I. Introduction

It was noted by the English jurist William Blackstone that ‘It is better that ten guilty persons escape than that one innocent suffer’[1]. This principle of law is recognized as a fundamental element of every legal system operating in a modern democracy. However, this principle also highlights the importance of the protection of innocent people from wrongful legal actions in any democracy.

In the Indian context, the data from the National Judicial Data Grid highlights the fact that there are approximately 27.4 million criminal cases that are proceeding in just the district courts of the country[2]. Out of these, 25% of the cases have been going on for over 5 years[3]. This implies that 1 in every 4 criminal cases in India stays pending at just the session’s court level for more than 5 years. Further, the ‘Prison Statistics India’ which is an annual statistical report of the National Crime Records Bureau highlights the fact the as on 31st December 2019, there were 3, 30,487 (69.05%) under-trial prisoners in the Indian prisons and 1, 44,125 (30.11%) convicts in Indian prisons[4]. Hence under-trial prisoners form the majority of the prison population in India; even higher than the number of convicts.

The inference that can be drawn from these statistics is that a large number of under-trial prisoners in India may remain incarcerated for 5 or more years due to the excessive pendency of cases at the sessions court level itself. This leaves tremendous scope for innocent under-trial prisoners undergoing prolonged periods of wrongful incarceration.

Apart from people who might be wrongfully incarcerated, some people might also be wrongfully convicted by one or more courts but subsequently acquitted by a higher court, and some people might also be wrongfully arrested and detained by the police.

Hence people who are wrongfully prosecuted, incarcerated, or convicted are fundamentally innocents who have been made to suffer by the wrongful actions of the state; a state which has taken away the rights, dignity, and personal liberty of these individuals. The state thus needs to have a legal obligation to compensate (as far as money can do) for the multiple social, economic, and legal suffering of these innocent people caused due to wrongful prosecutions, incarcerations, and convictions.

II. Effects of wrongful prosecution, incarceration, or convictions

When a person is wrongfully prosecuted, incarcerated to convicted, it leaves an indelible scar on his/her life. The loss of precious and irrecoverable time and years of one’s life combined with the psychological and economic impediments which are faced by the victim makes re-integration into society after release or acquittal remarkably challenging.

 In a study conducted on the psychological impact of wrongful imprisonment by Professor John Wilson of Cleveland State University, it was discovered that most exonerees encounter multiple and distinct psychological disorders following their incarceration and these disorders appear to evolve along a continuum as time drags on[5]. Upon arrest, the initial emotional reactions are shock, fear, disavowal, and disbelief.[6] There is a sense of unreality about the situation[7]. Further, the sense of injustice develops in the victim which leads to a deep psychological impact and leaves a permanent psychological injury.[8] The feeling of loss of freedom, abandonment by humanity and god, loss of identity and dignity, shame, fear, rage, etc. lead to a traumatic experience for the victim; thus, leading to the development of Post-traumatic stress disorder (PTSD), anxiety, depression, obsessive-compulsions, phobias, and paranoia as adaptations to the wrongful conviction, incarceration, and prosecution[9].

Apart from psychological effects, there may be other varied effects on the person like damage to health, loss of income or earnings, loss of property, costs of legal fees, and other consequential expenses resulting from the wrongful prosecution, loss of family life, loss of opportunities (of education, of possibilities of livelihood, future earning abilities, skills), stigmatization and harm to reputation, psychological and emotional harm caused to the accused’s family.[10]

One might even look at real-life instances in which people have undergone undue sufferings due to such wrongful actions of the state. One such example is of Political activist Anjum Zamarud Habib (from Kashmir), who, in her book ‘Prisoner No. 100: An Account of My Nights and Days in an Indian Prison[11]’, gives an account of her tormenting experience of being imprisoned for 5 years before being released by the Delhi High Court[12]. Her statement ‘I am a free person today but the wounds and scars that jail has inflicted on me are not only difficult, but impossible to heal[13]’ gives an insight into the seriousness and permanence of the detrimental after-effects of wrongful prosecution, incarceration, and convictions. Furthermore, the incident involving Assam’s Madhubala Mondal, who was wrongfully detained for three years in Assam as a result of “mistaken” identity[14] by the police, is another harrowing instance that highlights the deleterious effects of wrongful detention and arrest on the victim and the subversion of life and liberty of the victims of wrongful prosecution, incarceration, and convictions.

Looking at all the harmful consequences caused due to the wrongful actions of the state, it becomes all the more imperative for the state to correct the wrongs caused by it and help the victim integrate again into society. Thus compensation by the state becomes all-the-more relevant in such cases.

III. International perspective

The right to compensation for wrongful prosecution, incarceration, and convictions has been recognized by various international covenants and has been enforced by various enactments, statutes, and acts in jurisdictions all over the globe.

Conventions and Treaties

The International Covenant on Civil and Political Rights (1966) lays down the basic commitments that state parties need to adhere to protect the civil and political liberties of the individual. The right to compensation for wrongful convictions is laid down in Article 14(6) [15]of the covenant and it states:

‘When a person has by a final decision been convicted of a criminal offense 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’

Further even remedies for wrongful arrests and detentions have been provided by the covenant through Article 9(5)[16] which states that

‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’

Article 5 of The European Convention for the Protection of Human Rights and Fundamental Freedoms talks about the Right of Liberty and Security of individuals and lays down the procedure established by law for arrests and detention. Further Article 5(5) [17]of the conventions lays down the right to compensation for wrongful arrests and detentions and states that

‘Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.’

Even Article 10[18] of the American Convention on Human Rights provides for the right to compensation in cases of miscarriage of justice and states that

‘Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice.’

Laws in Different Jurisdictions

Laws are often reflective of each other. A comparative analysis of laws existing in different jurisdictions can help the legislature to bring reform. Even the 277th Report of the Law Commission of India titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” [19]provides for a detailed study of the current laws related to victim compensation functioning in a few countries.

United Kingdom

The primary law applicable in the UK is the Criminal Justice Act 1988. Few sections related to victim compensation were incorporated in this act in conformity with the International Covenant on Civil and Political Rights (1966). The onus to compensate the victim of wrongful conviction is on the Secretary of State. Wrongful convictions here signify convictions that were consequently reversed or pardoned as a new fact came to light proving beyond reasonable doubt that the person did not commit the offense and thus there has been a miscarriage of justice[20]. It is subject to great scrutiny by the Secretary of State[21]. Furthermore, the Act also provides for various factors that are taken into account while accessing the amount of compensation such as reputational damage, gravity of the punishment, conduct of investigation, etc[22]. By making the Secretary responsible, the act prods the concerned authorities to take reasonable precautions before convicting an innocent.

The UK also has the UK Police Act, 1996 which deals with the liability of the wrongful acts of constables. The act places the responsibility on the Chief Officer of the Police for the wrongful acts of the constables under his/her direction[23]. The compensation is given out of the Police fund[24]. Thus, besides the Criminal Justice Act of 1988, this act regulates the authorities at the grass-root level.

There exists a Criminal Cases Review Commission (CCRC) in the UK as well. It is a statutory body established under Section 8 of the Criminal Appeal Act of 1995 [25]Its basic function is to determine whether an individual, accused of an offence, has suffered a miscarriage of justice. Accused individuals who think that they have suffered wrongful conviction or sentence can refer to CCRC. This commission has the power to carry out its own investigation. It can also authorize an appellate court for further review post-investigation[26].

United States of America

In the US, cases of miscarriage of justice are either addressed by the federal laws or the state laws, as per applicability. Wrongfully convicted individuals are compensated under the same.

The federal law is the United States Code Title 28 § 1495 [27]& §2513[28]. Individuals, wrongfully convicted for an offence against the US and hereby imprisoned, can take recourse under this law. Pardon for innocence, reversal of conviction, or of not being found guilty at a new trial or rehearing are few grounds under which a claimant is entitled to demand relief[29]. Compensation is provided on the basis of years of imprisonment. [30]

All states of the US also have their own laws which deal with both monetary and non-monetary compensation to the victims of wrongful prosecution and imprisonment. In some states, a fixed amount is established depending on the years of imprisonment. A few other states have given the discretion on the question of compensation to the concerned authorities which decide the amount on a case-to-case basis. Though, there are some objective criteria as well such as the maximum amount to be paid is already decided by the statutory guidelines and directions in a few states. [31]

Furthermore, most states of the US have the provision for non-monetary compensation. Usually, it is observed that monetary compensation is not enough for the innocent individuals. Wrongful conviction affects the reputation, reintegration, and loss of means of livelihood. On the basis of this, the states in the US provide compensation for rehabilitation and reintegration into society. Such compensation provides for assistance in job search, housing, physical and mental health ministrations, counseling, etc among others.[32]

Canada

Canada has no specific legislation which provides a remedy to wrongfully convicted persons. Though, the principles of the “Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons[33]”, formed in 1988, are in consonance with the International Covenant on Civil and Political Rights (ICCPR). The guidelines lay down the eligibility criteria along with the procedure of determining the quantum of compensation[34]. The compensation includes both pecuniary [35]and non-pecuniary losses[36]. An individual who crosses the eligibility test under these guidelines can also avail the expenses incurred during the wrongful conviction, verdict, and demand for pardon.[37] Thus, there is a considerable amount of remedies that a victim of wrongful conviction can avail.

IV. Indian legal scenario

Remedy for wrongful prosecution, incarceration, or conviction finds its roots in the Constitution of India. Such wrongful acts by the state can be construed as a violation of fundamental rights under Article 21[38] (protection of the right to life and liberty) and Article 22[39] (protection against arbitrary arrests and illegal detention etc). Victims who undergo such violation of fundamental rights can claim compensation from the Supreme Court and the High Courts under Articles 32[40] and 226[41] of the Constitution respectively through the filing of a writ petition for the same.

However, such compensation is not explicitly mentioned in the constitution. Furthermore, When India ratified the International Covenant on Civil and Political Rights (1966) in June 1978; the Indian government went on record and made a declaration which stated that

‘Under the Indian legal system, there is no enforceable right to compensation for

persons claiming to be victims of unlawful arrest or detention against the State’.[42]

Nevertheless, the Supreme Court evolved this compensatory jurisprudence through its various landmark pronouncements and thus, the award of compensation has been recognized as a public law remedy for violations of constitutional rights, including wrongful imprisonment and detention.

The landmark judgment which set the precedent of providing compensation by the exercise of writ jurisdiction in cases of wrongful detention was that of Rudal Sah v. State of Bihar [43](1983). The petitioner, in this case, was unlawfully detained for 14 years, and the SC while awarding a compensation of Rs. 30,000 to the petitioner due to the violation of Articles 21 and 22 of the Constitution held 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.’

Subsequently, in the case of Bhim Singh, MLA v. State of J & K & Ors[44], The Supreme Court awarded a sum of Rs. 50,000/- as compensation for the illegal detention of an MLA who was deliberately prevented from attending a session of the Legislative assembly by arresting him and illegally detaining him in police custody hence violating the rights provided under Article 21 and Article 22(2) of the constitution. It was held by the court that

 ‘When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. Inappropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation.’

Even the recent case of S. Nambi Narayanan vs Siby Mathews & Others Etc[45]., Former ISRO scientist Nambi Narayanan was awarded compensation of 50 lakhs, 24 years after he was unlawfully detained on charges of revealing official secrets to a spy network.

However, the Supreme Court has tried to limit the scope of cases covered under the remedy of awarding compensation for violation of Article 21 in multiple cases.

In the case of Sube Singh v. the State of Haryana[46], the petitioner alleged illegal detention, custodial torture, and harassment to his family member; however, the supreme court, In this case, did not grant any compensation because of the absence of clear and incontrovertible evidence and laid down the proposition that compensation is not to be awarded in all cases of violation of Article 21.

In the case of Adambhai Sulemenbhai Ajmeri & Ors. v. State of Gujarat[47], the Supreme court acquitted the accused persons who had been imprisoned for almost 10 years and took note of the fact that there was ‘perversity in conducting this case at various stages, right from the investigation level’ to ‘the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court.’ The Supreme court further noted that the ‘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.’ However, the Court did not award any compensation to the victims in this case. Further, the victims filed a separate appeal in the Supreme Court demanding compensation from the state for their wrongful incarceration. However, the Supreme Court rejected the appeal for compensation on the grounds that acquittal by a court did not automatically entitle those acquitted to compensation and if compensation is to be awarded for acquittal, it will set a ‘dangerous precedent.’

Thus it can be very well observed although the Supreme Court has taken extremely positive steps and made huge strides in evolving compensatory jurisprudence to provide compensation to the victim of wrongful prosecution, incarceration, and convictions, the right to this remedy is not universal. It is a remedy determined and decided on a case-to-case basis depending on the facts of each case, the disposition of the court hearing the case, etc. which, in turn, makes this remedy arbitrary, episodic and indeterminate. [48]

V. Conclusions and recommendations

The Indian judiciary through various landmark pronouncements has evolved a rich compensatory jurisprudence for victims of wrongful prosecution, incarceration, and convictions. However, there are still multiple lacunae in the current system as the decision for awarding compensation and the quantum of compensation remains a discretionary choice of the court. Furthermore, the remedy of compensation creates an ex gratia obligation, and not a statutory obligation on the State to compensate.[49]

The Law Commission of India in its 277th report titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ [50]discussed at length the need for legislation that creates a statutory obligation on the state to compensate the victim for wrongful prosecution, incarceration, and convictions. The report identifies the standard of wrongful prosecution to be the appropriate standard to approach the issue of compensation, that is, cases in which the accused was not guilty of the offense, but the police and/or prosecution engaged in some form of misconduct in investigating, charging, and/or prosecuting the person.

Further, the report recommends the creation of a statute laying down the conditions, amounts, procedure, etc of awarding compensation to innocents to ensure that the injustice caused to them is redressed within the framework of rights and not ex gratia by the State. The main highlights of the recommendations include the creation of a special court for claims which would ensure speedy and efficient disposal of cases, standardization of wrongful prosecution as the cause of action for filing a suit for compensation, and causing of harm or damage to any accused person in body, mind, reputation or property to be the central reason for the compensation claim.

The report also highlighted that the compensation under the statutory framework would include both pecuniary and non-pecuniary compensation. The pecuniary form of compensation would include monetary awards whereas; the non-pecuniary form of compensation would include services such as counseling, mental health services, vocational/employment skills development provided by the state. Further, a specific provision for removing disqualifications attached to a prosecution or conviction is also imperative to dispel the social stigma that is attached to the victim because of the criminal proceedings. This provision would also help the victim reintegrate into society as it would improve the probability of the accused getting admission into educational institutions, getting employed in the public and private sector, etc.

Although the report is comprehensive enough to cover all aspects of compensation to the victim in the recommendations, it misses out on the fact that a long legal battle takes a toll on not only the victim but also on his/her immediate family. Immediate family in this regard might include anyone who is related to the victim by blood and is significantly and negatively affected by the loss of the company of the victim. Hence although a monetary award for the sufferings of the victim’s immediate family seems to be an excessive obligation on the state resources, non-pecuniary awards like services of counseling and mental health should also be made available to the victim’s family members as a statutory obligation to the state.

To conclude, the Indian legal system is overburdened with an excessive number of criminal cases; and in such a scenario it becomes all-the-more necessary for the state that it protects the rights of innocents. A statutory framework for providing compensation to the victim and his/her family is a dire need of the Indian socio-legal scenario as although the state cannot return the lost years, family life, opportunities, etc to the victim, it still can help the victim to reintegrate back into the society by providing pecuniary and non-pecuniary assistance for the same. Hence the Indian legislature needs to, firstly, incorporate the various recommendations as provided by the Law Commission of India in its 277^th report enact a statute with respect to the same. Secondly, the statutory frame work as enacted by the legislature must also have provisions for providing non-pecuniary awards to the immediate families of victims of wrongful prosecutions, incarcerations and convictions. Thirdly, a pro-active role needs to be played by the non-governmental organizations to help the victims of such wrongful acts approach the appropriate courts and claims their respective rights. Only if all these reforms take place in the Indian socio-legal framework can we expect a change in the current abysmal and harrowing circumstances prevailing in the country.

*****

FOOTNOTES

[1] William Blackstone, Commentaries on the Laws of England.

[2] Ministry of Law and Justice, National Judicial Data Grid, https://njdg.ecourts.gov.in/njdgnew/index.php (last visited Feb 28, 2021).

[3] Id.

[4] National Crime Records Bureau, Prison Statistics India (2019), https://ncrb.gov.in/sites/default/files/Executive-Summary-2019.pdf (last visited Mar 1, 2021).

[5] John Wilson, A Perpetual Battle of the Mind, The Frontline (Oct 31, 2002), https://www.pbs.org/wgbh/pages/ frontline/shows/burden/cameras/memo.html (last visited Mar 1, 2021).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Law Commission of India, Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (2018), https://lawcommissionofindia.nic.in/reports/Report277.pdf (last visited Mar 1, 2021).

[11] Anjum Zamarud Habib, Prisoner No. 100: An Account of My Nights and Days in an Indian Prison.

[12] Anurag Bhaskar, Jailed For Years: Why India Needs A Right To Compensation For Wrongful Arrests & Detention, The Print (July 9, 2019), https://theprint.in/opinion/jailed-for-years-why-india-needs-a-right-to-compensation-for-wrongful-arrests-detention/260336/ (last visited Mar 1, 2021).

[13] Id.

[14] Id.

[15] International Covenant on Civil and Political Rights, Art. 14(6), Dec 16, 1966.

[16] International Covenant on Civil and Political Rights, Art. 9(5), Dec 16, 1966.

[17] European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 5(5), Nov. 4, 1950.

[18] American Convention on Human Rights, Art. 10, Nov. 22, 1969.

[19] Commission, supra note 10

[20] Criminal Justice Act, 1988, §133(1) (UK)

[21] Criminal Justice Act, 1988, §133(3) (UK)

[22] Criminal Justice Act, 1988, §133A (UK)

[23] UK Police Act, 1996, §88(1)

[24] UK Police Act, 1996, §88(2)

[25] Criminal Appeal Act, 1995, §8 (UK)

[26] Commission, supra note 10

[27] 28 U.S.C. § 1495 (2014).

[28] 28 U.S.C. § 2513 (2014).

[29] 28 U.S.C. § 2513(a)(1) (2014).

[30] 28 U.S.C. § 2513(e) (2014).

[31] Commission, supra note 10

[32] Commission, supra note 10

[33] Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, 1988 (Canada).

[34] Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, 1988, §A (Canada).

[35] Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, 1988, §C(2) (Canada).

[36] Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, 1988, §C(1) (Canada).

[37] Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons, 1988, §C(3) (Canada).

[38] India Const. art. 21.

[39] India Const. art. 22.

[40] India Const. art. 32.

[41] India Const. art. 226.

[42] Justice G. Yethirajulu, Article 32 And The Remedy Of Compensation, The Practical Lawyer (2004), https://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=272, (last visited Mar 1, 2021).

[43]  Rudal Sah v. State of Bihar AIR 1983 SC 1086 (India).

[44] Bhim Singh, MLA v. State of J & K & Ors (1985) 4 SCC 677 (India).

[45] S. Nambi Narayanan vs Siby Mathews & Others Etc  (2018) 10 SCC 804 (India).

[46] Sube Singh v. the State of Haryana (2006) 3 SCC 178 (India)

[47] Adambhai Sulemenbhai Ajmeri & Ors. v. State of Gujarat (2014) 7 SCC 716 (India)

[48] Commission, supra note 10

[49] Commission, supra note 10

[50] Commission, supra note 10