08 April, 2010

Unlawful death

The right to life is wider than the death penalty.  At about 8:00 am on the morning of 1 December 1987, a 22 year-old Indian man was taken into custody by the police in connection with an investigation into a theft.  He was taken to a police outpost near to his home in the State of Orissa in India.  His mother, Nilabati Behera, visited him that night with his supper, which he ate.  On the following day, he was found dead on a nearby railway track with multiple injuries.  He was still wearing a handcuff.  The mother wrote a letter to the Supreme Court complaining that she wanted justice for her son.  The Supreme Court treated her letter as a writ petition in the original jurisdiction of the court under the Constitution of India, and accepted it as a case filed.  The court treated her letter as initiating a claim for compensation for contravention of the fundamental right to life of her son guaranteed by the Constitution. 
The Supreme Court of India directed a District Judge in the State of Orissa to hold an inquiry into the facts and to report back.  The police claimed that the deceased had escaped from police custody and that his injuries were the result of his having been run over by a train.  The medical evidence from the doctor who conducted the post-mortem examination was that most of the injuries had been caused by a long and violent beating.  His body had, subsequent to his death, suffered further injuries from being dragged by a train after it had been placed on the train line.  The Judge conducting the inquiry reported back to the Supreme Court that according to the evidence that he had uncovered the deceased had died from multiple injuries inflicted on him while in police custody. 
The Supreme Court heard argument from the lawyers for the State.  It held that the State had breached the deceased's fundamental right to life.  The Court explained that the purpose of public law is not only to civilize public power, but also to assure citizens that they live under a legal system which aims to protect their interests and preserve their rights.  Therefore, it is the duty of the court to mould a relief by granting compensation in proceedings brought under the Constitution seeking enforcement or protection of fundamental rights.  It does so under the public law by way of penalising 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 judges of the Supreme Court sat down and worked out, based on the age of the son, what his loss of income to his family had been if he had lived to the usual age.  They awarded what was at the time a large sum of money by way of damages to be paid to the mother. 
As the Indian Supreme Court explained, the payment of compensation in such cases is not to be understood as damages, as it is generally understood in a civil action for damages under the private law.  It is to be understood as damages 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, of not protecting the fundamental rights of the citizen.  The compensation is in the nature of exemplary damages awarded against the wrong-doer for the breach of its public law duty.  It 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, and/or the right to prosecute the offender under the penal law.  The Supreme Courts and the High Courts, are the protectors of the civil liberties of the citizen.  The court has not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under the Constitution and its duty to the victim or the heir of the victim whose fundamental rights are established to have been flagrantly infringed.  It does this by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen.  This, notwithstanding the right of the citizen to seek a remedy by way of a civil suit or criminal proceedings.
That was a powerful judgment.  It is worth remembering that it is a part of the law of Anguilla too.


  1. While we are talking about unlawful death by the state, I remember Michael Gumbs of the Quarter who was shot by the police. Though an enquiry was conducted, I have never heard of the findings being published. It always pains me as Michael was a school mate of mine, who in his later days was troubled by mental illness.

    I would love Don, if the Police would publish the findings of their investigation or better yet a investigation be conducted by a non police entity. If I recall correctly the investigation was conducted by a investigator from one of the police forces of the one of our sister overseas territories.

  2. Obviously, the police feel no need to explain their actions to us. They are the enforcers. They act as if Anguilla were their plantation. Unfortunately, our Governors support them in their arrogance.

  3. "The right to life is wider than the death penalty." Truer words about an undiscussed elephant were never spoken.

  4. The death penalty is only a reparation for that which is left of the horribly wronged; lacking as a deterrent, it is. - Scotty


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