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TMI Blog1997 (2) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... n to Mizoram. They were released on bail only on 22-7-1991. It is further submitted that Hamar Peoples' Convention is political party active in Mizoram. It is not an unlawful organization. Even according to the news released by the said organization, it was a case of deliberate killing. Though representations were made to the Chief Minister of Manipur and other officials, no action was taken. Along with the writ petition, affidavit of the persons who were taken into custody along with the deceased, taken in a truck and kept in custody for a number of days, were filed. Affidavits of the wives of the deceased were also filed setting out the miserable condition of their families after the death of their respective husbands 2. On notice being given, counter-affidavit was filed by the Joint Secretary (Home), Government of Manipur denying the allegations. The allegation of flake encounter was denied. It was submitted that there was genuine cross-firing between the police and the activists of Hamar Peoples' Convention during which the said two deaths took place. The report of the Superintendent of Police, Churachandpur was relied upon in support of the said averment. It was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere gathering in the house on that night and on the basis of that information, police conducted the raid. The raiding party was fortunate that the people inside the house including the deceased did not notice the police, in which case the police would have suffered serious casualties. The police party was successful in surprising the terrorists. There was exchange of fire resulting in the death of the terrorists 6. In view of the fact that we have accepted the finding recorded by the learned District and Sessions Judge, it is not possible to accede to the contention of Ms. Janani insofar as the manner in which the incident had taken place. It is true that Manipur is a disturbed area, that there appears to be a good amount of terrorist activity affecting public order and, may be, even security of that State. It may also be that under these conditions, certain additional and unusual powers have to be given to the police to deal with terrorism. It may be necessary to fight terrorism with a strong hand which may involve vesting of good amount of discretion in the police officers or other paramilitary forces engaged in fighting them. If the version of the police with respect to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. The decision also dealt with the question whether the plea of sovereign immunity is available in such a case. The following observations are relevant The question, however, arises whether it is open to the State to deprive a citizen of his life and liberty otherwise than in accordance with the procedure prescribed by a law and yet claim an immunity on the ground that the said deprivation of life occurred while the officers of the State were exercising the sovereign power of the State ? Can the fundamental right to life guaranteed by Article 21 be defeated by pleading the archaic defence of sovereign functions ? Does it mean that the said theory clothes the State with the right to violate the fundamental right to life and liberty, guaranteed by Article 21 ? In other words, does the said concept constitute an exception to article 21 ? We think not. Article 21 does not recognize any exception, and no such exception can be read into it by reference to clause (1) of Article 300. Where a citizen has been deprived of his life, or liberty, otherwise than in accordance with the procedure prescribed by law, it is no answer to say that the said deprivation was brought about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernational Covenant on Civil and Political Rights, 1966 which says, anyone who was has been the victim of unlawful arrest or detention shall have an enforceable right to compensation . The two opinions rendered by J. S. Verma, J. Dr. A. S. Anand, J. are unanimous on the aforesaid dicta. The same view has been reiterated very recently by a Bench comprising Kuldip Singh and Dr. A. S. Anand, JJ. in D. K. Basu v. State of W. B. [ 1997 (1) SCC 416 : 1997 SCC(Cri) 92 : (1996) 9 Scale 298]. The observations in para 54 of the judgment are apposite and may be quoted : (SCC P. 443, para 54) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at basis. The Immigration Review Panel opined that deportation of Teoh would deprive his young children (who were Australian citizens) of their only financial support, landing them in bleak misery. Article 3 of the aforesaid Convention provides that 1. In all actions concerning children, whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The invoked this article to ward off his deportation. The matter was carried to the High Court where the question of enforceability of the Convention by the national courts was thoroughly debated. Mason, C.J., speaking for himself and Dean, J., stated the position in the following words It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. (Chow Hung Ching v. King [ 1948 (77) CLR 449 ], CLR at p. 478; Bradley v. Commonwealth [ 1973 (128) CLR 557 ], CLR 582; Simsek v. Macphee [ 1982 (148) CLR 636 ], CLR at pp. 641-642; K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental rights, may be used by the courts as a legitimate guide in developing the common law. [Mabo v. Queensland (No. 2) [ 1991 (175) CLR 1 ], CLR at p. 42, per Brennan, J. (with whom Mason C.J. and McHugh, J. agreed); Dietrich v. Queen [ 1992 (177) CLR 292 ] (CLR at p. 321), per Brennan J., at p. 360, per Toohey, J.; Jago v. District Court of New South Wales [(1988) 12 NSW LR 558] (NSWLR at p. 569), per Kirby, J.; Derbyshire Country Council v. Times Newspapers Ltd. [1992 QB 770]]. But the courts should act in this fashion with due circumspection when Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials (Lamb v. Cotogno [ 1987 (164) CLR 1 ], CLR at pp. 11-12). Much will depend upon the nature of relevant provision, the extent to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental rights and hence, enforceable as such. So far as multilateral treaties are concerned, the law is, of course, different - and definite. See United States Supreme Court decisions in Elisa Chan v. Korean Airlines Ltd. [(104 L Ed 2d 113] and Eastern Airlines v. Floyd [113 L Ed 2d 569] and the House of Lords decision in Equal Opportunities Commission v. Secy. of State for Employment [1994 ICR 317 : [1994] 1 All E.R. 910 following its earlier decisions, including Factortame (No. 2) [Factortame Ltd. v. Secy. of State for Transport (No. 2), [1991] 1 A.C. 603 : [1991] 1 All E.R. 70 : 1990 (3) WLR 818] 14. Now coming to the facts of the case, we are of the opinion that award of compensation of ₹ 1, 00, 000 (Rupees one lakh only) to the families of each of the deceased would be appropriate and just. The same shall be paid by the Government of Manipur. The Collector/District Magistrate, Churachandpur shall hand over the cheques to the respective families of the deceased, namely Lalbeiklien and Saikaplien, within two months from today. The writ petition is disposed of accordingly. The People's Union for Civil Liberties, which has filed this writ petition and pursued it all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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