Compensatory Jurisprudence Expr

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INTERIM REPORT TAPAJYOTI DEB 06LS192 ICFAI LAW SCHOOL, DEHRADUN

Transcript of Compensatory Jurisprudence Expr

Page 1: Compensatory Jurisprudence Expr

INTERIM REPORTTAPAJYOTI DEB06LS192ICFAI LAW SCHOOL, DEHRADUN

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Compensation means Something (such as money) given or received as payment or reparation (as for a service or loss or injury)

Jurisprudence means The branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do.

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Judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedents.

Regarding the liability of the State to pay compensation for infringing Article 21, the Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its significant content.

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21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

226 .Power of High Courts to issue certain writs.— habeas corpus, mandamus, prohibition, quo

warranto and certiorari, Clause (1) of Article 300 of the Constitution

provides first, that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State;

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P. & O. Steam Navigation Co. Vs. Secretary of State -- Plaintiff met with an accident, caused by negligence of the servants of the Government.

“King can do no wrong”, had no application to the East India Company. Co. And secretary of India can be sued.... Sec 65 of G.O.I act 1858

if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government.

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Kasturi lal case-- (a)  The act was done in the purported exercise of a statutory power.(b)   The act was done in the exercise of a sovereign function.

Vidyawathi case --

Rudal shah case – granting moneytary compensation to an unfortunate victim of state lawlessness. The concern of the highest court to do justice rather than mechanically applying the law based on precedents is reinforcing the credibility of the judiciary among the public, especially the helpless have-nots.

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Crowns proceedings act, dismissed “ king can do no wrong”.

European Union -- The EU law breached must have been intended to confer rights on individuals,

The breach must be sufficiently serious, There must be a direct causal link between

the state's breach and the loss suffered.

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Sonaullah Dar and Others vs. Union Of IndiaBijbehara firing incident in 1993, the

judgement was given in 2007.Petitioners have filed the present petition for

directing the respondents to pay compensation to the tune of Rs. 50 lacs each to the petitioners who are the legal heirs of the deceased.

An enquiry committee was placed.

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Parties were raising anti-India slogans and getting aggressive.

S.I Malhar Singh was shot and his weapon was taken away.

Militants started firing at the BSF.No intention was there.

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The petitioners have in the rejoinder stated that the deceased persons were having their aim of life to rise very high and thereby earn a good amount for the benefit of their families.

Most of them were students and wanted to be a doctor, some were Govt. employees and few were carrying their own business.

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Respondents are liable to compensate.Sanctioned ex- gratia relief of Rs. One lac in

favour of the next of the kin of the deceased.No dispute over the fact that the incident has

taken place.No medical report on SI Malhar Singh.Respondents claimed that JK Special Power of

Act, and sanction of law. Involvement of the militants.

Mob was peaceful.

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firing upon the procession was absolutely un-provoked

Plea of Retaliation of militants firing for self defense is baseless and concocted.

 51 bullet fired, 31 killed and 73 injured.no causalities from the BSF side , and no

militants or armed person in the crowd.offence out of vengeance and their barbarous

act is deliberate and well planned.

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In Nilabati Behera's case it was observed by the Supreme Court that where there is a contravention of human rights and fundamental freedoms by State and its agencies, court has obligation to grant compensation in petition under Art. 32 or 226 i.e. in public law.

Rudul Shah v. State of Bihar, ( 1983) 3 SCR 508: ( AIR 1983 SC 1086) granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India.

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There is gross violation of the human rights which caused an irreparable loss to the petitioners .

Most of them were students having a bright career. Some of them were doing business and earning a handsome income to sustain their family.

pay a compensation of Rs. 4 lacs to each petitioner for the loss of life of their close relatives/dependants who have been killed in the incident and whose particulars are given in the petition.

This amount shall be in addition to the ex-gratia relief paid to them.

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Are the deaths of the person related to the petitioners occurred due to police firing?

Is the state entitled to take the defence of sovereign immunity?

Impact of contributory negligence in the incidents and mitigating factors?

What is just and reasonable compensation to be awarded in this case?

Is the compensation awarded under article 226/32 is complete or final or subject to claim relief in appropriate forum?

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