7 February, 2019
Article 21 of the Constitution of India ("Constitution") confers, on every person, the fundamental rights of life and personal liberty. As per this Article, "No person shall be deprived of his life or personal liberty except according to procedure established by law." The Hon'ble Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, while re-defining the contour of Article 21 of Constitution had, inter alia, held that the procedure envisaged under this Article must be "right, just and fair" and not "arbitrary, fanciful or oppressive". Further, the Hon'ble Supreme Court in Hussainara Khatoon (I) v. Home Secy., State of Bihar, (1980) 1 SCC 81, recognizing the right to speedy trial as one of the offshoots of the rights conferred under Article 21 of the Constitution has held, "No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21."
The Indian justice system works on the principle of, "Fīat jūstitia ruat cælum1". Despite this, instances of malicious prosecution2/ conviction and wrongful incarceration of innocent persons are quite common. In all such cases, individuals who are wrongfully prosecuted, implicated and incarcerated for several precious years of their lives, even on an honorable acquittal, have not much to gain. Besides being forced to live under social stigma, absence3 of statutory provisions or state mechanisms providing for rehabilitative, restorative and compensatory measures to such victims and their family members (who suffer equally), aggravates their agony.
Courts in India have often expressed their concerns on the pitiable conditions of the under trial prisoners4 and in appropriate cases, to an extent, compensated for the wrong done to such victims of malicious and wrongful prosecution, detention and conviction. However, there is no uniform mechanism which ensures remedy in all such instances of "miscarriage of justice5". Article 14(6)6 of the International Covenant on Civil and Political Rights ("ICCPR") confers right on victims of wrongful conviction, which is subsequently reversed or pardoned on discovery of facts establishing conclusively that there has been miscarriage of justice, to be compensated according to law. Further, Article 9(5) of ICCPR provides, "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation". Several counties7 throughout the world have converted their commitment under Article 14(6) ICCPR into law by either verbatim adoption of the said Article under their domestic legislation, or by conferring discretion on administrative or judicial bodies to determine whether or not to award compensation, or by utilizing general power of the domestic government to make ex-gratia payment8.
India9, despite ratifying ICCPR, has till date failed to provide any domestic legislation for rehabilitation and compensation of victims of wrongful/ malicious prosecution and incarceration. The victims are left to rely on limited remedies available to them under the exiting legal framework. Therefore, relief may be sought by filing a suit for damages for the tort of malicious prosecution or by invoking provisions under the criminal law10. Indian Courts11, recognizing the sanctity of individual's right to life and personal liberty, have also exercised their Writ and Inherent Jurisdiction by granting compensation to such victims in appropriate cases12. However, experiences have shown that such remedies have remained episodic and often proved grossly inadequate to cater to the requirements of all situations.
The Hon'ble High Court of Delhi, in Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018) DLT 31, while acknowledging the inadequacy of legislative framework for providing relief to the victims of wrongful prosecution and incarceration, requested the Law Commission of India ("Law Commission") to "undertake a comprehensive examination of the issue…" Pursuant thereto, after extensive examination, the Law Commission submitted its Report13 titled as, "Wrongful Prosecution (Miscarriage of Justice): Legal Remedy"("Report") to the Government of India for its consideration. Besides providing for the standards to be applied in cases of "miscarriage of justice" and the meaning of "wrongful prosecution14", certain amendment15 to the Code of Criminal Procedure, 1973 ("CrPC/ Code") have also been suggested in the said Report.
As per the Law Commission, the standard of miscarriage of justice provided under Article 14(6) of the ICCPR is insufficient to overcome the shortcoming of the criminal justice system in India. Law Commission has acknowledged that such limited definition16 would fail to cater to all situations. Commission opined that a situation where, though, the victim is finally acquitted, however, had to undergo illegal and wrongful detention, torture in police custody, long incarceration, etc. is not covered under the limited parameters provided under this Article. Law Commission has further acknowledged that limited technical advancement and lack of zeal of investigative agencies hardly leaves any scope of discovery of "new facts proving factual innocence of the convict". At the same time, as per the Law Commission, if the standard of miscarriage of justice is set as long period of incarceration, it would leave out cases where the victim may not be in prison during his period of prosecution (being released on bail), however, suffered on account of such wrongful prosecution, prolonged trial, social stigma, loss of employment, etc. Therefore, the Law Commission has proposed that the standard to determine "miscarriage of justice" in India should be of wrongful prosecution17. As per the Law Commission, "the standard of wrongful prosecution should be the most effective for identifying the cases of miscarriage of justice as it directly targets procedural and prosecutorial misconduct, which appears to be one of the primary sources of factual errors that results in innocent people being held guilty of offences they did not commit."
The Law Commission, accordingly, has recommended the insertion of new Chapter18 under the Code providing for mechanism for adjudication upon the claims of wrongful prosecution and payment of compensation to the victims by State. It is proposed (under Section 365A) that such application(s) may be made by victim of wrongful prosecution (accused person who has sustained injury), or his duly authorized agent of all or any of his heir(s)/ legal representative(s), etc. in case of death The Report further suggests establishment of Special Courts to deal with all such claims for compensation, which have to be made within two years19 of finality of acquittal of the victim Under Section 2 of CrPC, insertion of terms, "malicious prosecution20" and "wrongful prosecution" is proposed. Further, Law Commission has recommended insertion of provision for providing monetary compensation by State on final adjudication of victim's claim(Section 365C), considering the factors as provided under proposed Section 365 E. Under Section 365F, provision for offering non-pecuniary assistance to victims by purging such victims from the offences is proposed. Further, under Section 365 H, providing for Appeal to the High Court against the order of compensation is also proposed.
These recommendations are also noteworthy for the fact that the liability is proposed to be fixed not only on the state but also in the erring public officer (Section 365C).
The recommendations made in the Report have not yet been incorporated under the statute. However, they certainly show the way ahead. India, being a welfare State needs to take progressive steps towards emancipation of the victims of injustice. It is travesty of justice if the society and State continues its apathy towards its fellow beings, penalizing and stigmatizing them for offences never committed by them. Indian justice system works on the maxim, "Ubi jus ibi remidium". Though, absence of remedy is no justification for non-protection of individual's rights, however, statutory provisions do form a guiding framework for the justice system to work. Substantial time has lapsed in the absence of statutory provision for protection of victims of wrongful prosecution. It is high time that State stopped disregarding the plight of such victims of wrongful prosecution. State can further no longer shy away from its responsibility to provide compensatory and rehabilitative measures to the victims of such "miscarriage of justice'. It is only when that the State fulfills its commitment towards its nationals, who have been subjected to injustice in the name of law, it can truly claim itself to be a welfare State. Clearly, the principle running at the core of justice is "Innocent until proven guilty" and not vice versa.
For further information, please contact:
Sanjeev Kumar, Partner, L&L Partners
luthra@luthra.com
Abhishek Goyal, Partner, L&L Partners
luthra@luthra.com
Footnotes
1. Legal Maxim meaning, "Let justice be done though the heavens fall."
2. Hon'ble Bombay High Court in Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. 320 has held, "To prosecute is to set the law in motion, and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question…"
3. Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi, 247 (2018) DLT 31, Hon'ble High Court of Delhi has observed, "There is at present in our country no statutory of legal scheme for compensating those who are wrongfully incarcerated…"
4. Hussainara Khatoon & Ors. (IV) v. Home Secretary v. State of Bihar, Patna, (1980) 1 SCC 98 and Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590.
5. Hon'ble Bombay High Court in Bibhabati Devi v. Ramendra Narayan Roy, (1947) 49 BOMLR 246 has held, "…That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect."
6. "When a person has by a final decision been convicted of a criminal offence 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."
7. Eg. United Kingdom, United States of America, Canada, Germany, etc.
8. Report No. 277 of the Law Commissions of India ("Wrongful Prosecution (Miscarriage of Justice): Legal Remedy")
9. India ratified ICCPR in the year 1968.
10. Eg. Offences under Chapters IX and XI of the Indian Penal Code, 1860
11. Invocation of Writ jurisdiction of Court seeking redress against the fundamental rights, inter alia, under Article 20 (Protection in respect of conviction for offences); Article 21 (Right to Life and Personal Liberty) and Article 22 (Protection against arrest and detention in certain cases) of the Constitution of India.
12. Rudal Sah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh, MLA v. State of J & K & Ors., (1985) 4 SCC 677; Veena Sethi v. State of Bihar, AIR 1983 SC 339, etc.
13. Report No. 277, dated 30.08.2018
14. Section 2(xa) "wrongful prosecution" means malicious prosecution or prosecution instituted without good faith, which concluded in favour of the accused, and includes any of the following, namely: (i) making or fabricating a false or incorrect record or document for submission; (ii) making a false declaration or statement before an officer authorised by law to receive as evidence when legally bound to state the truth that is to say by an oath or by a provision of law; (iii) otherwise giving false evidence when legally bound to state the truth that is to say by an oath or by a provision of law; (iv) fabricating false evidence for submission; (v) suppression or destruction of an evidence to prevent its production; (vi) bringing a false charge, or instituting or cause to be instituted false proceedings against a person; (vii) committing a person to confinement or trial acting contrary to law; (viii) acting in violation of any law in any other manner not specifically covered under (i) to (vii) above;"
15. Draft Code of Criminal Procedure (Amendment) Bill, 2018.
16. As per Article 14(6) ICCPR, standard of miscarriage of justice is invoked only when a new fact establishes factual innocence of the victim after a final conviction order by the final appellate court and after all avenues of appeal have been exhausted.
17. "…Since the qualifying threshold of this standard is wrongful prosecution, it would include both the cases where the person spent time in prison as well as where he did not; and cases where the accused was adjudged innocent by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty." (Para 5.13 of the Law Commission's 277 Report).
18. Chapter XXVII A- Sections 365A till Section 365I.
19. Extendable in case the Special Court is satisfied that the applicant was prevented by sufficient cause from making the application in time.
20. Section 2(ja) "malicious prosecution" means instituting the prosecution complained of without any existing reasonable or probable cause;"
