K.G. Balakrishnan, J.
1. Both these original petitions relate to alleged police excess that had taken place on 22.10.1986. Petitioners in these original petitions claim to be the victims of the unprecedented atiocities of infuriated police. Petitioners are inhabitants of a small village known as Thankamani, which is 42 kilometres away from the Idukki town. This village is in Kamakshy Panchayat and it lacks in several basic amenities including supply of electricity. There are about 1,000 families in this village and most of them are agriculturists. The nearest township is Kattappana, which is about 22 kilometres away from Thankamani. The only mode of transport to the village from Kattappana and Idukki is buses operated by private carriers and K.S.R.T.C. During the relevant time there were only two K.S.R.T.C. buses plying between Thankamani and Kattappana. There were two private stage carriages operating transport service between Thankamani and Kattappana. For all these buses the route permit granted included two places, viz., Kattappana to Thankamani. However, one bus operated by Elite Bus Service used to go up to a place known as Paramada and Thankamani bus-stop was two kilometres beyond this place. As the Elite bus goes only up to Paramada the passengers had to alight at that place and to go to Thankamani by walk. This caused inconvenience to the bus travellers and there was resentment especially from the commuters. The students wanted the crew of the bus to take the bus up to Thankamani. On 20.10.1986 when the bus reached Paramada the crew of the bus wanted the passengers to alight there. However, four young students declined to get out of the bus and pleaded that the passengers should be taken to Thankamani. The driver and the conductor of the bus managed to push out two students from the bus. But the other two students remained in the bus and the bus was taken straight to Kattappana police station. It is alleged by the petitioners that the bus reached the police station at about 8 p.m. and the constables attached to that police station severely manhandled these students. Thankamani being a small village the news that the two students were forcibly taken by the crew of the bus spread in the village. One Kunjukunju and Jose Thaicheril, who along with the two students, who were pushed out from the bus earlier, reached the police station. But they were abused by the police constables. At about 9 p.m. on that day the Dy. S.P. came there and agreed to settle the matter. They were asked to report at the police station on the next day. The four students, who were let off as a result of the intervention of the Dy. S.P., appeared before the Kattappana Police Station on the next day at 10 a.m. But the Dy. S.P. was not present and they returned. At about 11.15 a.m. a group of students of the St. Thomas School, Thankamani, surrounded the Elite bus when it reached near the school and they demanded that the crew of the bus should make an unconditional apology for their previous day's misbehaviour. The owner of the bus, who was present in the bus, promised that the erring crew members would be brought on the next day to make apology before the students. It seems that the students demanded that the bus would be released only after giving the apology. The owner of the bus wanted to take the bus and he met the priest of the local church named Fr. Jose Kottoor and the Headmaster of St. Thomas School, Thankamani, who undertook to release the bus after the crew members express their apology. But, to the surprise of the students, on the next day, that is, on 22nd October, 1986, a large number of policemen reached Thankamani in two jeeps under the supervision of two head-constables and they, instead of tackling the situation in peaceful manner, by a show of force wanted to take the bus from Thankamani. The students objected to this and stated that this was clearly against the undertaking given by the owner of the bus. So, the police could not take the bus from Thankamani. By about 5 p.m. on that day some more policemen came to Thankamani under the leadership of one I.C. Tharnpan, Circle Inspector of Police, Peerumade and Sub-Inspector of Police Nedumkandam. The policemen were armed with guns. At this time Fr. Jose Kottoor and the President of the Kamakshy Panchayat, Mathai Mathew, were engaged in some discussion in the panchayat office. The arrival of additional force at Thankamani created a tense situation and the police wanted to take the bus to Kattappana by any means. Fr. Jose and the Panchayat President met the police officers and pleaded with them to act tactfully to avoid confrontation. They wanted some more time to settle the matter. However, the attitude of the police was so adamant and the police force under the command of the Circle Inspector I.C. Thampan used force to disburse the crowd. It is alleged that police constables mercilessly fired at the innocent persons killing one person and wounding another. It is further alleged by the petitioners that there was no previous warning to the crowd to disburse and the police resorted to firing in grave disregard of the law. It is also alleged that the police indiscriminately beat the people with lathies. One Abraham Kozhirnalayil died on the spot and the police by using force removed the bus from Thankamani to Kattappana.
2. The people who had assembled at Thankamani disbursed and the incident, which led to the filing of these original petitions, took place in the night of 22/ 23.10.1986. It is alleged that at about midnight large number of police personnel came to the village and started terrorising people. Police in groups went to various houses in Thankamani and kicked open the doors of the houses and mercilessly beat several persons. The policemen were fully drunk and they were armed with weapons like guns and rifles. They showered the villagers with abusive words and used criminal force against them. There were several instances of outraging the modesty of women. This 'Operation Thankamani' lasted till 3.30 a.m. on 23.10.1986. The whole villagers of Thankamani were terror-stricken and they could not even go to the hospital to get medical treatment. The entire operation was done at the instance of Peerumade Circle Inspector and the Idukki Superintendent of Police. According to the petitioners, the A.D.M., Idukki and the Sub-Collector, Idukki, connived with these police officials. Several other persons were forcibly taken into custody and they were taken to the police station and manhandled severely. The then D.I.G. of Police visited the place on 23.10.1986. According to the petitioners, the villagers narrated their wailful tales to these higher police officials. But no steps were taken and cases were not registered against the policemen, who resorted to these atrocities. Several of the persons detained by the police were youngsters below 20 years and some of them were old. They were given 'assault passes' by the headconstable attached to the Kattappana police station as a token of assurance that they would not be tortured again. The I.G. of Police also visited the place on 5th November, 1986. He collected evidence from the various victims. But no steps were taken to find out the real culprits.
2-A. The petitioners allege that the police have committed various offences by illegal detention of the petitioners and others and causing them physical and mental torture. The police, who are supposed to be the guardians of law and order, violated the fundamental rights of the petitioners guaranteed under the Constitution of India. It is contended that the right to live enshrined in Article 21 comprehends the right to live in human dignity and because of the police excess and atrocities the petitioners' fundamental rights were trampled. Therefore, in O.P. No. 8717 of 1986 it is prayed that respondent Nos. 1 and 2 may be directed to pay Rs. 50,000/- each to the petitioners as a palliative measure. They also pray that this Court should issue a writ of mandamus directing respondent Nos. 1 and 2 to set the criminal law in motion and to order investigation into these crimes by C.B.I. The petitioners also pray that disciplinary proceedings should be initiated against the police personnel, who engaged in the 'Operation Thankamani'.
3. In O.P. No. 9100 of 1986 it is alleged that these petitioners were taken into custody by the police in the night of 22/ 23.10.1986. They also claim similar reliefs.
4. On behalf of the 2nd respondent a counter-affidavit has been filed. Some of the allegations in the original petitions are admitted. It is admitted that at about 8 p.m. on 22.10.1986 Elite bus plying on the route Kattappana-Thankamani was brought to the police station with two students alleging that they had quarrelled with the crew of the bus at Paramada. They were detained in the police station by the policemen on duty, as the Sub-Inspector was not present. As mere was an allegation that the policemen on duty manhandled two students, an enquiry was conducted and one Joy (P.C. 572) of Kattappana Police Station was placed under suspension pending enquiry. Two other students along with one Kunjukunju and Jose Thaicheril came to Kattappana Police Station and met the Dy. S.P. at his residence. The Dy. Superintendent of Police ordered the staff present in the police station to release the students who were detained there. They were released at about 9.50 p.m. They were instructed to meet the Dy. S.P. on the next day. But the Dy. S.P. could not meet them. The bus was forcibly taken to Thankamani by a group of people at about 10 a.m. on 21.10.1986. One case was registered against some persons. The police party went to Thankamani to relieve the Elite bus from the custody of the local people as part of the investigation of Crime No. 270 of 1986. It is submitted that the police party under the supervision of Circle Inspector I.C. Thampan and Sub-Inspector of Police Nedumkandam, reached Thankamani to take the bus. The Circle Inspector acted pursuant to the administrative direction. The Circle Inspector pleaded with the people who had gathered there that they should permit him to take the bus. It is denied that the police used force without any previous warning. The people gathered there were not even prepared to accede to the appeal made by the vicar. People gathered there started pelting stones. Police party was attacked even with country-guns and the Sub-Inspector and the Circle Inspector sustained injuries. Lathi-charge was found ineffective and only as a last resort the Circle Inspector ordered to open fire and 10 rounds were fired and the police had no other means to save their lives. One Abraham Kozhimalayil died en route to the Medical College Hospital, Kottayam. Out of the 27 personnel, only two policemen carried firearms and 25 personnel were without arms. Subsequent to this incident a large number of policemen reached the scene of occurrence at Thankamani. It is denied that the police party outraged the modesty of women. As part of the criminal case registered the police have not committed any atrocities. One C.I., A. Ahammed Kunju, was in charge of the raiding party. Subsequent to the alleged raiding complaints of misbehaviour by the members of the police force were received and the C.I. Ahammed Kunju and Sub-Inspectors C.N. Purushothaman Pillai and Alex Mathew were placed under suspension. In cases where complaints were received, criminal cases were registered. Mr. M. Prahladan, retired District Judge, was appointed to enquire into the circumstances leading to police firing. The details of the crime registered have been given in the counter-affidavit. It is also contended that due to lack of co-operation from the side of the petitioners, the Magistrate could not conduct the identification parade. The scene of occurrence also proved that the crowd on which the police party opened fire was not a peacefully disbursing crowd, but they resorted to stone throwing and indulged in arson.
5. I elaborately heard the petitioners' counsel and also the counsel for the respondents. The main argument advanced by the petitioners' counsel was that the fundamental rights of these petitioners guaranteed under Article 21 of the Constitution were violated and as a palliative measure they must be given compensation by the State. The counsel for the petitioners argued that in similar situation the courts have come to the rescue of the victims and granted compensation to redress the grievance of the petitioners.
6. What is the content and reach of Article 21 of the Constitution has been elaborately considered in several decisions of the Supreme Court. In F.C. Mullin v. Administrator, U.T. of Delhi AIR 1981 SC 746, the Supreme Court held that the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings. The Supreme Court explained that the expression 'personal liberty' occurring in Article 21 is of widest amplitude and reminded that it is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights.
6-A. In an earlier decision reported in Gobindv. State of M.P. 1975 (2) SCC 148, Mathew, J. held that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the court finds that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest. It was also pointed out that privacy primarily concerns the individual. It, therefore, relates to and overlaps with the concept of liberty. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.
6-B. In Olga Tellis v. Bombay Municipal Corpn. AIR 1986 SC 180, a Six-Judge Bench held that the right to life is a right to livelihood subject to right of life conferred by Article 21 is wide and far-reaching.
6-C. In Maneka Gandhi v. Union of India AIR 1978 SC 597, the Supreme Court widened the scope and ambit of the fundamental right enshrined under Article 21 of the Constitution. The expression 'personal liberty' gets its widest interpretation and it was held that these fundamental rights represent the basic values cherished by the people of this country since Vedic times and they are calculated to protect the dignity of the individual and create condition in which every human being can develop his personality to the fullest extent. They were a pattern of guarantee on the basic structure of human rights and impose negative obligation on the State not to encroach upon individual liberty at its various dimensions.
7. From the various above decisions and the host of other decisions dealt with by the Supreme Court, it is clear that the fundamental rights guaranteed by Article 21 of the Constitution not only protect the right to live peacefully, but it encompasses the right to privacy also. If the employees of the State encroach upon the rights of the citizens, definitely the victims are entitled to challenge the same and can seek appropriate reliefs to redress their grievances. The petitioners in these cases claim compensation on the basis that they are innocent victims of police atrocities. According to them, they were in their respective houses in the night of 22.10.1986 and in the stillness of night the members of the police force trespassed into their houses, beat them mercilessly and took them into custody and detained for several hours. Petitioners also contend that some of the policemen outraged the modesty of women and even committed rape.
8. The question to be considered is whether this Court can grant compensation as a palliative measure in these circumstances. The fact that some of the petitioners were taken into custody as part, of. investigation of the crime registered by the police is admitted. However, the allegation that the petitioners were beaten by the police and that the women petitioners were molested is denied by the respondents. Petitioners relied on various items of evidence. In the instant case there was a great hue and cry by the public after this incident. The alleged police atrocities were widely criticised by the press and also by various public men. The Government appointed a District Judge as a fact-finding Commission and the Commissioner filed a detailed report. The petitioners rely on some of the observations made by the Commissioner. Various affidavits have also been produced in this case. Some medical certificates issued by the doctors and some records kept in the various hospitals, where these victims had gone for treatment, were also summoned by this Court and they are part of the records of these cases.
9. The learned Counsel for the petitioners cited several decisions of the Supreme Court to emphasise the point that the court in similar situation has granted compensation to the victims of police excess. One of the basic decisions is Rudul Sail v. State of Bihar 1983 (4) SCC 141. The petitioner therein filed a habeas corpus petition under Article 32 of the Constitution seeking his release from detention in jail on the ground that his detention after his release by the Sessions Court on June 3,1968, was illegal. The petitioner by way of ancillary reliefs claimed compensation for his illegal detention in jail for over 14 years, his medical treatment and ex gratia payment for his rehabilitation. The Supreme Court held that in the exercise of its jurisdiction under Article 32 of the Constitution the court can pass an order for payment of money, if such order is in the nature of compensation consequent upon the deprivation of fundamental rights. The Supreme Court rejected the contention of the State that the petitioner should have been relegated to the ordinary remedy of civil suit. Rejecting such a contention the Supreme Court held that the refusal of this Court to pass an order for compensation in favour of the petitioner will be doing merely lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 will be denuded of its significant content if the power of the Supreme Court were limited to passing orders of release from illegal detention. One of the telling ways in which the 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 Supreme Court further held:
If civilisation 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.
10. From the above-quoted passage it is clear that the Supreme Court in emphatic terms laid down the law that if there is any violation of fundamental rights at the instance of any of the officers of the State, courts must come to the rescue of the victims and wherever possible grant compensation as a palliative measure.
10-A. The dictum laid down in Rudul Sah's case 1983 (4) SCC 141, was followed by the High Court of Himachal Pradesh in the decision reported in Jaram Singh v. State of Himachal Pradesh 1988 ACJ 1083 (HP). That was a case in which the petitioner's wife while passing through the valley of a hill was fatally hit by a stone which rolled down from the upper side of the hill, where labourers of the Public Works Department were engaged in the construction and maintenance of a road. The petitioner's wife died on the spot with intracranial haemorrhage. There was proved negligence on the part of the employees. Petitioner filed a writ petition under Article 226 of the Constitution alleging violation of fundamental right to life and liberty and claimed compensation. Following the decision in Rudul Sah's case (supra) the High Court held that it was empowered in the exercise of writ jurisdiction to award damages in cases like this where fundamental right to life is violated. The writ court is empowered to award reasonable sum by way of compensation as ad interim or interim measure of a palliative nature, if, on the facts of the case and on the basis of the material on record, its judicial conscience is satisfied that if a suit were to be filed to recover the damages, a decree would follow almost as a matter of course, although the precise amount which would be decreed cannot be predicated. Such a course of action would not only help in protecting, preserving and enforcing the fundamental right to life but also prevent its violation in other cases.
11. Bhim Singh v. State of J&K; 1986 ACJ 867 (SC), is a case where an M.L.A. was arrested while en route to State Assembly. He was arrested on the 10th day of a month and was produced before the Magistrate only after a period of 4 days. Supreme Court held that there was gross violation of Articles 21 and 22 (2) of the Constitution. As there was illegal arrest and detention, the Supreme Court granted compensation to the petitioner. In Peoples' Union for Democratic Rights v. State of Bihar AIR 1987 SC 355, the allegation of the petitioner was that the police resorted to lathicharge and fired on peaceful demonstrators. The Supreme Court granted compensation to the legal heirs of the deceased persons and also the victims of lathicharge. In Sebastian M. Hong ray v. Union of India AIR 1984 SC 571, the petitioner alleged that two persons were taken into custody by the police and nothing was heard of them after that incident. Petitioner alleged that they died of 3rd degree methods adopted by the police. The court was of the view that the material on record was enough to reach an affirmative conclusion that these two persons are not alive and, therefore, granted compensation to the legal heirs of these two persons. In a recent decision of the Supreme Court reported in State of Maharashtra v. Ravikant S. Patil 1991 ACJ 888 (SC), the court granted compensation. The respondent was a suspect in a murder case. He was brought to Sholapur in the early hours of the day. A local newspaper carried a news item that the respondent would be taken in procession on a parade from police station through the main city streets for the purpose of investigation. The respondent was handcuffed and both his hands were tied by a rope and he was taken through the streets. The respondent claimed compensation for the illegal act done by the police. The High Court directed that the respondent be paid a compensation of Rs. 10,000/-. The Supreme Court declined to interfere with this order and directed that the compensation be paid by the State.
12. The various above decisions lay down the principle that in the exercise of jurisdiction under Article 226 of the Constitution the court can pass order for payment of money if such an order is in the nature of compensation consequent upon the deprivation of fundamental rights. The Supreme Court was very much clear in its direction that the refusal of the court to pass an order of compensation in favour of the petitioner under such circumstances will be doing mere lip-service to his fundamental rights which the State Government has so grossly violated. Article 21 of the Constitution which guarantees right to life and liberty will be denuded of its significant content if the power of this Court is not exercised in fit and proper cases. It is necessary that the State must repair the damage done by its officers.
13. The facts of the case are to be viewed in the light of the above principles. The learned Counsel for the petitioners has elaborately argued the claims of various petitioners. Many of these petitioners complained of chest pain and minor injuries. They all complained that they were taken to the police station and were manhandled by the police. To support this contention some of them produced medical certificates. The doctor, who treated some of the petitioners, was examined as a witness by the Enquiry Commissioner. In many of these medical certificates the nature of the illness has been mentioned as 'myalgia'. It indicates that there was only localised muscle pain. Some of the petitioners have produced certificates issued by local ayurvedic physicians. In a petition filed under Article 226 it is not possible to consider the claim of each of the petitioners. The petitioners have filed various affidavits in support of their allegations in the petition. There is yet another difficulty to fix the liability of the police. The facts disclosed'in these cases would indicate that on the previous day there was a confrontation between the police and a group of local people. There was an incident of the throwing of stones and arson. Some of the policemen have sustained injuries. Police had been trying to retrieve the bus from the local people, who had detained the bus and to achieve their aim they might have used some force. Naturally there was an emotionally surcharged situation and it ultimately end in a firing and arson. Therefore, it is quite likely that many of the villagers might have sustained some injuries. Therefore, it is to be clearly discerned as to who were all participants in the previous day's incident and who else were wrongfully detained in the night and dealt with by the police thereafter.
14. The case of some of the petitioners is on a different footing. The learned Counsel for the petitioners deposed that before the Commission they gave detailed account of their woeful suffering and as the matter relates to outrage of modesty of women and the consequent public scandal they have refrained from filing the affidavits disclosing the details of the police atrocities. The 8th petitioner in O.P. No. 8717 of 1986, R.J., (name withheld to avoid unnecessary publicity) is stated to have been harassed by the police. She gave evidence before the Commission alleging that she was subjected to inhuman and barbarous behaviour by the police. Her husband was taken to the police station in the dead of night and it is also alleged that the police entered the room where her two daughters were sleeping. She has filed an affidavit in this case and had given further details before the Commission. This, I think, is a fit case where this Court shall order compensation as a palliative measure, of course, this is without prejudice to her right to recover adequate compensation in other proceedings if she so chooses. I direct that the State shall pay a compensation of Rs. 25,000/- to this petitioner.
15. The 15th petitioner in O.P. No. 9100 of 1986, Alikutty, lost her husband in police firing. She is also entitled to compensation of Rs. 15,000/-.
16. The 17th petitioner in O.P. No. 9100 of 1986 sustained injury in the police firing. He is a physically handicapped person and he has only one leg and he is using crutches to walk. A bullet hit on his head and he was under prolonged treatment in the hospital. It is alleged that his life has become so sad and miserable because of this incident. I direct that he be paid Rs.' 10,000/- as initial compensation.
17. The 4th petitioner in O.P. No. 9100 of 1986 (M.R.K.) claims to be a social worker. It is alleged that he was ill-treated by the police. His wife gave evidence before the Commission alleging that she was subjected to inhuman treatment. She is not a petitioner in the original petition. Considering the facts and circumstances and the nature of sufferings undergone by the petitioner and his wife, I think that an initial payment of Rs. 10,000/- shall be given as compensation.
18. The learned Counsel contended that several cases have been pending in the local criminal court and because of the lukewarm attitude of the police in investigating these cases, there is no progress and no final reports have been filed in the cases. Therefore, it is prayed that all these cases should be handed over to a special team of Central Bureau of Investigation for enquiry and report. Of course, this is a matter which should have been done by the State at the relevant time. But at this stage I do not think that investigation by a team of different agency would be of any useful help. The incident happened in 1986 and these are not cases where the culprits are unknown and the cases remain undetected. Only thing is that the accused are not identified by the witnesses in some cases and for this and other reasons the final reports were not submitted by the police. In almost all the cases the police officers are the accused. So, I think that the investigation of these cases has to be handed over to a team consisting of senior police officers under the supervision of an officer not below the rank of a D.I.G. The State shall make immediate arrangements and the final report in these cases shall be filed at the earliest.
19. In these original petitions there are altogether 48 petitioners. All the petitioners claim compensation of not less than Rs. 50,000/- each. It may be true that many of these petitioners suffered some severe harassment at the hands of the police. As I have already pointed out, in writ proceedings this Court may not be in a position to analyse all the evidence and order compensation to all the petitioners, especially when these allegations are denied by the respondents. They have got right to move civil court for the relief of compensation. The counsel for the petitioners submitted that the Enquiry Commission Report was placed on the Table of the Legislature and the spokesman of the Government stated that the report was accepted by the Government. Therefore, it is contended that on the basis of the report compensation should be granted by this Court. Of course, the State could have granted compensation, if, in fact, the report was accepted by the Government. No material records have been produced before me to show that the report was accepted by the Government. The report is dated 9th October, 1987. No steps were taken by the Government to grant any sort of compensation to any of the victims of police excess at least to soothe the ruffled feelings of the victims. Even though the petitioners' prayer for compensation is rejected by this Court, they are at liberty to move the civil court for appropriate remedy.
20. In the result, I direct that the investigation of the pending criminal cases in connection with this incident is to be handed over to a special wing consisting of senior police officers under the supervision of an officer not below the rank of a D.I.G. The State shall make arrangement to deposit Rs. 60,000/- with the Joint Registrar of the High Court of Kerala within a period of three months from the date of this judgment to be disbursed to the petitioners. The 8th petitioner in O.P. No. 8717 of 1986 is to be paid Rs. 25,000/-, the 15th petitioner in O.P. No. 9100 of 1986 is to be paid Rs. 15,000/-, the 17th petitioner in O.P. No. 9100 of 1986 is to be paid Rs. 10,000/- and the 4th petitioner in O.P. No. 9100 of 1986 is to be paid Rs. 10,000/-.
With the above direction the original petitions are disposed of. The parties to bear their costs.
I place on record my appreciation of the forensic skill and enthusiasm shown by Advocate Mr. Benoy Thomas in analysing the voluminous factual and evidential matrix in these cases.