Monday, February 6, 2023
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Jailed for years: Why India needs a right to compensation for wrongful arrests & detention

Assam’s Madhubala Mondal case has again highlighted the need to bring accountability in our criminal justice system.

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The case of Assam’s Madhubala Mondal is not rare and adds into a series of cases of unlawful arrests and detention, which have caused individuals to spend several years in jail without being guilty in India.

Mondal was 59-years-old and wrongfully detained for three years in Assam as a result of “mistaken” identity by the police. It has again highlighted the need to bring accountability in our criminal justice system.

Recent judgments acknowledge that individuals have often been falsely framed and prosecuted for offences against the state, particularly those related to terror and national security.

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Under the International Covenant on Civil and Political Rights (ICCPR), signatories are required to take steps to ensure the right to compensation for wrongful imprisonment and detention. While India had expressed reservations while ratifying the ICCPR that the Indian legal system does not recognise the right to compensation for victims of unlawful arrest and detention, the jurisprudence created by the Supreme Court of India has made this reservation redundant.

In a number of judgments, the Supreme Court has recognised granting of compensation as a necessary public law remedy for violations of fundamental rights, including wrongful incarceration and arrests. For instance, the Supreme Court, last year, provided a compensation of 50 lakhs to former ISRO scientist Nambi Narayanan, 24 years after he was illegally detained on the charge of leaking official secrets to a spy racket.

The fact that the payment of compensation was ordered 24 years after the wrongful arrest is a serious reminder of the need to correct wrongs caused by unlawful arrests in a timely manner and to preserve liberty. This calls for statutory recognition of the right to compensation in cases of wrongful arrests and imprisonment, which the victims of such accusations can avail without waiting for another several years of litigation before the courts.

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Unlawful arrests and detention not only cause loss of years, but can also create social stigma and ostracisation even after being released. This is evident from powerful narrative accounts by individuals who have been victims of false prosecutions. For instance, in her book Prisoner No. 100: An Account of My Nights and Days in an Indian Prison, political activist Anjum Zamarud Habib (from Kashmir) recounts her experiences of having spent five years in jail before being released by the Delhi High Court. Anjum writes in her book, “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”. Framed As a Terrorist: My 14-Year Struggle to Prove My Innocence is another harrowing narrative of a young Indian Muslim man, Mohammad Aamir Khan, who was kidnapped by the police, falsely accused of being a terrorist, framed, and kept in jail for almost 14 years. Providing compensation to such victims of wrongful arrests, detention and prosecution is the least that the state could do as reparations for the wrong done.

Countries such as the United States, United Kingdom, Australia, Canada, Germany, etc. have enacted a statutory right to compensation, but it is limited to wrongful conviction by virtue of a final order, after all avenues of appeal have been exhausted and a new fact surfaces, which then proves conclusively that the convicted person was factually innocent. In its 277th report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” (August 2018), the Law Commission of India has rightly pointed that the practices of Western countries would be inadequate to address the systemic shortcomings of the criminal justice system in India, where individuals have spent several years in imprisonment even prior to a conviction.

Also read: The fake ‘spy thriller’ that cost Nambi Narayanan his career, life savings and self-esteem

The Law Commission has suggested the standard of ‘wrongful prosecution’ be applied in India. This standard will be applicable to cases where the police or prosecution maliciously, falsely or negligently investigated or prosecuted a person who was found not guilty of the crime. While stating that India must fulfil its international commitments, the Commission recommended certain specific amendments in the Code of Criminal Procedure (CrPC), 1973 in order to incorporate the provisions for compensation. The Commission even presented a draft amendment bill for the CrPC. However, Parliament has not paid any heed to the observations and recommendations of the Law Commission to date.

Moreover, as a result of lack of financial resources and knowledge about Supreme Court judgments, many individuals may not even think of directly approaching the Supreme Court to seek compensation. A statutory right to compensation will provide a legal remedy to the citizens and will subsequently make the state officials, in particular, the police, institutionally liable.

The author is an LLM postgraduate from Harvard Law School.

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  1. Gopal Vaidya has done well to point out the case of film actor Salman Khan for highlighting the faultlines of Indian judicial system. True and undeniable. But at the same time, I’ve often pointed out such cases that Jessica Lal, who was murdered in Tamarind Court, a popular bar-cum-restaurant New Delhi where the crime was committed. Though the venue was full of customers— men and women, nobody witnessed the accused committing the crime. Those who witnessed declined to testify.
    In case of the film actor, the crime was committed at dead of night in a jungle. Nonetheless there were eye witnesses to testify the case in trial court. The witnesses were very tenacious in their statement to support the case. No less strange!
    I had inquired into a case of wrongful detention of a tribal man who suffered in jail for about 7 years in Ranchi, then Bihar in 1984. He had collected some firewood from the forests close to his home in Khunti Subdivision, now a full-fledged district of Jharkhand State. He was produced in the CJM’s court from custody on few occasions only. Thereafter, he was never produced in the court. The trial didn’t begin even because police did not submit any inquiry report.

    These were some of the facts related the arrest of the accused I had collected and submitted for onward transmission to Union Home Ministry which had ordered an inquiry. I had no knowledge for rest of the unfortunate man, an Oraon [sorry, I forget his name] . I was then in Bihar’s Education Department. Strangely, I never knew why I was picked for an inquiry!
    I felt that he was innocent and in an insensitive system, he was made to suffer.

  2. How come that Jessica Lall who was murdered by a politician’s son in a bar-cum restaurant full of customers none of whom saw the crime being committed?
    And lo and behold! a black-buck was shot at dead of night and there were eye witnesses for the crime to testify in the trial court.
    Hope Gopal Vaidya will appreciate the case before making a biased observation as he has done.

    • Remember it took more than a decade for the shooting of the black-buck case to come to a conclusion. How is it practical to protected witnesses for decades? Since the conviction rate in India is so low, this proposal will simply let criminals loose on the society. In America the conviction rate is well above 95% and the vast majority of the cases are resolved within 1 year. Even in a high profile case, the rapists and killers of Nirbhaya sit comfortably in jail because the Supreme Court isn’t satisfied with one sitting and has no time for another sitting. Speeding up the delivery of justice is critical and of far greater importance because it keeps the case fresh and reduces the likelihood of witness tampering or witnesses dying or forgetting.

  3. Many well meaning people educated in the west simply do not understand the functioning (or lack of functioning) of India’s legal system. In India, it takes more than a decade to convict anybody. By that time, witnesses are dead, gone or bribed. The conviction rates are abysmal. What this article proposes will amount to giving money to a large number of criminals or force them to be released into society. Remember that it took more than 10 years to convict Salman Khan in a simple case because he was able to create endless delays. Once convicted his conviction was overturned that very day. This story is repeated, ad nauseum, in cases like Jayalalitha, Sukh Ram, Ansal brothers, and uncountable others. Now these were people with money and the ability to manage the docket in the courts to ensure that they got a quick hearing from a favorable judge. But this is what our justice system will look like for all cases, if this proposal were to ever be accepted.

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