THE SUPREME COURT’S JURISPRUDENCE has made India’s reservation to the International Covenant on Civil and Political Rights (ICCPR) redundant. In a number of judgments, the Court has recognized granting compensation as a necessary public law remedy for violations of fundamental rights, including wrongful incarceration and arrests.
Unlawful arrests and detention not only cause loss of years, but can also create social stigma and ostracization even after being released.
Article 21 and the right to compensation
As India follows a common law system, its courts apply common law principles to determine the relationship between international law and municipal law. This approach has continued across the Executive, Legislature, and Judiciary since independence. Indian courts, particularly the Supreme Court and the various High Courts, have extended protection to refugees by invoking Article 21 of the Constitution.
The leading authority is State of Arunachal Pradesh v. Khudiram Chakma (1993), in which the appellants, along with a number of other Chakma refugees, asserted fundamental rights under Articles 21, 19(1)(d), and 19(1)(e), and sought the benefit of Sections 6(A) and 6(2) of the Citizenship Act 1955. The Supreme Court held that Article 21 applies to “any person,” including refugees present on Indian territory. By contrast, the Court ruled that Articles 19(1)(d) and 19(1)(e) can only be invoked by Indian citizens and are therefore unavailable to refugees.
Relying on Louis De Raedt v. Union of India (1991), the Court reaffirmed that foreigners, including refugees, are entitled to the fundamental right to life and personal liberty guaranteed under Article 21, but cannot rely on Article 19(1)(e), which is reserved for citizens.
While these refugee cases clarify the substantive reach of Article 21, the Court also expanded its remedial dimension, particularly in situations of unlawful deprivation of liberty. The development of a compensation jurisprudence is evident in Rudul Sah v. State of Bihar (1983), where the petitioner was arrested in 1953 for allegedly murdering his wife, acquitted in 1968, yet kept in jail for a further fourteen years until his release in 1982.
The primary issue before the Supreme Court was whether Rudul Sah was entitled to compensation for his wrongful detention under Article 32 of the Constitution. The Court had to determine whether the scope of Article 32, traditionally used to enforce fundamental rights, could extend to compensation, and whether Article 21's guarantee of life and personal liberty encompassed such a remedy.
On 1 August 1983, the Supreme Court held that Rudul Sah's continued detention constituted a blatant violation of Article 21. The Court awarded ancillary reliefs including rehabilitation, reimbursement of medical expenses, and monetary compensation, holding the State of Bihar liable for infringing his fundamental rights.
In Bhim Singh v. State of Jammu and Kashmir (1985), the Supreme Court relied on these provisions and recognized that an enforceable right to compensation is implicit in the guarantee of fundamental rights. This jurisprudence continued in Nilabati Behera v. State of Orissa (1993), Tirath Ram Saini v. State of Punjab (1994), V. Senthil Balaji v. Directorate of Enforcement (2024), Kattavellai v. State of Tamil Nadu (2025), and similar cases. These cases demonstrate that compensation is an established public law remedy for violation of Article 21.
Yet India lacks a statutory system for compensating victims of crime, and despite Article 21's protection, there is still no legal entitlement to victim compensation. In Jawaharlal Sharma v. Union of India, the Supreme Court issued notice to the Union of India and all State and UT governments. The petition sought the establishment of a national framework for compensation and rehabilitation for individuals who suffer “wrongful or arbitrary incarceration” and are later acquitted or discharged.
The Supreme Court and the High Courts remain the primary institutions capable of providing compensatory justice under Articles 32 and 226 for physical, mental, or financial harm caused by violations of fundamental rights, provided that State failure is established.
From this jurisprudence, several principles emerge:
The State is strictly liable for illegal custody or violations of Article 21.
Compensation is not exemplary but remedial.
The remedy is available through writ petitions under Articles 226 and 32.
Compensation does not substitute for criminal prosecution of offending officials.
Yet the absence of a statutory scheme leaves these principles without an enforceable framework. What is needed is a uniform, national, legally enforceable framework that: (i) recognises the right to compensation for unjust and arbitrary imprisonment; (ii) establishes clear, objective criteria for determining such compensation; (iii) creates institutional mechanisms for disbursement; and (iv) ensures accountability, fairness, and uniformity in application. Given the gravity of the constitutional violations involved, and the continuing denial of remedies to persons arbitrarily imprisoned and thereby deprived of their liberty, these issues require urgent consideration.
In Spain, a statutory right to compensation exists for cases involving judicial or procedural error in arrest and detention. Spanish courts have applied this principle even where an accused was detained after full compliance with procedural safeguards but was ultimately acquitted at trial. This approach reflects the view that individual rights cannot be curtailed merely on the basis of suspicion or weakly substantiated allegations, an approach that remains largely absent from Indian criminal jurisprudence. India needs to put in place mechanisms to address such violations of fundamental rights. After all, individuals who suffer wrongful prosecution or imprisonment lose not only the prime of their lives but also their dignity, livelihood, health, and psychological wellbeing.
Contemporary jurisprudential development
Recent High Court decisions illustrate how compensation for unlawful detention is being operationalized in practice and how courts approach quantification and vulnerable groups.
In January this year, the Kerala High Court directed the State of Kerala to pay INR 14 lakh as compensation for the wrongful arrest and imprisonment of an innocent Gulf returnee. The person was wrongfully arrested and jailed for 54 days after being falsely implicated in a theft case. The Court awarded INR 10 lakh to the victim and INR 1 lakh each to his wife and three children for the mental agony, trauma, defamation, and harassment suffered. It emphasized that this award was made as a measure of constitutional accountability, clarifying that the State remained free to recover the amount from the police officers responsible.
In another notable decision this year, the Patna High Court condemned the unlawful arrest and detention of a 15-year-old boy, who had been treated as an adult and kept in jail for over two and a half months in connection with a land dispute. The Court found serious violations of the Juvenile Justice (Care and Protection of Children) Act, 2015 and fundamental rights, and ordered the State to pay INR 5 lakh as compensation for the physical and mental agony endured by the juvenile. The bench explicitly stated that the amount could be recovered from the erring police officials whose misuse of power had led to the illegal detention.
At the appellate level, the Supreme Court has begun articulating structural principles governing the misuse of prosecution and custodial power. In a recent judgment reported in The Hindu, it stressed that the State must not prosecute citizens without a reasonable prospect of conviction, and warned that unnecessary, malicious, or speculative prosecutions inflict serious constitutional harm even where they do not result in prolonged custody. This emphasis positions wrongful prosecution within the same constitutional logic as unlawful detention, both being forms of State coercion requiring justification and, in appropriate cases, repair.
In a decision concerning death-row prisoners this year, the Supreme Court foregrounded dignity as a constitutional baseline for detention, holding that incarceration, even for capital offenders, must remain consistent with Article 21. The Court recognized the cumulative psychological and physical toll of carceral conditions and highlighted the prison system’s obligations to ensure humane treatment. Although not framed explicitly in compensatory terms, the reasoning expands the doctrinal terrain within which constitutional remedies for custodial harm may be claimed, especially for vulnerable categories of detainees.
Together, the Kerala and Patna High Court cases, read alongside the Supreme Court’s recent interventions on wrongful prosecution and death-row dignity, illustrate a contemporary judicial practice that is fully consistent with established compensation jurisprudence while simultaneously widening its normative foundations. They also provide useful benchmarks for quantifying compensation in more complex contexts such as forced expulsion, where detention, coercion, stigma, and long-tail harms converge.
