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2008 DIGILAW 510 (RAJ)

Ramjan v. State of Rajasthan

2008-02-18

P.S.ASOPA

body2008
Honble ASOPA, J.–With the consent of the parties, the matter was heard finally at the admission stage. (2). By this writ petition, the petitioners are seeking appropriate writ, order or direction to the respondent-State to bear all the medical expenses including the expenses of plastic surgery etc. and further award compensation on account of acid burn injuries sustained by the petitioners No. 2 to 5 which was thrown by Sajid Ali, Mohammad Khan and Kayyom Pathan. (3). Briefly stated, the facts of the case, are that on the fateful day of 6.3.2000 when three daughters of the petitioner No. 1 namely, Afsana, Shanu and Shamin as well as Bhanji Sajida were sleeping in the house, at about 3.00 am, suddenly all of them loudly cried and after hearing their cries, the petitioner No. 1 as well as other members of the family woke up and they saw that four persons namely Sajid Ali, Ayub Khan, Mahmood Khan and Riyaz, residents of the same village, were throwing acid on his daughters as well as Bhanji. In the aforesaid incident, the petitioners No. 2 to 5 had burnt seriously and all got various other injuries. Thereafter, they were taken to the Medical Hospital, Khandela but the Medical Officer of Khandela referred all the injured to SMS Hospital, Jaipur. At the time of filing of the writ petition, they were being treated at SMS Hospital, Jaipur and incurred medical expenses, as no free full medical aid was provided to the victims. After treatment also, scar of the same are still in existence. It is also stated in the writ petition that an FIR No. 21/2000 was registered against the accused persons and challan was filed. At bar, it was further stated that the accused persons have been convicted but the petitioners No. 2 to 5 have suffered on account of heinous and treacherous crime of throwing of acid on their faces and bodies. State has failed to protect the life and liberty of the petitioners. Therefore, they are entitled for compensation. (4). The submission of Mr. Gupta is that the State has failed to protect the fundamental rights guaranteed under Article 21 of the Constitution of India, therefore, they are entitled for reimbursement of medical expenses as well as suitable compensation. State has failed to protect the life and liberty of the petitioners. Therefore, they are entitled for compensation. (4). The submission of Mr. Gupta is that the State has failed to protect the fundamental rights guaranteed under Article 21 of the Constitution of India, therefore, they are entitled for reimbursement of medical expenses as well as suitable compensation. He has further placed reliance on the judgments of the Supreme Court rendered in Rudul Sah vs. State of Bihar & Another reported in AIR 1983 SC 1086 and Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr. reported in AIR 1996 SC 2426 and one judgment of this Court given in SBCWP No. 2765/1997; S.K. Gupta vs. State & Ors. decided on 19.5.1997. (5). Although no reply has been filed but the submission of Dr. A.S. Khangarot, Additional Government Advocate is that all these girls were admitted in the SMS Hospital, Jaipur which is a government hospital and necessary medical help was given to them. Since the dispute is between two parties, therefore, the petitioners are not entitled for compensation from the State and can file a civil suit for compensation against the private person. (6). I have gone through the record of the writ petition and further considered the rival contentions of the parties. (7). Usually the compensation cannot be claimed against the State in the matter of tort committed by one private party against another which may result in criminal case and may be granted by the civil Court. In case of damages on account of injuries or death caused by the employee of the State, then compensation can also be claimed by filing civil suit. But, after 1983 in appropriate cases the Supreme Court and High Courts had granted compensation claimed on account of violation of fundamental right, while hearing petition under Article 32 or appeal under Article 136 of the Constitution of India against the judgment passed under Article 226 of the Constitution of India of the Constitution of India and under Article 226 of the Constitution of India. (8). The relevant paragraph No. 10 of Rudul Shah vs. State of Bihar & Anr. (supra) and paragraphs No. 9, 15 and 16 of Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr. (8). The relevant paragraph No. 10 of Rudul Shah vs. State of Bihar & Anr. (supra) and paragraphs No. 9, 15 and 16 of Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr. (supra) wherein the issue of violation of fundamental rights under Article 21 of the Constitution of India and compensation has been discussed and decided in favour of the victims and granted the same, are as follows: "Rudul Shah vs. State of Bihar & Anr.: 10. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file suit to recover damages from the State Government. Happily, the States 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. 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 of 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 violaters 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. 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 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 for the individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioners rights. It may have recourse against those officers. Paschim Banga Khet Mazdoor Samity & Ors. vs. State of West Bengal & Anr.: 9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligation undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the Court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. (See Ruddal Sah vs. State of Bihar (1983) 3 SCR 508 : ( AIR 1983 SC 1086 ) Nilabati Behara vs. State of Orissa, ( 1993 2 SCC 746 : (1993 AIR SCW 2366); Consumer Education and Research Centre vs. Union of India, (1995) 3 SCC 42 : (1995 AIR SCW 759). Hakim Seikh should, therefore, be suitably compensated for he breach of his right guaranteed under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we fix the amount of such compensation at Rs. 25,000/-. A sum of Rs. 15,000/- was directed to be paid to Hakim Seikh as interim compensation under the orders of this Court dated April 22, 1994. The balance amount should be paid by respondent No. 1 to Hakim Seikh within one month. 15. We have considered the aforesaid submissions by Shri Dhavan. Apart from the recommendations made by the Committee in that regard and the action taken by the State Government in the memorandum dated August 22, 1995 on the basis of the recommendations of the Committee, we are of the view that in order that proper medical facilities are available for dealing with emergency cases it must be that: 1. Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition; 2. Hospitals at the district Level are upgraded so that serious cases can be treated there; 3. Facilities for giving Specialist treatment are increased and are available at the hospitals at District level and Sub- Division level having regard to the growing needs; 4. Hospitals at the district Level are upgraded so that serious cases can be treated there; 3. Facilities for giving Specialist treatment are increased and are available at the hospitals at District level and Sub- Division level having regard to the growing needs; 4. In order to ensure availability of bed in an emergency at State level hospitals there is a centralised communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment which is required; 5. Proper arrangement of ambulance is made for transport of a patient from the Primary Health Centre to the District Hospital or Sub-Division Hospital and from the District hospital or Sub- Division hospital to the State hospital.; 6. The ambulance is adequately provided with necessary equipment and medical personnel. 7. The Health Centres and the hospitals and the medical personnel attached to these centres and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain seasons. 16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. (See Khatri (II) vs. State of Bihar, (1981) 1 SCC 627 at P. 631: ( Air 1981 SC 928 at P. 931). The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time- bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. It is necessary that a time- bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated August 22, 1995 and the further directions given herein." (9). This Court has also granted medical expenses to the tune of Rs. 50,000/- to a victim of acid burn in the case of S.K. Gupta & Anr. vs. State (SBCWP No. 2765/1997 decided on 19.5.1997) (supra). The relevant portion of which is as under:- "Keeping in view the special circumstances of the case, I direct the State of Rajasthan to pay Rs. 50,000/- (Rs. Fifty thousand) within a period of one week to the father of Shivani Jadeja, which has been spent by him in the medical treatment given to her, so far. I further direct the State of Rajasthan to provide all free medical facilities to Shivani Jadeja, who is admitted in SMS Hospital and to make arrangements for her plastic/cosmatic surgery, which may be prescribed by the experts on this subject, within any certre of this country. Copies of this order be supplied to the counsel for the parties. (10). In the case of Rudul Sah vs. State of Bihar & Another (supra), the Supreme Court has held that it could award, in appropriate cases, monetary compensation where there has been a violation of the guarantee of life and personal liberty under Article 21 of the Constitution. (11). Prior to 1983, in case of injury caused by a private person to another person, the remedy was to file civil suit for compensation for the violation of law of torts. But subsequent to the aforesaid judgments, the law of compensating the victims of constitutional torts has been developed and an article was written by Mr. (11). Prior to 1983, in case of injury caused by a private person to another person, the remedy was to file civil suit for compensation for the violation of law of torts. But subsequent to the aforesaid judgments, the law of compensating the victims of constitutional torts has been developed and an article was written by Mr. Vikram Raghavan published in AIR 1998 Journal Part Page 100 wherein it has been quoted that emergence of constitutional Court in India is no doubt being a welcome innovation and the Indian constitutional jurisprudence and the writ Court can grant compensation. The relevant paragraph of the said article "The Compensating Victims of Constitutional Tort; Learning from the Irish Experience" by Mr. Vikram Raghavan at page 100 to 103 and 106 are as follows: "(A) Introduction In 1983, the Supreme Court of India declared in a seminal ruling in Rudal Sah vs. State of Bihar, AIR 1983 SC 1086 , that it could award in appropriate cases, monetary compensation, where there had been a violation of the guarantee of life and personal liberty under art. 21 of the Indian Constitution by the State. This pronouncement was based on the reasoning that the article would be denuded of its significant contest if the power of the Court was limited to passing orders for the release from illegal detention or other orders of a declaratory kind. Therefore an effective way to ensure that the violation of the right could be reasonably prevented and due compliance with the constitutional mandate could be assured, was to mulct its violator, the State with the payment of monetary compensation. This ruling was truly path breaking in several ways. First it was the logical sequel of the Human Rights Litigation in the Supreme Court, in which `activist Justices ushered in new vistas in the landscape of individual rights and personal liberty, by laying down new jurisprudence which considerably embellished the express human rights guaranteed in the Constitution by judicial incorporating other rights integral to the true enjoyment of these express rights. Second, it made clear in no uncertain terms that lawlessness and violation of human rights on the part of the State would not be countenanced. Third, it improved the capacity and the effectiveness of the Superior courts of this country in redressing violations of Constitutionally guaranteed fundamental and human rights. Second, it made clear in no uncertain terms that lawlessness and violation of human rights on the part of the State would not be countenanced. Third, it improved the capacity and the effectiveness of the Superior courts of this country in redressing violations of Constitutionally guaranteed fundamental and human rights. The decision in Rudul Sah was further reiterated in two other case, all of which together formed a trilogy in which the court granted compensation to citizens whose rights had been violated by the State. With these rulings the remedy of compensation for redressing the violation of fundamental rights was firmly established in India and Indian Courts have now been frequently dispensing compensation in many cases, where the fundamental rights have been shown to have been infringed. This trend has no doubt gone a long way for securing respect for human rights and constitutional tort in India. But it is not the exclusive prerogative of the Courts in India. In other jurisdiction, the judiciary has made similar innovations in order to protect the constitutional rights of their citizens. In this regard, the experience of the Courts in Ireland is indeed noteworthy. This paper attempts to examine some of the issues that are crucially linked to this remedy in India by comparing the experience of redressing constitutional tort in Ireland, through the award of damages. B. The Public Law Remedy to Compensation Before, I embark on the main theme of this paper, that of relating to Irish jurisprudence in granting compensation to victims of constitutional tort to the Indian scenario, it would be appropriate to highlight an important development that has taken place in India in this regard. In, Nilabati Behra vs. State of Orissa, the Supreme Court in continuation of the jurisprudence of the Rudul Sah trilogy, held that a claim in public law for the award of compensation, as a result of the violation of the fundamental rights guaranteed under the Constitution, was a distinct remedy from the claim in private law for damages. Dr. In, Nilabati Behra vs. State of Orissa, the Supreme Court in continuation of the jurisprudence of the Rudul Sah trilogy, held that a claim in public law for the award of compensation, as a result of the violation of the fundamental rights guaranteed under the Constitution, was a distinct remedy from the claim in private law for damages. Dr. A.S. Anand, J. speaking for the Court rules; "A claim in public law for compensation for compensation of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right." By ruling in this fashion, the Court relied on the developments in other jurisdictions, particularly the ruling of the Privy Council which declared on appeal from Trinided & Tobago that compensation can follow as the natural consequence of the contravention of the fundamental rights. The Judicial Committee, further opined that the claim for compensation did not come under the purview of private law such as tort law but under public law, dealing with human rights and fundamental freedoms. The Behra case set at rest all doubts as to the prerogative of the Superior Courts in India to award compensation to those who have had their constitutional rights infringed. (h) Conclusion: The emergence of constitutional tort in India, has no doubt been a welcome innovation in Indian constitutional jurisprudence and indeed in many a case constitution guarantees have been truly vindicated by the Indian Courts orders for the payment of compensation. But the procedure needs to be streamlined. The Indian Writ Courts that make such orders are constrained from making elaborate examination of evidence in these proceedings. To entertain pleas of compensation, detailed arguments and material is to be studied, which are not ordinarily resorted to by a Court when it hears a writ petition seeking the enforcement of fundamental rights. Nonetheless, progress has been made and taking a leaf out of the Irish experience can make proceedings in respect of constitutional tort, depart from the normal technical rules which are to facilitate justice and not impede it. Nonetheless, progress has been made and taking a leaf out of the Irish experience can make proceedings in respect of constitutional tort, depart from the normal technical rules which are to facilitate justice and not impede it. Similarly, Indian Courts must now enter into serious judicial introspection as to whether our Constitution like the Irish one, can be used as a reference point to judge the action of private parties. From this question will flow the important query as to whether private parties whose behaviour has been unconstitutional can be made to pay compensation to the victims of their actions." (12). The judgment of Nilabati Behra vs. State of Orissa (supra) is reported in AIR 1993 SC 1960 . (13). In view of the above, where the State has failed to protect the fundamental rights guaranteed under Article 21 of the Constitution of India i.e. right to life, the writ is also the proper remedy and the State cannot be allowed to take the defence of filing of civil suit for compensation against the private person who has caused the injury as the State is duty bound to protect fundamental right, maintain the law and order situation, prevent the crime, the prosecution of the accused, in case the crime is committed. If the State fails to discharge its aforesaid duties, then the fundamental right of the citizens guaranteed under Article 21 of the Constitution of India will be violated, Crimes against the persons of human being more particularly against women, resulting in permanent disfiguration, continuous mental torture for whole of the remaining life or loss of status are violative of fundamental right under Article 21of the Constitution of India. In the instant case, the right to life with dignity guaranteed under Article 21 of the Constitution of India of the four injured female victims (petitioners No. 2 to 5) has been violated by throwing acid, the scars of which are still existing on the face and other parts of the bodies of the victims, therefore, the State was liable to provide free full medical aid and compensation also, as per new horizons of constitutional tort as discussed hereinabove. But, neither the free full medical aid was provided nor the compensation was granted. (14). Accordingly, the writ petition is allowed and for medical expenses Rs. 25,000/- each and for compensation Rs. 25,000/- each, in all Rs. But, neither the free full medical aid was provided nor the compensation was granted. (14). Accordingly, the writ petition is allowed and for medical expenses Rs. 25,000/- each and for compensation Rs. 25,000/- each, in all Rs. 50,000/- to each victim is awarded. The State is directed to pay Rs. 50,000/- each to the petitioners No. 2 to 5 who are victims of acid burn, within a period of three months.