Edited by: R Husain

The notorious inefficiency, corruption and red tape plaguing the Indian criminal justice system is well known. However, despite its faults, it is still believed that an independent functioning judiciary is a guarantor of fairness and justice, at least for those brave enough to navigate its complex web of procedures and suffer through the infamous tareekh pe tareekh nature of its functioning.

This fairness hypothesis however, crumbles when put to test against the plight of those stuck on the other side of the system, whose only crime is often their poverty, illiteracy or in most cases, just being in the wrong place at the wrong time. As a result, these individuals have had their lives uprooted and lost months or even years for crimes they haven’t committed.

It was eminent jurist William Blackstone, who once said:

“Better That Ten Guilty Persons Escape Than That One Innocent Suffer”

William Blackstone

In our modern populist democracies, however, the collective bloodthirst for quick and instant delivery of justice, has left the ethos of Blackstone more violated than ever before.

Non-Existent Right To Compensation

Wrongful convictions and prolonged pretrial detentions are endemic across the world. In several nations however, such injustice is dealt with by way of compensation for the victims of such actions and punitive action against both the system itself and the individuals directly involved. One such act being in the news recently wherein a man who served nearly three decades for a murder he didn’t commit was awarded $27 million — $1 million for each year he was in prison — by a federal jury in the United States. The headlines flashed: “Jury Awards $27 Million To Massachusetts Man Wrongfully Convicted Of Murder

Justice System
Mark and Mia Schand, wearing T-shirts from the innocence organization Centurion Ministries in 2015 (Photo: Karen Brown/New England Public Radio)

India on the other hand, not only has no law regarding the compensation and restitution for wrongful imprisonment, the amounts awarded are often arbitrary and in some cases outright denigrating to the victims.

No amount of compensation can ever make up for the stress, mental trauma, loss of livelihood and months or years being taken away from people’s lives, but putting a monetary figure on such lapses is often the best way to hold local administrations & law enforcement officials accountable.

Even though you cannot put a price tag on time, punitive fines used to pay compensation for victims can help them get their lives back on track and acknowledge the wrongs.

In 1996, following the Lajpat Nagar Blast in New Delhi, Mohammed Ali Bhat working as a shawl trader more than a 1,000km away in Kathmandu, Nepal, was bundled into a car and taken to Delhi to be made an accused in the case. From there, he was taken to Rajasthan and charged with involvement in yet another blast case. 

Since then, it took 23 years of hearings, arguments and adjournments before the Rajasthan High Court declared Bhat to be innocent.

It took 23 years of hearings, arguments and adjournments before the Rajasthan High Court declared Bhat to be innocent. During which time he was deprived of his liberty, his life completely destroyed. Bhat today is a broken, defeated man even though he “won” the case after more than two decades. The only connection he now has to his past life are the graves of his parents, who died while he languished in prison.

Cases like those of Bhat are dime a dozen in the Indian justice system. There is one of Bala Singh from Uttar Pradesh, who spent 10 years behind bars for a crime he didn’t commit, while the real criminal was at large. The only reason behind his incarceration was that he had the misfortune of sharing the same name as the criminal.

What is more depressing about such stories is that after a hard won fight for their freedoms, such exonerees often find themselves picking up the pieces and fending for themselves, with the state and society barely doing anything worthwhile to offset the harm done or provide restitution of some sort.

The compensation awarded by courts for such prolonged incarcerations often range between INR 30,000 to INR 100,000, which as mentioned earlier, is a source of further denigration for victims.

The victims of such miscarriages of justice have to file more petitions for compensation, again fighting against the bureaucratic hell and a system that is stacked against the poor and the illiterate, which many victims no longer have the energy or will to take on. In the case of Ram Lakhan Singh v State of UP, the petitioner had to fight the case for 10 years to claim compensation of rupees 10 lakhs.

It’s the general apathy that we as a society exhibit towards those at the bottom of societal hierarchies, that is to blame for such injustices. Nothing better illustrates the utter disregard we have towards such victims than the apex court of the country refusing to give a favorable ruling on a rehabilitation package for people falsely accused of terrorism and later found not-guilty after spending years in prison, because it might set a ‘dangerous’ precedent. A dangerous precedent for setting right a wrong?

World over it is widely agreed that there has to be a statutory framework to compensate and rehabilitate individuals who are wrongfully prosecuted by the state, but India is yet to recognize this natural principle to remedy such wrongful denial of right to liberty.

The Law Commission of India, in its 277th report has suggested the implementation of a framework to compute the monetary value of loss to an individual wrongfully accused, removing the ambiguity and uncertainties that surround such petitions, while also providing litigators and petitioners much needed structure and legitimacy to move forward with their claims.

This report however is nothing new. There have been numerous such recommendations from commissions, task forces and think tanks for many years, none of which have made any notable impact given the low regard Indian society and political establishment have towards life & liberty, especially for those in the lower rungs of our country, such recommendations often progress at a snail’s pace.

Negligence, Malicious Prosecution & Lack of Accountability

For the keen observer, criminal investigations and judicial procedures in India are rife with circumstances that can result in innocent individuals being deprived of their liberties. There are innumerable possibilities for how a situation can turn from bad to worse for individuals stuck in this web, including negligence, lapses in investigative procedures, hiding evidence that could favor the defense, political and media pressures, and sometimes even prejudices towards certain sections of society.

Such issues are further intensified by the notoriously slow turning wheels of the Indian Judicial System, with high pendency rates, and vacancies in judicial positions, people are often left at the mercy of the system that is itself hellbent on victimizing them.

The story of Ashok Kumar, the bus conductor accused initially in the Ryan School Murder Case is still fresh, and is a glaring example of how easy it is for law enforcement officials to even compel innocent individuals to confess to crimes they haven’t committed.

For almost a week, the police presented Ashok Kumar to the media, who willingly admitted to trying to sodomize an 8 year old, and then murdering the boy in a school toilet. However faced with a humongous public outcry, when the government was forced to transfer the case to the CBI, it came to light that it was actually a class 11 student from the same school who committed the heinous crime.

This raised a lot of questions regarding how the police got Ashok Kumar to confess to crimes he hasn’t committed. Surely no one would willingly admit to such crimes without undue pressure. What’s more, the torture and brutality by law enforcement officials in this case is yet to be investigated, and Ashok Kumar, who still struggles with the physical and psychological impact of his ordeal, is yet to receive any compensation from the government.

This case clearly highlights the deep rooted bias against the poor, the illiterate and the marginalized in Indian society. The Gurgaon Ryan School Murder Case, could have very well ended with the bus conductor getting convicted and spending a lifetime behind bars, while the actual offender goes scott-free! While this is one such case that clearly puts the incompetence of our police forces on display, it is one of the 100s of such cases and 1,000s of individuals who are victimized by the system each year.

The instances of negligence and procedural lapses rising out of incompetent & unscrupulous functioning of agencies number in the 1,000s, but this however pales in comparison to a much larger issue, that is, the malicious prosecution. Put in simple words, malicious prosecution is the abuse of legal procedure or prosecution without reasonable or probable cause.

Malicious prosecution includes everything from fabricated charges to planting or suppression of evidence that could otherwise prove the innocence of the accused. This also includes the use of torture to coerce a confession or falsely incentivizing an accused to turn approver against others, despite being aware of the illegitimacy of their statement.

Such cases are often a result of political or media pressure, compromising the independence of investigating agencies. Political and electorally charged narratives such as the ‘War On Terror’ or ‘Love Jihad’ often lead the way in impairing the liberties of various youth mostly from the minoritites and the marginalized groups in society.

Another flaw that seems to permeate deep into our political establishment is the increased impetus towards maintaining order over upholding the law. This explains the attempts governments make to  circumvent judicial orders, often slapping fresh charges to keep people imprisoned for extended periods.

Undertrials in India continue to reel under the curse of preventive detentions, with the help of draconian British and emergency era laws, such as sedition or National Security Acts, persons deemed a security risk by executives within the government. In extreme circumstances, persons can be detained under these laws for 5 to 15 days before they are presented before a judge.

Here again, it’s the majoritarian political establishment along with the collective bloodthirst of society to see people punished, that is to blame for the persistence and spread of such laws.

In 2018, as per government’s own data, almost one lakh people were arrested and detained under Preventive Detention (PD) laws such as the National Security Act, 1980

What makes matters worse is that such laws and measures can be used and abused by officials and executives within the government with absolute impunity, making it ripe for misuse. Such powers and laws afforded to cops by the government take a turn for the worse under situations such as the present Covid-19 pandemic and resulting lockdowns.

During June 2020, in Tamil Nadu, per media reports, a father son duo were brutally and sexually assaulted and tortured in police custody, leading to their death, for not following COVID-19 protocols. What was just a power trip for the cops, was a result of lax oversight due to the unavailability of medical staff to perform mandatory medical check-ups of all those who are under police custody, along with the lack of normal judicial proceedings, which meant they could not be brought in front of a judicial magistrate within 24 hours of arrest.

Pertinent to note here that India, while being a signatory, has not ratified the UN Convention Against Torture (UNCAT), as yet.

Also Read: Do Nations Bother About The UN Convention Against Torture (UNCAT)?

A lot has changed in our criminal justice system over the past few decades, but the essential checks and balances required to ensure effective and fair delivery of justice often gives way to demands of instant justice by ignorant politicians and the general public. If we are to truly bring an end to such injustices, we absolutely require frameworks to keep discretionary powers of government executives in check.

Time and time again, the Indian judiciary has failed to curb the rise of an all powerful state, or hold it accountable for how it discharges its powers. The reverence that we as a society had for liberty and justice, at the time of independence has faded beyond recognition. We’re now literally reducing ourselves to be a nation of mobs, vigilanties and tribalists, with absolutely no regard for individual liberties.

Also Read:

No Country For The Poor

Perhaps the reason why police and judicial reforms don’t factor that high on our national agendas, is because these are issues that predominantly plague those on the fringes of society, not those of us living in the protective bubbles of our gated communities. This is also why anxieties regarding dealing with cops or being in the wrong place at the wrong time rarely ever cross our minds.

If we were forced to face the systemic issues of society on a daily basis, such as maids, truck drivers or daily wage workers, we too would experience anxiety on seeing cops or government officials crossing our paths. If you are even just capable of reading and comprehending your own rights as an individual, you are part of a privileged class that doesn’t have to deal with such issues.

A majority of the undertrials that languish in Indian prisons are those who hail from the lowest rungs of society, with poverty so crippling that they are unable to pay even modest bail amounts to secure their freedom. This is also why we hear stories of accused spending more than the maximum sentence for their crimes as undertrials only to be let off before the trial even begins.

It was nearly forty years ago that our Supreme Court remarked that long incarceration periods of undertrials was a ‘crying shame on the judicial system’, and ever since then the situation has only gotten exponentially worse, with no signs of getting any better.

To bring lasting changes to our criminal justice system, we have to make it a politically relevant talking point, build consensus across political lines and pressure governments to bring about changes. This is only possible when more such stories of injustices and lapses come to the spotlight, and such pieces get shared on social media.

Justice delayed is justice denied and this applies to the victims of unlawful incarceration too.

Also Read:

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  1. Even though the Courts acknowledge the sloppy investigation & the wrong doings, onus of which lies on the state & it’s arms, even judiciary, but it doesn’t look to be in a mood to rectify the system. Not even an effort to make the system efficient by discouraging wrongs, that are deliberate introduced with biased & ulterior motives as in this case.

    In its judgement on August 18, the Supreme Court bench comprising justice Indira Banerjee and justice V Ramasubramanian said the police had worked on “extraneous considerations” and the investigation was designed to turn the informants into the accused. “We are clearly of the view that the investigation in this case was carried out by police not with the intention of unearthing the truth, but for burying the same fathom deep, for extraneous considerations and that it was designed to turn the informant and her family members as the accused and allow the real culprits named in the FIR to escape,” the judgement read.

  2. In an Interview given to TheWire Erendro alleges torture in custody and has asked for compensation from the State. Onus on the Judiciary to punish those responsible for the torture and award adequate compensation to the scribe . In activists own words ‘Was Physically Abused in Custody,’ on being Booked Under NSA For ‘Cow Dung’ Post https://m.thewire.in/article/rights/interview-manipuri-activist-erendro-national-security-act-jail-physically-abused

  3. OK so it seems you haven’t read this one, courtesy write Kavitha Iyer. It’s bound to dwarf all other in excesses by the state. FYI, in short Gujarat police arrested 124 Muslim men in 2001, accused them of reviving a banned Islamic group. Claims were made of foreign links and conspiracies. A Surat court found no such evidence and acquitted all of them, 19 years later.” https://article-14.com/post/how-gujarat-police-used-islamophobia-to-build-terror-case-with-no-evidence-against-124-men–60e66494cc664

  4. OK did anyone see this Sad story that again is pointing to the wrongs but no judiciary trying to rectify this.. Of course why Shld they, till this menace of state power usurps & engulfs their own sons and daughters?.. A tweet by..
    “Guilty until proven innocent: How a draconian law and police conspiracy led to the wrongful imprisonment of a Kashmiri man, who spent 12 years in an Indian prison” ..

  5. Another Example of Injustice being swept under the Carpet. Why doesn’t the Judiciary be true to itself and recognize this menace of deliberate victimization and Injustices being perpetuated on the minorities and the down trodden in India. Where is the suo moto cognizance of is it simply to force respect onto citizens despite being unworthy of such respect..

    Below is an excerpt from a news item that reiterates the dismal state of Human Rights of the poor in India

    “After 5 Years in Jail, Muslim Man from Tripura Acquitted in Karnataka Terror Case – https://clarionindia.net/after-5-years-in-jail-muslim-man-from-tripura-acquitted-in-karnataka-terror-case/

  6. “Ilyas (38) and Irfan (33) were released after almost 9 years in jail, acquitted, including under the UAPA.
    That they were exonerated, might mean that justice prevailed. That they lost years of freedom with no accountability within the system, certainly means that justice failed…” tweeted one Lawyer Sibal Akhil vide dt 17 Jun 2021 https://twitter.com/SibalAkhil/status/1405376269890449409?s=19

    Will the government compensate. Will the judiciary penalize the perpetrators of Injustice. Will there be an outcry by so called Humanitarian Rights upholders .. Let’s see

  7. A Mathura Court dropped proceedings on charges related to apprehension of breach of peace against Kerala journalist #SiddiqueKappan and 3 others as the police failed to complete the inquiry against them within the prescribed period of 6 months. Sub Divisional Magistrate, Maant, Ram Datt Ram, on Tuesday discharged accused Atikurrahman, Aalam, journalist #SiddiqueKappan and Masood arrested under sections 151, 107, 116 CrPC https://t.co/llH4FOnWkY

    Now The onus on the Judge, the entire judiciary and the State to ensure that adequate compensation is granted to the acquitted and those responsible for filing fake cases Shld be identified and the compensation amounts be recovered from them in addition to penalising them so as to serve CAA a deterrent for future


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