Need for reform to avoid wrongful prosecution

India urgently needs to formally recognize the menace of wrongful prosecutions and reform the system to fix accountability and award fair compensation to victims, writes P.M. SWAPNA.

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WRONGFUL prosecution and wrongful incarceration has become quite widespread in the Indian legal system, with a number of judges across different High Courts in India having expressed concern over the rising number of such instances. Some cases receive massive media coverage, where the mainstream news media introduces conspiracy theories and conducts vitriolic debates on pending cases, all of which can be harmful to the undertrial's case. In addition to this, victims of wrongful prosecution, and their family members often face social stigma, monetary loss, mental trauma, and social boycott.

Also read: Making the case for a legislative framework against wrongful prosecution

Recent instances

In 2018, four persons convicted for participating in the riots in Kanpur in 2001 had to spend eight years behind bars for a crime which they did not commit. Subsequently, in 2018, the Supreme Court acquitted all of them as the prosecution failed to prove a substantive case.

The apex court bench, consisting of the Chief Justice of India N.V. Ramana (then a puisne Judge) and the late Justice, M.M. Shantangaudar, concluded that they found lapses in the investigation based on the Test Identification Parade, post-mortem reports, forensic investigation, weapons recovered and the evidence of the material witness.

The court, in this case, discussed in detail the loopholes of the investigation. The judgment pointed that the prosecution failed to establish the place of the incident with precision, and that the evidence needs to be tested with strict scrutiny. The court referred to its Kailash Gour judgment of 2011, which stated that the prosecution needs to establish a case against the accused by leading evidence that is accepted by standards known to criminal jurisprudence regardless of whether the crime was being committed in the course of communal disturbances or anything else.

On being asked about his feelings on the judgment, Syed Haider Ali Jafri, a Sahitya Academy Award winner and the father of one of the convicts who was ultimately acquitted by the apex court in 2018, stated that the judgment would be complete only when there is accountability as to who falsely framed his son.

In the case of Madhubala Mandal, life was already rough by virtue of being an illiterate widow, and the sole breadwinner of an indigent family. She was the victim of mistaken identity by authorities in Assam, for which she was detained under the suspicion of being a foreigner, as her name was dropped from the list of the statewide National Register of Citizens.

The truth did set her free at last. An affidavit was filed by the Assam police admitting that they mistakenly identified her in the Foreigners Tribunal. An article published by Outlook on her is gut-wrenching, where she expressed her anguish, and demanded compensation for the experience that she had gone through which affected her mentally, physically and economically. A case like Mandal's, who is unaware about the processes of the legal justice system and does not have access to legal aid, highlights the loopholes of our system at various levels.

If we look into terror cases, they attract the most stringent legal measures, such as strict bail conditions, prolonged detention, delays in investigations (which sometimes last for years altogether), and, worst of all, early convictions based on shoddy investigation.

Also read: Violations of Rights and Compensation: India's Failure to Adhere to International Standards

The process of trial does not start with the presumption of 'innocent until proven guilty'.

Over the years, we have witnessed many cases of wrongful prosecution in terrorism related cases. Sovereign immunity gives blanket protection to the State.

For instance, Nisaruddin was arrested from his hometown and kept in illegal detention, and subjected to custodial torture for the reason that he was a suspect in the 1993 bomb blasts in Hyderabad.

The Supreme Court, in its 2016 judgment in this matter, analysed the voluntariness of the confession recorded by the accused and the conduct of the proceedings. It held that the confession of the accused, without any legal sanction, cannot be relied upon.

The Supreme Court, in the case of Adambhai Sulemanbhai Ajmeri (2014), ruled on an appeal filed against the conviction and sentence awarded by a special court under the erstwhile Prevention of Terrorism Act, 2002, which was later confirmed by the Gujarat High Court, for the 2002 attack on the Akshardham Temple. A two-judge bench of the Supreme Court acquitted all the convicts, including the ones who were awarded the death penalty.

The Supreme Court held that the findings of the special court and the Gujarat High Court were erroneous in fact and suffered from errors of law. Further, the apex court expressed its anguish about the incompetence of the investigation agencies, especially in cases involving the integrity and security of the nation, and that innocent people got trapped instead of the real culprits. The Court also said that equal weightage should be given to both prosecution witnesses and defence witnesses, and that there is a need to attribute trustworthiness and credibility to defence witnesses at par with the prosecution witnesses.

Also read: Why our criminal justice system urgently needs a law for compensation for those under illegal detention

No uniformity in standards

These are some of the very few cases where the judiciary has come to the rescue of innocently trapped victims to bring them justice, but there is no uniformity with regard to such remedies in cases of miscarriage of justice.

In the case of Babloo Chauhan (2017), the Delhi High Court dealt with the issue of wrongful prosecution and incarceration of innocent persons. The court mentioned the need to provide both monetary and non-monetary compensation to people who are wrongfully incarcerated. The effective implementation of compensation granted under Section 357 of the Criminal Procedure Code (CrPC), the court opined, is dependent on the efforts of the legal service authorities and the government.

Following this decision, the Justice B.S. Chauhan-led Law Commission of India submitted a report titled 'Wrongful Prosecution (Miscarriage of Justice): Legal Remedies' in 2018. The commission recommended amendments to the CrPC. The report did not lay down any parameters on wrongful prosecution or malicious prosecution; it merely states that when cause of action arises for malicious prosecution or prosecution without good faith, the victim can claim for compensation. The commission recommended providing interim compensation. It also recommended the establishing of special courts to try cases of wrongful prosecution; the same has not been implemented.

There is a dire need for conceptual clarity regarding what constitutes wrongful or malicious prosecution. Courts need to establish parameters or ingredients on what constitutes a case of wrongful or malicious prosecution.

Over the years we have seen time and time again (as demonstrated in some of the cases discussed above) that the victim has to undergo turmoil and loss of their time over the years when they are in prison. In most such cases, the alleged offenders who are imprisoned belong to lower socio-economic backgrounds, and the dependents in their families are also severely affected.

There is no substitution for the time lost in prison. When it comes to compensation, there is complete discretion in the hands of the judge, as a result of which it varies on a case to case basis. The quantum of compensation that may be awarded ends up depending on the quality of legal aid the victim has access to. This variability must be removed from the legal system, and consistent and uniform standards introduced into the policy.

(P.M. Swapna is a law graduate from the National Law University, Delhi, and a practicing advocate in the state of Telangana. The views expressed are personal.)