Report No. 277
Conclusion and Recommendations
6.1 After identifying 'wrongful prosecution' as the standard of miscarriage of justice and determining the contours of term 'wrongful', this chapter discusses the rectification of the said miscarriage i.e. how to make reparations for the same because mere acquittals are not enough. This chapter, therefore, concludes the Report with Commission's recommendations on rectification of this miscarriage of justice resulting in wrongful prosecution.
6.2 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 were subjected to the ordeal of wrongful prosecution. For a person who has been accused of a crime, who underwent criminal proceedings (often long drawn), whose name and reputation has been affected for being accused and/or convicted of a crime he did not commit, who has spent time in prison for a crime he did not commit, there still lies an uphill battle even after acquittal.137
6.3 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. There needs to be compensatory assistance by the State to help the innocent victims of miscarriage of justice, who have suffered through wrongful prosecution, to rehabilitate and to adjust to the life-after, and to reintegrate into society.
6.4 Article 14(6) of the ICCPR read with the General Comment 32 of the United Nations Human Rights Committee (supra), dealing with miscarriage of justice, requires that the victims of proven cases of such miscarriage to be compensated 'according to law'. These provisions collectively create an obligation on the state parties to it to enact a legislation ensuring that the said victims are compensated, and such compensation is made within a 'reasonable period of time'.
As noted earlier, many countries including the United Kingdom, the United States, and Germany have converted this commitment into law, where the State has assumed statutory responsibility for compensating the victims of such miscarriage of justice. India ratified ICCPR in the year 1968 (with certain reservations) but is yet to comply with its obligations and enact a legislation laying down the law for compensation of the victims of this miscarriage of justice.
6.5 One of the reservations made by India, while ratifying ICCPR, was that the Indian legal system does not recognize the right to compensation for victims of unlawful arrest and detention.138 However, subsequently by virtue of judicial decisions, compensation was recognised as a remedy for redressal of miscarriage of justice resulting in violation of right to life and personal liberty including wrongful prosecution; albeit under public law as a claim of constitutional tort against the State, to be filed in the Constitutional Courts i.e. the Supreme Court and the High Courts.
6.6 From the landmark cases of Rudal Sah (supra), Nilabati Behera (supra), D. K. Basu (supra) to the 2016 case of Dr. Rini Johar (supra), the Supreme Court has recognised the remedy of recovering appropriate damages from the State as one of the telling ways in which the violation of fundamental rights can be prevented "to mulct its violations in payment of monetary compensation"139. Holding monetary compensation for the suffering and humiliation as "a redeeming feature"140; "an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement to apply balm to the wounds of the family members of deceased victim who may have been the breadwinner of the family."141.
This view has also been echoed by various High Courts over the years, as was also observed in the Order dated 6 July 2018 of a Division Bench of the Madhya Pradesh High Court in the case of Durga @ Raja v. State of Madhya Pradesh142 and Nandu @ Nandkishore v. State of Madhya Pradesh,143 where the Court held that appellants who are innocent and have suffered because of poor investigation and tainted prosecution, deserve compensation from the State.
6.7 Despite the above, under the current set of remedies, claim and grant of compensation for the said miscarriage of justice still remains complex and uncertain. Under public law (as discussed earlier, in Chapter IV - 'Current Scenario - Overview and Inadequacies'), a violation of fundamental rights due to police and prosecutorial misconduct can invoke State liability (as noted in the case laws discussed); but the amount and payment of compensation remains arbitrary and lacks transparency. In other words, despite decades of jurisprudence on compensation under public law, there is no set legislative principle regarding the basis for determining the award of compensation or its amount thereof.
6.8 It needs to be noted that Article 21 protects 'life and personal liberty', and by virtue of judicial pronouncements, deprivation of the 'life and personal liberty' invokes the aforesaid public law remedy of compensation, but there is no explicit provision in the Constitution of India for grant of compensation by the State for the infringement of right to life and personal liberty (as noted earlier in the Report).
In this manner, the currently available remedies only create an ex gratia obligation, and not a statutory obligation on the State to compensate. A natural corollary of which is that while there is judicial precedent enabling a victim of the said miscarriage of justice to approach the Supreme Court and the High Courts under their respective writ jurisdiction for relief, there is still no statutory right of compensation for such victim/claimant.
6.9 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. As things stand, there is no statutory or legal scheme articulating the State's response to this issue. Moreover, given the endemic and sensitive nature of the issue, and the glaring inadequacies of the available remedies, 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 - laying down State's statutory obligation to recompense these victims of wrongful prosecution, and a dedicated judicial mechanism to give effect to the same.