC 928 : (1981) 1 SCC 627.

[4] See also People’s Union for Democratic Rights v. State of Bihar, AIR 1987 SC 355; M. C. Mehta v. Union of India, AIR 1987 SC 1086.

[5] AIR 1983 SC 1086 : (1983) 4 SCC 141.

[6] Reference has already been made to Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988.

[7] AIR 1984 SC 571.

[8] (1989) 2 SCC 314 : 1989 SCC (Cri.) 434.

[9] See also Rajasthan Kisan Sangathan v. State of Rajasthan, AIR 1989 Raj. 10.

[10] (1991) 2 SCC 373.

[11] AIR 1997 SC 610, 624.

[12] (1991) 2 SCC 463.

[13] See Bacha Bora v. State of Assam, 1991 Cri. L. J. 2782; Smt. Purnima Barua v. Union of India, 1991 Cri. L. J, 2675.

[14] AIR 1990 SC 516 : (1990) 1 SCC 422.

[15] See also Padmini v. State of Tamil Nadu, 1993 Cri. L. J. 2964.

[16] AIR 1993 SC 1960.

[17] AIR 2000 SC 1997 2003.

[18] AIR 2010 AII 139.

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