The State's Duty Of Reparation For "Lost Years" And The Supreme Court's Power To Issue Guidelines
One of the firmest pillars of the rule of law and administration of justice has been maximed in Latin- Ubi Jus Ibi Remedium or simply where there is a right, there is a remedy. Basic human right protections against unlawful prosecutions, illegal detentions, arrests etc. are guarantees available to every person under the umbrella of Article 21 and 22. However, the presence of these...
One of the firmest pillars of the rule of law and administration of justice has been maximed in Latin- Ubi Jus Ibi Remedium or simply where there is a right, there is a remedy. Basic human right protections against unlawful prosecutions, illegal detentions, arrests etc. are guarantees available to every person under the umbrella of Article 21 and 22. However, the presence of these safeguards in the fundamental rights chapter has neither deterred nor impeded these frequent violations.
'Framed As a Terrorist: My 14-Year Struggle to Prove My Innocence[1]' is a book authored by a person who spent 14 years in custody as an under trial in 18 criminal cases, only to be acquitted in all cases by the Trial Court itself. In his book the author provides a detailed account of how he was arrested, framed, mercilessly tortured in custody, made to sign blank papers and fake diary entries and even forced to write to his parents asking them to send his identification papers. Arrested at 18, he was forced to spend the best years of his life behind bars. During this time, the author lost his father and due to shock, his mother suffered a brain hemorrhage.
The case of that author is not alone. Malicious prosecutions, frame ups, motivated investigations etc. are often responsible for robbing innocents of their liberties and ruining the lives of their families. The reputation of the accused and her family is ruined for good. According to the National Crime Records Bureau in the year 2020, 6,389 convict prisoners were acquitted by higher courts on appeal. Our judicial system has long suffered the pendency baggage. Delays in trial and the huge backlog of appeals compound the problem. By the time innocent prisoners are finally acquitted and released, they have already spent a large part of their life in prison and their right to reputation-now recognized as a facet of Article 21, annihilated. The NCRB data further shows that in 2020 alone a total of 27,256 undertrial prisoners were acquitted by the trial court.
The fact that these violations remain unaddressed for lack of substantive remedies with no accountability being fixed, is responsible for victims continuing to fall prey to gross abuse of police powers. The question which then arises is, under the existing framework, what remedy can be provided to them?
Constitutional Courts in India have fostered a case for compensation of these victims. Wrongful convictions arising out of malicious prosecutions may be by making or framing a false or incorrect record or document for submission in a judicial proceeding, fabricating false evidence, by destruction of evidence, by bringing false charge making a false declaration or statement etc. Wrongful convictions so arising must entitle the victim to claim compensation.
The early approach of the Supreme Court in awarding compensation to victims of police atrocities as a public law remedy under Article 21. One of the first cases where the Supreme Court dealt with the issue of compensation for violations of life and liberty under Article 21 was in the infamous Bhagalpur blinding case of Khatri & Ors. v. State of Bihar & Ors. (AIR 1981 SC 928). The Court directed the state to meet the medical expenses of the victims. In Rudal Sah v. State of Bihar (AIR 1983 SC 1086), the Supreme Court while exercising its power under Article 32, ordered the Bihar government to pay ₹30,000 for detaining the petitioner for fourteen years after his acquittal. The then Chief Justice, Y.V. Chandrachud, CJ, speaking for a Bench of three learned Judges of the Supreme Court had observed that, "One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation." In Bhim Singh, MLA v. State of J&K & Ors. (1985) 4 SCC 677), the Supreme Court awarded a compensation of Rs. 50,000 for illegal detention. In Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, the Supreme Court awarded Rs. 1 lakh compensation to the families of those who never returned after being picked up by the Army. This was followed by payment of compensation towards custodial death in the case of Neelabati Behera v. State of Orissa (AIR 1993 SC 1960), SAHELI, A Women's Resources Centre & Ors. v. Commissioner of Police Delhi & Ors. (AIR 1990 SC 513) etc. More recently, in the matter of S. Nambi Narayanan V. Sibi Mathews (2018) 10 SCC 804 (ISRO espionage matter), the Supreme Court awarded a compensation of Rupees Fifty Lacs for the petitioners illegal arrest and custodial torture.
It must, however, be understood that an attempt to address the problem with compensation alone would both be undermining the gravity of the wrong committed as well as inadequately redressing a very serious fundamental rights violation. In the authors view, structured rehabilitation is the next step to balance the relief of compensation.
Article 9(5) of The International Covenant of Civil and Political Rights (ICCPR), to which India is a signatory and has also ratified it, specifically provides that "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." Article 14(6) of the ICCPR also provides that "When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."
Conspicuously, India has no victim centric legislation. Under the present statutory regime, barring provisions under u/Ss 250 and 358 CrPC, it is only a 'victim' who can claim compensation u/s 357A CrPC. The term 'victim' is narrowly defined in S.2 (wa) CrPC. This definition does not include those who are victims of wrongful convictions etc. and who get acquitted and released after languishing in prison for years, thus disentitling them to any statutory compensation under these provisions.
It is notable that several countries have developed their statutory frameworks to address similar miscarriages of justice. These laws compensate victims of wrongful conviction by providing them with pecuniary and nonpecuniary assistance.
In UK, the Criminal Justice Act deals with 'Miscarriages of Justice.' Amongst the factors relevant to assess the quantum of compensation are: harm to reputation or similar damage, the seriousness of the offence, severity of the punishment, the conduct of the investigation and prosecution of the offence etc. Post the 2011 judgment in R v State (2011) UK SC 18, nine Supreme Court Judges widened the definition of 'miscarriage of justice' and ruled that the requirement of 'conclusive innocence' was too narrow. It was held that even those who cannot prove their innocence 'beyond reasonable doubt' would be entitled to compensatory relief.
In Germany the 'Law on Compensation for Law Enforcement Measures' and the German Criminal Code provide for a fixed sum per day for the nonpecuniary damage as compensation i.e. 25 Euros (per day wrongfully spent in custody) in addition to any compensation for financial loss. Factors comprising financial loss include loss of earnings often due to loss of place of employment, losses in pension, insurance policy, cost of lawyer, cost arising from the search of a place to live, damage to health etc.
Similarly, in the United States there is a federal law which provides for payment of 50,000 USD per year for wrongful conviction. Individual States have separate laws that provide for compensation- monetary and/nonmonetary assistance to the victims of wrongful conviction depending on the years spent in custody. In the District of Columbia, an eligible claimant receives an interim amount immediately to secure housing, subsistence, reintegrative services, etc. Many states provide vocational training, assistance in job search and placement services, counselling services, expunging of criminal records to help reintegrate etc.
In Canada too, a victims of negligent investigations receive compensation. New Zealand's 'Compensation for wrongful Conviction and Imprisonment: Guidelines' inter alia provide for issuance of a public apology or 'statement of innocence' to restore the reputation of the victim.
In India, The Law Commission in its 277th Report published in 2018, titled 'Wrongful Prosecution (Miscarriage of Justice): Legal Remedies' had recommended the insertion of a new Chapter in the CrPC to provide for a mechanism for adjudication of claims of wrongful prosecutions and payment of compensation to victims by State misdemeanours. It also recommended the insertion of a provision for providing monetary compensation and nonpecuniary assistance to the victims. However, the recommendations are yet to be acted upon.
In our country, the recognition of the rights of such a victim is in its nascent stages and in the absence of statutory provisions, it is the public law that hosts remedies available to a victim of state excesses. The welfare states obligation to provide holistic redressal to a victim of state excesses cannot be overstated. It is for this reason that a legislative intervention is required for reparation of violation of basic human rights against unlawful arrests, tainted investigations, wrongful convictions etc.
That the Supreme Court cannot legislate is well established. However, in the landmark case of Vishakha V. State of Rajasthan (1997) 6 SCC 241, the Supreme Court in the absence of any enacted law which could provide for remedies available against violation of fundamental rights -sexual harassment and abuse in that case, laid down enforceable guidelines in exercise of jurisdiction under Article 32. These guidelines were declared law under Article 141. This approach has been followed by the Supreme Court in several cases thereafter.
The malaise highlighted above makes valid ground for devising such guidelines. The guidelines so declared could include grant of pecuniary compensation based on an empirical formula for example as in case of MACT compensations. Factors like the age of the victim, the period of incarceration or lost years, the loss of livelihood and its prospects etc. may form the yardstick of calculating the quantum of compensation payable. Establishment of a dedicated Rehabilitation Board which could provide for educational fora, vocational training, counselling, steps for reintegration of the victim and its family in society, providing employment avenues/exchanges etc. could also be considered.
The indelible damage to the reputation of the victim of wrongful conviction and its family remains to be a matter of grave concern. The restoration of reputation and dignity i.e. an Article 21 right is of utmost importance. In this connection, the issuance of a 'statement of innocence' or a public apology by the state, as is followed in New Zealand, becomes crucial to undo the stigma and ostracization suffered by the victim and its family could be considered.
More than four decades have passed since the Supreme Court for the first time granted compensatory relief for violation of Article 21 rights. With cases of acquittals crossing the five-figure mark and in the absence of the issues highlighted above attaining any legislative attention, there exists a clear and present urgency for the Supreme Court to frame guidelines as argued above.
* The author practices at the Supreme Court. Views are personal.