ORDER
V.V.S. Rao, J.
1.The fourth petitioner, Major P. Gopalakrishna, is father of petitioner Nos. 2 and 3. First petitioner is mother-in-law of fourth petitioner. One Smt. Savithri is wife of fourth petitioner and mother of petitioner Nos. 2 and 3. First petitioner is mother of Savithri Savithri died due to medical negligence of Respondent Nos. 2 and 3 herein. Therefore, present writ petition is filed seeking a declaration that the action of Respondent Nos. 2 and 3 in not properly conducting operation and not taking proper care as illegal, improper and arbitrary, and for a consequential direction to pay compensation of Rs. 20,00,000/-(Rupees twenty lakhs only) to petitioners and also direct first respondent to take appropriate action as per law against Respondent Nos. 2 and 3.
2. The fourth petitioner at the relevant time was serving Indian Army in the Organization of Chief Engineer, R&D.; He is a Commissioned Officer. Smt. Savithri was admitted to Military Hospital, Secunderabad, under care of respondent Nos. 2 and 3. Cystectomy surgery was performed on her on 26.11.1996 by the second Respondent, who is Obstetrician and Gynaecologist, and his Assistant Major Shyama Rao. After the operation the wound did not heel even after one month. Fourth petitioner requested the fourth respondent to send the patient to another hospital for second opinion. The same was rejected. On 11.12.1996 as recommended by Dr. Lieutenant Colonel Rakesh Mohan, Radiologist, ultrasound test was proposed. After doing ultrasound test it was found that there was heterogeneously enhancing hyperdense well defined mass lesion. The respondents did not make any efforts to identify the mass though temporarily post operative fever subsisted. Again on 1.1.1997 Savithri developed high fever. She was taken to a private hospital i.e., Apollo Hospital, and an explaratory laprotomy was done. Doctors at Apollo Hospital found that there was mop towel at the place where the surgery was done in November, 1996. Ultimately on 16.2.1997 Savithri died due to septicemia leaving her husband, minor daughter, and a daughter of marriageable age in lurch. Due to untimely death of Savithri, first petitioner lost only source of livelihood as she was depending on her. Though fourth petitioner incurred huge amounts for paying to hospital, the respondents did not reimburse the same nor did they give any compensation for death of Savithri, which resulted due to medical negligence on the part of respondent Nos. 2 to 4 herein. Therefore, present writ petition is filed.
3. The third respondent at the relevant time was Commandant of Military Hospital, Secunderabad, in which the second respondent was Obstetrician and Gynaecologist. Though specific allegations are made against Respondent Nos. 2 and 3 that they are negligent in treating Savithri, curiously it 4s the third respondent who has filed counter-affidavit on behalf of all the respondents. It is curiousor that second respondent has not chosen to file any counter-affidavit denying allegations of negligence, nor counts-affidavit filed by third respondent refers to Court of Inquiry ordered against third respondent. Be that as it is, in the counter-affidavit filed by third respondent on behalf of all the respondents, while tracing the medical history of Savithri leading to her death, the allegations of negligence are denied. The allegation that Doctors acted in a careless manner leaving mop inside Savithri has been denied calling for strict proof by petitioners. The counter also denies that mop was left during surgery at Military Hospital, Secunderabad.
4. The petitioners filed a reply affidavit stating that respondent Nos. 2 and 3 should not have discharged Savithri as she was having post operative adverse symptoms, and also where the CT scan is showing mass lacier of 7.8 and 7.6 cms, that in spite of requests of family members of Savithri to refer her to a Specialist for second opinion, Col. M.N. Nath did not do so and no Specialist ever visited to examine the patient, that as Savithri suffering continuously, family members of Savithri admitted her in Apollo Hospital to save her life and that death of Savithri occurred due to mop (towel) that was left unattended by Respondent Nos. 2 and 3 during the operation.
5. When the matter was heard by this Court on 30.1.2003 it came to light that a Court of Inquiry was initiated against Respondent Nos. 2 and 3. Therefore, this Court directed learned Additional Central Government Standing Counsel (ACGSC) to produce record of Court of Inquiry. When the matter was heard by this Court on 7-7-2003, Sri B. Narayana Ready, learned ACGSC produced the record of Court of Inquiry. The matter was heard at length. Again it was adjourned to 14.7.2003 to enable the learned ACGSC to get instructions from the respondents as to payment of compensation and also reimbursement of medical bills paid by fourth petitioner. On 14.7.2003 when the case was called, though the case is an important case making serious allegations against Doctors at Military Hospital, Secunderabad, ACGSC did not appear and he has only deputed his Junior Sri Rakesh, who ignored the findings of Court of Inquiry and made submissions based on counter-affidavit filed by third respondent on behalf of all the respondents.
6. Sri K. Chaitanya, learned Counsel for the petitioners, submits that Respondent Nos. 2 and 3 failed to discharge their duty of care. Being professionals they did not even show care that is expected of such surgeons and therefore, they are guilty of medical negligence. By reason of negligence in treating Savithri, it is submitted, human right and fundamental right to life and liberty of Savithri guaranteed under Article 21 of the Constitution of India have been deprived resulting in her death. Therefore, the respondents are guilty of constitutional tort. He also submits that this Court in exercise of power under Article 226 of the Constitution in public law remedy can award compensation for violation of human rights and fundamental rights.
7. In the background of facts and circumstances, two questions that require consideration are--
(i) Whether respondent Nos. 2 and 3 are negligent in treating Savithri, and if so whether they and respondent Nos. 1, and 4 to 6 are vicariously liable for the negligence of Respondent Nos. 2 and 3 ?; and
(ii) Whether the petitioners are entitled for any compensation in public law remedy under Article 226 of the Constitution of India
In Re Point No. (i):
8. In the counter-affidavit filed by Brigadier S.S. Vatve (as he then was) all the allegations of negligence on the part of the respondents have been categorically denied. In fact, the blame is thrown on the Apollo Hospital. Third respondent, who filed a counter-affidavit on behalf of Respondents 1 to 6, even holds Appollo Hospital where wife of fourth petitioner breathed last, responsible to pay compensation for her death. When the matter was heard by this Court on 30.1.2003 it was brought to the notice of the Court that a Court of Inquiry was initiated against Respondents 2 and 3. Curiously the counter-affidavit does not refer to the same. The Record of Court of Inquiry is produced before me, which shows that the Court of Inquiry assembled for the first time on 27.11.1997. The counter-affidavit was filed sometime in November, 1997, but no reference is made to the Court of Inquiry.
9. This Court, having gone through the detailed proceedings before the Court of Inquiry running into 114 pages, is of considered opinion, the principle of res ipso loquitur [sic] must be applied to the facts of this case. The facts speak themselves that Respondent Nos. 2 and 3 are grossly negligent in dealing with their patient Smt. Savithri. Here I may refer to the opinion of the Court of Inquiry dated 16.12.1997 which is also accepted by General Officer Commanding of Andhra, Tamil Nadu, Kerala and Karnataka area (ATNKK) in his dispatch dated 12.5.1998 recommending disciplinary action against second respondent and censure against fourth respondent. The opinion of Court of Inquiry is as follows.
1. The wife of Major Gopalakrishna, Mrs. A.V. Savithri died due to the complications arising out of leaving a surgical mop in her abdomen during the surgery for ovarian cyst conducted at the Military Hospital, Secunderabad, on 26 November 1996. The ultimate cause of her death on 16th February, 1997 at Apollo Hospital, Hyderabad, was wide spread septicemia, acute respiratory distress, remain failure and finally cardiac arrest.
2. There were several lapses in the treatment of Mrs. Savithri Gopalakrishna while she was admitted at M.H., Secunderabad, from 19th November, 1996 to 23th December, 1996. They were--
(a) Leaving a surgical mop inside the abdomen of the patient while closing the operative wound.
(b) Not taking appropriate follow up measures despite the prolonged fever, the persistent discharge from the operative wound and the rare and disturbing indications in the CT scan report.
(c) Not probing the root cause of her problems with commitment and concern and also by consulting the specialists from within the Military Hospital and outside.
(d) Discharging the patient prematurely/not readmitting her when the problems persisted during the period she was treated as an out-patient.
3. The following are to be blamed for the lapses:
(a) Col. M.N. Nath, Senior-Advisor, Gynaecology, M.H. Secunderabad, for the lapses at para 2 above.
(b) Col. M.N. Nath is also to be blamed for concealing the information about detention of the mop of which he knew on 10th January, 1997 and for not going to the aid of the patient/her husband, knowing fully well that the root cause of her problems arose from the negligence during the initial operation.
(c) Brg. S.V. Vatve, Commandant, M.H., Secunderabad, has failed by not meticulously investigating the reported 'presence of cotton material in the abdomen of the patient' after the matter came to his knowledge, and by not initiating corrective measures.
(d) That Brg. S.V. Vatve adopted a rather rigid delaying and unhelpful attitude with regard to the referral of the case to Apollo Hospital/endorsement of the medical reimbursement claim, despite repeated pleas and in the face of the pitiable plight of the officer is also a failing on his part -all the more so when the genesis of the problem was the mishandling of the patient while admitted in the hospital commanded by him.
4. The Court also recommends not only an early favourable processing of the reimbursement claim of the Officer, but also appropriate compensation to Major Gopalakrishna for the agony, suffering and the irreparable loss of his wife, emanating fundamentally from the lapses in the treatment at Military Hospital, Secunderabad.
10. The findings and the opinion of the Court of Inquiry present a gruesome picture. It evokes a feeling of consternation about the existing state of affairs when Savithri was treated for ovarian cyst at Military Hospital, Secunderabad. At the same time, it evokes sympathy for the petitioners. Everybody in the society expects Army Personnel to adhere to discipline and go about their daily chores in more meticulous manner than in civil administration. Alas, the same is conspicuous by absence. That such incidents do not occur often, but these incidents can be no solace to the respondents. Justifying non-referral to private hospital as requested by fourth petitioner, third respondent in the counter-affidavit states thus:.There was no request from Petitioner No. 4 to send a medical officer to Apollo Hospital or to provide transport to bring his wife to Military Hospital, Secunderabad. This allegation is false. As regards provision of Army Order is concerned, the conditions which facilitate the treatment of Armed Forces personnel and their dependent families in private/civil Government Hospital are as under:
(a) A service hospital does not exist in the same or nearby station.
(b) Requisite facilities including Specialist Officers are not available in the service hospital.
(c) Patient is not in a fit state to be taken to a service hospital.
(d) A Civil Government Hospital with requisite facilities is not available in the same station.
(e) A bed or room commensurate with the status of the patient is not available.
In case the above conditions are satisfied authorized medical attendant can refer the patient to Government Civil/Private Hospital as the case may be.
11. The above extract would show that Savithri was not referred to Apollo Hospital, inter alia because 'all the requisite facilities, including Specialist Officers are available' in the Military Hospital, Secunderabad. When Respondent Nos. 2 and 3 or their associates claim themselves to be Specialist Officers, the standard of duty to care required by them, even if they are Army Officers, is pretty high. It is not necessary to refer to this aspect of the matter in detail. If any medical doctor or surgeon fails to discharge his/her duties by duly taking care like any other doctor of his/her standard elsewhere, such army doctor would be guilty of negligence and is liable for action in tort. Respondent Nos. 1, and 4 to 6 on the principle of vicarious liability cannot also escape from the tortious liability. Therefore, on Point No. (i) I hold accordingly.
In Re Point No. (ii)
12. Whether the petitioners are entitled for any compensation in public law remedy under Article 226 of the Constitution of India When a doctor is negligent and as a result of such negligence a person suffers injury or dependents of such person suffer pecuniary and non-pecuniary damages due to death of the person due to negligence, adequate compensation has to be awarded. The remedy to claim compensation in negligence by doctor is essentially common law remedy. Further, after Consumer Protection Act 1986, and in view of judgment of the Supreme Court in Indian Medical Association v. V.P. Shantha, , even doctors come within the ambit of Consumer Protection Act. In cases of this nature can there be remedy in public law?
13. It is no more res integra that for violation of fundamental right guaranteed under Article 21 of the Constitution of India, public authorities, officials and State are liable to pay compensation. In a given case, it is always competent to public law Courts in India exercising powers under Articles 32, 136 and 226 of the Constitution of India to award compensation in public law. Such compensation is only by way of applying balm to the injury suffered by the person or the victim. Such remedy is in addition to the remedy in tort in private law. It is also well settled that depending on the gravity of carelessness and negligence, the Court exercising public law powers can always award exemplary costs by way of compensation. Even in such an event, such public law redressal of the grievance is not by way of supplementing, but by way of supplanting leaving the persons or victims to avail remedies in private law.
14. In a recent judgment in K.P. Hussain Reddy v. Executive Engineer, Minor Irrigation Division, Nandyal, 2003 (1) ALD 435, I considered the question whether State is liable to pay damages for constitutional tort and deprivation of rights guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India. Instead of again referring to various decisions of the Supreme Court, I propose to borrow paragraphs 31 to 52 of my own judgment in Hussain Reddy v. Executive Engineer Minor Irrigation Division Nandyal, (supra) which is relevant for the purpose of this case also. These paragraphs are incorporated in this judgment as under as paragraphs 15 to 36.
15. The fundamental rights in part-III of the Constitution form the core of 'Indian suprema lex'. Any executive and/or legislative action which violates fundamental right is declared by the Constitution itself as void. The right to enforce fundamental rights is itself recognised as fundamental right. Under Article 32 of the Constitution any citizen can move the Supreme Court directly for the enforcement of fundamental rights. The Supreme Court under Article 32 and the High Courts under Article 226 of the Constitution are empowered to resolve the disputes between the State and the citizens when there is genuine grievance that fundamental rights are violated. In so doing, the Constitutional Courts exercise public law powers. High Courts and Supreme Court - are empowered to issue prerogative writs, directions and orders for the enforcement of any rights conferred by Part-III of the Constitution and also give appropriate directions for such enforcement. In the march from the stage of nullifying executive and legislative actions on the ground of violation of fundamental rights, the Courts have evolved the theory of constitutional tort brushing aside the doctrine of sovereign immunity to meet certain situations where there is malfeasance and misfeasance on the part of the officials and the executive.
16. A person who complains violation of common law right has to seek redress in a Civil Court and if civil wrong complained has no punishment, but only damages, the aggrieved person has to seek damages for the tort. When a fundamental right guaranteed by the Constitution is violated a citizen hitherto was not entitled to seek any compensation. He was only entitled for a declaration and/or an order for restoration of the status or position which was denied to him by reason of violation,
17. As many countries got off from foreign yolk and became independent with written Constitutions a new thinking came to influence the subsequent decisions in cases involving violation of human rights which were recognised as fundamental to all the citizens. The question, however remains is whether public law remedy of awarding compensation can be availed for every violation of fundamental right Whether the exercise of power by the High Court is subject to any limitations while awarding compensation for violation of fundamental rights? The evolution of public law principle of compensating for violation of fundamental rights especially Article 21 was core issue in various judicial decisions. Some of these are - Rudul Shah v. State of Bihar, : 1983CriLJ1644 , Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Bhim Singh v. State of J&K;, : 1986CriLJ192 , Nilabati Behera v. State of Orissa, : 1993CriLJ2899 , Consumer Education and Research Centre v. Union of India, : (1995)IILLJ768SC , Daulat Ram v. State of Haryana, : 1995CriLJ3648 , D.K. Basu v. State of West Bengal, : 1997CriLJ743 , Common Cause v. Union of India, : (1996)6SCC593 , Shiv Sagar Tiwari v. Union of India, : AIR1997SC1483 , People's Union for Civil Liberties v. Union of India, : AIR1997SC1203 , State of Bihar v. Subhash Singh, : [1997]1SCR850 , Commissioner v. Rohtas Singh, AIR 1998 SC 685, Ajab Singh v. State of U.P., : 2000CriLJ1809 , M.C. Mehta v. Kamalnath, : (2000)6SCC213 , of Supreme Court; and Ch. Ramakrishna Reddy v. State of A.P. 1989 (2) ALT 1 (DB), which was affirmed in State of A.P. v. Ch. Ramakrishna Reddy, : (2000)5SCC712 , S. Seshaiah v. State of A.P., : 1994(1)ALT60 , and Chairman, Railway Board v. Chandrima Das, : 2000CriLJ1473 , and Nazeer Sahab v. Bibi Jan, : 1994(3)ALT131 , of this Court. It is necessary to refer to a few of them. The subject of Constitutional tort as treated by Text book writers and Jurists may be considered before adverting to Court Ruilings.
General Principles of Constitutional Tort
18. Of late, certain authors of public law as well as tort law have coined the term 'constitutional tort', (a) Clerk and Lindsell on 'Torts'; 18th Edn. Sweet and Maxwell Ltd, 2000 (b) 'Torture as Tort' by Graig Scott; HART Publishing, Oxford - Portland/ Oregon, 2001 (c) 'Torts: Personal injury litigation' by William P. Statsky; 4th Edn. (2001), by their analysis of the cases decided by the Public Law Courts like High Courts and Supreme Court where compensation was awarded in public law for violation of basic human rights and civil rights to life and liberty. It is necessary to briefly refer to the concept of tort and Constitutional tort to understand the public law remedy of compensation for violation of right to life and liberty. Tort is a civil wrong that causes injury for other damages for which the local system deems it just to provide remedy for compensation. The conduct may be both crime and tort in which event redress is to be sought in different fora. The criminal law aims at vindicating the public wrong whereas tort law aims at vindicating private civil wrong and as observed by 'William P. Statsky' (see footnote 52(c)) tort law aims at four purposes; peace, deterrence, restoration and justice. What is a constitutional tort and what is the relationship between tort and public law ?
19. Constitutional law embraces the law of the nation relating to the method of choosing Head of the State, Constitution of the Legislatures, its powers and privileges, relations between Central Government and local authorities, the rights and duties of the citizens, civil members and their limitations and general system of the Courts and the method and manner of conducting elections etc. The words constitutional rights, constitutional functions etc., used are in relation to the constitutional law of the nation. When we use the term constitutional tort in public law, it only means, that conduct which is in breach of the Constitutional law, giving rise to in a given case to an action in private law. William P. Statsky defines this as 'the phrase constitutional tort refers to a special cause of action that arises when someone is deprived of federal civil rights.......and to deprive someone of federal civil rights under colour of State law can be what is called the constitutional tort.'
20. Every breach of constitutional law or every failure to discharge constitutional obligation does not give rise to a constitutional tort. Indeed, Clerk and Lindsell on 'Torts' observed that the extent to which the law of torts should operate to hold public authorities accountable for their dealings with private citizens is in a state of flux. It was further observed '...Public authorities enjoy no general immunity in tort nor are they subject to any system of law akin to droit administratif in France. ....The problems arise when the alleged tortious conduct arises out of a public authority's conduct of its public obligations and the exercise of the statutory powers enjoyed to fulfil those obligations. Should public authorities be liable in tort for poor Government, be it inadequate education for local children, inept inspection of building works or inequitable distribution of healthcare resources? Claims for breach of statutory duty have generally failed. The learned authors dedicated one entire Chapter (Chapter 12) to public law aspects of tort and a separate sub-chapter is devoted to constitutional torts.
21. Torts like battery, assault, false imprisonment by police officers and other investigating agencies are constitutional torts, because, public authorities are involved in all these torts. Species of tort, that is, trespass to person is relatable to right to life and liberty and whenever a person is subjected to tort of trespass, like battery, assault and false imprisonment etc., the Government official as well as the State are vicariously liable for damages. In that view of the matter, in an action for constitutional tort the respondents can plead the same defences as are available in an action for tort. The defense of official immunity in common law torts is also available in an action for constitutional tort. One such defence is action taken under the law made by Indian Legislature. The same, however, will not be available to an official, if they did not act on tort while performing official functions under the law during the course of their employment and they acted maliciously and not in good faith.
22. There are situations where public officials act within the framework of law,but still by reason of negligence in not adhering to principles of law, it gives rise to a cause of action to constitutional tort. In every case it is for the Court to decide whether or not the action is justified. If every violation of every fundamental right is brought under the purview of constitutional tort and compensation awarded in public law remedy of writ jurisdiction, the State and the Government would become bankrupt and the Government itself would be destroyed. In every such case, the Court should balance the State interest as well as individual interest. If violation is complained in ordinary law which can be duly compensated elsewhere even if it involves violation of fundamental rights, public law remedy of compensating violation cannot be made available. The parties to such cases must be relegated to proper common law remedy. For example, in a case of malicious prosecution against investigating officer the parties may be relegated to avail suit for malicious prosecution.
Court Rulings
23. Before noticing some of the Indian cases, a reference may be made to Jaundoo v. Attorney General of Guyana, 1971 AC 972 (PC), decided by the Privy Council. In the said case, the appellant, who was the owner of the land on apprehension that her land will be occupied by the Ministry of Works and Hydraulics for construction of new road in violation of her fundamental right under the Constitution of Guyana applied to High Court for redress under Article 19 of the Constitution of Guyana. A question arose before the High Court whether her application was properly made and whether High Court has jurisdiction to grant motion. The High Court held that an application for redress under Article 19 ought to be made by writ of summons and not by notice of motion and accordingly dismissed the application of the appellant. The landowner's appeal was also dismissed by a majority of the Court of appeal. The Privy Council set aside the order of the Court of Appeal and remanded the matter to High Court of Guyana to hear and determine whether the appellant is entitled or not by virtue of Articles 8 and 19 of the Constitution of Guyana, for payment of compensation or damages. By the time the Court of Appeal heard the matter, construction of new road on appellant's land was completed. Therefore, the Privy Council observed:
By the time when the landowner's appeal was heard by the Court of Appeal, the circumstances had changed. Construction of the new road on the land had been completed. What had been done, even it were unlawful, could not be undone. In those circumstances, a money payment to the landowner by way of compensation or damages for the loss caused to her by the Government's action was an appropriate and, indeed, the only practicable form of 'redress'.
It was also observed:
Both of the Justices of Appeal who held that an originating motion was an appropriate procedure for applications for redress under Article 19 of the Constitution appear to have accepted that the High Court had jurisdiction to assess and award compensation or damages to be paid by the Government of Guyana to the landowner for any contravention of her fundamental rights under the Constitution......... Their Lordships accept that if the landowner is successful on the merits in establishing her claim that her fundamental rights under Article 8 of the Constitution have been contravened, any order for redress to be made by the High Court against 'the Government of Guyana' ought not to be made in form, as it cannot be in substance, coercive. There is more than one way in which this could be avoided. The order could be declaratory in form and declare the right of the landowner to be paid by the Government of Guyana the amount assessed by the Court as appropriate redress by way of compensation or damages.
24. In Maharaj v. Attorney General of Trinidad, 1978 (2) All. E.R 670, a question arose before the Privy Council whether a person complaining deprivation of liberty otherwise than by due process of law is entitled to resdress by way of monetary compensation under Section 6 of the Constitution of Trinidad and Tobago. In the said case, an advocate was committed to seven days imprisonment for contempt of Court by Hon'ble Judge Maharaj of High Court of Trinidad and Tobago. On the date of the judgment the Lawyer applied before another High Court Judge for immediate release and for damages for wrongful detention and false imprisonment against the respondent. The Judge directed that the appellant be released forthwith. However, a third Judge dismissed the motion case and ordered that the appellant should undergo remaining six days imprisonment and he was accordingly imprisoned. He filed an appeal before the Court of Appeal and while the same was pending he also appealed to Judicial Committee of the Privy Council whereupon the appeal was allowed by the Privy Council on the ground that committal order did not specify nature of the contempt charged against the appellant. The Court of Appeal dismissed the appeal on the ground that although High Court Judge has jurisdiction under Article 6 to grant relief for contravention of the Constitutional rights, which resulted from the order of another High Court Judge acting in his judicial capacity, the failure of the Judge to inform the nature of the contempt charged did not contravene the rights under Section 1(a) of the Constitution. A further appeal was filed before the Privy Council. Lord Diplock, who delivered the majority judgment referred to Chapter-I of the Constitution of Trinidad and Tobago (Recognition and Protection of Human Rights and Fundamental Freedoms), especially Sections 1 to 5 and considered, inter alia the question whether the appellant was entitled to monitory compensation for the period he spent in prison.
25. The Law Lord relied on Section 6(1) which laid down that the citizen may apply to the High Court for redress......without prejudice to any other action in respect of the same matter which is lawfully available. Therefore, whenever there is a contravention of fundamental rights complained by reason of the remedy available under Section 6(1) of the Constitution the Court had inherent powers and it was legitimate to claim monetary compensation for any contravention. Such compensation can be awarded for any contravention that already resulted and for the consequences by reason of the contravention. The principle was explained thus:
The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered by the appellant during his incarceration. Counsel for the appellant has stated that he does not intend to claim what in a case of tort would be called exemplary or punitive damages. This makes it unnecessary to express any view whether money compensation by way of redress under Section 6(1) can ever include an exemplary or punitive award.
26. I have referred to the two cases decided by the Privy Council to point out that the public law remedy for compensating the violation of fundamental rights is not available in respect of each and every violation and it is only available when there is actual and factual deprivation of life and liberty alone. This is further clear from various decisions of the Hon'ble Supreme Court as well as this Court.
27. In Rudul Shah v. State of Bihar (supra) the petitioner was acquitted in a criminal case, but he was released after fourteen years of acquittal on the ground that he was insane. The Supreme Court did not accept the contention of the Jail authorities that Rudul Shah was insane and therefore, the Apex Court accepted the contention of the petitioner that he is entitled for compensation for the illegal incarceration. It was held that when the State grossly violates Article 21 the Court can compel the compliance with the mandate of Article 21 in different ways. It was held:
In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.
28. In Sebastian M. Hongray v. Union of India (supra) the Supreme Court had issued a Writ of Habeas Corpus directing the respondents to produce C. Daniel, retired Naik Subedar of Manipur Riffles and Head Master of the Junior High School of Huining Village and C. Paul, Assistant Pastor of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment. After receiving writ, the Director in Ministry of Defence filed a return stating that in spite of best efforts, the respondents are unable to produce the two persons as directed by the Court. In view of this, the Court came to the conclusion that there is failure on the part of the respondents to produce missing persons. What is the appropriate mode of obedience to Writ of Habeas Corpus? The Court opined that the appropriate mode of enforcing Writ of Habeas Corpus is by contempt against a person who fails to comply with the order. It was also further held that in a given case the Court may also penalize the authority in contempt by ordering him to pay the costs of the application and accordingly directed Respondents 1 and 2 to pay an amount of Rs. 1,00,000/- each to the wives of the missing persons. The Court also directed for registering offence for murder and to commence investigation as prescribed by the Code of Criminal Procedure.
29. In Bhim Singh v. State of Jammu and Kashmir (supra) The petitioner, who was a Member of Legislative Assembly was arrested at Qazi Kund about 70 Kms. away from Srinagar. His wife filed a writ petition before the Supreme Court seeking a declaration that his detention was illegal, and a direction to set him at liberty. Bhim Singh was released by Additional Sessions Judge, Jammu. The Supreme Court came to the conclusion that when Constitutional rights of Bhim Singh were violated with impunity and when a person's fundamental, Constitutional and legal rights are neglected it is competent for the Court to award compensation. It was also further laid down as under:.We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensation, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar, : 1983CriLJ1644 and Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation.
30. In Nilabati Behera v. State of Orissa (supra) son of the petitioner died in Police custody. The Court directed the District Judge, Sundergarh, Orissa, to hold enquiry and submit report. A report was submitted by the District Judge to the effect that Suman Behera died due to multiple injuries inflicted on him white he was in Police custody. The Supreme Court considered the question whether it was a custodial death and found that it was indeed a custodial death. The Counsel for the State did not dispute the liability of the State for payment of compensation for violation of fundamental right to life under Article 21 as it is a custodial death. After referring to relevant case-law, the Supreme Court proceeded to spell out the principle on which the liability of the State arises in cases for payment of compensation and the distinction between liability under the Constitution and the liability in private law for payment of compensation in action or tort. It was held that the awarding of compensation in a proceeding under Article 32 by the Supreme Court and under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply though the same is a defence in private law in an action based on tort.
31. The plea of sovereign immunity has no application in constitutional scheme and cannot be pleaded as defence to the constitutional remedy under Article 32 and Article 226 of the Constitution. The only practicable mode of enforcement of fundamental rights is by awarding of compensation. The Court then referred to Privy Council decision in Jundoo v. Attorney General of Guyana (supra) and Maharaj v. Attorney General of Trinidad and Tobago (supra) as well as Article 9(5) of International Covenant on Civil and Political Rights, 1966. While holding that the public law remedy for compensation has to be more readily available when invoked by 'have nots' who are not possessed of wherewithal for enforcement of right in private law, the Supreme Court observed as under:
It follows that 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 rights 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.
32. In D.K. Basu v. State of West Bengal (supra) the Supreme Court observed that the Constitution of India does not contain express provision for grant of compensation for violation of fundamental right to life. It evolved the right to compensation in cases of established constitutional deprivation of personal liberty or life. The principle postulates that the Court cannot stop by giving mere declaration that there is infringement of fundamental right. It must proceed further and give a compensatory relief not by way of damages as in civil action, but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State in not protecting the fundamental right to life of the citizen as explained by the Supreme Court as under:
Monetary compensation for redressal by the Court finding the infringement of theindefeasible right to life of the citizen is, therefore, a useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family....... It is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation in an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts.......The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. (See paragraphs 42, 44 and 55 of AIR).
33. The Apex Court also observed that the claim of compensation based on strict liability is in addition to the claim available in public law for damages for tortious acts of public servants and public law proceedings serve a different purpose than the private law proceedings. State can also recover compensation amount from the public servant who infringed the fundamental right to life.
34. In Ch. Ramakrishna Reddy v. State of Andhra Pradesh (supra) a father and his son were arrested and lodged in sub-jail in connection with a crime. Some miscreants entered the sub-jail and hurled bombs by reason of which father died and son escaped with injuries. A suit was filed for damages estimated at Rs. 10,000/-. The State opposed the suit denying any liability and claimed sovereign immunity. The suit was dismissed by the learned Subordinate Judge. In appeal a Division Bench of this Court considered the question of limitation, the question whether the officials of sub-jail were negligent in guarding the deceased and the question whether the State is liable to pay compensation/damages. The Court came to the conclusion that it is a omission to perform the statutory responsibility placed on the officials of the sub-jail. On the question of the liability of the State to pay compensation, the Court referred to Rudul Shah v. State of Bihar, Sebastian M. Hongray v. Union of India, Bhim Singh v. State of Jammu and Kashmir and Maharaj v. Attorney General of Trinidad and Tobago (supra) and observed that right to life and liberty guaranteed by Article 21 of the Constitution is fundamental and basic and that no compromise is possible with this right. It is non-negotiable. The State has no right to take any action which will deprive a citizen of the enjoyment of his basic right except in accordance with law which is reasonably fair and just. The Court then referred to two hypothetical cases as under:
We shall take two hypothetical oases to test the proposition. One is a case where a person who is arrested and lodged in a jail. While in jail he suffers from a heart-attack and cries for relief. The officers guarding the prison notice his condition, realise that he needs medical attention, but fail to take any steps for providing such relief, though several hours pass by. The man dies. Had the person not been arrested and put in jail, he would have been at home among the members of his family and/or friends, who would have definitely provided him medical relief and saves his life. Having arrested him, having confined him in jail, away from his relations and friends, and having allowed him to suffer and die without taking any steps for rendering medical help, can the State still claim that it is not liable Can the theory of sovereign power be a complete answer to this kind of gross negligence ?
35. The Court while observing that Article 21 does not recognise any exception and no such exception can be read into Article 300(1) held that where the citizen has been deprived of his life or liberty otherwise than in accordance with the procedure prescribed by law, the State cannot escape the liability. The decision of the Division Bench of this Court was challenged in appeal before the Supreme Court which was dismissed in State of A.P. v. Ch. Ramakrishna Reddy (supra). The Supreme Court after referring to Nilabati Behera v. State of Orissa (supra) and D.K. Basu v. State of West Bengal (supra) upheld the judgment of this Court and held that when persons suffered injuries at the hands of the officers of the Government, including Police Officers and personnel, compensation can be awarded for the tortious act.
Principles of Constitutional Tort
36. The principles that emerge from the decided cases in India and Britain are as under:
(i) Torts like assault, battery, and false imprisonment which are trespass to person by Police Officer and investigating agencies which are not authorised under law are Constitutional Torts.
(ii) Awarding of compensation is public law remedy and available in a claim for deprivation of life and liberty alone. The compensation awarded is for the pecuniary and non-pecuniary loss suffered by the person due to illegal detention/imprisonment and is given to recompense for the inconvenience and distress suffered by the person.
(iii) The order of compensation is in the nature of palliative and is passed to mulct the violators of the fundamental rights in payment of monetary compensation.
(iv) When a person is arrested and imprisoned with malicious intention his constitutional and legal rights are said to be invaded. The malice and invasion of the right is not washed away by setting the person free and in appropriate cases the Court has jurisdiction to award compensation to the victim.
(v) The public law remedy of monetarily compensating the violation of fundamental rights is part of the constitutional scheme based on strict liability for such contravention of rights and therefore the principle of sovereign immunity does not apply as it applies in private law.
(vi) Judicially evolved right to compensation in public law is available for breach of public duty by the State of not protecting the fundamental right, but it is given for infringement of inalienable right to life and by way of applying balm to the wounds of the deceased family.
(vii) For the tortious acts of the Government Officers and Police Officers, the State is liable to pay compensation for violation of fundamental rights to life and liberty
(viii) The order for awarding compensation need not be in the coercive form. It can be by way of declaration of the right of the person to be paid by the Government certain amount to be assessed by the Court. This is especially so in a case where fundamental right to property is breached in violation of law.
37. In view of the principles enunciated as above, Savithri has been deprived of her fundamental right to life in most tragic manner. Respondents 2 and 3 as found by Court of Inquiry became responsible for their gross negligence. Therefore, as observed by the Supreme Court in D.K. Basu v. State of West Bengal (supra) compensation has to be paid by Union of India, which in law is entitled to be indemnified enabling them to recover from the officers concerned. Further, the amount of compensation awarded by Constitutional Court to redress the wrong done can also be adjusted by way of damages in civil suit.
38. How much compensation has to be paid to the petitioners Savithri was wife of fourth petitioner and Petitioner Nos. 2 and 3, who are at the relevant time were unmarried daughters (one of them a minor daughter) and first petitioner is mother of Savithri. The family was a close-knit family. After loss of Savithri, fourth petitioner deprived of married life and company which would have continued at least for some more time. Petitioner Nos. 2 and 3, who are just to make beginning of their lives were deprived of motherly advice. They were denied advice as growing girls sociologically, psychologically and emotionally from mother. First petitioner was deprived of sustenance and care from her daughter. The family had good resources. In this situation, many questions require answers while assessing damages suffered by family as a whole and each of the petitioners. There is no statute law in this regard. Like in all cases of compensation and damages, in tort law we have to fall back on the decided cases. How much impact fell due to death of Savithri on the family and on each of petitioners is matter of evidence. These aspects are barely present in the affidavit evidence. Therefore, this Court is not inclined to resort to guess to assess specific damages under various heads. Nonetheless, having regard to the law laid down by the Supreme Court in various land mark cases referred to hereinabove, this Court is of the considered opinion that a Mandamus should go to first respondent to pay an amount of Rs. 3,00,000/- (Rupees three lakhs only). I make it clear that this amount is not by way of punitive damages or is it towards pecuniary and non-pecuniary damages. This is for violation of fundamental right of Savithri, whose life was shortened by culpable negligence of Respondent Nos. 2 and 3. This amount shall be apportioned among petitioners by paying an amount of Rs. 50,000/- (Rupees fifty thousand only) each to Petitioner Nos. 1 and 4, and Rs. 1,00,000/-(Rupees one lakh only) each to Petitioner Nos. 2 and 3.
39. The petitioners are given liberty to file civil suit claiming appropriate compensation. While Civil Court awards any compensation, the amount awarded by this Court shall be adjusted. Even in case the petitioners for any technical reason fail to obtain decree from civil Court, the amount now ordered to be paid shall not be recovered by first respondent. It shall be open to first respondent to recover this amount of Rs. 3,00,000/- (Rupees three lakhs only) now ordered to be paid, from Respondents 2 and 3 proportionately as it deems fit and proper.
40. The writ petitioners also prayed for reimbursement of expenditure incurred by fourth petitioner for treatment of Savithri at Apollo Hospital. Learned Counsel for the petitioners has brought to my notice a communication from Government of India in Ministry of Defence, dated 30.9.2002 addressed to Director General of Armed Forces (Medical Services), sixth respondent, informing sanction of President of India for reimbursement of medical expenses of Rs. 2,99,241/- (Rupees two lakhs ninety-nine thousand two hundred and forty one only) incurred for operation at Apollo Hospital, Hyderabad in respect of Savithri, wife of fourth petitioner. Therefore, no orders are necessary in this regard. However, it should be made clear that the amount ordered to be reimbursed by the President of India shall be subject to any decree that may be passed by the Civil Court under this head of claim
41. In the result, the writ petition is allowed subject to above observations and directions. A Mandamus shall issue with the following directions:
(i) first respondent shall pay an amount of Rs. 3,00,000/- (Rupees three lakhs only) which shall be apportioned among petitioners by paying an amount of Rs. 50,000/- (Rupees fifty thousand only) each to Petitioner Nos. 1 and 4, and Rs. 1,00,000/-(Rupees one lakh only) each to Petitioner Nos. 2 and 3;
(ii) The petitioners herein are at liberty to file civil suit claiming appropriate compensation. While Civil Court awards any compensation, the amount awarded by this Court shall be adjusted. Even in case the petitioners for any technical reason fail to obtain decree from Civil Court, the amount now ordered to be paid shall not be recovered by first respondent;
(iii) It shall be open to first respondent to recover this amount of Rs. 3,00,000/-(Rupees three lakhs only) now ordered to be paid, from Respondents 2 and 3 proportionately as it deems fit and proper; and,
(iv) The respondents shall pay costs of the writ petition to the petitioners quantified at Rs. 5,000/- (Rupees five thousand only).