Yash Dev Upadhyaya
Advocate, Allahabad High Court
Wrongfully prosecuted people, once acquitted, are free to go, re-vested with the rights and liberties they possessed before; but do they actually ever recover from the trauma and go back to the life they had? The present Criminal Justice System in India is crippled when it comes to rehabilitation of and compensation for the victims of malicious prosecution. Before we explore the Indian Criminal Justice System landscape vis-à-vis the pendency of cases leading to a constant rise in the number of undertrials and the easy ridicule of human lives due to a void in the post acquittal redressal mechanism, let us have a brief look into what constitutes wrongful prosecution.
The expression “Miscarriage of Justice” can be defined as an error of justice meaning “errors in the interpretation, procedure, or execution of the law – typically, errors that violate due process, often resulting in the conviction of innocent people.”[1] Malicious Prosecution, i.e. the wrongful institution of criminal proceedings against someone without reasonable grounds, whether or not it leads conviction or incarceration, leads failure of justice.
Indian Criminal Justice Landscape
India is home to one of the highest under-trial population in the world [2](67.2% being 5th highest in Asia and 16th highest in the world)[3]. Unnecessary arrests, frivolous adjournments, and incessant vacancies in Courts of Law, coupled with scarce legal aid at the pre-trial stage, all cumulatively contribute to the ever-increasing number of prisoners.
In a welfare state like ours, there needs to be recompense in the nature of compensatory assistance by the State for the gross miscarriage of Justice, the attached social stigma, years lost in the emotional and physical persecution, and for the expenses incurred by the falsely accused and his family, to help them rehabilitate and reintegrate into the society.
The Apex Court has held time and again that the Constitutional Courts may grant compensatory relief for violation and infringement of Article 21 of the Constitution of India, including cases where the innocent were wrongfully prosecuted and/or incarcerated.[4] However, these are scattered and isolated instances that are not available or beneficial to similarly situated people. In pursuance of the same, the High Court of Delhi[5] had recently expressed its concern requesting the Law Commission of India to undertake a comprehensive examination of the issue of relief and rehabilitation to victims of wrongful prosecution and incarceration and asked them to make its recommendation thereon to the Government of India, stating that:
“…There is at present in our country no statutory or legal scheme for compensating those who are wrongfully incarcerated. The instances of those being acquitted by the High Court or the Supreme Court after many years of imprisonment are not infrequent. They are left to their devices without any hope of reintegration into society or rehabilitation since the best years of their life have been spent behind bars, invisible behind the high prison walls. The possibility of invoking civil remedies can by no stretch of imagination be considered efficacious, affordable or timely…”
Existing Constitutional And Legal Remedies
In the current existing legal system there are two kinds of remedies that exist against malicious and wrongful prosecution:
- First being ‘victim centric’ in the nature of Public Law Remedy i.e. writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution, respectively; and
- Second, the Private Law Remedy i.e. either a civil suit against the State for monetary damages, or through the Criminal Law Remedy as under the provisions of the Indian Penal Code 1860 and the Code of Criminal Procedure 1973, for holding the wrongdoer and/or the concerned officers of the state accountable for their misconduct;
However, as there is no express provision under any statutory framework (or otherwise), these remedies are determined subjectively, which makes them arbitrary, episodic and indeterminate.
National Human Rights Commission : A Toothless Watchdog
The National Human Rights Commission (NHRC) and its State counterparts established under The Protection of Human Rights Act, 1993, have the power to inquire into matters pertaining to human rights violations from wrongful investigations, illegal detentions, incarcerations, etc., either suomotu or on information received or petitions filed against it. However, as its role is advisory in nature, its powers of compensating the victim and holding the concerned public servant accountable are rendered inefficacious making it a rather weak institution/mechanism.
Failed Promises
One of the central guiding international documents on ‘miscarriage of justice’ is The International Covenant on Civil and Political Rights 1966 (ICCPR). Article 14.6[6] of the ICCPR determines the obligation of State i.e. pecuniary and non-pecuniary liability, in cases of wrongful convictions being reversed or pardoned as a result of a miscarriage of justice, proving that the accused was factually innocent.
Many countries had ratified the ICCPR, including India in 1968, although with certain reservations. While conforming to the guidelines, the Indian Legal System did not recognize the right to compensation for victims of unlawful arrest and detention. It was by virtue of various judicial decisions[7], that monetary compensation was recognized as a redeeming feature for the suffering and humiliation resulting in violation of the right to life and personal liberty caused due to miscarriage of justice.
However, India is still yet to legislate on its commitment and enact legal frameworks where the State assumes statutory responsibility for compensating the victims of wrongful prosecution, providing them with pecuniary and non- pecuniary assistance, subjectively.
The 277th Law Commission Report
Although there have been prior efforts by the Law Commission India in this regard[8], we are still in dire need for a comprehensive legislative and a legal framework that determines and regulates the liability of the state, deterrence for custodial crimes and rehabilitates and provides pecuniary and non-pecuniary relief to the wrongfully prosecuted and incarcerated.
In 2018, the Law Commission recommended enactment of specific legal provisions for redressal of cases of miscarriage of justice resulting in wrongful prosecution – i.e. a statutory and legal framework establishing the mechanism for adjudicating upon the claims of wrongful prosecution. The claim could be made either by the wrongly accused person, any agent authorized by them or in cases where such person died after the termination of wrongful prosecution, by any of his heirs or legal representatives.
The recommendations also laid out the award payment of compensation by the State for the misconduct of its officials, if so determined, which the State may later recover from such concerned officials and also initiate appropriate proceedings against them in accordance with the law. Compensation can either be through financial assistance in the form of the monetary award as decided by the special court or non-financial assistance in the form of counseling, employment training, mental health services, and other such services which help the victims of malicious prosecution against the social stigma attached to prosecution and conviction and to effectuate their rehabilitation into the society. The seriousness of the offense, severity, and length of incarceration and loss and damage to health, property, and reputation are some of the many factors that are to be considered while determining the amount of the compensation.
Additionally, establishment of Special Courts was also provided for, to decide the claims as speedily and swiftly as possible, following prescribed summary procedures.
The Code of Criminal Procedure (Amendment) Bill 2018 – A Ray of Hope
The recommended framework has been articulated in ‘The Code of Criminal Procedure (Amendment) Bill 2018’ which establishes the State’s responsibility of compensating the said victims under the newly inserted Chapter XXVIIA. It also lays down other substantive and procedural aspects of giving effect to this responsibility i.e. factors to establish the right to compensation, quantum of compensation subject to maximum and minimum limits in some cases, the procedure to claim such compensation, the functioning of the Special Courts and their powers and judicial reach, as under Sections 365 (C), (E), (G) and (H).
State Accountability needs to be more transparent in order to ensure a safer society and restore public faith in the Criminal Justice dispensation mechanism. Further, other than formulating new legislation, proper implementation of the already existing provisions of law remains a big worry and needs better attention. Almost 30% of the prison population is illiterate[9] and ignorant of their rights and liberties as guaranteed under the Indian Constitution.
A person who underwent criminal proceedings (often long drawn), whose reputation has been tarnished for being accused and/or convicted for a crime that they did not commit, and who have been incarcerated baselessly, there lies a steep climb even after acquittal. The current Justice System reflects primal predisposition to label the ‘prisoners’ as ‘criminals’. This is contrary to the professed jurisprudence of ‘innocent until proven guilty’, and, the order of the day seems to be, ‘guilty until proven innocent’, in the world’s largest democracy.
REFERENCES:
[1] Brian Frost, Errors of Justice, Nature, Sources and Remedies (Cambridge: Cambridge University Press, 2004)
[2] World Prison Brief, Institute for Criminal Policy Research,Highest to lowest – pre-trial detainees / remand prisoners‟. Available at: http://www.prisonstudies.org/highest-to-lowest/pre-trial detainees?field_region_taxonomy_tid=All (visited on 1st June, 2020, 4:00 PM)
[3] According to The National Crime Records Bureau’s (NCRB) annual statistical report called Prison Statistics India (PSI) 2015, there were 4,19,623 prisoners across the country, out of which 67.2% i.e. 2,82,076 were people who have been committed to judicial custody pending investigation or trial by a competent authority i.e. undertrials.Available at http://ncrb.gov.in/statpublications/psi/Prison2015/Full/PSI-2015-%2018-11- 2016.pdf. (visited on 1st June, 2020, 6:00 PM)
[4] Khatri v. State of Bihar (1981) 1 SCC 627; see also Veena Sethi v. State of Bihar AIR 1983 SC 339; see also Rudul Sah v. State of Bihar AIR 1983 SC 1086; see also Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 677; see also Sant Bir v. State of Bihar AIR 1982 SC 1470
[5]Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi 247 (2018) DLT 31
[6] https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf (visited on 2nd June, 2020, 5:00 PM)
[7]Rudral Sah v. State of Bihar AIR 1983 SC 1086; see also Dr.RiniJohar&Anr. v. State of M. P. &Ors., Criminal Writ Petition No. 30 of 2015; see also D. K. Basu v. State of West Bengal AIR 1996 SC 610
[8] The 1st Report on “Liability of State in Tort” (1956); see also The 78th Report on “Congestion of Under-trial Prisoners in Jails” (1979); see also The 113th Report on “Injuries in Police Custody” (1985); see also The 152nd Report on “Custodial Crimes” (1994); see also The 154th Report on “The Code of Criminal Procedure, 1973” (1996); see also The 185th Report on the “Review of the Indian Evidence Act, 1872” (2003); see also The 273rd Report on “Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation” (2017)
[9]National Crime Records Bureau, Prison Statistics India 2017, Ministry of Home Affairs (October 21, 2019) http://ncrb.gov.in/StatPublications/PSI/Prison2017/Full/PSI-2017.pdf (visited on 3rd June, 2020, 7:00 PM)
