Petitioner's son, aged about 22 years was taken from his home In police custody at about 8 a.m. on 1.12.1987 by respondent No.6, Assistant Sub-Inspector of Police of the Police Outpost in connection with the investigation of an offence of theft. He was detained at the Police outpost. On 2.12.1987, at about 2 p.m. the petitioner came to know that the dead body of her son was found on the railway track. There were multiple injuries on the body and his death was unnatural, caused by those injuries.
The petitioner alleged in her letter dated 14.9.1988, which was treated as a writ petition under Article 32 of the Constitution, that it was a case of custodial death since her son died as a result of the multiple injuries inflicted to him while he was in police custody and thereafter his dead body was thrown on the railway track. It was prayed in the petition that award of compensation be made to her, for contravention of the fundamental right to life guaranteed under Article 21 of the Constitution.
This Court directed the District Judge to hold an inquiry into the matter and to submit a report. After hearing the parties and appreciating the evidence the District Judge submitted the Inquiry Report dated 4.9.1991. The District Judge found that petitioner's son died on account of multiple injuries inflicted to him while he was in police custody at the Police Outpost.
Court ruling:
Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings.
Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. A claim in public law for compensation for contravention 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. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.
https://indiankanoon.org/doc/1628260/?__cf_chl_jschl_tk__=b9c893577829d86ebd6360524d13dc607109014a-1609120148-0-AQz2S2ETs2_VSJPF3x1u_TApzvwHSbQNlUyVhLLtj5K5T2QbpFnqw1rRlBHiEBkYhT0ixOm8xTWXFhap9-gzqFPcDs-UPSuQCObqZrS-l1XE86BOkn15Bg8g_mXUszUwDHXc8OQNxcTdEsBI49qYEMywDh8cifKmu_59IhgE5Czg7utasU0-3_jpVIvYbNi1TArXBTpzaTpb7hqFQcSHJLG9o1AiBZbmQybWTSmnPm8y1oQu_PqSLu9LIpspKJRfaH7Vox7gUOhplACgv_E4-znRDiQkoNQ3v82N9lkmnatZOZmvXOqJdkn5exXb9aDRJTczhOW_jUaQ-AYCEF4GcnCRuPUGIcTOiCE-95H1GOraWBmE_hfLDf8UGJyJQGTjjQ
December 1993 Archives
Several minors, represented by their parents, filed a complaint (in the form of a taxpayers' class suit) against the Secretary of the Department of Natural Resources to require him to ensure the "full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests" by "their generation as well as generations yet unborn." The lower court dismissed the complaint. The petitioners appealed to the Supreme Court to question the lower court decision.
The Supreme Court ruled in favor of the Petitioner minors:
This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.
https://lawphil.net/judjuris/juri1993/jul1993/gr_101083_1993.html#rnt17
Bangladeshi and Indian courts, as well as scholarly articles, have cited this case.
(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 251)
