UBI JUS IBI REMEDIUM - There is no wrong without a remedy
He could have perhaps become an Inspector of Customs and Central Excise very soon – had he been alive. But fate found him dead in a Customs office hanging in the bathroom! Fate will take us where we are wanted most – even into a death trap in a Customs bathroom. A young life is lost. Is there a remedy? Now there will be plenty of inquiries and reports; already a few innocent Customs officers are facing the music, while the guilty may be celebrating somewhere! Custodial deaths are serious and unnerving incidents for the Police. But should Customs get into such murky situations? In the name of evidentiary value of statements, should Customs go the Police way in extracting statements? It is time we have a re-look at the whole summons and statement method of investigation. Just imagine how many lies are to be publicized and how many records fudged to whitewash the incident of a poor boy dying in Customs custody, most probably illegal. Please see our special story on the custodial death in a Customs bathroom.
While at this, the observations of the Supreme Court in the famous DK Basu case are worth recalling.
The law wills that in every case where man is wronged and damaged he must have a remedy.
A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.
No one can suppose that the executive will never be guilty of the sins that are common to all of us.
You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do.
But if and when wrongs are thereby suffered by any of us what is the remedy?
Our procedure for securing our personal freedom is efficient, out procedure for preventing the abuse of power is not.
Just as the pick and shovel is no longer suitable for the mining of coal, so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age.
They must be replaced by new and up-to date machinery by declarations, injunctions and actions for negligence... This is not the task of Parliament... the courts must do this.
Properly exercised the new powers of the executive lead to the welfare state: but abused they lead to a totalitarian state. "
Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts.
The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer.
In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element.
The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do,
That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the torturous act committed by the functionaries of the State.
The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, in addition to the traditional remedies and not in derogation of them.