Compensate for wrongful detention

A prisoner got special remission and he was supposed to be released on 15th August, 2014. Authorities claimed that he was detained beyond that date to check up whether any other case was pending against that prisoner so that he could be produced before the court on 19.08.2014 and he was released on that day. He was detained because of holidays intervening. They also claimed that as he was an undertrial prisoner, he was kept in prison though remission was sanctioned by Superintendent.

Jail officials ask prisoner to go to court

Prisoner’s RTI request is about the policy to take action for such ‘extra detentions’ and also to compensate the prisoners for their loss of liberty. Answer of the Jail authorities was ‘go to court.’ He can use complaint box or file a grievance representation before higher authorities.

There is no policy/scheme/mechanism available in jail system either to prevent such unnecessary extra detention, nor to take action against callous action, nor to provide remedy for ‘false imprisonment’. Section 4(1)(c) of the RTI Act says: “Publish all relevant facts while formulating important policies or announcing decisions which affect public.” The lack of policy is depriving prisoners of their liberty, and hence they should have a policy. It’s a major gap in governance of jail. Prisoner OP Gandhi’s RTI question should set a right policy for prevention, action and compensation for this breach of Article 21.

CIC directs framing of a policy
The Commission gave notice and time to jail authorities to frame a policy or take action in this specific case and come up with action taken report. But after ten months nothing happened. In compliance proceedings, the prisoner stated that extra detention he wrongfully suffered was for 18 days in addition to the term in Tihar Prison. Significantly, the officers who were present at hearing neither disputed the claim of extra detention, nor justified it. It is a clear breach of the Article 21, and a serious wrong committed by the public servants for which the state is vicariously liable as per established principles of law.

SC judgements prescribe compensation
To understand liability of state for this kind of wrongdoing, we need to refer to the judgment of Supreme Court in State of Andhra Pradesh v Challa Ramakrishna Reddy (http://indiankanoon.org/doc/731194/). In faction-ridden Kurnool district of Andhra Pradesh, one Challa Chinnappa Reddy and his son Challa Ramakrishna Reddy, accused in a criminal case, were lodged in Cell No.7 of Sub-jail, Koilkuntla of Kurnool district.

A group of other faction entered subjail and hurled bombs injuring detenues. While father succumbed to injuries, son survived. Son sued the state for Rs 10 lakh as damages for the negligence of state that killed his father in prison. The state claimed sovereign immunity. The AP High Court rejected that claim and granted Rs 10 lakh as compensation for causing death due to negligence in performance of duties, establishing principle of state’s vicarious liability for wrongs of its officers during course of performance of duties in prison.

The Article 21 says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Detention, whether by mistake or doubt that he might be needed on different case or because consecutive holidays, is a clear violation of this right to life and personal liberty. State cannot say that they extended his imprisonment by mistake or on apprehensions.

There is neither authorisation nor justification of this 18-day detention of the prisoner, O P Gandhi. Procedure established by law says the appellant’s personal liberty can be deprived only till the term of imprisonment prescribed by a court of law continues and can’t extend any more. What should be the consequences is the question.

Lawful justification of imprisonment
In another landmark decision, the Supreme Court held in Rudul Shah v State of Bihar, AIR 1983 SC 1086, that the state has to compensate for such extra detention. In this case, prisoner Rudul Shah, though he was acquitted by the Court of Sessions, Muzaffarpur, Bihar, on June 3, 1968, was released from the jail only on October 16, 1982, that is to say, more than 14 years after acquittal.

The jailor contended that “the accused is acquitted but he should be detained in prison till further order of the State government and IG (Prisons), Bihar”..... “Rudul Sah was of unsound mind at the time of passing the above order." It was further submitted that “the Civil Surgeon, Muzaffarpur, reported on 18.2.77 that accused Rudul Sah was normal and this information was communicated to the Law Department on 21.2.77….That the petitioner, Rudul Shah was treated well in accordance with the rules in the Jail Manual, Bihar, during the period of his detention…. That the petitioner was released on 16.10.82 in compliance with the letter No. 11637 dated 14.10 82 of the Law Department."

In this case also the authorities contended that due to formal requirements and to check up whether any more cases are pending against the detained prisoner, they need to continue the detention. Such an argument is not acceptable. It is totally against the fundamental right to personal liberty of the prisoner. The apex court said that, “the imprisonment would be unlawful the moment its lawful justification is withdrawn.”

Chief Justice Y V Chandrachud, Justice Amarendranath Sen and Justice Ranganath Misra said regarding compensation for illegal detention: “The Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.

Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.

If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the state must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. And the Court gave Rs 30,000 as interim compensation without depriving the right of the appellant to secure the adequate compensation.”

Not proper for state to ask aggrieved to approach court

If there is no internal mechanism available with government to redress such serious violation of personal liberty, the individual will have no other choice except to file a writ petition before the constitutional courts or civil or criminal courts seeking remedy for wrongful detention. It is not proper for state to drive the citizen to court of law by not performing their duty of compensating the losses arising out of their actions.

Asking prisoner to go to court shows that the jail authorities do not have any mechanism to prevent such practices, and to take action to redress such grievances arising out of excessive detention. It is not proper on the part of public authority, first to detain the prisoners beyond the term, not to have any mechanism to receive, hear and provide remedy for excessive detention and then drive them to courts of law increasing pendency, and then answering his RTI request asking him to go to court of law.

The Supreme Court in Rudul Shah responded to a similar contention from the jail authorities saying that petitioner could sue in a civil court for remedy of compensation, as follows: “We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the state government. Happily, the state's counsel has not raised that objection.

The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour.

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.
It is the duty of the state to provide for a system to see that no prisoner is detained even a minute beyond the term and if it happens even by mistake, it has to pay suitable compensation without driving the victims to courts of law.”

Administrative sclerosis
Calling it administrative sclerosis, the Supreme Court said: “Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. ….. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. ….We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings.

A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope, there will be no more Rudul Sahs in Bihar or elsewhere.”

If authorities require a formal petition, they can collect and provide compensation. The Commission directed them to treat the appeal of prisoner as formal petition and positively consider. (Based on the decision in Om Prakash Gandhi V. Tihar Jail, CIC/SA/A/2015/000431 on 29th March 2016,