By Oyshee Gupta, CNLU Patna
In light of the recent trends of human rights violation in cases of custodial torture, it is imperative for the law pertaining to false arrests and detentions to be made more concrete.With the onset of judicial activism, India has witnessed a large number of public interest litigations filed on grounds of violation of fundamental rights guaranteed under Article 20 and 21 as a result of illegal detention and inhuman treatment meted put by the prison authorities.This article discusses the constituent elements of false imprisonment under tort law. The author has analysed the position of law with respect to the rights of prisoners, as summarized by landmark cases such as DK Basu v State of West Bengal and the Rudul Shah case.
WHAT IS FALSE IMPRISONMENT
False imprisonment is restraining a person in a bounded area without justification or consent. False imprisonment is a common law misdemeanor and a tort. It applies to private as well as governmental detention. It is dealt with in the form of wrongful confinement in the Indian Penal Code under
- 340.[i] The Indian Penal Code deals with other matters related in this regard from
- 339to S. 348. When it comes to public police, the proving of false imprisonment is sufficient to obtain a writ of Habeus Corpus.
For imprisonment, it is not necessary that the person should be put behind bars, but he should be confined in such an area from where there are no possible ways of escape except the will of the person who is confining the person within that area. It is not the degree of the imprisonment that matters but it is the absence of lawful authority to justify unlawful confinement which is of relevance. The internment and non-movement of any chattel, i.e., goods is also considered to be a part of the concept of false imprisonment.
False arrest is the arrest of the individual by the police officer or private person without lawful authority. False arrest and false imprisonment are virtually indistinguishable except in their terminology and have been held by the courts as a single tort. False imprisonment is an intentional tort, like those of assault, battery, unlawful harassment and invasion of privacy. These are termed as torts of trespass to a person.
The defence to false imprisonment includes consent of the plaintiff or voluntary assumption of the risk, probable cause and contributory negligence. The defence of consent of the plaintiff and probable cause are complete defences while the defence of contributory negligence is used only for mitigation of damages. Reasonable care and acting in good faith are no defences for this tort.
There are three remedies for false imprisonment, which include damages, habeas corpus and self -help. Being a tort, the basic remedy for false imprisonment is an action for damages which can be due to physical or mental suffering, loss of reputation or even malicious intent on behalf of the defendant. If a person is unlawfully confined, then he can be released from such confinement by the Writ of Habeas Corpus. A person can also use reasonable force in order to escape the confinement. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person whether he is a national or foreigner. Any violation of this right attracts the provisions of Article 14 of the Constitution which enshrines right to equality and equal protection of law. In addition to this, the question of cruelty to prisoners is also dealt with specifically by the Prison Act, 1894. If any excesses are committed on a prisoner, the prison administration is responsible for that.
However judicial and executive authorities have some amount of immunity for liability in false imprisonment cases. For example a judge exercising his judicial powers for the arrest the imprisonment of a person cannot be sued for damages for false imprisonment on the ground that his order was illegal or without jurisdiction, provided he believed in good faith that he had jurisdiction. There is protection conferred by the Judicial Officer‟s Protection Act.[ii] Nevertheless, if the act is done in a mala fide or in a recklessly manner, the magistrate or judge shall be liable for false imprisonment.
ESSENTIAL ELEMENTS OF FALSE IMPRISONMENT
The following are the major elements of False Imprisonment:
- Period of Confinement:
The tort of false imprisonment arises whatever may be the period of confinement. But the time period is of essence while determining the amount of compensation to be awarded to the injured party. An otherwise lawful detention may become unlawful if the detention is prolonged for an unreasonable period of time.
- The Intention Factor:
Normally the tort of false imprisonment must be intentional. A person is not liable for false imprisonment unless his or her act is done for the purpose of imposing a confinement or with knowledge that such a confinement, to a substantial certainty will result from it. Malice is irrelevant to this tort. It is ordinarily for the jury to determine from the evidence, as a question of fact, the intention of the defendant in an action for false imprisonment. Even negligent acts can qualify as false imprisonment. For example, if a person locks someone inside a room without unaware of the fact that there is someone in the room than he is held liable for false imprisonment.
- Knowledge of the Plaintiff:
There is no requirement that the plaintiff alleging false imprisonment was aware of the restraint on his freedom at the time of his confinement, If the person is confined in a room, with one of the entries known to the plaintiff closed, and the room has more than one entry-exit door, but the plaintiff has no knowledge about the same, the defendant will still be held liable. Thus, the person confined does not have to be aware of the confinement or be harmed by it as it is actionable per se.
- Place of Confinement
To constitute the wrong, there may be no actual imprisonment in the ordinary sense -i.e. Incarceration.
Any confinement in the ordinary sense whether be it prison or any place used temporarily for the purpose of confinement constitutes false imprisonment. An unlawful arrest too amounts to false imprisonment.It is enough that the plaintiff in any manner has been completely deprived of his liberty, for any time, however short.
To constitute imprisonment the deprivation of the plaintiffs liberty should be complete that is there must be on every side of him a boundary drawn beyond which he cannot pass. It is not imprisonment to prevent the plaintiff from going in certain directions if he is free to go in other directions and thus there will be no action for false imprisonment (Partial Restraint). If a person has induced another to put himself or herself in a place which is impossible to leave without such persons assistance, by words or by other conduct, the refusal to give such assistance, of for the purpose of detaining the other is a sufficient act of confinement to make such person liable.
DEFENCES TO FALSE IMPRISONMENT
Defences to false imprisonment usually involve one or more of the elements of proof.
- The maxim volenti non fit injuria applies to the case of false imprisonment. The restraint must be involuntary. There is no imprisonment if the plaintiff agrees of his or free choice, to act in conformity with the request of the defendant. One who enters the premises of others upon terms which involve some restrictions on his liberty cannot complain of false imprisonment.
- Consent: Although it has been denied that one may consent to unlawful restraint, on the ground that liberty is an inalienable prerogative of which no one may divest himself, it is frequently held that the consent of the plaintiff to acts which constitute an imprisonment bars the right of recovery thereof. Consent must be free from duress, coercion, fraud or mistake. Consent can also be implied in certain circumstances.
- Probable Cause: When the probable cause is established than the action of false imprisonment and false arrest fails completely. It is said that the test for probable cause for imprisonment and arrest is an objective one, based not on the individual’s actual guilt, but upon the information of credible facts or information that would induce a person of ordinary caution to believe the accused to be guilty. A defendant who, in a false imprisonment or false arrest action has established the probable cause for the alleged tort than, has no additional obligation to prove. Even malicious motives will not support a claim if probable cause is found to exist.
One of the probable causes can be necessity. If defendant has imprisoned plaintiff but it was necessary for defendant to imprison plaintiff in the way he did than defendant had a lawful justification or excuse of imprisoning plaintiff, the way he did.
Sometimes the imprisonment may be justified on the ground that the defendant was acting in support of the law. The onus of proving a legal justification lies on the defendant.
- Valid Arrest: A claim of false arrest is completely invalidated if the detainment was made according to principles of a valid arrest. In some circumstances an ordinary person can make a citizen’s arrest. If the person who made the arrest was acting according to instructions from a superior officer, it does not constitute a defence. However, the superior’s instructions may be used as a basis for reducing damages awards.
- Merchant’s Privilege: Shopkeepers may lawfully detain patrons suspected of shoplifting. The store owner or employee must have probable cause for the restraint. They must also witness the shoplifting in progress, continuously observe the shoplifter and their failure to pay for the retail, and must apprehend the suspect outside the premises
- Restraint of Minor: Some states allow a person to restrain a person under the age of seventeen, subject to many requirements, such as obtaining the parent’s consent. Parents may also have authority to detain their own child if it does not endanger the child.
1. Action for Damages
Damages in false imprisonment are those which flow from the detention. The damages for false arrest are to be measured only to the time of arraignment or indictment. There is no legal rule for the assessment of the damages and this is entirely left on the court. The grounds for damages include injury to the person and physical suffering, mental suffering and humiliation, loss of time earnings and interruption of businesses, medical expenses incurred, injury to the reputation etc.
2.Nominal and Compensatory Damages
The general rule in personal tort action is that the plaintiff is entitled to recover such a sum that shall be fair and just, in the absence of circumstances justifying an award for exemplary damages. Mere unlawful detention constitutes the basis for the recovery of at least nominal damages, but an award of only nominal damages may be insufficient and flawed where the facts proved indicate a right to greater damages. It has been held now that the person can now be imprisoned without knowing it. In such cases the plaintiff might obtain only nominal damages. Mental suffering including fright, shame and mortification from the indignity and disgrace, consequent upon an illegal detention, is usually considered an injury for which compensation may be made in an action for false arrest or false imprisonment. The fact that no physical injury was inflicted on one complaining of false imprisonment has been held to be an insufficient ground for denying the recovery of reasonable compensation for mental suffering.
3.Punitive, Exemplary and Aggravated Damages
If an imprisonment is affected recklessly, oppressively, insultingly and maliciously with a design to oppress and injure, the court may award exemplary or punitive damages. Punitive damages are awarded in cases where the defendants conduct is recklessly indifferent to the rights of others or in intentional or wanton violation of those rights, and such damages are awarded to give a deterrent. In some circumstances exemplary damages may be provided as when there is abuse of power by the state. Aggravated damages may be awarded in a proper case as when the imprisonment in itself of a nominal character is offensive or hurt fell to the plaintiff’s feelings. Courts have often held that malice will warrant an award for exemplary or punitive damages in an action for false imprisonment or false arrest. Punitive or exemplary damages will not be allowed where the false imprisonment was brought about in good faith, without malice in fact or in law and where there is no element of wantonness or oppression.
4.Writ of Habeas Corpus
This writ is considered to be a golden remedy by the English Law. The Supreme Court of India and High Courts issue this writ under Article 32 and 226 respectively. Subject to the rules framed by the High Courts, an application for habeas corpus can be made by the person in confinement or by any person on his behalf. The writ of habeas corpus is effective means of immediate release from unlawful detention, whether in prison or private custody. Where an unlawful detention is continuing the plaintiff may seek this writ. This writ is also used in criminal cases of false imprisonment.
A person who is unlawfully detained may use self-help to escape including reasonable force so as to defend him from unlawful arrest. The force used must be proportionate in the circumstances. This is a risky recourse since the power to arrest is likely to depend upon not only in the commission of offence but in the alternative, in a reasonable suspicion thereof. Hence an innocent person who forcibly resists may be liable for battery if the arrester had reasonable grounds for his suspicion.
CASES PERTAINING TO FALSE IMPRISONMENT
To bring out the concept of False Imprisonment, it is imperative to discuss the landmark cases related to it:
BIRD v. JONES:[iii]
FACTS: In this case, a part of the public footway was wrongfully enclosed by the defendant. Seats were put up and entry was allowed to only those who paid for watching the rowing there. The plaintiff asserted his right to using that footway, climbed up the fence of the enclosure but was prevented to go forward. He remained there for half an hour.
HELD: Not a case of false imprisonment as there was no “total restrain”. The plaintiff could have easily taken another way.
MEE v. CRUIKSHANK:[iv]
FACTS: After his acquittal, a prisoner was taken down to the cells and detained there for a few minutes while some questions were put to him by the warden.
HELD: It was a case of false imprisonment as the time of confinement does not matter. What matters is restraint on the liberty of that individual.
HERRING v. BOYLE[v]
FACTS: A schoolmaster wrongfully refused to permit a school boy to go to with his mother unless the mother paid an amount alleged to be due from him. The conversation between the mother and schoolmaster was held in the absence of the boy.
HELD: The case was held not to be a case of false imprisonment as the boy was not cognizant of the restraint.
D.K.BASU v. STATE OF WEST-BENGAL[vi]
In this case, the petitioners raised important issues concerning the police powers and if monetary compensation should be awarded for established infringement of Fundamental Rights, as under Article 21 and 22 of the Constitution. The court held that Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. To check the abuse of police power, transparency of action and accountability were the two safeguards laid down by the court. The Court issued 11 directives where it spelled out the rights of an arrestee or a detainee and the manner in which the arresting or detaining authority is expected to behave, including the written record of arrest, informing of arrestee’s family of his arrest, medical examination on request, among others.
BHIM SINGH v. STATE OF JAMMU & KASHMIR[vii]
On the opening day of the Budget Session of the Legislative Assembly, Shri Bhim Singh was suspended from the Assembly. He questioned the suspension in the High Court of Jammu & Kashmir. The order of suspension was stayed by the High Court. The next day, he was arrested and was taken away by the police. His wife filed the present application for the issue of a writ to direct the respondents to produce Shri Bhim Singh before the court, to declare his detention illegal and to set him at liberty.
HELD: The court held that the detention was illegal and qualified as false imprisonment.
RUDUL SHAH v. STATE OF BIHAR[viii]
FACTS: The petitioner who was detained in prison for over 14 years filed a habeas corpus petition under Article 32 of the Constitution on the ground of illegal detention.
HELD: The Supreme Court directed immediate release of the petitioner and directed the state to grant the damages.
SEBASTIAN M.HONGRAY v. UNION OF INDIA[ix]
ISSUE: In the Sebastian Hongray case, two persons were taken into custody by the Army authority in Manipur, but were not produced in obedience to a writ of habeas corpus and it was alleged that those persons must have met an unnatural death while in army custody.
HELD: The Supreme Court directed the Union of India to pay exemplary damages for the role of the army authorities in murdering the two persons.
The tort of false imprisonment is one of the most severe forms of human rights violation. The Indian socio-legal system is based on non-violence, mutual respect and human dignity of the individual. Even the prisoners have human rights because the prison torture is not the last drug in the Justice Pharmacopoeia but a confession of failure to do justice to a living man.[x] In fact Article 21 of the Indian Constitution also recognizes the same. Article 20 with its sub-clauses re-enforces the same, and seeks to protect convicts from being held down due to ex post facto laws (Art. 20 (a)), double jeopardy (Art. 20 (b)) and self-incrimination (Art. 20 (c)).
Thereby, after analysing the various case laws and going through the various principles of Tort Law, it can be concluded that:
- The right of a person to personal liberty, freedom and life with dignity has been guaranteed by the Constitution under Articles 20 and 21 cannot be abrogated even during emergency, and false imprisonment is incongruous of the same.
- The fact that a convict is imprisoned and has to serve a sentence, doesn’t give the jail authorities any right to torment or torture him unnecessarily. It is a false notion that the prisoner subject to intolerable hardships is remedyless.
- The term of imprisonment is a decisive and vital factor to be taken into consideration in order to compute and award damages. And while awarding damages for false imprisonment physical or mental injury has to be kept in mind.
4.The mere fact that the person has been imprisoned raises the claim of nominal or compensatory damages if no other injury was caused to the plaintiff.
5.If the person is unlawfully confined by any police officer or government officer, than he or any person on his behalf can file for the writ of habeas corpus. This writ ensures the liberty of the person who is confined.
6.The person who is about to be falsely arrested or imprisoned can also use reasonable force in order to prevent false arrest. He can use force for self-defence but has to make sure that the force used is reasonable according to the circumstances.
Edited by Raghavi Viswanath
[i] Section 340: Wrongful Confinement
[ii] Act 18 of 1850
[iii] Dr.R.K.Bangia,”Law of Torts”, 22rd Edition(2010),Allahabad Law Agency
[vi] AIR 1997SC 610
[ix] http://www.manupatrafast.in/pers/Personalized.aspx (accessed on 7th Oct,2013 at 3:25 pm)
[x] Surendra Kumar Pachauri, “Prisoners and Human Rights”, S.B.Nangia and A.P.H. Publishing Corporation, 1999.