The award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21 by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case.1 The Court on establishment of violation of fundamental rights, apart from calling upon the State Government to take punitive action and disciplinary proceedings against the officers/officials guilty of flagrant violation of fundamental rights, is also under an obligation to give compensation and relief under public law jurisdiction for the wrong done occasioned by breach of public duty by the State Government in failing to protect the fundamental rights of the citizens.2 Traditional sovereign functions are the making of laws, the administration of justice, the maintenance of order and repression of crime, carrying on of war, making of treaties and peace and other consequential functions.3 The demarcating line between sovereign and non-sovereign powers has largely disappeared. The author focuses on how the compensatory jurisprudence has evolved in India and slowly how the demarcation between the sovereign and non-sovereign functions has been removed in Indian jurisprudence.

The procedure adopted for securing personal freedom of a person in India is efficient; but the procedure preventing the abuse of power is insufficient. Just as the pick and shovel are no longer suitable for the mining of coal, so also the procedure of mandamus, certiorari, and actions on the cases are not suitable for the winning of freedom in the new age. They must be replaced with new and up-to-date machinery, by declarations, injunctions and actions for negligence. This is the task of parliament and the courts as well. Of all the great tasks that lie ahead, this is the greatest.4 Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles.5 The court is not helpless to grant relief in a case of violation of the right to life and personal liberty, but it should also be prepared to forge new tools and devise new remedies for the purpose of vindicating these precious fundamental rights. The procedure suitable for each case varies and must be adapted for conducting the inquiry, for granting the relief as per the available mode of redress or enforcement of guaranteed fundamental rights. The constitution has given to the Supreme Court under Article 32 (which is a fundamental right by itself) a constitutional obligation to involve new tools and techniques which are necessary for ensuring justice by enforcing the fundamental rights guaranteed in the Constitution which includes monetary remedy in appropriate cases, especially when that is the only remedy available. This was opined by the apex court in Smt. Nilabate Behera case.

Law Review Journal, Compensatory, Jurisprudence, Supreme Court, Crown Proceedings Act, 1947, India.