What If Rhea Chakraborthy Is Innocent?

Unlawful arrest and conviction is a worldwide scourge. It spares none and is prevalent everywhere. While the law provides solace in certain countries, what does it provide in India? While examining the issue, it must be clear that this Article does not comment on the merits or otherwise of any case whatsoever and is confined only to the question raised.

In 1989, a young woman was raped and assaulted in New York's famed Central Park^[1]. Five Boys were arrested and later convicted, only to be discharged later. Ava DuVernay's, Netflix mini-series "When They See Us", brutally and graphically depicts their story of wrongful arrest, conviction and subsequent years of trauma in jail. At the time of their discharge, four of the boys had spent seven-years and one thirteen years in illegal confinement. Subsequent to their release, the New York City in a settlement paid a sum of 41 million dollars, on the premise that each one was entitled to a sum of one million dollar for each year of incarceration.

In Canada, Steven Truscott^[2] an innocent convicted for murder after spending more than ten-years in prison and innumerable years seeking legal recourse was finally exonerated by the Court of Appeal. The Ontario Government subsequently awarded him a compensation for 6.5 million dollars. Similarly David Milgaard^[3], another Canadian wrongfully convicted for rape and murder, was subsequently released after spending 23-years in prison. The Government while apologizing for wrongful conviction awarded a sum of 10 million dollars to Mr. Milgaard. The present Justin Trudeau's Liberal Government awarded a compensation of 10.50 million dollars to Canadian citizen Omar Khadr^[4] who faced unlawful detention for more than ten-years in American hands at Guantanamo Bay.

Earlier, in 1966 the unlawful arrest and conviction of middle-weight American professional Boxer – Rubin Carter^[5], nicknamed "the Hurricane" forced wide spread protests leading to a reversal, acquittal and his subsequent release. Chronicling his plight and the systemic flaws in the criminal justice system, Nobel Laureate and the Bard of Rock, Bob Dylan sang –

"The man the authorities came to blame,

For something that he never done……

An innocent man in a living hell………

That's the story of the Hurricane…..".

Such stories are a plenty and abound in the West. They equally abound in plenty in our Country. They are universal in nature, chilling in effect and can happen to anyone of us. If it does happen, how does law provide and protect us in this Country? In the name of statutory compensation, Section 358 of the Code of Criminal Procedure is the only provision that appears to provide "Compensation to persons groundlessly arrested". However, such compensation is limited and cannot exceed "one hundred rupees". Evidently, that apart there is no other provision that a wrongfully arrested and convicted person can invoke to claim or demand compensation from the mighty State.

Recognising this deficiency, the Delhi High Court in Babloo Chauhan vs State of NCT of Delhi^[6], held –

"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. Further, this has to invariably await the final outcome of the case which may take an unconscionably long time."

Resultantly, while suggesting that there was an "urgent need….for a legal (preferably legislative) framework for providing relief and rehabilitation to victims of wrongful prosecution and incarceration^[7]", the High Court requested "the Law Commission of India to undertake a comprehensive examination of the issue highlighted……..and make it's recommendation thereon to the Government of India". In the absence of any legislation, Court(s) in some instances have intervened to provide compensation, if any, for violation of civil liberties and fundamental rights. However, they are "episodic and are not easily available to all similarly situated persons"^[8].

In Malkiat Singh versus State of UP^[9], the son of the Petitioner died in an alleged encounter / in custody of the Police. The Supreme Court awarded a compensation of Rs.5.00 lacs. In Murti Devi versus State of Delhi & Others^[10], an undertrial prisoner died in jail following gross negligence of the jail authorities. The Supreme Court awarded a compensation of Rs.2.50 lacs to the family of the deceased. Even in cases, where the mighty State or it's organs continually harass citizens by filing Appeals and prolonging litigation, the Supreme Court in UCO Bank versus Rajendra Shankar Shukla^[11], awarded a meagre compensation of Rs.1.00 lac.

We are unaware if the accused and incarcerated in Hussen Ghadially versus the State of Gujarat^[12] and Adambhai Sulemanbhai Ajmeri versus State of Gujarat^[13], where convictions by the Trial Court and the High Court were reversed by the Supreme Court, received any compensation significant or otherwise. Commenting on the incompetence of the investigating agencies and the sufferings of the incarcerated, the Supreme Court in Adambhai Sulemanbhai Ajmeri (supra) held –

"Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing."

Unlike the United States, the United Kingdom, New Zealand, Canada etc., which have enacted laws that provide monetary compensation to people wrongfully incarcerated, in India "there is no exclusive legislation on the topic"^[14]. However, I must confess that unlike the pittance and meagre compensation ordinarily awarded by our Court(s), the Supreme Court in a recent judgment – S. Nambi Narayanan versus Siby Mathews^[15], irked and anguished by the wrongful arrest and incarceration of a distinguished and respected ISRO Scientist awarded a sum of Rs.50.00 lacs "to compensate the suffering ……"endured by the victim. Since, it is not statutory law, it's findings would be confined and offer only persuasive support.

Our Country is further plagued by an extremely slow judicial system, where cases and Appeal(s) take decades to fructify. Wrongful prosecution, arrest, confinement and conviction would take years and decades to be revealed. There are several high-profile e.g.- the Transistor Bomb Case, the 2-G Spectrum case, the Kafeel Khan case etc., and countless millions who are subject to this scourge. It is a bane and must necessarily be remedied. The observations in Babloo Chauhan (supra) must necessarily find embodiment in a statute. The Law Commission in it's 277^th Report has accepted and suggested necessary statutory enactment. The State must statutorily compensate any person that has faced it's wrath by wrongful arrest, prosecution or conviction. Such compensation to be meaningful must necessarily be exemplary and in line with the West. Many of those wrongfully incarcerated in the West have spent / or spend their remaining lives in seeking to aid and assist those wronged.

No wonder, one of the stories that narrate the trauma and sufferings of David Milgaard^[16], is titled "This can happen to you". Yes, if it can happen to them, undoubtedly it can happen to any one and leads us, to the question we began with – What if Rhea Chakraborthy is innocent? Will the State compensate the infinite trauma and suffering including incarceration endured by her? Or will she be another hapless victim silenced by the vicious might and wrath of the State?