2. CONSTITUION IS
A SOCIAL CONTRACT
A GRUND NORM
CONTAINS A CHECK/ RESTRICTION ON INFRINGMENT OF
NATURAL /HUMAN RIGHTS
3. NO EXPRESS PROVISION IN CONSTITUTION FOR
COMPENSATION
SUPREME COURT EVOLVED CONCEPT, WHILE
EXCERCISING POWERS UNDER ARTICLE 32.
ARTICLE 21, RIGHT TO LIFE AND PERSONAL LIBERTY, MOST INTERPRETED IN THIS
RESPECT.
SECTION 357 Cr.P.C PROVIDES ORDER TO PAY COMPENSATION
SECTION 357-A Cr.P.C INSERTED BY AMENDMENT ACT 2009 PROVIDES VICTIM
COMPENSATION SCHEME
STATE GOVT. IN CORDINATION WITH CENTRAL GOVT. TO FORMULATE A SCHEME
FOR COMPENSATION TO VICTIM OR DEPENDENTS
SECTION 19 C.P.C PROVIDES: SUITS FOR COMPENSATION FOR WRONGS TO
PERSON OR MOVABLES.
4. ACTION AGAINST STATE
“king can do no wrong” “rule of law”
SOVEREIGN FUNCTION NON SOVEREIGN FUNCTION
SIR PEACOCK, C.J
IN THE CASE OF Pennisular & Oriental Steam Navigation Co. v. Secretary of State of Bom.
(1831) 1 BR 87, used two above mentioned important legal terms and accepted action
against the secretary of state for the negligent act of the govt. workers. BUT ALSO HELD
THAT ACTION AGIANST THE SOVEREIGN FUNCTIONS OF STATE CANNOT BY MAINTAINED.
5. Post Independence
State of Rajasthan v. Vidyawati, AIR 1962 SC 933
govt. jeep driver,,,,hit and killed husband of respondent
B.P SINHA,C.J … OBSERVED, India has been constituted into a
socialistic state …. And for welfare state … it is not justified in principle
or in public interest that state would not be held vicariously liable for
the acts of servant.
This ruling discarded that distinction between sovereign and non sovereign
functions of the state.
6. N NAGENDRA RAO & Co. V. STATE OF
A.P, AIR 1994 SC 2663
SUPREME COURT HELD ,
DISTINCTION BETWEEN SOVEREIGN AND NON SOVEREIGNITY
UNDERWENT A DRASTIC CHANGE AND SOVEREIGN IMMUNITY HAS
NO RELEVANCE TODAY.
SOVEREIGNITY VESTS WITH THE PEOPLE
WHEN A CITIZEN SUFFERS ANY DAMAGE BY THE EMPLOYEES OF THE
STATE, THE LATTER i.e THE STATE IS LIABLE TO PAY DAMAGES AND
THE DEFENCE OF SOVEREIGN IMMUNITY WILL NOT ABSOLVE IT
FROM THIS LAIBILITY
7. HAZUR SINGH V. BIHARI LAL , AIR
1993 RAJ 51
JUSTICE B.R. ARORA HAS OBSERVED,
INDIA IS A DEMOCRATIC COUNTRY FOLLOWING RULE OF LAW
THE DEFENCE OF SOVEREIGN IMMUNITY HAS BECOME OUTDATED IN THE
CONTEXT OF MODERN DEVELOPMENTS
IN OUR NATION PEOPLE ARE SOVEREIGN AND THE GOVT. , WHICH IS ELECTED BY
THE PEOPLE, CANNOT SEEK SOVEREIGN IMMUNITY AGIANST THEM.
8. SUBE SINGH V. STATE OF HARYANA,
AIR 2006 SC 1177
THE APEX COURT HELD:
IT IS WELL SETTLED THAT AWARD OF COMPENSATION AGAINST THE STATE IS AN
APPROPRIATE AND EFFECTIVE REMEDY FOR REDRESSAL OF AN ESTABLISHED
INFRINGEMENT OF A FUNDAMENTAL RIGHT UNDER ARTICLE 21, BY A PUBLIC
SERVANT.
QUANTUM OF COMPENSATION WILL DEPEND ON FACTS AND CIRCUMSTANCES
OF EACH CASE.
AWARD OF COMPENSATION BY WAY OF PUBLIC REMEDY WILL NOT COME IN THE
WAY OF THE AGGRIEVED PERSON CLAIMING ADDITIONAL COMPENSATION IN
CIVIL COURTS, NOR COME IN THE WAY OF CRIMINAL COURT ORDERING
COMPENSATION UNDER SECTION 357 Cr.P.C
9. LIMITATIONS TO GRANT
COMPENSATION BY JUDICIAL
ACTIVISM
M.C MEHTA V. UNION OF INDIA, AIR 1987 SC 1086
M.C MEHTA V. UNION OF INDIA, AIR 1967 SC 965 (BHOPAL GAS LEAK CASE)
SUPREME COURT OBSERVED , THE POWER TO AWARD COMPENSATION UNDER
ARTICLE 21 /32 CAN BE EXERCISED ONLY IN “ APPROPRIATE CASES”
THE INFRINGEMENT OF FUNDAMENTAL RIGHT MUST BE GROSS, PATENT AND
INCONTROVERTIBLE
