The decision of Supreme Court in case as regards Uphaar Cinema tragedy which occurred back in the year 1997 may have come along with several criticisms for reducing the amount of compensation. But, it has been able to throw light on certain imperative aspects of law, specifically the recourse which shall be adopted while awarding compensation under Public Law Remedy. Public Law remedy, as distinct from Private Law Remedy, can be exercised by the Constitutional Courts (High Courts and Supreme Court) under Article 226 and 32 of the Constitution of India, 1950. The judgment encompasses two parts, first part deals with the liability of the officials under Public Law, and secondly it deals with the amount of compensation which can be awarded under Public Law Remedy.
The appeals have been filed by Municipal Corporation of Delhi, Commissioner of Police (Licensing Authority) and M/s. Ansal Theatre and Clubotels Pvt. Ltd. These appeals are against order of Delhi High Court.
A separate judgment was delivered by Justice K.S. Radhakrishnan wherein he discussed the issue as regards Constitutional Tort.
Public Law Remedy
A Public Law can be defined as those laws which construct a relationship between Individuals and the state. Constitution is one such kind of law, and remedy provided therein under such law can be termed as a Public Law Remedy. In the instant case also, original suit had been filed before the Delhi High Court under Article 226 of the Constitution, on the ground that impugned irregularities and the negligence on the part of the appellants led to the infringement of Right to Life as provided under Article 21 of the Indian Constitution. The remedy provided by the court under such category will not be categorised under ordinary tort law, rather it would be categorised under Constitutional Tort Law. Supreme Court in this case relied on the judgment of Rabindra Nath Ghosal Vs. University of Calcutta and Ors. (2002) 7 SCC 478, where it had been held by the court that by means of moulding relief under Article 32 or 226 penalises the wrong doer or the state monetarily for the wrong which they have committed. Further, court was of the firm view that before any action can be taken against state, it shall be unquestionably being shown that the acts of the public functionaries were arbitrary and capricious that eventually left victim helpless.
Extent of the Liability of Public Functionaries under Public Law Remedy
In the instant case, court discussed its judgment in Rajkot Municipal Corporation v. M.J. Nakum (1997) 9 SCC 552, wherein it had been held by the court that a mere omission to do something which cannot reasonably give rise to a legal action against the state. Court relied on this judgment with reference to the contentions put forth by the MCD for exonerating it from all the claims. It can be concluded from this judgment that in order to succeed in a claim against the state under Public Law Remedy, claimant has to prove his claim substantially. A Canadian Judgment in the case of John Just v. Her Majesty The Queen -- (1989) 2 SCR 1228 was discussed by the court along with some English and other Canadian Cases. In this Case, Canadian Supreme Court had held that –
“...In order for a private duty to arise in this case, the plaintiff would have to establish that the Rockwork Section, having exercised its discretion as to the manner or frequency of inspection, carried out the inspection without reasonable care or at all. There is no evidence or indeed allegation in this regard......I would therefore dismiss the appeal.”
Supreme Court was of the view that just because an authority owes a public law duty under any statue, it cannot in any way mean that such a statue will give rise to a duty of care, The wordings of the judgment can be read as follows –
“A duty of care at common law can be derived from the authority's duty in public law to give proper consideration to the question" whether to exercise power or not (p.411). This public law duty cannot by itself give rise to a duty of care. A public body almost always has a duty in public law to consider whether it should exercise its powers but that did not mean that it necessarily owed a duty of care which might require that the power should be actually exercised............ An absolute rule to provide compensation would increase the burden on public funds”
Eventually, MCD was exonerated from its liability on the ground that an authority cannot in any manner be held liable merely because of the reason that it had discharge some duty, or it failed to discharge its duty in a proper manner. The same should be grave. MCD’s liability was only limited to the action which it ought to have taken against the parapet wall raised by the Licensees. At the time when the wall was raised, MCD was not the sanctioning authority, instead PWD was responsible. And by the time MCD was conferred with this sanctioning power, the wall was already in existence for some 20 years. And this turned out to be the prime factual point which eventually favoured MCD. Nonetheless, this did not exonerate Delhi Vidyut Board (“DVB”) and Licensees. Also, MCD was exonerated because parapet wall did not turn out be the prime reason for the tragedy to take place. Rather, it was the inside construction carried out by the Licensees in the hall.
Amount of Compensation under Public Law
While dealing with this matter, court came across the calculation carried out by the Delhi High Court while awarding damages to the claimant. High Court framed out the average income of the deceased persons, and thereafter multiplied it with the digit 15 in order to conclude the final amount to be awarded to each of the claimants. In this matter, High Court awarded Rs. 18 lakhs to the legal heirs of those deceased aged 20 years or more, and Rs. 15 lakhs to the legal heirs of those deceased persons aged 20 years or less. Supreme Court put itself in front of a question that whether the impugned method adopted by the High Court in awarding compensation could have actually been carried out by means of a Public Law Remedy under Article 32 and 226 of the Constitution. The nature of compensation awarded under Public Law Remedy is palliative in nature, and the same cannot be equated with the damages under civil law. A person can approach a civil court if he is not satisfied with the compensation under Public Law Remedy. This position can be derived from the stand of Supreme Court in the case of Rudul Sah vs. State of Bihar [1983 (4) SCC 141, and the same line of reasoning can be found in the case of Sube Singh vs. State of Haryana [2006 (3) SCC 178]. Further, Court while discussing the issue of compensation under Public Law in the case of Nilabati Behera alias Lalita Behera vs. State of Orissa [1993 (2) SCC 746]
“The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”
Supreme Court, in the case, was of the opinion that considerable amount of compensation by means of Public Law Remedy is not safe and this turned out to be the reason for the reduction of compensation by the Supreme Court. Nonetheless, Supreme Court made arrangements for the speedily. In determining the amount of compensation, factors which play crucial role are
The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses)
Reference as to these criterion can be made to the Judgment of Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121
But, the same amount shall exclusively be borne by the Licensees i.e. Theatre Owner.
Punitive Damages
Punitive damages are also known as exemplary damages, and are awarded so as to deter the defendant from carrying out any such action in future. In the instant case, Delhi High Court awarded Rs. 2.5 crore to the claimants by means of Punitive Damages. But this view of the High Court was not appreciated by the Supreme Court. High Court, while calculating the damages, took into account the 52 seats which had additionally been installed in the theatre. But, High Court ignored that fact that sanction was given to the installation of 37 seats by the Delhi High Court at the time of installation. Hence, Supreme Court calculated the benefit which was derived out by the theatre owners in the between the period 1979-1996, which eventually reduced the damages from Rs. 2.5 crore to Rs. 25 Lakhs.
Separate Judgment of Justice K.S. Radhakrishnan
The separate judgment of Justice Radhakrishnan dealt with the issue of Constitutional Tort. He aptly pointed out the shortcomings in the existing remedy under Public Law, and recommended that a specific legislation is urgently required so as to address the compensation claim under Public Law. He opined that most of the cases under Public Law which come before the court are very often based on violation of personal liberty, right to life or human rights.
Sovereign Immunity
Sovereign Immunity is a legal concept which depicts that a state cannot commit any wrong. But, there can be circumstances when state can be held liable for the wrongs committed by its functionaries, and for those acts no sovereign immunity can be claimed. In the absence of action against state, fundamental rights may act only as a unresponsive provisions. This issue was discussed by Justice Radhakrishnan, and he referred to the judgments of State of Rajasthan v. Vidyawati AIR 1962 SC 933, Kasturi Lal v. State of U.P. AIR 1965 SC 1039 to signify that there is a distinction between sovereign functions and non-sovereign functions of the state. While, state cannot be held liable for the former, it can incontestably be held liable for the latter. In N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663, it had been held by the Supreme Court that in modern era, emphasis is more on the liberty, equality and rule of law and less emphasis is on the efficiency and dignity of the state as a juristic person in comparison to the former. Further, court in this case was of the view that when public official can be held liable in their personal capacity, there is no reason why state cannot be held liable for the same.
Constitutional Tort
Constitutional Tort, according to Justice Radhakrishnan, found its expression in the case of Devaki Nandan Prasad v. State of Bihar 1983 (4) SCC 20, For this purpose, case of Khatri & Others v. State of Bihar & Others (1981) 1 SCC 627, where a claim was brought before the court for the infringement of fundamental right enshrined under Article 21 of the Constitution.
Other Judgments - Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Bhim Singh v. State of J. & K. (AIR 1986 SC 494), Saheli v. Commissioner of Police, Delhi, (AIR 1990 SC 513), Inder Singh v. State of Punjab (AIR 1995 SC 1949), Radha Bai v. Union Territory of Pondicherry AIR 1995 SC 1476, Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, Gudalure M.J. Cherian v. Union of India 1995 Supp (3) SCC 387, Sube Singh v. State of Haryana 2006 (3) SCC 178
In other words, it would not be wrong to say that sovereign immunity cannot be claimed for the cases involving violation of fundamental rights. This position of law can be found in the case of Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), where in it had been held by the court that a remedy provided in the form of fundamental rights is based on the strict liability of the state, and the same cannot be compared with the remedies provided under private law, or in the words of the court –
“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."
At the same, no strait jacket formula can be applied in computation of the compensation for claim made under Public Law (D.K. Basu vs. Union of India (1997) 1 SCC 416). And the remedy shall only be invoked under special and extreme circumstances where grave violation of fundamental rights has been proved.
abhinav.s@nujs.edu
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