The order by a single-judge bench of Bombay High Court granting bail to Aryan Khan and other co-accused in the cruise ship drug bust case prompted filmmaker Sanjay Gupta to raise the issue of compensation for those who may face wrongful action from law enforcement. While the case is under investigation, here’s a look at what recourse is available when one is subjected to wrongful prosecution in India and where the country lags on this front.
Can One Seek Compensation For Wrongful Arrest/Prosecution In India?
Nambi Narayanan remains one of the most well-known cases of a person fighting for, and receiving, compensation for wrongful prosecution in India. The former space scientist was in 1994 arrested by Kerala police in what is known as the ISRO espionage case, but it was subsequently found by CBI that the charges against him were false.
The Supreme Court in 2018 awarded him a compensation of Rs 50 lakh to be paid by the Kerala government, which also paid him an additional Rs 1.3 crore in further compensation in 2020. The apex court had also directed that a high-level probe be held into the role of the police personnel involved in the case, which it held had caused “tremendous harassment" and “immeasurable anguish" to Narayanan.
But while courts being approached on a pleas for the award of compensation for wrongful arrest or prosecution is not unheard of in India, the Law Commission of India noted in a 2018 report that “under the current set of remedies, claim and grant of compensation for the said miscarriage of justice still remains complex and uncertain".
The report, ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies‘, (Report No.277) notes that while the Indian legal system does not recognise “the right to compensation for victims of unlawful arrest and detention", remedies and monetary awards are available — thanks to judicial decisions — for “miscarriage of justice resulting in violation of right to life and personal liberty, including wrongful prosecution". But such recourse is possible only “under public law as a claim of constitutional tort against the state", that is, through cases filed in the Supreme Court and the high courts, which are empowered to uphold fundamental rights.
Is There A Specific Law On The Award Of Compensation For Wrongful Prosecution?
The Law Commission report, prepared after the Delhi High Court called for it to go into the question of such compensation in a 2018 case, notes that “the currently available remedies only create an ex gratia obligation, and not a statutory obligation on the state to compensate".
While courts can, and have, directed the payment of compensation, the criminal justice system, “as it stands, does not provide for an effective response from the state to the victims of miscarriage of justice resulting in wrongful prosecutions".
But noting “the endemic and sensitive nature of the issue, and the glaring inadequacies of the available remedies", the report said there is “a pressing need for an explicit law for
compensating the victims who have suffered miscarriage of justice at the hands of the state machinery".
The absence of a specific law on payment of compensation is absent in India despite the country having ratified the International Covenant on Civil and Political Rights,
1966, (ICCPR), “one of the key international documents on miscarriage of justice".
While India ratified ICCPR in 1968, it is yet to bring in a law for compensation to the victims of miscarriage of justice with the Law Commission noting that the country aired certain reservations in the context of what the covenant requires.
Why Is There No Law On Compensation?
The Law Commission said that India had pointed out while ratifying the ICCPR that the Indian legal system “does not recognise the right to compensation for victims of unlawful arrest and detention". But the Law Commission in its report noted that the prescription provided by ICCPR may not be the most appropriate one for India.
The ICCPR says the claim for a “miscarriage of justice" arises where a final order — that is, a court ruling after all appeals have been exhausted — leads to conviction and “a new fact surfaces which then proves conclusively that the convicted person was factually innocent". It says that only in such cases does a person qualify for the relief of compensation, which is barred “where the conviction was (partly or fully) attributable to the claimant" himself or herself.
What Mechanism Has The Law Commission Proposed For The Award Of Compensation?
But this standard of ‘wrongful conviction’, the Law Commission said, “if applied, however, will fail to consider the systemic shortcomings of the criminal justice system in India" even as it has been included in the law of compensation for miscarriage of justice by countries — including in their provincial laws — by the likes of the US, Canada, Germany, etc.
Among the issues with the ‘wrongful conviction’ approach, it was pointed out, was that it would “not include within its purview forms of miscarriage of justice that an accused person may suffer even if they are eventually acquitted", like illegal and wrongful detention, torture in police custody, long incarceration, repeated denial of bail, etc, which are seen as being commonly encountered in India.
Further, the report notes that while in in western countries, thanks to advanced forensic facilities, “factual innocence is often proved through the use of DNA technology/evidence", in India, “the forensic investigation system is not that well developed", which means that a convicted person subsequently being proved innocent may not be an eventuality whose viability may be borne out by the statistics.
Therefore, the report talks about ‘wrongful prosecution’ as the yardstick for assessing the miscarriage of justice in India.
“Wrongful prosecution… are the cases of miscarriage of justice where procedural misconducts — police or prosecutorial, malicious or negligent — resulted in wrongful prosecution of an innocent person, who was ultimately acquitted, with a court making an observation or recording a finding to that effect," the report said, adding that the “underlying sentiment being that such person should not have been subjected to these proceedings in the first place".
The view is to thwart any disregard of procedural rules, the falsifying, planting or fabrication of evidence, withholding, suppression or destruction of exculpatory evidence, etc., it added.
Noting that there “still lies an uphill battle even after acquittal" for a wrongfully prosecuted person who is released from jail and is free to go back to his life, the report says that “there needs to be recompense for the years lost, for the social stigma, the mental, emotional and physical harassment, and for the expenses incurred, etc.".
It proposes, therefore, that specific provisions be brought in for redressal of cases of miscarriage of justice resulting in wrongful prosecution. Thus, the Law Commission says, there should be legislation and a legal framework “for adjudicating upon the claims of wrongful prosecution" and award of payment of compensation by the state.
The report also says that in these cases, where the state is asked to pay compensation for a wrongful acts of its officials, “it can seek indemnification" from such officials, and “also initiate appropriate proceedings against them".
Earlier this year, after a plea was filed seeking the framing of guidelines for payment of compensation to victims of wrongful prosecution and implementation of the Law Commission Report No.277, the Supreme Court issued notice to the Centre on the matter. However, the Centre’s stand on this plea is yet to be known.