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children from exploitation in jails, the Supreme Court held
that the convention which had been ratified by India, and
which elucidated norms for the protection of children, cast
an obligation on the state to implement their principles. In
this connection the Court observed that: “In 1959, the
Declaration of all the rights of the child was adopted by the
General Assembly of the United Nations. In 1966, the
International Covenants appropriately recognized the
importance of the child. India is party to these International
Charters having ratified the Declaration; it is an obligation
of the government of India as also the State machinery to
implement the same in the proper way.” In this way the
Court emphasized the significance of international human
right instrument and internalized it to the domestic law.
In Saheli v. Commissioner of Police, the Court held that the
State was liable to pay compensation to the mother of the
deceased who had died because of police beating and assault.
These two cases were decided by the Supreme Court by
applying Article 9(5) of the ICCPR, thereby consolidating
the international laws here.
From 1993-2011
This phase witnessed the Supreme Court going
from strength to strength in its self proclaimed was as
„people‟s protector‟ or „Supreme Court for Indians‟. Its
activism was unabated allowing its sane voice to be heard
above the din. The new weapon forged by it i.e,
„Compensatory Jurisprudence‟ was used many times in
these phase also, creating jitters in the administration.
In Nilabeti Behera v. State of Orissa, Supreme Court
considered the question of monetary compensation to the
victim of unlawful arrest and detention. In this instant case
the victim Suman Behera and another accused were
handcuffed and tied together and kept in custody at the
police station. Next day the body of the Suman Behera was
found on the railway track with multiple injury. Additional
Solicitor General urged that it was not a case of custodial
death but of death of Suman Behera caused by injuries
sustained by him in a train accident, after he managed to
escape from police custody by chewing off the rope with
which he had been tied at the Police outpost. The Court
rejected the contention and ordered the government to pay
compensation to the deceased mother by referring for
support Article 9(5) of the International Covenant on Civil
and Political Rights, 1966 which indicates that an
enforceable right to compensation is not alien to the concept
of enforcement of guaranteed right. Article 9(5) reads as
follows: “Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to
compensation.”
In Joginder Kumar Case, the Supreme Court took measures
for preventing custodial violence through documentation of
arrests. It suggested that police should inform the arrest and
detention of a person to a nearest relative, friend or neighbor.
It is also urged that the UN Body of Principles for the
protection of all the persons under any form of detention and
imprisonment and the UN Standard Minimum Rules for the
treatment of prisoners are to be followed. A shocked
Supreme Court looked down at the inhuman treatment of
prisoners lodged in hospitals, in Citizens for Democracy v.
State of Assam and Ors, and observed, “the handcuffing and
in addition tying with ropes of the patient-prisoners who are
lodged in the hospital is, the least we can say, inhuman and
in utter violation of the human rights guaranteed to an
individual under the International law and the law of the
land. We are therefore of the view that the action of the
respondents was wholly unjustified and against law. We
direct that the detenues – in case they are still in hospital –
be relieved from fetters and the ropes with immediate
effect”
Supreme Court time and again held that torture is not
permissible and it is a human rights violation. In D.K. Basu
v. State Bengal of West is a case all those matters related to
torture of prisoners are outlined and steps to be taken by the
authorities to end such torture was given in the form of
guidelines by the Court. It observed that, “Custodial
violence” and abuse of police power is not only peculiar to
this country but it is widespread. It has been the concern of
International community because the problem is universal
and the challenge is almost global. The UDHR, which
marked the emergence of a worldwide trend of protection
and guarantee of certain basic human rights, stipulates in
Article 5, “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. “ Further
the Court held that the custodial death is the worst crime in a
civilized society governed by the Rule of Law. The right
inherent in Article 21 and 22(1) of the Constitution require
to be jealously and scrupulously protected. Any form of
torture or cruel, inhuman or degrading treatment would fall
within the ambit of Article 21 of the Constitution, whether it
occurs during investigation, interrogation or otherwise. The
precious rights guaranteed by Article 21 of the Constitution
of India cannot be denied to convicts, under trials, detenues
and other prisoners in custody, except according to the
procedure established by law and by placing such
reasonable restrictions as are permitted by law. Despite the
pious declaration, the crime continues unabated, though
every civilized nation has shown its concern and takes steps
for its eradication.
In this case, the Court went to the extent of saying that since
compensation was being directed by the Courts to be paid
by the State, which has been held vicariously liable for the
illegal acts of its officials, the reservation to Article 9(5) of
the ICCPR by the government of India has lost its relevance.
In fact, the sentencing policy of the judiciary in torture
related cases, against erring officials in India has become
very strict. For an established breach of fundamental rights,
compensation can now be awarded in the exercise of public
law jurisdiction by the Supreme Court and High Courts, in
addition to private law remedy for torture action and
punishment of wrongdoer under criminal law. In this case
the Court gathering support from Article 5 of UDHR laid
down a code for protection of detainees at and after arrest.
Regarding award of compensation in case of illegal arrest
and detention, by referring to Article 9(5) of the ICCPR it
observed that, “The claim of the citizen is based on the
principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the
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