Supreme court in Rajender Singh Pathania and Others Versus State of N.C.T. of Delhi and Others [ JT 2011 (10) SC 294 : (2011) 9 SCALE 124]

The issue of award of compensation in case of violation of FUNDAMENTAL RIGHTS of a person has been considered by this Court time and again and it has consistently been held that though the High Courts and Supreme Court in exercise of their jurisdictions under Articles 226 and 32 can award compensation for such violations but such a power should not be lightly exercised. These Articles cannot be used as a substitute for the enforcement of RIGHTS and obligations which could be enforced efficaciously through the ordinary process of courts. Before awarding any compensation there must be a proper enquiry on the question of facts alleged in the complaint. The court may examine the report and determine the issue after giving opportunity of filing objections to rebut the same and hearing to the other side. Awarding of compensation is permissible in case the court reaches the same conclusion on a re-appreciation of the evidence adduced at the enquiry. Award of monetary compensation in such an eventuality is permissible “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.”

(Vide: Sebastian M. Hongray v. Union of India AIR 1984 SC 1026; Bhim Singh, MLA v. State of J and K and Ors., AIR 1986 SC 494; Smt. Nilabati Behera v. State of Orissa and Ors., AIR 1993 SC 1960; D.K. Basu v. State of W.B., AIR 1997 SC 610; Chairman, Railway Board and Ors. v. Mrs. Chandrima Das and Ors., AIR 2000 SC 988; and S.P.S. Rathore v. State of Haryana and Ors., (2005) 10 SCC 1).

18. In Sube Singh v. State of Haryana and Ors., AIR 2006 SC 1117, while dealing with similar issue this Court held as under:

In cases where custodial death or custodial torture or other violation of the RIGHTS guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death….. Where there are clear indications that the allegations are false or exaggerated fully or in part, the courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.

(See also: Munshi Singh Gautam (D) and Ors. v. State of M.P., AIR 2005 SC 402; and Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi and Ors., AIR 2010 SC 475).