Compensatory jurisprudence

From 'where there is a remedy, there is a right' to 'where there is a right, there is remedy', the courts have expanded the scope of justice to a very wide sphere. Earlier the courts were concerned with just providing remedy for the breach of duty as arising in the civil cases or providing punishment for criminal acts. The damages provided, whether liquidated or unliquidated, were rarely compensatory in nature, specially if the breach was committed by the State, which had the defense of performing the 'sovereign function'. The law courts have now extended their powers in cases of gross violations of human rights to provide compensation to the victims. Starting from the case of Rudul Shah, the Supreme Court of India has started providing compensatory remedies to the victims of violation of Article 21. The Supreme Court has used its powers under Article 32 to provide adequate protection to the life and personal liberty guaranteed under Article 21, even though there is no express provision for the same. Whenever the rights guaranteed by Article 21 are violated by the State action, it is essential that the same is rectified and compensated so as to make a sense of the guarantee that has been given under its provisions. The courts have extended the tortious liability of the State to include all violations of life and personal liberty that are not in accordance with the procedure established by law. Custodial violence, custodial death, illegal detention, environmental pollution, etc. are few of the instances for which compensation may be provided, the quantum of compensation depending on case to case. However, the courts need to exercise certain caution as well to see that it does not overstep its limitations in the name of judicial activism.