DIPAK MISRA, J.— Leave granted. Albert Schweitzer highlighting on the Glory of Life,
pronounced with conviction and humility, “the reverence of life offers me my fundamental
principle on morality”. The aforesaid expression may appear to be an individualistic expression
of a great personality, but, when it is understood in the complete sense, it really denotes, in its
conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker
about the respect that life commands. The reverence of life is insegregably associated with the
dignity of a human being who is basically divine, not servile. A human personality is endowed
with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity
has to be the superlative concern of every sensitive soul. The essence of dignity can never be
treated as a momentary spark of light or, for that matter, “a brief candle”, or “a hollow bubble”.
The spark of life gets more resplendent when man is treated with dignity sans humiliation, for
every man is expected to lead an honourable life which is a splendid gift of “creative
intelligence”. When a dent is created in the reputation, humanism is paralysed. There are some
megalomaniac officers who conceive the perverse notion that they are the “Law” forgetting that
law is the science of what is good and just and, in the very nature of things, protective of a
civilised society. Reverence for the nobility of a human being has to be the cornerstone of a
body polity that believes in orderly progress. But, some, the incurable ones, become totally
oblivious of the fact that living with dignity has been enshrined in our constitutional philosophy
and it has its ubiquitous presence, and the majesty and sacrosanctity of dignity cannot be
allowed to be crucified in the name of some kind of police action.
2. The aforesaid prologue gains signification since in the case at hand, a doctor, humiliated in
custody, sought a public law remedy for grant of compensation and the High Court, despite no
factual dispute, has required him to submit a representation to the State Government for
adequate relief pertaining to grant of compensation after expiry of 19 years with a further
stipulation that if he is aggrieved by it, he can take recourse to requisite proceedings available
to him under law. We are pained to say that this is not only asking a man to prefer an appeal
from Caesar to Caesar’s wife but it also compels him like a cursed Sisyphus [Ed.: In Greek
mythology Sisyphus was the King of Corinth who was punished by the Gods by being
compelled to roll a huge stone up a hill, only to watch it roll back down and repeat the exercise
forever, thus consigning him to an eternity of useless efforts and unending frustration.] to carry
the stone to the top of the mountain wherefrom the stone rolls down and he is obliged to
repeatedly perform that futile exercise.
11. After issuing notice, this Court on 17-2-2012 [Mehmood Nayyar Azam v. State of
Chhattisgarh, SLP (C) No. 34702 of 2010, decided on 17-2-2012 (SC)] thought it apposite that
the appellant should submit a representation within a week which shall be considered by the
respondents within four weeks therefrom. In pursuance of the aforesaid order, the appellant
submitted a representation which has been rejected on 19-3-2012 by the OSD/Secretary,
Government of Chhattisgarh, Home (Police) Department. In the rejection order, it has been
stated as follows:
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“In the aforesaid cases, the arrest and the action regarding submission of charge-sheet in the
Hon’ble Court was in accordance with law.
(2) On 24-9-1992 the police officers taking your photograph and writing objectionable words
thereon was against the legal procedure. Considering this, action was taken against the guilty
police officers concerned in accordance with law and two police officers were punished.
(3) In your representation, compensation has been demanded on the following grounds:
A. Defamation was caused due to the police officers taking photograph.
B. Your wife became unwell mentally. She is still unwell.
C. Difficulty in marriage of daughter.
Regarding the aforesaid grounds, the actual position is as follows:
A. Defamation is such a subject, the decision on which is within the jurisdiction of the
competent court. No decision pertaining to defamation has been received from the court of
competent jurisdiction. Therefore, it would not be proper for the State Government to take a
decision in this regard.
B. Regarding mental ailment of your wife, no such basis has been submitted by you, on the
basis of which any conclusion may be drawn.
C. On the point of there being no marriage of children also, no such document or evidence has
been produced by you before the Government along with the representation, on the basis of
which any decision may be taken.
Therefore, in the light of the above, the State Government hereby rejects your representation
and accordingly decides your representation.”
16. At the very outset, we are obliged to state that five aspects are clear as day and do not
remotely admit of any doubt. First, the appellant was arrested in respect of the alleged offence
under the Penal Code, 1860 and the Electricity Act, 2003; second, there was a direction by the
Magistrate for judicial remand and thereafter instead of taking him to jail the next day, he was
brought to the police station; third, self-humiliating words were written on the placard and he
was asked to hold it and photographs were taken; and fourth, the photographs were circulated
in general public and were also filed by one of the respondents in a revenue proceeding; and
fifth, the High Court, in categorical terms, has found that the appellant was harassed.
19. We have referred to the aforesaid paragraphs of D.K. Basu case [(1997) 1 SCC 416 : 1997
SCC (Cri) 92 : AIR 1997 SC 610] to highlight that this Court has emphasised on the concept
of mental agony when a person is confined within the four walls of police station or lock-up.
Mental agony stands in contradistinction to infliction of physical pain. In the said case, the twoJudge Bench referred to Article 5 of the Universal Declaration of Human Rights, 1948 which
provides that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.” Thereafter, the Bench adverted to Article 21 and proceeded to state that the
expression “life or personal liberty” has been held to include the right to live with human dignity
and thus, it would also include within itself a guarantee against torture and assault by the State
or its functionaries. Reference was made to Article 20(3) of the Constitution which postulates
that a person accused of an offence shall not be compelled to be a witness against himself.
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20. It is worthy to note that in D.K. Basu [(1997) 1 SCC 416] , the concern shown by this Court
in Joginder Kumar v. State of U.P. [(1994) 4 SCC 260] was taken note of. In Joginder Kumar
case this Court voiced its concern regarding complaints of violation of human rights during and
after arrest. It is apt to quote a passage from the same: (Joginder Kumar case SCC pp. 263-64,
paras 8-9)
“8. The horizon of human rights is expanding. At the same time, the crime rate is also
increasing. Of late, this Court has been receiving complaints about violation of human rights
because of indiscriminate arrests. How are we to strike a balance between the two?
9. A realistic approach should be made in this direction. The law of arrest is one of balancing
individual rights, liberties and privileges, on the one hand, and individual duties, obligations
and responsibilities on the other; of weighing and balancing the rights, liberties and privileges
of the single individual and those of individuals collectively; of simply deciding what is wanted
and where to put the weight and the emphasis; of deciding which comes first — the criminal or
society, the law violator or the law abider….”
21. After referring to Joginder Kumar , A.S. Anand, J. (as His Lordship then was), dealing
with the various facets of Article 21 in D.K. Basu case [(1997) 1 SCC 416] , stated that any
form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Article
21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the
functionaries of the Government become law-breakers, it is bound to breed contempt for law
and would encourage lawlessness and every man would have the tendency to become law unto
himself thereby leading to anarchy. No civilised nation can permit that to happen, for a citizen
does not shed off his fundamental right to life, the moment a policeman arrests him. The right
to life of a citizen cannot be put in abeyance on his arrest. The precious right guaranteed by
Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and
other prisoners in custody, except according to the procedure established by law by placing
such reasonable restrictions as are permitted by law.
36 From the aforesaid discussion, there is no shadow of doubt that any treatment meted out to
an accused while he is in custody which causes humiliation and mental trauma corrodes the
concept of human dignity. The majesty of law protects the dignity of a citizen in a society
governed by law. It cannot be forgotten that the welfare State is governed by the rule of law
which has paramountcy. It has been said by Edward Biggon “the laws of a nation form the most
instructive portion of its history”. The Constitution as the organic law of the land has unfolded
itself in a manifold manner like a living organism in the various decisions of the court about
the rights of a person under Article 21 of the Constitution of India. When citizenry rights are
sometimes dashed against and pushed back by the members of City Halls, there has to be a
rebound and when the rebound takes place, Article 21 of the Constitution springs up to action
as a protector. That is why, an investigator of a crime is required to possess the qualities of
patience and perseverance as has been stated in Nandini Satpathy v. P.L. Dani [(1978) 2 SCC
424] .
37. In Delhi Judicial Service Assn. v. State of Gujarat [(1991) 4 SCC 406] , while dealing with
the role of police, this Court condemned the excessive use of force by the police and observed
as follows: (SCC pp. 454-55, para 39)
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“39. The main objective of police is to apprehend offenders, to investigate crimes and to
prosecute them before the courts and also to prevent commission of crime and above all to
ensure law and order to protect the citizens’ life and property. The law enjoins the police to be
scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial
to an offender. The purpose and object of Magistracy and police are complementary to each
other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of
our Constitution. Aberrations of police officers and police excesses in dealing with the law and
order situation have been subject of adverse comments from this Court as well as from other
courts but it has failed to have any corrective effect on it. The police has power to arrest a person
even without obtaining a warrant of arrest from a court. The amplitude of this power casts an
obligation on the police … [and it] must bear in mind, as held by this Court that if a person is
arrested for a crime, his constitutional and fundamental rights must not be violated.”
38. It is imperative to state that it is the sacrosanct duty of the police authorities to remember
that a citizen while in custody is not denuded of his fundamental right under Article 21 of the
Constitution. The restrictions imposed have the sanction of law by which his enjoyment of
fundamental right is curtailed but his basic human rights are not crippled so that the police
officers can treat him in an inhuman manner. On the contrary, they are under obligation to
protect his human rights and prevent all forms of atrocities. We may hasten to add that a balance
has to be struck and, in this context, we may fruitfully quote a passage from D.K. Basu [(1997)
1 SCC 416, pp. 434-35, para 33)
“33. There can be no gainsaying that freedom of an individual must yield to the security of the
State. The right of preventive detention of individuals in the interest of security of the State in
various situations prescribed under different statutes has been upheld by the courts. The right
to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence
over an individual’s right to personal liberty. … The action of the State, however, must be ‘right,
just and fair’. Using any form of torture for extracting any kind of information would neither
be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article
21. Such a crime suspect must be interrogated — indeed subjected to sustained and scientific
interrogation — determined in accordance with the provisions of law. He cannot, however,
be tortured or subjected to third-degree methods or eliminatedwith a view to elicit information,
extract confession or derive knowledge about his accomplices, weapons, etc. His constitutional
right cannot be abridged [except] in the manner permitted by law, though in the very nature of
things there would be qualitative difference in the method of interrogation of such a person as
compared to an ordinary criminal.”(emphasis in original)
39 In the case at hand, the appellant, while in custody, was compelled to hold a placard in which
condemning language was written. He was photographed with the said placard and the
photograph was made public. It was also filed in a revenue proceeding by the fifth respondent.
The High Court has recorded that the competent authority of the State has conducted an enquiry
and found the erring officers to be guilty. The High Court has recorded the findings in the
favour of the appellant but left him to submit a representation to the authorities concerned. This
Court, as has been indicated earlier, granted an opportunity to the State to deal with the matter
in an appropriate manner but it rejected the representation and stated that it is not a case of
defamation. We may at once clarify that we are not at all concerned with defamation as
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postulated under Section 499 IPC. We are really concerned how in a country governed by the
rule of law and where Article 21 of the Constitution is treated to be sacred, the dignity and
social reputation of a citizen has been affected.
40 As we perceive, from the admitted facts borne out on record, the appellant has been
humiliated. Such treatment is basically inhuman and causes mental trauma. In Kaplan and
Sadock’s Synopsis of Psychiatry, while dealing with torture, the learned authors have stated that
intentional physical and psychological torture of one human by another can have emotionally
damaging effects comparable to, and possibly worse than, those seen with combat and other
types of trauma. Any psychological torture inflicts immense mental pain. A mental suffering at
any age in life can carry the brunt and may have nightmarish effect on the victim. The hurt
develops a sense of insecurity, helplessness and his self-respect gets gradually atrophied. We
have referred to such aspects only to highlight that in the case at hand, the police authorities
possibly had some kind of sadistic pleasure or to “please someone” meted out the appellant
with this kind of treatment.
41. It is not to be forgotten that when dignity is lost, the breath of life gets into oblivion. In a
society governed by the rule of law where humanity has to be a laser beam, as our
compassionate Constitution has so emphasised, the police authorities cannot show the power
or prowess to vivisect and dismember the same. When they pave such path, law cannot become
a silent spectator. As pithily stated inJennison v. Baker [(1972) 2 QB 52 : (1972) 2 WLR 429 :
(1972) 1 All ER 997 (CA)] : (QB p. 66 H)
“ … ‘The law should not be seen to sit by limply, while those who defy if go free, and those
who seek its protection lose hope.’” (All ER p. 1006d)
42. Presently, we shall advert to the aspect of grant of compensation. The learned counsel for
the State, as has been indicated earlier, has submitted with immense vehemence that the
appellant should sue for defamation. Our analysis would clearly show that the appellant was
tortured while he was in custody. When there is contravention of human rights, the inherent
concern as envisaged in Article 21 springs to life and enables the citizen to seek relief by taking
recourse to public law remedy.
43. In this regard, we may fruitfully refer to Nilabati Behera v. State of Orissa [(1993) 2 SCC
746] wherein it has been held thus: (SCC pp. 762-63, para 17)
“17. … ‘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 right 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
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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.”
44. Dr A.S. Anand, J. (as His Lordship then was), in his concurring opinion, expressed that:
(Nilabati case (1993) 2 SCC 746, pp. 768-69, para 34)
“34. … The relief of monetary compensation, as exemplary damages, in proceedings under
Article 32 by the Supreme Court or under Article 226 by the High Courts, for established
infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a
remedy available in public law and is based on the strict liability for contravention of the
guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to
civilize public power but also to assure the citizen that they live under a legal system which
aims to protect their interests and preserve their rights. Therefore, when the court moulds the
relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution
seeking enforcement or protection of fundamental rights, it does so under the public law by way
of penalising the wrongdoer and fixing the liability for the public wrong on the State which has
failed in its public duty to protect the fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it is generally understood in a civil action
for damages under the private law but in the broader sense of providing relief by an order of
making ‘monetary amends’ under the public law for the wrong done due to breach of public
duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature
of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty
and is independent of the rights available to the aggrieved party to claim compensation under
the private law in an action based on tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal law.”
45. In Sube Singh v. State of Haryana [(2006) 3 SCC 178] a three-Judge Bench of the Apex
Court, after referring to its earlier decisions, has opined as follows: (SCC pp. 198-99, para 38)
“38. It is thus now well settled that the award of compensation against the State is an appropriate
and effective remedy for redress of an established infringement of a fundamental right under
Article 21, by a public servant. The quantum of compensation will, however, depend upon the
facts and circumstances of each case. Award of such compensation (by way of public law
remedy) will not come in the way of the aggrieved person claiming additional compensation in
a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the
criminal court ordering compensation under Section 357 of the Code of Criminal Procedure.”
46. At this stage, we may fruitfully refer to the decision in Hardeep Singh v. State of
M.P. [(2012) 1 SCC 748]. The appellant therein was engaged in running a coaching centre
where students were given tuition to prepare for entrance test for different professional courses.
On certain allegation, he was arrested and taken to police station where he was handcuffed by
the police without there being any valid reason. A number of daily newspapers published the
appellant’s photographs and on seeing his photograph in handcuffs, the appellant’s elder sister
was so shocked that she expired. After a long and delayed trial, the appellant, Hardeep Singh,
filed a writ petition before the High Court of Madhya Pradesh at Jabalpur that the prosecution
purposefully caused delay in conclusion of the trial causing harm to his dignity and reputation.
The learned Single Judge, who dealt with the matter, did not find any ground to grant
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compensation. On an appeal being preferred, the Division Bench observed that an expeditious
trial ending in acquittal could have restored the appellant’s personal dignity but the State instead
of taking prompt stepsto examine the prosecution witnesses delayed the trial for five long years.
The Division Bench further held that there was no warrant for putting the handcuffs on the
appellant which adversely affected his dignity. Be it noted, the Division Bench granted
compensation of Rs 70,000.
47. This Court, while dealing with the facet of compensation, held thus: (Hardeep Singh
case [(2012) 1 SCC 748, pp. 752-53, para 17)
“17. Coming, however, to the issue of compensation, we find that in the light of the findings
arrived at by the Division Bench, the compensation of Rs 70,000 was too small and did not do
justice to the sufferings and humiliation undergone by the appellant. In the facts and
circumstances of the case, we feel that a sum of Rs 2,00,000 (Rupees two lakhs) would be an
adequate compensation for the appellant and would meet the ends of justice. We, accordingly,
direct the State of Madhya Pradesh to pay to the appellant the sum of Rs 2,00,000 (Rupees two
lakhs) as compensation. In case the sum of Rs 70,000 as awarded by the High Court, has already
been paid to the appellant, the State would naturally pay only the balance amount of Rs 1,30,000
(Rupees one lakh thirty thousand).”
Thus, suffering and humiliation were highlighted and the amount of compensation was
enhanced.
48. On a reflection of the facts of the case, it is luculent that the appellant had undergone mental
torture at the hands of insensible police officials. He might have agitated to ameliorate the cause
of the poor and the downtrodden, but, the social humiliation that has been meted out to him is
quite capable of destroying the heart of his philosophy. It has been said that philosophy has the
power to sustain a man’s courage. But courage is based on self-respect and when self-respect is
dented, it is difficult even for a very strong-minded person to maintain that courage. The initial
invincible mind paves the path of corrosion. As is perceptible, the mindset of the protectors of
law appears to cause torment and insult and tyrannise the man who is helpless in custody. There
can be no trace of doubt that he is bound to develop stress disorder and anxiety which destroy
the brightness and strength of the will power. It has been said that anxiety and stress are slow
poisons. When torment is added, it creates commotion in the mind and the slow poisons get
activated. The inhuman treatment can be well visualised when the appellant came out from
custody and witnessed his photograph being circulated with the self-condemning words written
on it. This withers away the very essence of life as enshrined under Article 21 of the
Constitution. Regard being had to the various aspects which we have analysed and taking note
of the totality of facts and circumstances, we are disposed to think that a sum of Rs 5 lakhs
(Rupees five lakhs only) should be granted towards compensation to the appellant and,
accordingly, we so direct. The said amount shall be paid by the respondent State within a period
of six weeks and be realised from the erring officers in equal proportions from their salary as
thought appropriate by the competent authority of the State.
