Existence of alternative remedy not a bar when fundamental right is violated: Uttarakhand high court directs state to pay compensation to acid attack victim

The court found that the victim-petitioner’s right to life with dignity was violated by the acid attack.


THE High Court of Uttarakhand at Nainital in Gulnaaz Khan versus State of Uttarakhand & Ors. granted compensation to the petitioner, an acid attack victim, for a breach of the fundamental right to live life with dignity. The petitioner was attacked in 2014, and she suffered third-degree burn injuries on her face and chest. She sustained 60 per cent burn injuries on her upper body and knee, and lost her right ear.

The offender was convicted for voluntarily causing grievous hurt by the use of acid under Section 326A of the Indian Penal Code, 1860. He was sentenced to undergo ten years of rigorous imprisonment along with a fine of Rs. 20,000.

For granting compensation, the court referred the matter to the District Legal Services Authority, and a sum of Rs. 1, 60,000 was granted in compliance with an order passed by the Criminal Injury Compensation Board under the Uttarakhand Victim from Crime Assistance Scheme, 2013. By an interim order passed by a coordinate bench of the high court in 2019, additional compensation of Rs. 1, 50,000 was provided.

However, the victim filed a writ petition praying for compensation of Rs. 50,00,000 for the loss suffered by her, and filed a writ of mandamus for making a comprehensive rehabilitation scheme and to pay directly to the hospitals for future expenses to be incurred by her in medical procedures that might be undertaken.

The Additional Chief Standing Counsel for the state opposed the writ petition on the grounds that it is not maintainable under Article 226 of the Constitution. According to the counsel, the victim should have filed an appeal before the Uttarakhand State Legal Service Authority (‘UKSLSA’), in view of the availability of an efficacious alternative remedy to her. The counsel placed reliance on the judgment of the Supreme Court in Titaghur Paper Mills versus State of Orissa (1983).

However, the court took the recourse of the Supreme Court’s observation in Whirlpool Corporation versus Registrar of Trade Marks (1998). In this judgment, the Supreme Court held that under Article 226, having regard to the facts of the case, the high court has the discretion to entertain or not to entertain a writ petition. However, the court imposed upon itself certain restrictions, one of which is if an effective and efficacious remedy is available, the court would not normally exercise its jurisdiction. But the alternative remedy does not operate as a bar in situations where the writ petition has been filed for the enforcement of any of the fundamental rights, or where there has been a violation of the principle of natural justice, or where the order or proceedings are wholly without jurisdiction, or the vires of an Act is challenged.

Relying on this, the high court considered that there has been a breach of the right to live life with dignity of the victim petitioner. The high court considered the values enshrined in the Preamble of the Constitution, and held that the dignity of individuals and unity and integrity of the nation is kept on the same high pedestal.

Through an order in 2020, the member secretary of UKSLSA submitted a proposal for compensation of a sum of Rs. 23,00,000. But the petitioner had submitted that the award suggested was only for medical intervention for her injuries.

The UKSLSA member secretary proposed social and economic rehabilitation under Section 19 of the Rights of Persons with Disabilities Act, 2016, for the government to provide some vocational training programmes to acid attack victims. However, the state counsel submitted that the victim petitioner should be compensated as per the old 2013 scheme. A new victim compensation was implemented in 2018.

The report of UKSLSA suggests that the new scheme is a beneficiary scheme and if the cause of action survives on the date of the implementation, then the benefit should go to the victim. The court agreed with the opinion of the member secretary of UKSLSA and observed that the incident may have taken place in 2014 but the process of determination of compensation still continues. The court noted, “…the effect of acid is still live as the victim had to undergo so many reconstructive surgeries of face, reconstruction of right ear and other medical procedures and treatment.”

Considering all this, the court granted a sum of Rs. 35,00,000 as just, proper, and adequate compensation to the victim petitioner, in addition to the amount already paid. The court encouraged the victim be given vocational training if she is willing. In addition, the court ordered the state government to provide free medical treatment and, if proper technology is not available to carry out surgeries, the state must get her treatment in any hospital in New Delhi. The travelling and other-related expenses, including that of the attendant of the petitioner, shall be borne by the state.

The court has directed the compensation amount to be released by UKSLSA after the expiry of the limitation for filing intra-court appeal.

Click here to view the Uttarakhand High Court’s full judgment dated December 16.