When Art 21 is reduced to nullity

The Constitution of India in Article 21 guaranteed right to life and personal liberty. The Supreme Court said if the government caused wrongful detention it is liable to pay compensation to that citizen. But the government has no such policy.

Justice Bhagwati’s Jurisprudence
A great Justice P N Bhagwati, who died on June 15, 2017, urged not to convert Article 21 into a mere a rope of sand, and created a new jurisprudence in Khatri’s [1981 SCC (1) 627] case. He created the jurisdiction of payment of monetary compensation under Public Interest Litigation to the victims on violation of their life and personal liberty.

Bhagwath J, speaking for the court, observed: “the court can certainly inject the state for depriving a person of his life or Personal Liberty except in accordance with the procedure established by law but, if life or Personal Liberty is violated otherwise than in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation?

Why should the court not be prepared to forge new and devise new remedies for the purpose of vindicating the most precious Fundamental Right to life and Personal Liberty? Otherwise Article 21 would be reduced to a nullity, a “mere rope of sand.” The court described this issue as of gravest Constitutional importance involving exploration of new dimension of the Right to Life and Personal Liberty (page 930, Para 3).

But when a prisoner asked for compensation for the extra detention in Tihar Jail though he was eligible for early release, the Tihar Jail authorities said that the government has no policy to pay such damages.

An ordinary person, Om Parkash Gandhi, was convicted under the Section 138 of the Negotiable Instruments Act for dishonour of cheque for insufficiency of funds. He was detained from 23rd November 2010 until he was granted bail on 24th December 2010.

The trial went on for 3 years resulting in sentencing on 26th November 2013 for a period of one-year simple imprisonment and fine. The appellant has collected the information on remission that 83 days of remission was given to him through 36 RTI applications and based on that contended that he should have been released on 2nd August 2014. The following table explains the remission details.

OP Gandhi’s son sought to know the date of release from the Jail authorities much before the release but it was not responded to. He wrote again on 4th August 2014. The jail authorities gave different answers to the question why he was not released earlier and tried to justify the date of release. They said that they did not inquire about the appellant’s bail status in one of the on-going cases before Judicial Magistrate 1stClass, Faridabad, Haryana.

The question for consideration was ‘other detriment’ of extra-detention, and compensation. The appellant prayed for Rs 1000 as costs and compensation for extra-detention of 14 days.

The PIO of Tihar Jail says that the information sought is not covered by definition of ‘information’ under section 2 (f) of RTI Act. First appeal was filed, the appellate authority noted: “Now he has filed an appeal mentioning that he was illegally detained for 18 days in the Jail and SCJ-5 has given his report to the Commission on the appeal filed by the appellant vide order no. 431 and 432, dated 04.07.2015, then why the reply is not given to him.

The PIO, CJ-5 was directed to send reply to the appellant within 10 days of time. Therefore, the present appeal be treated as MOST URGENT since under section 19, sub-section (i) or section 2 of the RTI Act, we are bound to dispose of the appeal within the specified time, failing to furnish the information asked for under the Act within the time specified is liable for penalty.” However, the warning given by their FAA was ignored.

The CIC directed the jail authorities, and the government to explain why they should not be ordered to pay suitable compensation for causing loss or for other detriment caused by denial of information besides Rs 1,000 as costs to the appellant for reaching the Commission as hearing was postponed due to absence of the public authority. In addition, CIC issued show cause notice to PIO for punishment.

The GNCTD has to declare their policy in the form of citizen charter under Section 4(1)(b), (c) and (d) of Right to Information Act, 2005, explaining rights of a prisoner in the jail especially with regard to ‘remission and remedy’ for wrongful extra detention like this, the amount of compensation and procedure to claim, to be placed on their website as that was required to be disclosed voluntarily under Section 4 of Right to Information Act. It was not complied with.

When another chance was given, none came from the jail. However they personally met the Commissioner in the evening explaining their absence and requested to take written representation. They have not sent that representation at all.

Sanjiv Kumar, Assistant Superintendent of Tihar Jail, stated that the announcement of remission was made on 15thAugust itself, and hence the appellant could not get the full benefit of 15 days but got only one-day benefit and released on 15th August, 2014. He explained that a prisoner cannot be released on the assumption of remission in advance.

He could not show any proof for date of declaration of remission as 15th August, 2014. As the order of remission was issued on 11th August, 2014, the appellant should have been released on that day itself. The authorities knew that the appellant has to be released on that day as per the remission order, yet he was detained till 15.08.2014.

Article 21 of Indian Constitution says: Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

The government did not provide any remedy for such extra detention and said unless court orders compensation they cannot pay. While the Constitution laid down the right, the Supreme Court created remedy through their decisions to compensate for illegal detention.

Section 19(8)(b) of RTI says S 19(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,— require the public authority to compensate the complainant for any loss or other detriment suffered; Hence the CIC directed the Jail Authorities to pay Rs 10,000 for four days of extra detention and Rs 1000 as costs.

Under Section 19(8) (a) (iii) the CIC is required to publish the information about policy as per law to compensate the prisoners who are unfortunately detained beyond date of release. That information has to be framed and disclosed suo motu under Section 4(1) (b), (c) and also (d) of the RTI Act.

Prisoners like the appellant are persons affected by the ‘administrative’ (deciding the benefit of remission) or ‘quasi-judicial’ (interpreting it or deciding the date of according that benefit) and hence they have the right to know about such policy. [O P Gandhi v. Tihar Jail CIC/SA/A/2016/000884 Dated 29.09.2016]
Stay by Delhi High Court

Instead of paying Rs 11,000, the Government of Delhi spent more than that amount to file a writ petition before Delhi High Court challenging the order of the CIC as unconstitutional and the hon’ble court granted stay. “Prima facie, this power does not vest in the CIC,” Justice Sanjeev Sachdeva said while staying operation of the September 29, 2016 decision of the Commission, asking Tihar Jail authorities to frame a policy to resolve disputes regarding remission and paying compensation to prisoners who lost their personal liberty due to detention beyond the sentence awarded to them.

The court’s order came on a plea by jail authorities who contended that the transparency panel has exceeded its jurisdiction under the Right to Information (RTI) Act, 2005 and appeared to have exercised the powers of a court. [Public Information Officer, Tihar Jail v. Om Prakash Gandhi, Writ Petition No. 621 of 2017, decided on January 24, 2017].