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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.      5703/2012   (Arising out of SLP (C) No.  34702  of 2010)

Dr. Mehmood Nayyar Azam       ….. Appellant

Versus

State of Chattisgarh and Ors.     … Respondents  

J     U     D     G     M     E     N     T      

Dipak      Misra,     J   

Leave granted.

2. Albert Schweitzer, highlighting on Glory of Life,  

pronounced with conviction and humility, “the reverence of life  

offers me my fundamental principle on morality”.   The  

aforesaid expression may appear to be an individualistic

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expression of a great personality, but, when it is understood in  

the complete sense, it really denotes, in its conceptual  

essentiality, and connotes, in its macrocosm, the fundamental  

perception of a thinker about the respect that life commands.  

The reverence of life is insegragably associated with the dignity  

of a human being who is basically divine, not servile.  A  

human personality is endowed with potential infinity and it  

blossoms when dignity is sustained.  The sustenance of such  

dignity has to be the superlative concern of every sensitive  

soul.  The essence of dignity can never be treated as a  

momentary spark of light or, for that matter, ‘a brief candle’,  

or ‘a hollow bubble’.  The spark of life gets more resplendent  

when man is treated with dignity sans humiliation, for every  

man is expected to lead an honourable life which is a splendid  

gift of “creative intelligence”. When a dent is created in the  

reputation, humanism is paralysed.  There are some  

megalomaniac officers who conceive the perverse notion that  

they are the `Law’ forgetting that law is the science of what is  

good and just and, in very nature of things, protective of a  

civilized society.  Reverence for the nobility of a human being

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has to be the corner stone of a body polity that believes in  

orderly progress.  But, some, the incurable ones, become  

totally oblivious of the fact that living with dignity has been  

enshrined in our Constitutional philosophy and it has its  

ubiquitous presence, and the majesty and sacrosanctity  

dignity cannot be allowed to be crucified in the name of some  

kind of police action.   

3. The aforesaid prologue gains signification since in the  

case at hand, a doctor, humiliated in custody, sought public  

law remedy for grant of compensation and the High Court,  

despite no factual dispute, has required him to submit a  

representation to the State Government for adequate relief  

pertaining to grant of compensation after expiry of 19 years  

with a further stipulation that if he is aggrieved by it, he can  

take recourse to requisite proceedings available to him under  

law.  We are pained to say that this is not only asking a man  

to prefer an appeal from Caesar to Caesar’s wife but it also  

compels him like a cursed Sisyphus to carry the stone to the

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top of the mountain wherefrom the stone rolls down and he is  

obliged to repeatedly perform that futile exercise.     

4. The factual matrix as uncurtained is that the appellant,  

an Ayurvedic Doctor with B.A.M.S. degree, while practising in  

West Chirmiri Colliery, Pondi area in the State of  

Chhattisgarh, used to raise agitations and spread awareness  

against exploitation of people belonging to weaker and  

marginalized sections of the society.  As a social activist, he  

ushered in immense awareness among the down-trodden  

people which caused discomfort to the people who had vested  

interest in the coal mine area.  The powerful coal mafia, trade  

union leaders, police officers and other persons who had fiscal  

interest felt disturbed and threatened him with dire  

consequences and pressurized him to refrain from such  

activities.   Embedded to his committed stance, the petitioner  

declined to succumb to such pressure and continued the  

activities.  When the endeavor failed to silence and stifle the  

agitation that was gaining strength and momentum, a

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consorted maladroit effort was made to rope him in certain  

criminal offences.   

5.  As the factual narration further unfolds, in the initial stage,  

cases under Section 110/116 of the Criminal Procedure Code  

were initiated and thereafter crime No. 15/92 under Section  

420 of the Indian Penal Code (for short  ‘the IPC’)  and crime  

No. 41/92 under Sections 427 and 379 of the IPC were  

registered.  As the activities gathered further drive and became  

more pronounced, crime No. 62/90 was registered for an  

offence punishable under Section 379 of the IPC for alleged  

theft of electricity.  In the said case, the appellant was taken  

into custody.  

6. Though he was produced before the Magistrate on  

22.9.1992 for judicial remand and was required to be taken to  

Baikunthpur Jail, yet by the time the order was passed, as it  

was evening, he was kept in the lock up at Manendragarh  

Police Station.   On 24.9.1992, he was required to be taken to  

jail but instead of being taken to the jail, he was taken to  

Pondi Police Station at 9.00 a.m.  At the police station, he was

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abused and assaulted.  As asseverated, the physical assault  

was the beginning of ill-treatment.  Thereafter, the SHO and  

ASI, the respondent Nos. 3 and 4, took his photograph  

compelling him to hold a placard on which it was written :-  

“Main Dr. M.N. Azam Chhal Kapti Evam Chor  Badmash Hoon”. (I, Dr. M. N. Azam, am a  cheat, fraud, thief and rascal).

7. Subsequently, the said photograph was circulated in  

general public and even in the revenue proceeding, the  

respondent No. 5 produced the same.  The said atrocities and  

the torture of the police caused tremendous mental agony and  

humiliation and, hence, the petitioner submitted a complaint  

to the National Human Rights Commission who, in turn,  

asked the Superintendant of Police, District Koria to submit a  

report.  As there was no response from the 2nd respondent the  

Commission again required him to look into the grievances  

and take proper action.  When no action was taken by the  

respondent or the police, the petitioner was compelled to  

invoke the extraordinary jurisdiction of the High Court of  

Judicature at Bilaspur, Chattisgarh with a prayer for  

punishing the respondent Nos. 4, 5 & 7 on the foundation that

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their action was a complete transgression of human rights  

which affected his fundamental right especially his right to live  

with dignity as enshrined under Article 21 of the Constitution.  

In the Writ Petition, prayer was made for awarding  

compensation to the tune of Rs. 10 lakhs.   

8. After the return was filed, the learned single Judge  

passed a detailed order on 3.1.2003 that the Chief Secretary  

and the Director General of Police should take appropriate  

steps for issue of direction to the concerned authorities to take  

appropriate action in respect of the erring officers.  Thereafter,  

some developments took place and on 24.3.2005, the Court  

recorded that the writ petitioner was arrested on 22.9.1992  

and his photograph was taken at the police station.  The  

learned single Judge referred to Rule 1 of Regulation 92 of  

Chhattisgarh Police Regulations which lays down that no  

Magistrate shall order photograph of a convict or other person  

to be taken by the police for the purpose of Identification  

under Prisoners Act, 1920, unless he is satisfied that such  

photograph is required for circulation to different places or for

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showing it for the purpose of identification to a witness who  

cannot easily be brought to a test identification at the place  

where the investigation is conducted or that photograph is  

required to be preserved as a permanent record.  Thereafter,  

the learned single Judge proceeded to record that not only the  

photograph of the writ petitioner had been taken with the  

placard but had also been circulated which had caused great  

mental agony and trauma to his school going children.  

Thereafter, he referred to Regulation 737 of the Chhattisgarh  

Police Regulations which relates to action to be taken by the  

superior officer in respect of an erring officer who ill-treats an  

accused.   

9. After referring to various provisions, the learned single  

Judge called for a report from the Chief Secretary.  On  

18.11.2005, the Court was apprised that despite several  

communications, the Chief Secretary had not yet sent the  

report.  Eventually, the report was filed stating that the  

appellant was involved in certain cases including grant of  

bogus medical certificate and regard being had to the

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directions issued in 1992 that the photograph of the offender  

should be kept on record, the same was taken and affixed  

against his name and after 7.9.1992,  it was removed from the  

records.  It was also stated that the Sub-Inspector had been  

imposed punishment of “censure”  by the Superintendent of  

Police on 19.11.2001.  It was also set forth that on 3.5.2003, a  

charge-sheet was served on all the erring officers and a  

departmental enquiry was held and in the ultimate eventuate,  

they had been imposed major penalty of withholding of one  

annual increment with cumulative effect for one year  

commencing 27.5.2004.  That apart, on 19.7.2005, a case had  

been registered under Section 29 of the Police Act against the  

erring officers.   

10. It is apt to note here that when the matter was listed for  

final hearing for grant of compensation, the learned single  

Judge referred the matter to be heard by a Division Bench.

11. The Division Bench referred to the prayer clause and  

various orders passed by the learned single Judge and  

eventually directed the appellant to submit a representation to

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the Chief Secretary for grant of compensation.  We think it  

appropriate to reproduce the relevant paragraphs of the order  

passed by the Division Bench: -

“4. Learned counsel for the petitioner  submits that during the pendency of the writ  petition, Relief Clause No. 7.3 was fulfilled  under the directions of this court and now only  the compensation part, as claimed in Relief  Clause No. 7.5A, remained there.

5. In the instant case, it is an admitted  position that the respondent State authorities  have taken cognizance of the harassment  meted out to the petitioner by the erring  personnel of the police department and  initiated departmental enquiry against them in  which they were found guilty and punishment  has also been awarded to them.”

12. After issuing notice, this Court, on 17.2.2012, thought it  

apposite that the appellant should submit a representation  

within a week which shall be considered by the respondents  

within four weeks therefrom.   

13. In pursuance of the aforesaid order, the appellant  

submitted a representation which has been rejected on  

19.3.2012 by the OSD/Secretary, Government of

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Chhattisgarh, Home (Police) Department.  In the rejection  

order, it has been stated as follows: -

“In the aforesaid cases, the arrest and the  action regarding submission of chargesheet in  the Hon’ble Court was in accordance with law.

(2) On 24.9.92 the police officers taking your  photograph and writing objectionable words  thereon was against the legal procedure.  Considering this, action was taken against the  concerned guilty police officers in accordance  with law and two police officers were punished.

(3) In your representation, compensation has  been demanded on the following two grounds:

A. Defamation was caused due to the police  officers taking photograph.

B. Your wife became unwell mentally.  She  is still unwell.

C. Difficulty in marriage of daughter.

Regarding the aforesaid grounds, the  actual position is as follows:  

A. Defamation is such a subject, the  decision on which is within jurisdiction of  the competent court.  No decision  pertaining to defamation has been  received from the court of competent  jurisdiction.  Therefore, it would not be  proper for the State Government to take a  decision in this regard.

B. Regarding mental ailment of your wife, no  such basis has been submitted by you,

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on the basis of which any conclusion may  be drawn.

C. On the point of there being no marriage  of children also no such document or  evidence has been produced by you  before the Government along with the  representation, on the basis of which any  decision may be taken.

Therefore, in the light of the above, the  State Government hereby rejects your  representation and accordingly decides your  representation.”

14. Mr. Niraj Sharma, learned counsel appearing for the  

appellant, submitted that when the conclusion has been  

arrived at that the appellant was harassed at the hands of the  

police officers and in the departmental enquiry they have been  

found guilty and punished, just compensation should have  

been awarded by the High Court.  It is further urged by him  

that this Court had directed to submit a representation to  

grant an opportunity to the functionaries of the State to have a  

proper perceptual shift and determine the amount of  

compensation and grant the same, but the attitude of  

indifference reigned supreme and no fruitful result ensued.  It  

is canvassed by him that it would not only reflect the non-

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concern for a citizen who has been humiliated at the police  

station, but, the manner in which the representation has been  

rejected clearly exhibits the imprudent  perception and heart  

of stone  of the State.  It is argued that the reasons ascribed by  

the State authority that defamation is such a subject that the  

issue of compensation has to be decided by the competent  

court and in the absence of such a decision, the Government  

cannot take a decision as regards the compensation clearly  

reflects the deliberate insensitive approach to the entire fact  

situation inasmuch as the High Court, in categorical terms,  

had found that the allegations were true and the appellant  

was harassed and thereby it did tantamount to custodial  

torture and there was no justification to adopt a hyper-

technical mode to treat it as a case of defamation in the  

ordinary sense of the term and requiring the appellant to take  

recourse to further adjudicatory process and obtain a decree  

from the civil court.

15. Mr. Atul Jha, learned counsel appearing for the State,  

has supported the order of the High Court as well as the order

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passed by the competent authority of the State who has  

rejected the representation on the foundation that when the  

appellant puts forth a claim for compensation on the ground  

of defamation, he has to take recourse to the civil court and,  

therefore, no fault can be found with the decision taken either  

by the High Court or the subsequent rejection of the  

representation by the authority of the State.

16. The learned counsel appearing for the private  

respondents has submitted that they have already been  

punished in a disciplinary proceeding and, therefore, the  

question of grant of compensation does not arise and even if it  

emerges, the same has to be determined by the civil court on  

the base of evidence adduced to establish defamation.

17. At the very outset, we are obliged to state that five  

aspects are clear as day and do not remotely admit of any  

doubt.  First, the appellant was arrested in respect of the  

alleged offence under Indian Penal Code, 1860 and the  

Electricity Act, 2003; second, there was a direction by the  

Magistrate for judicial remand and thereafter instead of taking

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him to jail the next day he was brought to the police station;  

third, self-humiliating words were written on the placard and  

he was asked to hold it and photographs were taken; and  

fourth, the photographs were circulated in general public and  

were also filed by one of the respondents in a revenue  

proceeding; and five,  the High Court, in categorical terms, has  

found that the appellant was harassed.   

18. In the aforesaid backdrop, the singular question required  

to be posed is that whether the appellant should be asked to  

initiate a civil action for grant of damages on the foundation  

that he has been defamed or this Court should grant  

compensation on the bedrock that he has been harassed in  

police custody.  

19. At this juncture, it is condign to refer to certain  

authorities in the field.  In D.K. Basu v. State of W.B.1 it has  

been held thus: -

“10. “Torture”  has not been defined in the  Constitution or in other penal laws. “Torture”  of a human being by another human being is  essentially an instrument to impose the will of  

1 AIR 1997 SC 610 : (1997) 1 SCC 416

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the “strong” over the “weak” by suffering.  The  word torture today has become synonymous  with the darker side of human civilization.

“Torture is a wound in the soul so  painful that sometimes you can almost  touch it, but it is also so intangible that  there is no way to heal it.  Torture is  anguish squeezing in your chest, cold as  ice and heavy as a stone, paralyzing as  sleep and dark as the abyss.  Torture is  despair and fear and rage and hate.  It is  a desire to kill and destroy including  yourself.”

- Adriana P. Bartow

11. No violation of any one of the human  rights has been the subject of so many  Conventions and Declarations as “torture” – all  aiming at total banning of it in all forms, but  in spite of the commitments made to eliminate  torture, the fact remains that torture is more  widespread now than ever before.  “Custodial  torture” is a naked violation of human dignity  and degradation which destroys, to a very  large extent, the individual personality.  It is a  calculated assault on human dignity and  whenever human dignity is wounded,  civilization takes a step backward –  flag of  humanity must on each such occasion fly half- mast.

12. In all custodial crimes what is of real  concern is not only infliction of body pain but  the mental agony which a person undergoes  within the four walls of police station or lock- up.  Whether it is physical assault or rape in

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police custody, the extent of trauma, a person  experiences is beyond the purview of law.”

20. We have referred to the aforesaid paragraphs to highlight  

that this Court has emphasized on the concept of mental  

agony when a person is confined within the four walls of police  

station or lock-up.  Mental agony stands in contradistinction  

to infliction of physical pain.  In the said case, the two-Judge  

Bench referred to Article 5 of the Universal Declaration of  

Human Rights, 1948 which provides that “No one shall be  

subjected to torture or to cruel, inhuman or degrading  

treatment or punishment”.  Thereafter, the Bench adverted to  

Article 21 and proceeded to state that the expression “life or  

personal liberty” has been held to include the right to live with  

human dignity and thus, it would also include within itself a  

guarantee against torture and assault by the State or its  

functionaries.  Reference was made to Article 20(3) of the  

Constitution which postulates that a person accused of an  

offence shall not be compelled to be a witness against himself.

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21. It is worthy to note that in the case of D.K. Basu (supra),  

the concern shown by this Court in Joginder Kumar v. State  

of U.P.2 was taken note of.  In Joginder Kumar’s case, this  

Court voiced its concern regarding complaints of violation of  

human rights during and after arrest.  It is apt to quote a  

passage from the same: -

“The horizon of human rights is  expanding.  At the same time, the crime rate is  also increasing.  Of late, this Court has been  receiving complaints about violations of  human rights because of indiscriminate  arrests.  How are we to strike a balance  between the two?

A realistic approach should be made in  this direction.  The law of arrest is one of  balancing individual rights, liberties and  privileges, on the one hand, and individual  duties, obligations and responsibilities on the  other; of weighing and balancing the rights,  liberties and privileges of the single individual  and those of individuals collectively; of simply  deciding what is wanted and where to put the  weight and the emphasis; of deciding which  comes first –  the criminal or society, the law  violator or the law abider…”

22. After referring to the case of Joginder Kumar (supra),  

A.S. Anand, J. (as his Lordship then was), dealing with the  

2 (1994) 4 SCC 260

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various facets of Article 21, stated that 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.  If the  

functionaries of the Government become law-breakers, it is  

bound to breed contempt for law and would encourage  

lawlessness and every man would have the tendency to  

become law unto himself thereby leading to anarchy.  No  

civilized nation can permit that to happen, for a citizen does  

not shed off his fundamental right to life, the moment a  

policeman arrests him.  The right to life of a citizen cannot put  

in abeyance on his arrest.   The precious right guaranteed by  

Article 21 of the Constitution of India cannot be denied to  

convicts, undertrials, detenus and other prisoners in custody,  

except according to the procedure established by law by  

placing such reasonable restrictions as are permitted by law.

23. At this juncture, it becomes absolutely necessary to  

appreciate what is meant by the term “harassment”.  In P.

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Ramanatha Aiyar’s Law Lexicon, Second Edition, the term  

“harass” has been defined, thus: -

“Harass. “injure”  and “injury”  are words  having numerous and comprehensive popular  meanings, as well as having a legal import.  A  line may be drawn between these words and  the word “harass”  excluding the latter from  being comprehended within the word “injure”  or “injury”.  The synonyms of “harass” are: To  weary, tire, perplex, distress tease, vex, molest,  trouble, disturb.  They all have relation to  mental annoyance, and a troubling of the  spirit.”

The term “harassment”  in its connotative expanse includes  

torment and vexation.  The term “torture”  also engulfs the  

concept of torment.  The word “torture”  in its denotative  

concept includes mental and psychological harassment.  The  

accused in custody can be put under tremendous  

psychological pressure by cruel, inhuman and degrading  

treatment.

24. At this juncture, we may refer with profit to a two-Judge  

Bench decision in Sunil Gupta and others v. State of  

Madhya Pradesh and others3.  The said case pertained to  

3 (1990) 3 SCC 119

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handcuffing where the accused while in judicial custody were  

being escorted to court from jail and bound in fetters.  In that  

context, the Court stated that the escort party should record  

reasons for doing so in writing and intimate the court so that  

the court, considering the circumstances may either approve  

or disapprove the action of the escort party and issue  

necessary directions.  The Court further observed that when  

the petitioners who had staged ‘Dharna’ for public cause and  

voluntarily submitted themselves for arrest and who had no  

tendency to escape, had been subjected to humiliation by  

being handcuffed, such act of the escort party is against all  

norms of decency and is in utter violation of the principle  

underlying Article 21 of the Constitution of India.  The said act  

was condemned by this Court to be arbitrary and  

unreasonably humiliating towards the citizens of this country  

with the obvious motive of pleasing ‘someone’.

25. In Bhim Singh, MLA v. State of J & K4, this Court  

expressed the view that the police officers should have greatest  

regard for personal liberty of citizens as they are the  

4 (1985) 4 SCC 677

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custodians of law and order and, hence, they should not flout  

the law by stooping to bizarre acts of lawlessness.  It was  

observed that custodians of law and order should not become  

depredators of civil liberties, for their duty is to protect and  

not to abduct.

26. It needs no special emphasis to state that when an  

accused is in custody, his Fundamental Rights are not  

abrogated in toto.  His dignity cannot be allowed to be  

comatosed.  The right to life is enshrined in Article 21 of the  

Constitution and a fortiorari, it includes the right to live with  

human dignity and all that goes along with it.  It has been so  

stated in Francis Coralie Mullin v. Administrator, Union  

Territory of Delhi and others5 and D.K. Basu  (supra).

27. In Kharak Singh v. State of U. P.,6 this court approved  

the observations of Field, J. in Munn v. Illinois7:-

“By the term “life”  as here [Article 21] used  something more is meant than mere animal  existence.  The inhibition against its  

5 (1981) 1 SCC 608 6 (1964) 1 SCR 332 7 (1877) 94 US 113

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deprivation extends to all those limbs and  faculties by which life is enjoyed.”

28. It is apposite to note that inhuman treatment has many a  

facet.  It fundamentally can cover such acts which have been  

inflicted with an intention to cause physical suffering or severe  

mental pain.  It would also include a treatment that is inflicted  

that causes humiliation and compels a person to act against  

his will or conscience.   

29. In Arvinder Singh Bagga v. State of U.P. and others8,  

it has been opined that torture is not merely physical but may  

even consist of mental and psychological torture calculated to  

create fright to submit to the demands of the police.

30. At this stage, it is seemly to refer to the decisions of some  

of the authorities relating to a man’s reputation which forms a  

facet of right to life as engrafted under Article 21 of the  

Constitution.  

8 AIR 1995 SC 117

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31. In Smt. Kiran Bedi v. Committee of Inquiry and  

another9, this Court reproduced an observation from the  

decision in D. F. Marion v. Davis10:-  

“The right to enjoyment of a private reputation,  unassailed by malicious slander is of ancient  origin, and is necessary to human society. A  good reputation is an element of personal  security, and is protected by the Constitution  equally with the right to the enjoyment of life,  liberty and property.”

32. In Board of Trustees of the Port of Bombay v.  

Dilipkumar Raghavendranath Nadkarni and others11, it  

has been ruled that right to reputation is a facet of right to life  

of a citizen under Article 21 of the Constitution.   

33. In Smt. Selvi and others v. State of Karnataka12,  

while dealing with the involuntary administration of certain  

scientific techniques, namely, narcoanalysis, polygraph  

examination and the Brain Electrical Activation Profile test for  

the purpose of improving investigation efforts in criminal  

cases, a three-Judge Bench opined that the compulsory  

9   (1989) 1 SCC 494 10  55 ALR 171 11  (1983) 1 SCC 124 12 AIR 2010 SC 1974

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administration of the impugned techniques constitute ‘cruel,  

inhuman or degrading treatment’  in the context of Article 21.  

Thereafter, the Bench adverted to what is the popular  

perception of torture and proceeded to state as follows: -

“The popular perceptions of terms such as  ‘torture’  and ‘cruel, inhuman or degrading  treatment’  are associated with gory images of  blood-letting and broken bones.  However, we  must recognize that a forcible intrusion into a  person’s mental processes is also an affront to  human dignity and liberty, often with grave  and long-lasting consequences.  [A similar  conclusion has been made in the following  paper: Marcy Strauss, ‘Criminal Defence in the  Age of Terrorism – Torture’, 48 New York Law  School Law Review 201-274 (2003/2004)].”

After so stating, the Bench in its conclusion recorded as  

follows: -

“We have also elaborated how the compulsory  administration of any of these techniques is an  unjustified intrusion into the mental privacy of  an individual.  It would also amount to ‘cruel,  inhuman or degrading treatment’  with regard  to the language of evolving international  human rights norms.”

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34. Recently in Vishwanath S/o Sitaram Agrawal v. Sau.  

Sarla Vishwanath Agrawal13, although in a different  

context, while dealing with the aspect of reputation, this Court  

has observed as follows: -

“……..reputation which is not only the salt of  life, but also the purest treasure and the most  precious perfume of life.  It is extremely  delicate and a cherished value this side of the  grave.  It is a revenue generator for the present  as well as for the posterity.”

35. We have referred to these paragraphs to understand how  

with the efflux of time, the concept of mental torture has been  

understood throughout the world, regard being had to the  

essential conception of human dignity.

36. From the aforesaid discussion, there is no shadow of  

doubt that any treatment meted out to an accused while he is  

in custody which causes humiliation and mental trauma  

corrodes the concept of human dignity.  The majesty of law  

protects the dignity of a citizen in a society governed by law.  It  

cannot be forgotten that the Welfare State is governed by rule  

of law which has paramountcy.  It has been said by Edward  13 2012 (6) SCALE 190

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Biggon “the laws of a nation form the most instructive portion  

of its history.” The Constitution as the organic law of the land  

has unfolded itself in manifold manner like a living organism  

in the various decisions of the court about the rights of a  

person under Article 21 of the Constitution of India. When  

citizenry rights are sometimes dashed against and pushed  

back by the members of City Halls, there has to be a rebound  

and when the rebound takes place, Article 21 of the  

Constitution springs up to action as a protector.  That is why,  

an investigator to a crime is required to possess the qualities  

of patience and perseverance as has been stated in Nandini  

Sathpaty v. P. L. Dani14.      

37. In Delhi Judicial Services Association v. State of  

Gujarat15, while dealing with the role of police, this Court  

condemned the excessive use of force by the police and  

observed as follows:-

“The main objectives of police is to apprehend  offenders, to investigate crimes and to  prosecute them before the courts and also to  prevent commission of crime and above all to  

14  AIR 1978  SC 1025 15  (1991) 4 SCC 406

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ensure law and order to protect citizens’  life  and property.  The law enjoins the police to be  scrupulously fair to the offender and the  Magistracy is to ensure fair investigation and  fair trial to an offender.  The purpose and  object of Magistracy and police are  complementary to each other.  It is  unfortunate that these objectives have  remained unfulfilled even after 40 years of our  Constitution.  Aberrations of police officers and  police excesses in dealing with the law and  order situation have been subject of adverse  comments from this Court as well as from  other courts but it has failed to have any  corrective effect on it.  The police has power to  arrest a person even without obtaining a  warrant of arrest from a court.   The amplitude  of this power casts an obligation on the police  and it must bear in mind, as held by this  Court that if a person is arrested for a crime,  his constitutional and fundamental rights  must not be violated.”

38.  It is imperative to state that it is the sacrosanct duty of  

the police authorities to remember that a citizen while in  

custody is not denuded of his fundamental right under Article  

21 of the Constitution.  The restrictions imposed have the  

sanction of law by which his enjoyment of fundamental right is  

curtailed but his basic human rights are not crippled so that  

the police officers can treat him in an inhuman manner.  On  

the contrary, they are under obligation to protect his human

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rights and prevent all forms of atrocities.  We may hasten to  

add that a balance has to be struck and, in this context, we  

may fruitfully quote a passage from D. K. Basu (supra): -    

“There can be no gainsaying that freedom of  an individual must yield to the security of the  State.  The right of preventive detention of  individuals in the interest of security of the  State in various situations prescribed under  different statutes has been upheld by the  Courts.  The right to interrogate the detenus,  culprits or arrestees in the interest of the  nation, must take precedence over an  individual’s right to personal liberty.   …….… The action of the State, however, must be  “right, just and fair”.  Using any form of  torture  for extracting any kind of information  would neither be ‘right nor just nor fair’ and,  therefore, would be impermissible, being  offensive to Article 21.  Such a crime-suspect  must be interrogated-indeed subjected to  sustain and scientific interrogation- determined in accordance with the provisions  of law.  He cannot, however, be tortured or  subjected to third degree methods or  eliminated with a view to elicit information,  extract confession or derive knowledge about  his accomplishes, weapons etc.  His  constitutional right cannot be abridged  except in the manner permitted by law,  though in the very nature of things there  would be qualitative difference in the method  of interrogation of such a person as  compared to an ordinary criminal.”

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39. In the case at hand, the appellant, while in custody, was  

compelled to hold a placard in which condemning language  

was written.  He was photographed with the said placard and  

the photograph was made public.  It was also filed in a  

revenue proceeding by the 5th respondent.  The High Court has  

recorded that the competent authority of the State has  

conducted an enquiry and found the erring officers to be  

guilty.  The High Court has recorded the findings in the favour  

of the appellant but left him to submit a representation to the  

concerned authorities.  This Court, as has been indicated  

earlier, granted an opportunity to the State to deal with the  

matter in an appropriate manner but it rejected the  

representation and stated that it is not a case of defamation.  

We may at once clarify that we are not at all concerned with  

defamation as postulated under Section 499 of the IPC.  We  

are really concerned how in a country governed by rule of law  

and where Article 21 of the Constitution is treated to be  

sacred, the dignity and social reputation of a citizen has been  

affected.

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40. As we perceive, from the admitted facts borne out on  

record, the appellant has been humiliated.  Such treatment is  

basically inhuman and causes mental trauma.    In “Kaplan &  

Sadock’s Synopsis of Psychiatry”, while dealing with torture,  

the learned authors have stated that intentional physical and  

psychological torture of one human by another can have  

emotionally damaging effects comparable to, and possibly  

worse than, those seen with combat and other types of  

trauma.  Any psychological torture inflicts immense mental  

pain.  A mental suffering at any age in life can carry the brunt  

and may have nightmarish effect on the victim.  The hurt  

develops a sense of insecurity, helplessness and his self-

respect gets gradually atrophied.  We have referred to such  

aspects only to highlight that in the case at hand, the police  

authorities possibly have some kind of sadistic pleasure or to  

“please someone”  meted out the appellant with this kind of  

treatment.  It is not to be forgotten that when dignity is lost,  

the breath of life gets into oblivion.  In a society governed by  

rule of law where humanity has to be a laser beam, as our  

compassionate constitution has so emphasized, the police

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authorities cannot show the power or prowess to vivisect and  

dismember the same.    When they pave such path, law cannot  

become a silent spectator.   As Pithily stated in Jennison v.  

Baker16:-

“The law should not be seen to sit by limply,  while those who defy if go free, and those who  seek its protection lose hope.”  

41. Presently, we shall advert to the aspect of grant of  

compensation.  The learned counsel for the State, as has been  

indicated earlier, has submitted with immense vehemence that  

the appellant should sue for defamation.  Our analysis would  

clearly show that the appellant was tortured while he was in  

custody.  When there is contravention of human rights, the  

inherent concern as envisaged in Article 21 springs to life and  

enables the citizen to seek relief by taking recourse to public  

law remedy.

42. In this regard, we may fruitfully refer to Nilabati Behera  

v. State or Orissa17 wherein it has been held thus: -

16  (1972) 1 All ER 997, 1006 17 (1993) 2 SCC 746

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“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.”

43. Dr. A.S. Anand J., (as his Lordship then was), in his  

concurring opinion, expressed that the relief of monetary  

compensation, as exemplary damages, in proceedings under  

Article 32 by the Supreme Court or under Article 226 by the  

High Courts for established infringement of the indefeasible

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right guaranteed under Article 21 is a remedy available in  

public law and is based on the strict liability for contravention  

of the guaranteed basic and indefeasible rights of the citizen.  

The purpose of public law is not only to civilize public power  

but also to assure the citizen that they live under a legal  

system which aims to protect their interests and preserve their  

rights.  Therefore, when the court moulds the relief by  

granting ‘compensation’  in proceedings under Article 32 or  

226 seeking enforcement or protection of fundamental rights,  

it does so under the public law by way of penalizing the  

wrongdoer and fixing the liability for the public wrong on the  

State which has failed in its public duty to protect the  

fundamental rights of the citizen.  The payment of  

compensation in such cases is not to be understood, as it is  

generally understood in a civil action for damages under the  

private law but in the broader sense of providing relief by an  

order of making ‘monetary amends’  under the public law for  

the wrong done due to breach of public duty, by not protecting  

the fundamental rights of the citizen.  The compensation is in  

the nature of ‘exemplary damages’  awarded against the

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wrongdoer 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.

44. In Sube Singh v. State of Haryana18, a three-Judge  

Bench of the Apex Court, after referring to its earlier decisions,  

has opined as follows: -

“It is thus now well settled that award of  compensation against the State is an  appropriate and effective remedy for redress of  an established infringement of a fundamental  right under Article 21, by a public servant.  The quantum of compensation will, however,  depend upon the facts and circumstances of  each case.  Award of such compensation (by  way of public law remedy) will not come in the  way of the aggrieved person claiming  additional compensation in a civil court, in  enforcement of the private law remedy in tort,  nor come in the way of the criminal court  ordering compensation under Section 357 of  Code of Civil Procedure.”

18 AIR 2006 SC 1117

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45. At this stage, we may fruitfully refer to the decision in  

Hardeep Singh v. State of Madhya Pradesh.19   The  

appellant therein was engaged in running a coaching centre  

where students were given tuition to prepare for entrance test  

for different professional courses.  On certain allegation, he  

was arrested and taken to police station where he was  

handcuffed by the police without there being any valid reason.  

A number of daily newspapers published the appellant’s  

photographs and on seeing his photograph in handcuffs, the  

appellant’s elder sister was so shocked that she expired.  After  

a long and delayed trial, the appellant, Hardeep Singh, filed a  

writ petition before the High Court of Madhya Pradesh at  

Jabalpur that the prosecution purposefully caused delay in  

conclusion of the trial causing harm to his dignity and  

reputation.  The learned single Judge, who dealt with the  

matter, did not find any ground to grant compensation.  On an  

appeal being preferred, the Division Bench observed that an  

expeditious trial ending in acquittal could have restored the  

appellant’s personal dignity but the State instead of taking  

19  (2012) 1 SCC 748  

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prompt steps to examine the prosecution witnesses delayed  

the trial for five long years.  The Division Bench further held  

there was no warrant for putting the handcuffs on the  

appellant which adversely affected his dignity.  Be it noted, the  

Division Bench granted compensation of Rs. 70,000/-.  This  

Court, while dealing with the facet of compensation, held  

thus:-   

“Coming, however, to the issue of  compensation, we find that in light of the  findings arrived at by the Division Bench, the  compensation of Rs. 70,000/- was too small  and did not do justice to the sufferings and  humiliation undergone by the appellant.  In  the facts and circumstances of the case, we  feel that a sum of Rs. 2,00,00/- (Rupees Two  Lakhs) would be an adequate compensation for  the appellant and would meet the ends of  justice.  We, accordingly, direct the State of  Madhya Pradesh to pay to the appellant the  sum of Rs. 2,00,000/-(rupees Two Lakhs) as  compensation.  In case the sum of Rs.70,000/-  as awarded by the High Court, has already  been paid to the appellant, the State would  naturally pay only the balance amount of  Rs.1,30,000/- (Rupees One Lakh thirty  thousand)”.    

Thus, suffering and humiliation were highlighted and amount  

of compensation was enhanced.

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46. On a reflection of the facts of the case, it is luculent that  

the appellant had undergone mental torture at the hands of  

insensible police officials.  He might have agitated to  

ameliorate the cause of the poor and the downtrodden, but,  

the social humiliation that has been meted out to him is quite  

capable of destroying the heart of his philosophy.  It has been  

said that philosophy has the power to sustain a man’s  

courage.  But courage is based on self-respect and when self-

respect is dented, it is difficult even for a very strong minded  

person to maintain that courage.  The initial invincible mind  

paves the path of corrosion. As is perceptible, the mindset of  

the protectors of law appears to cause torment and insult and  

tyrannize the man who is helpless in custody.  There can be  

no trace of doubt that he is bound to develop stress disorder  

and anxiety which destroy the brightness and strength of the  

will power.  It has been said that anxiety and stress are  slow  

poisons.  When torment is added, it creates commotion in the  

mind and the slow poisons get activated.  The inhuman  

treatment can be well visualized when the appellant came out  

from custody and witnessed his photograph being circulated

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with the self-condemning words written on it.  This withers  

away the very essence of life as enshrined under Article 21 of  

the Constitution.  Regard being had to the various aspects  

which we have analysed and taking note of the totality of facts  

and circumstances, we are disposed to think that a sum of  

Rs.5.00 lacs (Rupees five lacs only) should be granted towards  

compensation to the appellant and, accordingly, we so direct.  

The said amount shall be paid by the respondent State within  

a period of six weeks and be realized from the erring officers in  

equal proportions from their salary as thought appropriate by  

the competent authority of the State.

47. Consequently, the appeal is allowed to the extent  

indicated above.  However, in the facts and circumstances of  

the case, there shall be no order as to costs.

……………………………….J. [K. S. Radhakrishnan]

……………………………….J. [Dipak Misra]

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New Delhi; August  03, 2012.