By Inderjit Badhwar
Wrongful prosecution by the police, prison sentences by judges in a hurry or under duress from Executive bullying, incarceration without bail and pending trial are some of the horrors that continue to plague the overburdened and undernourished legal system in India. This phenomenon blights the rule of law and brings our juridical universe into unrelenting disrepute and disgrace, putting a large question mark on our status as a modern republic established through the mechanism of a democratically-elected Constituent Assembly.
The most hideous aspects of these shortcomings come regularly into public focus when barbaric examples of police atrocities such as the recent brutal torture-murder of the Tuticorin father-son duo Jayaraj and Benicks while in judicial custody, or the 1980 Bhagalpur blindings of 31 undertrial “criminal” suspects with acid and bicycle spokes by the Bihar police, or malicious cases against political dissenters under draconian detention laws make the headlines. Routine police brutality goes largely unnoticed because there are inadequate safeguards and the public has developed a police-will-be-police attitude to crimes committed and human rights violated under the shelter of the law.
This is not to say that Indian society, policymakers and thought leaders are completely inured to this systemic blight. There are reams of research findings, commentaries, judgments and commissioned reports on this subject. The problem lies in the lack of political will in implementation, punishment to the offenders and adequate compensation to the victims of wrongful confinement and abuse.
Consider, for example, these damning statistics: According to the National Crime Records Bureau’s (NCRB) annual statistical report “Prison Statistics India” (PSI), there were 4,19,623 prisoners across the country, out of which 67.2 percent i.e. 2,82,076 were undertrials (people who have been committed to judicial custody pending investigation or trial by a competent authority), substantially higher than the convict population of 1,34,168 (32.0 percent)!
The 277th report of the Law Commission (2018) on “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” is a landmark document dealing with this subject. It was primarily based on the Delhi High Court’s decision in the case of Babloo Chauhan @ Dabloo vs State Government of NCT Delhi. The Court expressed grave concern about wrongful prosecution and incarceration of innocent persons, highlighting the need for a legislative framework for providing relief to such victims.
The Court noted that 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 2018 report made pointed references to previous Commission reports whose reformist agendas had remained unimplemented. For example, the 113th Report on “Injuries in Police Custody‟ dealt with the issue of burden of proof in prosecution of a police officer for an alleged offence of bodily injury to a person in custody. It recommended insertion of a Section 114B in the Indian Evidence Act, 1872 to provide that in the “aforesaid cases of prosecution of a police officer, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police having custody of that person during that period”.
The Commission further recommended that the Court, while considering the question of presumption in the said cases, “should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. The report also recommended shifting of burden of proof in offences relating to custodial violence and tortures”.
The 152nd Report on “Custodial Crimes” (1994) dealt with the issue of arrest and abuse of authority by the police officials. Referring to the concerned constitutional and statutory provisions, the report recommended many amendments. One reiterated insertion of Section 114B (as was recommended in the 113th report).
Another recommendation was to amend the Criminal Procedure Code, 1973, adding of a Section 41(1A) for recording the reasons for arrest, and a Section 50A to inform the nominated person about the arrest, among others.
The 154th Report on “Code of Criminal Procedure, 1973” (1996) undertook a detailed examination of the Code 1973 “so as to remove the germane problems leading to consequential delay in disposal of criminal cases”. It made comprehensive recommendations, including amendments in the 1973 Code, the Police Acts, amongst others. One of these was to separate the investigating police force from the law and order enforcement police force: to increase the expertise of the investigating police; make investigations efficient “which will reduce the possibility of unjustified and unwarranted prosecutions. The investigating police was recommended to be placed under the supervision of higher authorities”.
Another tough, no-nonsense document is the 273d Report on “Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation” released in 2017. Its recommendations endorsed insertion of Section 114B in the Indian Evidence Act, 1872. The Report 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 concerned police officer to explain such injuries”.
The 277th Commission’s conclusions and recommendations, excerpted and summarised below, are a must reading for every practitioner of juridical arts who swears by the Rule of Law:
- A person wrongfully prosecuted though acquitted and released from jail is free to go back to his life but is it actually possible for him to go back to the same life—the life he had before he was subjected to the ordeal of wrongful prosecution?
- India ratified the International Covenant on Civil and Political Rights (ICCPR) in 1968 (with certain reservations) but is yet to comply with its obligations and enact a legislation laying down the law for compensation.
- In other words, despite decades of jurisprudence on compensation, the criminal justice system, as it stands, does not provide an effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions.
- There is no statutory or legislative mandate. There should be specific legal provision for redressal of cases of miscarriage of justice resulting in wrongful prosecution—covering both the substantive and procedural aspects; i.e. a statutory and legal framework establishing the mechanism for adjudicating upon the claims of wrongful prosecution, and inter alia award payment of compensation by the State, if so determined. Consequently, creating a statutory obligation on the State to compensate the victims of wrongful prosecution, and a corresponding statutory right of compensation for the said victims. And, in such case where the State pays compensation for the errant acts of its officials, it can seek indemnification from the concerned officials and also initiate appropriate proceedings against them.
- One of the most important principles being that the injustice caused to the innocents needs to be redressed within the framework of rights and not ex gratia by the State. The other being that there needs to be an established legislative process according to a transparent, uniform, efficacious, affordable and timely remedy for the loss and harms inflicted on the victims on account of wrongful prosecution.
- One of the most important considerations in creating this remedy framework is that the claims need to be decided as speedily and swiftly as possible. Accordingly, special courts are needed in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice of jurisdiction should be made by the applicant, as follows: (i) either the Special Court having jurisdiction over the area in which the wrongful prosecution occurred; or (ii) the Special Court within the local limits of whose jurisdiction the applicant resides.
- Within this legal framework, the cause of action for filing a claim for compensation would be that of “wrongful prosecution”, which ended with an order or judgment in favour of the accused, inter alia acquitting him.
- The ambit of “wrongful prosecution” herein would include (i) malicious prosecutions; and (ii) prosecutions instituted without good faith. The foundation of this cause of action lies in the abuse of legal process by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper cause. Prosecution instituted without “good faith‟ would also be included within the purview of wrongful prosecution.
- A claim for compensation would be for the harm or damage caused to any accused person in body, mind, reputation or property as a result of the wrongful prosecution—i.e. for the “injury” resulting from wrongful prosecution. The claim for compensation can be brought by the accused person so injured; or by any agent duly authorised by the said accused person; or where the accused person died after the termination of the wrongful prosecution, by all or any of the heirs or legal representatives of the deceased.
- The essence of a statutory response to the victims of wrongful prosecution lies in the relief provided to them, for that underlines the basic intent and objective of this (proposed) law, i.e. to assist the wrongfully accused/convicted in reintegrating into society.