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There is a latin maxim – ubi jus ibi remedium, which translates to ‘where there is a right, there is a remedy’. It is normally used for Tort law where when a wrong is done, it demands some kind of compensation. However, it has found its value in the public law area as well. Its meaning isn’t concentrated just on the wrongs in tort anymore but has been extended to the public law area (especially human rights) also. Thus, it is necessary to give some kind of compensation in case of violation of human rights.

The framers of the Constitution have enshrined the basic fundamental rights in Part III of the Indian Constitution. Articles 12 – 35 enumerate various rights available to Indian citizens. The most important and the widest one lies in Article 21.[1] Although the state must protect this right of its citizens, often cases of infringement flare up in the courts. Up until a few decades ago, people sought compensation under Torts law in case of such infringement of rights. Approaching the channels of private law to seek compensation was hectic and tiresome. It took decades for a case to reach its end. Considering this, the Supreme Court started recognizing the right to compensation for infringement of the right to life as well.


There is no right to compensation present in the Constitution of India. In cases of violation of fundamental rights, the victim only had the right to approach the Courts under Articles 32 and 226 for their enforcement. For getting some compensation, they had to file a Tort case, which was troublesome. So, when the Supreme Court got a chance to examine and recognize the nuances of the right to compensation, it didn’t let the opportunity slip.

In Rudul Sah v. State of Bihar[2], the Supreme court faced a situation where it was incumbent to grant some compensation to the victim. The victim had spent 14 years in jail after his acquittal. Due to this grave injustice, the court criticized the State for not upholding the right to liberty. The Supreme Court was not in a position to refuse compensation. The Hon’ble Justice Chandrachud said, “…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.”[3] Following this, the court awarded Rudul Sah a compensation of Rs. 30000. Along with it, the court also established that the right to seek compensation ordinarily resided in civil law (Tort Law). The Rudul Sah’s case was an exception since there was grave harm done due to the State’s neglect.

Although the amount was barely enough to compensate for the atrocity of 14 years of unlawful custody, the Supreme Court set a precedent for the other courts. This compensatory jurisprudence fixes an obligation on the State to protect the right to life and liberty or pay compensation in case of violation. In the subsequent years, the Supreme Court gave small amounts as compensation for the violation of the right to life. Cases involving illegal detention, police brutality, public humiliation by the police, etc. witnessed the State getting remanded for violation of fundamental rights. However, it was after the famous case of Nilabati Behera v. State of Orissa[4], that the Supreme Court crystallized the concept of compensation.

It was a case of death in police custody. In this case, the Supreme Court formed a distinction between the public law remedy and private law remedy. The court ruled that the State can’t use the doctrine of Sovereign Immunity (rex non potest peccare – the king can do no harm) to immunize itself against prosecution in cases where the right to life and liberty is violated. It stated that it was an ‘acknowledged remedy for enforcement and protection’ of fundamental rights.[5] It then gave an amount of 1.5 lakh rupees to Nilabati as compensation for the infringement of the right to life. It also directed the State to bring the murderers before a Court and start a criminal trial. By differentiating between public law remedy and private law remedy, the court firmly rooted the right to compensation in the bed of India’s legal framework. After this case, the Supreme Court didn’t apply its brakes and continuously interpreted cases to widen the compensatory jurisprudence. In another famous case of D.K. Basu v. State of West Bengal[6], the court relied on international case laws to further implement the right to compensation on violation of fundamental rights.

Slowly and steadily, this right to compensation was recognized by many High Courts in India. The Supreme Court and High courts diversified the right to bring more cases within its ambit. In 2000, the Supreme Court granted compensation to a Bangladeshi woman who was raped by a few railway employees[7], thereby including a foreign national within the purview of this right. In 2007, The Gujarat High Court awarded Rs. 1,50,000 on an interim basis to the representative of the minor who committed suicide due to rape by police.[8] In another case, the Delhi High court awarded a whopping amount of 10 lakh rupees to the petitioner, whose husband had died due to the negligent attitude of the State authorities.[9] This ruling further extended the right to compensation to the cases of negligence of public bodies. Thus, the right to compensation has been developed over a course of 3 decades and through numerous judgements.  But, how is the compensation calculated? Does the court give compensation in every case?


There is no precise law regarding the calculation of the quantum of compensation to be given to the victim. Although the right of compensation has been recognized in India, the amount of compensation poses an issue. The courts are inconsistent in giving compensation. Following are some examples of tracking the compensation amounts awarded in some major cases. Reading them will allow you to see an irregular trend in the amount of compensation given to the aggrieved.

For example; the court awarded Rs. 30000 for wrongful confinement in 1983[10], Rs.10000 to a victim of public humiliation in 1991[11], Rs. 10,00,000 to a rape victim in 2000[12], Rs. 150000 for the rape and torture of a minor resulting in her death in 2006[13], Rs. 2,70,000 for abduction and harassment of a minor in 2009[14], etc. Most recently, a petitioner was awarded Rs. 187200 for unlawful custody[15].

Besides this erraticism, the courts are also extremely cautious while giving compensation. They don’t give compensation in every case of infringement of fundamental rights under public law. Usually, the cases of violation of the right enshrined in Article 21 of the constitution that affect a court’s conscience are tried for calculating compensation. In other cases, the petitioners are relegated to the remedy available in Torts law. Also, in Sube Singh v. State of Haryana[16], the court gave a condition to be fulfilled before ordering compensation – Every court should ascertain if the violation of the right to life is patent and incontrovertible. After this, the court may proceed to give whatever compensation it deems fit. This shows how vigilant the courts remain while hearing a case pertaining to the right to compensation. However, the cautious attitude of the court in granting compensation is justified because if all the cases for compensation for violation of the right to life are allowed, there will be an influx of people filing public law cases in the simplest of matters where a private law action would be more feasible. It will disrupt the daily routine of higher courts and consume the precious time they need for solving other cases.


How the courts in India have recognized and expanded the right to compensation indicates their desire to act as a custodian of human rights. However, the attitude of the government and police authorities hasn’t changed much. There are instances of gross misconduct resulting in violation of the right to life present even today. Moreover, the quantum of compensation fluctuates drastically in every case. The reason? The discretion of awarding compensation lies with the judge hearing the case. He may give any amount of compensation. This causes a lot of people to suffer due to inadequate or no compensation. Hence, there is a need to formulate a uniform code that will help in determining the compensation to be awarded – A legal/jurisprudential unified system established by the legislature to bind the courts and provide the best remedy to the citizens.  The right to compensation is a crucial facet of law. There must be appropriate provisions for thorough enforcement of this right. Only then, will the citizens live in a safe country?

Author(s) Name: Anmol Garg (Panjab University, Chandigarh)


[1] Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law, Constitution of India, 1950.

[2] AIR 1983 SC 1086

[3] Rudul Sah v. State of Bihar, AIR 1983 SC 1086

[4] AIR 1993 SC 1960

[5] Zia Mody, 10 Judgements that changed India, (1st edition, Penguin random house India, 2013) 146

[6] AIR 1997 SC 610

[7] Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988

[8] Bachiben Naranbha v. State of Gujarat, (2007) 3 GLR 1918

[9] Shakuntala v. Govt. of NCT of Delhi, 2010 ACJ 1 (Delhi High Court)

[10] Rudul Sah v. State of Bihar, AIR 1983 SC 1086

[11] State of Maharashtra v. Ravikant Patil, (1991) 2 SCC  373

[12] Chairman, railway Boards v. Chandrima Das, AIR 2000 SC 988

[13] Bachiben Naranbha v. State of Gujarat, (2007) 3 GLR 1918

[14] Tasleema v. State (NCT of Delhi), (2009) ILR 6 Delhi 486

[15] Nitin Aryan v. State of Chhattisgarh, (2021) 4 CGLJ 451

[16] AIR 2006 SC 1117