BACKGROUND POSITION IN CIVIL LAW
Torts as Civil wrongs for actionable claims are not codified under Indian Statute Law. However, the Apex Court since 1996, in its well founded wisdom, has held that the “Precautionary Principle” and the “Polluter Pays Principle” are essential features of sustainable development. Applying them for activities which are hazardous or inherently dangerous more so in environmental matters, the Apex Court in its extraordinary writ jurisdiction has often come down with a heavy hand for urgent remedial compensatory measures in public interest. But, actionable claims in private interest for traditional, conventional and procedural proceedings for damages under ordinary Civil law can be tedious, cumbersome, expensive, protracted and riddled with technicalities of law. The individual common man has to tread this ordinary path.
VICTIM COMPENSATION SCHEME UNDER CRIMINAL LAW
In 2008, The Code of Criminal Procedure was amended by Parliament to incorporate Section 357A to add the statutory mandate of the Victim Compensation Scheme under which every State Government was required to prepare a scheme for providing funds for compensation to a victim or his dependents who have suffered loss or injury as a result of a crime and who require rehabilitation. Even if the offender is not traced or identified, but the victim is identified, and no trial has taken place, compensation can be awarded upon due inquiry by the State or District Legal Services Authority. The purpose is laudable and salutary. The States of Punjab, Haryana and Union Territory, Chandigarh have notified Victim Assistance Compensation Schemes to offer succour but the actual monetary reliefs are either symbolic or beyond the reach of the ordinary mortal souls blissfully unaware of such schemes. Alas, retributive compensatory relief for the common man remains an illusory albatross.
EXTRA ORDINARY RELIEF IN WRIT JURISDICTION
The Apex Court under Article 32 and the High Courts under Article 226 of the Constitution can issue prerogative writs for enforcement of fundamental rights guaranteed under Part III of the Constitution. This right to constitutional remedies is a prerogative of the superior courts to enforce the rule of law and to ensure that the State as also other statutory authorities act in accordance with law. Not available in the case of disputed facts, these discretionary powers exercised by the superior courts are a hallmark of the judicial system. Tested over a span of 60 years, the nation is indeed proud of this exemplary justice system which has moulded out relief in innumerable cases involving violation of human rights and infringement of civil liberties. We have the unique distinction of this salutary concept of justice unknown in most jurisdictions. However, invoking it as an alternative to avoid conventional adjudication under statutory civil and criminal laws is often checked and deterred by the superior courts. Regardless, our Apex Court and the High Courts perform a yeoman service in securing justice by stretching out within the parameters of codified law when the conscience of the court is struck and per se violation of fundamental rights is perceived by the Court. This sense of justice attributed to the wisdom of the superior courts is unparalleled in any other justice system in different jurisdictions on the globe.
A NEW CONCEPT OF RELIEF
The Apex Court in Nilabati Behera Vs. State of Orissa (1993 (2) Supreme Court Cases 746) and in Dr. Mehmood Nayyar Azam Vs. State of Chhatisgarh (Judgments Today 2012 (7) Supreme Court 178), enunciated that the Supreme Court and the High Courts being the protectors of civil liberties of citizens, have not only the power and jurisdiction but also an obligation to grant relief in exercise of their extra ordinary jurisdiction under Articles 32 and 226 respectively of the Constitution. Award of compensation in writ jurisdiction for contravention of human rights and fundamental freedoms more so under Article 21 dealing with life and personal liberty is thus innovated by the Supreme Court to repair damage and provide monetary aid, notwithstanding the rights of the citizen to enforce conventional civil or criminal proceedings for relief.
A PATH BREAKING JUDGMENT
By a erudite verdict of July 2, Justice Rajiv Narain Raina of the Punjab and Haryana High Court awarded a Rs.60 lacs package for a four year old boy who suffered triple amputation of his limbs upon contact with live electric transmission wires passing over his home in District Panipat at Haryana. Relying upon the Apex Court’s dictum of law for moulding relief in writ jurisdiction for payment of compensation for damages for making “monetary amends” under public law for wrong done for breach of public duty, the High Court upholding the principle of “strict liability” and consequential negligence in awarding compensation, awarded “exemplary damages” to this hapless little child upon whom fate had inflicted a cruel malady. The Court concluded that failure to provide statutory safeguards and protective devices against high voltage electricity of dangerous dimensions and not removing live overhead lines passing over roofs of houses, attract the principles of strict liability to “invade the battle ground in fighting for the protection of life and liberty of our people under Article 21 of the Constitution”. The High Court in its well reasoned verdict issued salutary directions in quantification of monetary compensation, damages and other ancillary matters to secure the ends of justice. The High Court directed the Director General of Health Services, Haryana to take the assistance of all specialist medical institutions on humanitarian principles for making the minor child mobile through artificial robotic limbs including stem cell technology if possible. In order to secure the financial and monetary future of the minor, a sum of Rs.30 lacs was directed to be locked in financial deposit till the child attained the age of 21 and was ordered to be put in a fixed deposit account towards loss of enjoyment of life, trauma suffered and to act as a guard against neglect or dependence on others, loss of employment, pain and mental shock besides irreconcilable damages suffered. Furthermore, another compensatory sum of Rs.30 lacs was directed to be deposited in a separate interest bearing account to be invested to earn interest of Rs.20,000 per month for requiring running income to meet the child’s daily expenses and provide his day to day care. Separately, Rs.2 lacs was awarded as compensation to the mother for trauma, mental shock, pain and agony besides costs of litigation. The Court further directed that permanent employment be offered to the minor boy on compassionate grounds upon attaining age of 21 years in which case Rs.30 lacs compensation awarded would be put in his provident fund account. It was further ruled that “as substantial monetary compensation on principles of strict and vicarious liability and on tortuous liability based on negligence had been awarded, it is ordered that no civil suit would lie claiming further compensation in any Court.”
MEANS TO AN END
The High Court in its deep rooted wisdom and constitutional commitment to secure the ends of justice has innovatively culled out substantial relief by an unconventional mode under the judicial umbrella. Growing out of the shackles of the Victims Compensation Scheme and without relegating the hapless victim to a painful legal process which would have consumed substantial time, energy and finances, the High Court stretched its extraordinary jurisdiction to do extensive justice. It is an extremely well founded precedent in the hallmarks of justice which will open up vistas and avenues for those exceptional cases where remedial compensation would ensure survival. This precedent of law may be a good role model to emulate for rape victims, sufferers of acid attacks, victims of human trafficking, child abuse and kidnapping where protracted trials can be tedious and cumbersome. Settling new boundaries to advance the cause of justice with powers vested by the Constitution, the superior courts can ameliorate the cause of the downtrodden and under privileged sections of society to whom justice must be done. The cause of justice must be promoted to reach the common man.
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