EXPLAINER: Why Supreme Court is worried over long wrongful incarcerations
While granting bail to former Tamil Nadu minister Senthil Balaji in a money-laundering case linked to a cash-for-jobs scam last week, the Supreme Court underlined the need to compensate the accused getting “clean acquittal” after prolonged incarceration for loss of years of his life and personal liberty.
“Someday, the courts, especially the Constitutional Courts, will have to take a call on a peculiar situation that arises in our justice delivery system. There are cases where clean acquittal is granted by the criminal courts to the accused after very long incarceration as an undertrial,” a Bench led by Justice AS Oka said.
“When we say a clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the accused are lost. In a given case, it may amount to violation of rights of the accused under Article 21 of the Constitution (right to life and liberty and right to speedy trial) which may give rise to a claim for compensation,” said the Bench which also included Justice AG Masih.
Article 21 of Indian Constitution
Article 21 of the Indian Constitution – which guarantees fundamental right to life and personal liberty – has been described as the “heart of fundamental rights” as realisation of all other fundamental rights depends upon it. Article 21 declares that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In its landmark verdict in Maneka Gandhi v Union of India (1978), the Supreme Court ruled that the right to life and personal liberty under Article 21 is not limited to mere animal existence. Holding that it includes the right to live with human dignity, the top court read into it the US Constitution’s concept of ‘due process’ and emphasised that the ‘procedure established by law’ must be fair, just, and reasonable, and that it can’t be arbitrary, oppressive, or unreasonable.
Over the decades, the Supreme Court has expanded the scope and ambit of Article 21 to include right to shelter, right to clean environment, right to speedy trial, right to privacy, right to go abroad, right to education, right to health, right against handcuffing, right against solitary confinement and right against delayed execution among other such rights.
Any wrongful prolonged incarceration of a person by the State would certainly violate a host of fundamental rights guaranteed to her under Article 21.
States’ obligation under International Covenant on Civil and Political Rights
Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR) read with the General Comment 32 of the United Nations Human Rights Committee, dealing with miscarriage of justice, requires that the victims of proven cases of such miscarriage be compensated “according to law”.
These provisions collectively create an obligation on the state parties to enact a law ensuring that the such victims are compensated, and the compensation is paid within a “reasonable period of time”.
No law in India
India ratified the ICCPR in 1968 with certain reservations but is yet to enact a law to compensate the victims of this miscarriage of justice. “There is no law in India providing for compensation to victims of wrongful prosecution. If an accused secures a clean acquittal and he wants compensation from the prosecuting agency or the ‘State’ there is complete legislative vacuum in Indian legislative space. At best, he can file a complaint against the complainant, not the ‘State’ for having been framed in a false case. He can invoke Article 21 to claim compensation but there is no entitlement to compensation,” senior advocate Sanjay Jain told The Tribune.
Legal position abroad
Many countries such as the UK, the US and Germany have converted this commitment into law, where the State has assumed statutory responsibility for compensating the victims of such miscarriage of justice.
Criminal Justice Act 1988 (UK)
Criminal Justice Act, 1988, in the UK lays down the legislative framework under which the Secretary of State, subject to specified conditions, and upon receipt of applications, shall pay compensation to a person who has suffered punishment as a result of a wrongful conviction, that was subsequently reversed or pardoned on the grounds that there has been a miscarriage of justice - where a new fact came to light proving beyond reasonable doubt that the person did not commit the offence.
The United States Code
In the United States of America (US), cases of miscarriage of justice resulting in wrongful conviction are addressed by compensating those who have been wrongfully convicted in accordance with the federal or the respective state law, as may be applicable.
The United States Code -- which contains the general and permanent federal statutes of the US -- deals with federal claims from persons unjustly convicted of an offence against the US and imprisoned; and provides for a fixed compensation amount depending on the length of incarceration.
All the states in the US have their own respective laws providing for compensation - monetary and/or non-monetary assistance - to victims of wrongful conviction and incarceration.
Legal position in Canada
In Canada, the “Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons” contain the criteria to be met before a person can be considered eligible for compensation and the Guidelines expressly limit the payment of compensation only to the actual person who was wrongfully convicted and imprisoned.
Several other countries, including Germany, Australia and New Zealand, have provisions for providing compensation to persons who have suffered wrongful incarceration.
Delhi High Court flagged the issue in 2017
Expressing serious concern over innocent persons being wrongfully prosecuted, incarcerated for crimes that they did not commit, the Delhi High Court had in 2017, in ‘Babloo Chauhan @ Dabloo vs State Govt of NCT of Delhi’ highlighted the urgent need for a legislative framework for providing relief and rehabilitation to victims of wrongful prosecution and incarceration.
“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,” the Delhi High Court had said. The high court had asked the Law Commission to examine the issue and recommend measures to the Government to deal with it.
Law Commission’s 277th Report
In its 277th Report titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ submitted to the Central Government on August 30, 2018, the Law Commission recommended enactment of a specific legal provision for redressal of cases of wrongful prosecution and for providing relief to the victims of wrongful prosecution in terms of monetary and non-monetary compensation such as counselling, mental health services, vocational/employment skills development, etc, within a statutory framework. It also submitted a draft Bill along with the Report which has been hanging fire since then.
Previous reports of Law Commission
Its very first Report on ‘Liability of State in Tort’ (1956) examined the question of having a specific law with respect to a citizen’s claims based on tort against the Centre and states and the extent of State liability. It “is necessary that the law should, as far as possible, be made certain and definite,” it recommended. On the extent to which such law should make the state liable for tortious acts, the Commission recommended that this issue requires “undoubtedly, a nice balancing consideration so as not to unduly restrict the sphere of activities of the State and at the same time to afford sufficient protection to the citizen”. It also considered the scope of the immunity of the State for the tortious acts of its officials and recommended the relaxation of the rule of state immunity, and that “the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine the liability of the State.”
The 273rd Report on ‘Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation’ (2017), the Law Commission endorsed the views expressed in its 113th, 152nd and 185th reports and recommended insertion of section 114B in the Indian Evidence Act, 1872. The Commission noted that this provision will ensure that in a case where a person in police custody sustains injuries, it is presumed by the Court that those injuries have been inflicted by the police, and the burden of proof shall lie on the police officer concerned to explain such injury.
Way forward
It’s high time the Law Commission’s recommendations are acted upon and Parliament enacts a specific law for redressal of cases of miscarriage of justice caused due to wrongful prosecution and incarceration and to provide for compensation to innocent victims in such cases.
“There is a remedy in tort to claim damages against the complainant for malicious prosecution, but that too protects the prosecuting agency on the premise that the action taken was in good faith. The time has come to fill this legislative void,” senior advocate Sanjay Jain said.
