I told you, I didn’t do it…

According to the Cambridge dictionary the term “miscarriage of justice” is used to refer to:

 “a situation in which someone is punished by the law courts for a crime that they have not committed”

In the year 2016, in the Tiena Anthony Pora case, where the accused was falsely implicated for rape and murder and had served a sentence of 21 years, he was awarded a compensation of $2.5 million towards pecuniary and non-pecuniary losses incurred due to the false conviction.. He was later awarded an extra $988,099 in addition to his $2.5 million compensation package to account for the lack of inflation adjustment after which the amount became $3,509,048.42. Addionally, Mr Pora received $45,000 in costs from his successful judicial review of the last National Government’s refusal to inflation adjustment as earlier an amount of $2.5 million was awarded without adjusting the inflation rate.

Across the globe, there are many countries which have laws to provide for compensation in case a person serves considerable amount of time in jail and is later proved to be falsely convicted, thus leading to his exoneration.The International Covenant on Civil and Political Rights, 1966 (ICCPR) is of paramount significance among the key international documents on miscarriage of justice. It discusses the obligations of the State in cases of miscarriage of justice which result in wrongful conviction of innocent people. It requires the State to compensate the person who has suffered punishment on account of a wrongful conviction. However, it has also been provided that the conviction should be such which was final, and was later reversed/pardoned on the ground of miscarriage of justice i.e. discovery of a new fact which proves that the accused was factually innocent. A total of 168 State parties, including India, have ratified the ICCPR. However, not all countries have converted their commitment into law. But the ones which have such laws include:

  • United Kingdom:
    • Criminal Justice Act, 1988 – Part IX Miscarriage of Justice, Ss. 133,133A,133B;
    • K. Police Act, 1996 – Section 88 (Liability for wrongful acts of constables)
  • Germany:
    • The Constitution of Germany [Grundgesetz (GG)], 1949 in its Article 34 (Liability for violation of official duty;
    • Law on Compensation for Criminal Prosecution Proceedings 1971 – Article 1.
    • “Strafverfolgungsentschädigungsgesetz”(StrEG), translated as “Law on Compensation for Law Enforcement Measures” in force since 1971 – § 7 Abs. 3
    • “Strafgesetzbuch”(in effect since 1872) – Sections 97a and 97b
    • German Civil Code (in effect since 1900) called Bürgerliches Gesetzbuch (BGB) – § 839, read with Art. 34 GG.
  • United States of America:
    • United States Code Title 28 § 1495 & §2513.
    • State legislations all across the U.S. like in Illinois – Ill Rev Stat Ch. 705 § 505/1; in Columbia – DC ST ¬ß 2-421
  • Canada:
    • Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons
    • Option to pursue a civil cause of action, such as a claim in tort for malicious prosecution, negligent investigation, prosecutorial misconduct, or false imprisonment, or a claim for breach of rights protected under the Canadian Charter of Rights and Freedoms.

As far as the position in India is concerned, at present, the remedies available to a person who has been wrongly convicted are:

  • Public Law Remedy:

It is enshrined in the Constitution of India as in such cases, it is the violation of a person’s fundamental rights under Article 21 (The Right to Life and Liberty), and Article 22 (Protection against arbitrary arrests and illegal detention etc.) due to which writ jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution respectively is invoked. It also includes the grant of compensation to the victim, who may have unduly suffered detention or bodily harm at the hands of the employees of the State.

  • Private Law Remedy:

It exists in the form of a “civil suit” against the State for monetary damages. The Apex Court has time and again stressed upon the above discussed Constitutional remedy of a claim based on strict liability of the State being distinct from and in addition to the remedy available in private law for damages on account of tortious acts of public servants.

  • Criminal Law Remedy:

Indian Penal Code, 1860 (IPC) – Ss. 166A, 167, 218, 219, 220 etc.

Recently in the matter of Sham Singh v. State of Haryana, the Hon’ble Supreme Court in its Judgement observed that:

(Para 24) “We find that the Trial Court and the High Court have convicted the accused merely on conjectures and surmises. The Courts have come to the conclusion based on assumptions and not on legally acceptable evidence, but such assumptions were not well founded, inasmuch as such assumptions are not corroborated by any reliable evidence. Medical evidence does not support the case of the prosecution relating to offence of rape.”

(Para 25). “For the reasons aforementioned, the offence of rape does not stand proved. Accordingly, the appellant deserves to be acquitted, by allowing this appeal. As mentioned supra, the first accused – Jai Singh has already served out the sentence imposed upon him, and the appellant before this Court has already served the sentence of seven years’ out of the total sentence of ten years’ imposed upon him.”

(Para 26).”The appeal is thus allowed, the appellant – Sham Singh is acquitted of the charges levelled against him. He shall be released forthwith, if not required in any other case.”

After coming across such cases, the first thought that comes to the mind is, Where is the justice ? What can be done about the fact that a person has passed so many years paying for a crime which he did not commit? Would a person have any faith left in the judicial system, after knowing that it failed him for so many years? Will the person approach the courts again for any relief ?

Recently, the Law Commission in its 277threport gave its recommendations regarding the “Miscarriage of Justice”. It recommended:

  • There should be enactment of specific legal provisions for redressing cases involving miscarriage of justice which have resulted in wrongful prosecution. By such provisions it intends to create a statutory obligation on the State to compensate the victims of wrongful prosecution by giving a statutory right to compensation. In such cases where the State pays compensation for the malafide acts of its officials, it can seek indemnification from such officials while also having the right to initiate appropriate civil/criminal/departmental proceedings against them as per law.
  • Setting up of Special Courts for the speedy disposal of matters relating to miscarriage of justice. “Speedy disposal” is stressed upon as the victim has already been subjected to a lot of agony due to the prolonged process of justice. The “Cause of Action” for filing a claim for compensation should be that of, “wrongful prosecution”, which ended with an order or judgment in favour of the accused, inter alia acquitting him. Wrongful prosecution to include prosecutions instituted in bad faith and malicious prosecutions i.e. malicious institution by one against another of unsuccessful proceedings without reasonable or probable cause.
  • A prosecution instituted without “good faith” should also be included within the purview of wrongful prosecution, giving rise to a claim for compensation.
  • “Good faith” should be defined in the same way as given Section 52, IPC which states that “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention.”
  • A claim for compensation for wrongful prosecution would be for the harm/damage/injury caused to any accused person in body/mind/reputation/property as a result of the wrongful prosecution. The claim for compensation can be brought by the accused person so injured or by any agent duly authorized 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 burden of proof to prove misconduct which lead to wrongful prosecution, and/or the misconduct during the prosecution which made it wrongful should be on the claimant (accused).
  • Additionally, the framework should also include prescribed timelines for the disposal of the application, for payment of compensation; period of limitation for filing the claim for compensation, and for filing an appeal against the order of the Special Court.
  • Compensation/Relief provided to the victim is the essence of a statutory response to the victims of wrongful prosecution as it defines the basic intentions and objectives of this law. The statutory response aims to assist the wrongfully accused/convicted in reintegrating into society or their lives for that matter.
  • The monetary compensation to be paid should be based upon the guiding principles/factors that a Special Court will be required to consider while determining the compensation including the amount of monetary compensation. The factors to be taken into consideration while determining the amount of compensation should include:
    • Financial factors
    • seriousness of the offence
    • severity of the punishment
    • the length of incarceration
    • loss or damage to health
    • psychological and emotional harm
    • status of the victim in the society
    • harm to reputation
    • loss of opportunities (of education, livelihood)
    • loss of income/earnings
    • loss or damage to property.
  • There should also be a provision providing for interim compensation in a certain specific category of cases. However, such interim compensation should be paid only if applied for, for the purpose of providing immediate assistance and which is to be paid pending the adjudication of the claim.
  • Compensation should include both pecuniary and non-pecuniary assistance to effectuate the rehabilitation of these victims of wrongful prosecution into society. While pecuniary assistance includes monetary award as may be determined by the Special Court, the non-pecuniary assistance should be awarded in the form of services like counselling, mental health services, vocational/employment skills development, and such other similar services. In addition to this, Non-pecuniary assistance should also include a specific provision for removal of disqualifications attached to a prosecution/conviction – particularly affecting wrongfully accused person’s chances of
    • Finding employment in public and private sectors
    • Getting admission in an educational institution etc.

The principles discussed in the Report are articulated in the Code of Criminal Procedure (Amendment) Bill, 2018

Tushar Kaushik

Leave a Reply

Your email address will not be published. Required fields are marked *