Live Law: New Delhi: Sunday, October
09, 2016.
The Central
Information Commission (CIC) through Information Commissioner M. Sridhar
Acharyulu in O.P. Gandhi v. Tihar Jail directed the state/public authorities to
compensate a prisoner who lost out on his freedom due to extra detention, thus
violating his fundamental right to a meaningful life guaranteed under the
Constitution of India.
The appellant
was convicted under Section 138 of the Negotiable Instruments Act for dishonour
of cheque for insufficiency of funds. He was sentenced to simple imprisonment
for one year and fine. But after collecting information on remission and other
aspects through 36 RTI applications, he contended that he was detained for an
extra length of four days. The question for consideration was ‘other detriment’
of extra-detention, and compensation.
The commission
opined that since the order of remission to be granted to all the convicts who
had maintained good conduct in the jail and had not been punished during
preceding one year 15.08.2013 to 14.08.2014, and instead was issued on
11.08.2014, the appellant should have been released on that day itself. The
authorities knew that the appellant has to be released on that day as per the
remission order, yet he was detained till 15.08.2014. According to calculation
of the appellant, he lost 14 days of freedom, and assuming that the order was
given on 11.08.2014, as per the contention of the respondents, the appellant
lost four days of freedom.
Article 21
under the Constitution guarantees every Indian citizen right to personal life
and liberty. An important question that came up was whether the state/public
authority could be made liable for false imprisonment. Landmark case Rudul Shah
v State of Bihar [AIR 1983 SC 1086] and another important case Bhim Singh, MLA
vs State of J&K and Ors. [AIR 1986 SC 494] were relied upon wherein the
Supreme Court held that the state has to compensate for extra detention.
In State of
A.P. v. Challa Ramkrishna Reddy and others, the apex court had denounced the
archaic principle of state immunity by series of orders of the Supreme Court
state immunity was replaced by principle of vicarious liability.
It was noted
that the provision of compensation to crime victims is crying need of the
honour. The International Covenant on the Civil and Political Rights, 1966
indicates that an enforceable right to compensation is conceptually integral to
Human Rights. An observation made in leading case Nilabati Behara vs. state of
Orissa and others (AIR 1993 SC 1960) was reproduced wherein a distinction was
made between the remedy of compensation available under the public law i.e.,
Constitution and the private law, i.e. civil law of Tort. As per Article 21 of
the constitution and various judgments, the victim is entitled to compensation
for illegal detention.
The
commission observed that another major problem for the poor citizen like the
appellant herein is their inability to afford litigation in the court of law.
But various apex court judgments reflect upon the spirit of the Constitution
according to which petitioners must be provided legal representation by a
fairly competent lawyer at the cost of the state, since legal aid in a criminal
case is a Fundamental Right implicit in Article 21.
The jail
authorities stated that there was neither the policy nor remedy, and the only
course left was that the prisoner should approach the court of law and secure a
direction to pay compensation. However, it was opined that an ordinary citizen
like the appellant could neither go to the civil court with a plaint nor file a
writ petition in the constitutional courts for compensation. The state/public
authority cannot drive poor convicts to the courts of law. “The state is
expected to give people-friendly administration. The jail authorities cannot
breach the rights of prisoners and refuse any remedy,” the commission said.
The rejection
of RTI request on the ground that what he sought was not ‘information’ under
RTI Act was held to be illegal and unreasonable. Hence there was merit found in
complaint and contention that O.P. Gandhi was not given complete and proper
information about remission and that he was also not given the due benefit of
remission. The appellant suffered loss because of this denial and delay in
furnishing information besides other detriment, i.e., the loss of freedom.
The
commission reiterated that the Section 19(8)(b) of RTI Act accommodates two
kinds of compensations loss or any other detriment suffered. The commission
held that the ‘other detriment’ the appellant suffered is loss of freedom for
four days as per his count. Four-day detention beyond the date of order of
remission, i.e., 11.08.2014, was clearly established thus, the Commission
considered this case as a fit case for awarding compensation for the four days
of extra-detention.
Finally after
awarding the compensation that it deemed fit while leaving the option open to
the appellant to pray for the right quantum at the appropriate forum of law, it
also directed the state/public authority to be mindful of prisoners’ rights,
giving three months’ time for its implementation. It said:
“The
commission requires the public authority under Section 19(8) to put in the
place a policy/guidelines/regulation for a system of resolving the disputes
regarding the remission, and paying compensation to prisoners who lost their
personal liberty due to extra-detention, either by mistake or negligence; and
that mechanism of compensation shall be prominently displayed/notified in the
official website and on the notice board in their office in English and Hindi
languages. This is required to be framed and disclosed suo motu under Section
4(1) (b), (c) and also (d) of the RTI Act.”
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