Three in every four inmates in an Indian prison is an undertrial– confined within four opaque insular walls despite their guilt not being established, liberty sequestered based on a single chargesheet.
By the time a trial concludes and an undertrial is able to successfully establish her innocence, she has often already served a better part of the punishment that can be meted out if the guilt had been established.
Years and sometimes even decades on an end are spent in the squalor of prisons for no fault of their own. Yet getting out of the prison and tasting freedom does not end the misery, ironically, it sometimes compounds it! Fresh troubles welcome her- finding suitable economic avenues for sustenance, and a roof to ward off the rain, in a society which views them with scepticism.
The mental agony endured that no Court can assuage, productive years of life wasted no Court can bring back. The social stigma of being an “ex-convict” no Court can expurgate. Almost half of the undertrials in India are between the age of 18-30 (47.5 percent as per according to NITI Aayog ). The most promising moments of their lives wasted languishing in jails.
How the State can undo this maximal harm it perpetrates on undertrials, by failing in its primordial duty- of protecting the liberty and right to life of the citizens.
Any remedial measures would have two benefits-
- Help integrate the acquitted person with the mainstream society upon their release and
- Help in fixing accountability of the errant public servant who might have prosecuted an innocent person for extraneous reasons or negligently, which would in the long run help in making the entire system more accountable and efficient.
The research and anecdotal evidence shows that a high proportion of wrongfully convicted prisoners suffer from severe psychological consequences, including those of post traumatic stress disorder and anxiety disorders, which is not typical among actually guilty prisoners. This leads to complications in the ability of exonerated prisoners to return to a normal life after release. Ironically, the prison system instead of reforming actual culprits, manufactures new ones out of innocent citizenry.
Although, more than half the jurisdictions in the world do not legally authorize financial compensation to the people who are victimized by the criminal justice system, the number of states with compensation laws has shown an uptick in recent years. International treaties too, provide sound legal basis for remedial laws.
International Instruments
Article 14(6) of the International Covenant on Civil and Political Rights (‘ICCPR’) stipulates that if a person by a final decision is convicted of a criminal offense due to wrongful conviction, the State has to compensate the person who has suffered the punishment due to such conviction according to law..
Since wrongful conviction is a flagrant violation of human rights, this term has also been defined in the Universal Declaration of Human Rights, 1945.
Even the United Nations Human Rights Committee has elaborated that the States must enact a suitable legislation to ensure that due compensation is paid to the victims in the cases of wrongful conviction and that the payment is to be made under a reasonable time frame.
Yet questions remain- how is this compensation to be actually provided? Does the compensation have to be pecuniary or non pecuniary? What is the quantum of this compensation? How can it be efficaciously enforced?
In order to answer the forementioned posers, a comprehensive statute is essential, and long due. It can be argued that it would be in consonance with India’s international treaty obligations. India’s constitutional courts have also routinely lamented this legislative vacuity.
The View of Indian Constitutional Courts
In the case of Babloo Chauhan v N.C.T Delhi[1], the Delhi High Court highlighted the need for legislative framework to deal with cases of false conviction and ensure adequate remedies are provided. Though the Babloo Chauhan case came to the fore in 2018, The concept of wrongful convictions in India is not novel.
Since the very inception of the Indian Penal Code, Colonial overlords would press fabricated and trumped up charges against those who dared question their imperialist policies- perhaps the earliest instance of wrongful conviction in the Indian context.
With increasing litigation and backlog in the judiciary, the frequency of such wrongful conviction has only increased. The Courts having deference for the sovereign nature of police functions have usually shied away from awarding compensation when a civil suit has been instituted against the State seeking damages. Bereft of any compensation scheme or legal mechanism to tackle the issue in India, it virtually awards the State a free pass even when it transgresses its primordial duty- protecting the right to life of its citizens enshrined in Article 21 of the Constitution of India-
“21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law[2].”
As pithily posited by the Law Commission in its 277th Report, the infringement of this fundamental right due to police atrocities and forms of prosecutorial misconduct evokes state liability and it cannot shelter itself under the garb of the sovereign immunity. The state must compensate the individuals for wrongs committed by it and by its instrumentalities.
Though the Constitution is silent on the concept of remedial compensation, and the Courts have usually shied away from awarding compensation due to the legislative vacuity, the judiciary over the years has evolved compensatory jurisprudence wherein the defence of sovereign immunity of the State has been watered down and the State is time and again imposed with liability usually in the form of costs to be paid as compensation. The case of Nambi Narayanan, an ex scientist of the Indian Space Research Organisation is emblematic. The Court awarded exemplary damages of Rs. 1.30 crores on account of investigating authorities pressing frivolous charges against him.
In an earlier case of Ayodhya Dube & Ors. v. Ram Sumar Singh[3], the Supreme Court enumerated that lack of judicial approach, non-application of mind by the prosecution and the courts and inappropriate consideration of important evidence amounts to perversity which can give rise to grave miscarriage of justice.
The court in case of State of Madhya Pradesh v. Dal Singh & Ors.[4], held that if the court while adjudicating upon a dispute, approaches and tests the evidence on patently illegal scale, such findings of the Courts would be recorded as erroneous and perverse and thus, will amount to miscarriage of justice and by implication, malicious prosecution.
Analysing the jurisprudence of the Court crystallised in these judgements, it is trite that conviction can be classified as wrongful for two reasons:
a. The person convicted is factually innocent of the charges.
b. There were procedural errors that violated the convicted person’s rights.
Thus the error on the part of the prosecution maybe substantive or procedural, it is our position that the liability to compensate the victim and prosecute the errant public servant accrues in both the scenarios, as pointed out by the Indian courts in a catena of judgements.
Humans are not infallible and prosecutors are humans. It is not our case that all wrongful convictions result from malicious prosecution and are a result of nefarious designs of the prosecution. But the fact remains that if a mistake is committed, rectification of the mistake is warranted. Thus, if it is brought to light that that wrongful conviction has occurred, there should be compensation for the victim. If it further comes to light that the prosecution resulted from nefarious designs, due procedure should be followed to fix accountability.
It can be argued by some that such laws would prove to be counterintuitive as the prosecutors will be wary of pressing charges even in genuine cases- leading to a laxity in law enforcement. However, there is no evidence to suggest such laws have any adverse implications on the morale of the investigating agencies. Various jurisdictions around the world have implemented such laws without any commensurate laxity.
Provisions in International Jurisdictions
Article 34 of the Constitution of Germany, the Criminal Justice Act of 1988 in United Kingdom, various state and federal laws in the United States of America are a case in point. Despite the presence of such remedial safeguards, there have been no perceptible adverse impacts.
At this juncture, it is pertinent to mention that criminal law remedy exists in India as well. The chapter IX[5] of the Indian Penal Code deals with the offences done by the Public Servants. It also deals with the offences which though not done by public servants but relate to them. Further Chapter XI also deals with false evidence and offences against public justice, and delineates the obstruction of justice.
However, these provisions, as noted by India’s apex Court have proved to be inadequate and need to be supplemented by a comprehensive legislation.
Determining the threshold of Miscarriage of Justice
The pertinent statutory provisions of various jurisdictions have been mentioned earlier. It is pertinent to note here that these differing jurisdictions have differing interpretation of what amounts to miscarriage of Justice. The Law Commission in it’s 277th Report meticulously analysed these differing thresholds and arrived on the one best suited for the Indian criminal system.
Standard One:
Some jurisdictions construe the standard of miscarriage of justice to be wrongful conviction by virtue of a final order, after all avenues of appeal have been exhausted and a new fact surfaces which then proves conclusively that the convicted person was factually innocent, and only in such case does the claimant qualify for the relief of compensation. Furthermore, it bars compensation in cases where the conviction was partly or fully attributable to the claimant
This system if applied however, will fail to consider the systemic shortcomings of the criminal justice system in India since it ignores forms of miscarriage of justice that an accused person may suffer even if they are eventually acquitted. For example, illegal and wrongful detention, torture in police custody, long incarceration, repeated denial of bail, among others. These injustices are redressed in these jurisdictions by the doctrine of “fruit of poisonous tree.” The doctrine has not gained wide currency in the Indian jurisprudence.
Furthermore as pointed out in the introduction of this paper, the phrase “all avenues of appeal have been exhausted” can be circumvented in India by the prosecution that can misuse adjournments and indulge in dilatory litigation- a chronic affliction as pointed out in the introduction of this paper.
Thirdly, this standard excludes claims of compensation in cases where the conviction was partly or wholly attributable to the accused person; for example, causation of prosecution by the claimant such as confessing to guilt despite being innocent. This exclusion, if applied, would disqualify from relief cases where the accused are forced to confess under duress despite their innocence; a practice endemic to criminal investigations in India.
Thus, it would be ill advised to incorporate the threshold in a potential statute.
Standard Two
Another standard prominent in various jurisdictions is that of wrongful incarceration, i.e. cases of acquittals where the person has spent some or substantial time in prison. However, this standard opens gateways to a possible loophole-
Making only wrongful incarceration as the standard of miscarriage of justice will exclude such cases of wrongful prosecution (resulting in acquittal) where the accused was granted bail and/or did not spend any time in prison; but, they nonetheless suffered on account of such wrongful prosecution/charges – prolonged trial, social stigma, loss of employment, legal expenses and the mental and physical harassment etc. This standard of wrongful incarceration in this manner would be under-inclusive.
Third Standard
The third standard is that of wrongful prosecution. This standard is based on a finding that the accused was not guilty of the offence, but the police and/or prosecution engaged in some form of misconduct in investigating, charging and/or prosecuting the person.
In the Indian context, the standard of wrongful prosecution should be the most effective for identifying the cases of miscarriage of justice as it directly targets procedural and other police and prosecutorial misconducts, which appears to be one of the primary sources of factual errors that results in innocent people being held guilty of offences they did not commit.
It seems the most apposite yardstick to curb the abuse of process of law, excess of discretion and jurisdiction and violation of the mandate of law by the Investigating Officers and the prosecution.
What actions would amount to Wrongful Prosecution?
Misconduct broadly surfaces in the form of disregard of procedural rules such as improper disclosure of information; falsifying or planting or fabricating evidence; withholding, suppressing or destroying exculpatory evidence; coercing confessions/recoveries or other abuse of process of law etc. Within the existing criminal law framework, to determine what could amount to such misconduct, reference can be made to the provisions contained in Chapters IX and XI of the Indian Penal Code.
Further, a schedule as an addendum to the comprehensive legislation could have a non-exhaustive enumerative list as laid by the apex Court in cases like that of Ayodhya Dube (supra)
Conclusion
Compensatory assistance accrues from both- substantive and procedural wrongs resulting in wrongful prosecution and necessitates remedial measures by the State.
These remedial measures should be premised in a comprehensive statutory framework which also establishes the mechanism for adjudicating upon the claims of wrongful prosecution, and inter alia award payment of compensation by the State, if so determined.
Consequent to the enactment of the forementioned legislation, Special Courts should be instituted to expeditiously deal with such matters.
As explored in depth, the cause of action for filing a claim for compensation should be that of wrongful prosecution, which culminated in an order or judgment in favour of the accused, inter alia acquitting him. The ambit of “wrongful prosecution‟ would include (i) malicious prosecutions; and (ii) prosecutions instituted without good faith.
The remedial action can inter alia include-
Pecuniary Compensation-
The statutory enactment shall have non-exhaustive enumerative guidelines that assist the court in adducing the quantum of compensation depending on facts of each case.
Non-pecuniary assistance-
Helping the victim to integrate in the mainstream society. The state can provide vocational training and skill development assistance to the acquitted persons.
Counselling-
The victims of wrongful prosecution often experience heightened mental disturbances and stress than a person who has been prosecuted for a crime that they actually committed. This can be especially pronounced in cases where the person has been prosecuted for the first time. It is thus imperative that upon acquittal such people are provided with psychological counselling to overcome their trauma.
Although no legislation, regardless of its excellence can undo this maximal harm the State perpetrates on innocent undertrials, it can definitely remedy it to some extent and help reduce their misery
[1] Babloo Chauhan v N.C.T Delhi, 247 (2018) DLT 31.
[2] Indian Constitution, Article 21, Part III.
[3] Ayodhya Dube & Ors. v. Ram Sumar Singh, AIR 1981 SC 1415
[4] State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059.
[5] Offences by Or Relating to Public Servants from the Indian Penal Code
Jurisprudence & Lawgic 