Compensation when the State violates your rights

Sometimes the people meant to protect you cause the harm. A man is kept in jail years after he should have been released. A young man dies in a police lock-up. An innocent person is falsely implicated and loses years of his life. Punishing the officer is one thing; repairing the loss to the victim and the family is another. Indian courts have built a remedy for the second: when the State violates your fundamental rights, it can be ordered to pay.

How the remedy was born

The Constitution does not expressly mention money compensation for rights violations. The Supreme Court developed it case by case.

• Rudul Sah v. State of Bihar (1983). Rudul Sah remained in jail for fourteen years after his acquittal. The Court ordered the State to pay him, holding that the right to life and liberty under Art 21 would be hollow if a court could only order release and not repair the harm.
• Bhim Singh v. State of J&K (1985). An MLA illegally detained to stop him attending the Assembly was awarded compensation for the "mischievous" violation of his liberty.
• Nilabati Behera v. State of Orissa (1993). A 22-year-old died in police custody. The Court held that compensation for breach of fundamental rights is a public law remedy based on the State's strict liability, and that the defence of sovereign immunity, available in an ordinary tort suit, has no place here.
• D.K. Basu v. State of West Bengal (1997). Laid down the arrest and custody safeguards, and confirmed that monetary compensation is the appropriate remedy for custodial violence and death.
• S. Nambi Narayanan v. Siby Mathews (2018). The ISRO scientist falsely implicated in a spy case was awarded compensation by the Supreme Court for the humiliation and suffering caused.

When you can claim

This remedy is for violations of fundamental rights, mainly Art 21 (life and liberty) and Art 22 (safeguards on arrest), by the State or its officers. Typical situations:

• illegal detention, or custody beyond the lawful period (for example, not produced before a Magistrate within 24 hours, or kept in jail after bail or acquittal);
• torture, injury or death in police or judicial custody;
• fake encounters or disproportionate use of force;
• death or grave injury from gross negligence in government hospitals, jails, shelter homes or schools;
• malicious or fabricated prosecution by officials.

Writ courts award compensation where the facts are clear or largely undisputed, often from an inquiry report, post-mortem or official records. Where the facts are heavily contested, the court may ask you to prove them in a civil suit. The award is usually a lump sum; the State may recover it from the guilty officers, and it does not bar a criminal case against them.

Step by step: the routes available

1. Writ petition. File in the High Court under Art 226 (or the Supreme Court under Art 32) seeking a declaration that the right was violated, an independent inquiry, action against the officers, and compensation. A legal aid lawyer can draft it; High Courts also take up custodial deaths on their own from news reports.
2. Human Rights Commission. Complain to the National Human Rights Commission or your State Commission under the Protection of Human Rights Act, 1993. There is no fee; complaints go by post, email or the NHRC online portal. The Commission can summon records, order an inquiry and recommend immediate interim relief and compensation Sec 18. Complain within one year of the incident Sec 36(2). Its recommendations are not binding, but governments usually comply and courts enforce them.
3. Magisterial inquiry. In every death, disappearance or rape in police or judicial custody, a Judicial Magistrate must hold an inquiry in addition to the police investigation, and the body must be examined by a doctor within 24 hours Sec 196 BNSS (earlier Sec 176(1A) CrPC). The report is powerful evidence for your compensation claim.
4. Groundless arrest. If someone caused the police to arrest you without sufficient ground, the Magistrate may order that person to pay you compensation, but only up to Rs 1,000 Sec 399 BNSS (earlier Sec 358 CrPC). It is a token remedy.
5. Victim compensation scheme. Victims of crime, including crimes by public servants, can apply to the District Legal Services Authority under the state scheme Sec 396 BNSS (earlier Sec 357A CrPC); the court can also order compensation out of any fine Sec 395 BNSS.
6. Civil suit. A suit for damages against the State and the officers can award larger sums but takes years, and the State may raise technical defences. Most families use it only after a writ court has fixed liability.