“……..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.”
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The Case of Supreme court ‘DR. MAHMOOD NAYYAR AZAM V. STATE OF CHHATTISGARH (2012)’, is important on this issue.
In this case, appellant (M.N. Azam) was arrested in respect of the alleged offence under Indian Penal Code, 1860 and the Electricity Act, 2003; there was a direction by the Magistrate for judicial remand and thereafter instead of taking him to jail the next day he was brought to the police station;
after that, self-humiliating words were written on the placard and he was asked to hold it and photographs were taken; and then, the photographs were circulated in general public and were also filed by one of the respondents in a revenue proceeding; and the High Court, in categorical terms, has found that the appellant was harassed.
Factual Matrix
- 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 consorted maladroit effort was made to rope him in certain criminal offences. Many cases were registered against him on the allegation of fraud, theft and others.
- The appellant was taken into custody. 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 abused and assaulted.
- As asseverated, the physical assault was the beginning of ill- treatment. Thereafter, the SHO and ASI, 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).
- Subsequently, the said photograph was circulated in general public and even in the revenue proceeding. 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 Superintendent of Police, District Koria to submit a report.
- As there was no response, 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 police officers involved, on the foundation that 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.
- 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.
- 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.
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 the Chief Secretary for grant of compensation.
- 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 Chhattisgarh, Home (Police) Department.
Contentions of the Counsel of Appellant
- 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 was further urged by him that 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-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 was 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.
Question before the Court
The question before the Court for consideration was that,
“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.”
Analysis of the Court
The Supreme Court considered the question and analysed the question as follows-
Meaning of Torture
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 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 accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment.
Case Referred by the Court
Sunil Gupta and others v. State of Madhya Pradesh and others (1990)
The said case pertained to 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 the Court to be arbitrary and unreasonably humiliating towards the citizens of this country with the obvious motive of pleasing ‘someone’.
Bhim Singh, MLA v. State of J & K[1985]
In Bhim Singh, MLA v. State of J & K, this Court expressed the view that the police officers should have greatest regard for personal liberty of citizens as they are the 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.
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 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.
Authorities relating to a man’s reputation
In Smt. Kiran Bedi v. Committee of Inquiry and another [1988], Supreme Court reproduced an observation from the decision in D. F. Marion v. Davis:-
“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.”
In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others[1982], it has been ruled that right to reputation is a facet of right to life of a citizen under Article 21 of the Constitution.
In Smt. Selvi and others v. State of Karnataka [2010], 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, 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.”
In Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal [2012], while dealing with the aspect of reputation, the 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.”
The court referred these abovementioned paragraphsto 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. The court further said,
- 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 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.
- 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 rights and prevent all forms of atrocities.
The Consideration of the Case
- 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 authorities cannot show the power or prowess to vivisect and dismember the same. When they pave such path, law cannot become a silent spectator.
- 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.
The Court referred the case of Nilabati Behera v. State or Orissa [1993] wherein it has been held thus: –
“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.”
- 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 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.
Decision of the Case
- 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 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.”
Reference
Mahmood Nayyar Azam v. State of Chattisgarh (2012)