THE question of reparation by the state is not primarily a legal question. It is, firstly, a political one: concerning our ideas of how we live together as a society, and what rules of governance, of ethics, and collective notions of right and wrong we institute. As an act, reparation is a wide ranging term, and there is much that the Indian state has to do reparations for as one of the most (organised) oppressive and racist societies in the world. I speak here, however, in the specific context of terrorism as we know it since the last decade of the 20th century.
As a question of law: What does a system do when it wrongfully deprives a citizen its right to liberty, its right to life in that liberty?
As question of reconciliation: What does a state do, when it has wrongfully prosecuted the same citizenship group, consistently as political action? That too of a crime of being a terrorist or a spy: its nature unforgivable, its marks on collective living indelible, and its stigma for those accused irreconcilable with a healthy citizenship, ever. After such knowledge, what forgiveness?
Politics of terrorism in India: The Judiciary’s complicity
For the last three decades, the Indian criminal justice system, and especially its judicial institution can be faulted for an uncritical complicity in a discourse of terrorism that was explicitly political/electoral. A political campaign around security, terrorism and the Muslim question (and the Adivasi forests) that was orchestrated using criminal justice means – hundreds of young men were put behind bars for long periods, their youths and hopes destroyed.
The police, here, was the principle agent. With its structure allowing executive control and management, it picked up citizens of particular identities, tortured them, and filed unsubstantiated charges. The executive simply weaned a whole system of promotions and favours around it, thus subverting a cadre system of officers into a political cause. An increasingly jingoistic and eager private media deployed itself strategically to convict the accused in the eyes of the people, and to evoke enough fear to legitimate a spectacle of shiny new weapons of a newly minted security state-in-becoming: New terror laws, new policing units, new spaces inside prisons, novel methods of arrests, torture and custody; a new official language of classification used in prison registers and ward walls (ISI/ jihadi); new and special courts inside prisons, tribunals with unheard of procedure, secret witnesses, and flashy arms expos with international brands. A national masculinity paraded at the cost of small town, semi-educated, young men from impoverished backgrounds.
As a question of law: What does a system do when it wrongfully deprives a citizen its right to liberty, its right to life in that liberty? As question of reconciliation: What does a state do, when it has wrongfully prosecuted the same citizenship group, consistently as political action? That too of a crime of being a terrorist or a spy: its nature unforgivable, its marks on collective living indelible, and its stigma for those accused irreconcilable with a healthy citizenship, ever.
Judicial overview of such executive excess- subverting constitutional fabric – was disallowed, to an extent, legally and to a greater extent, through judicial acquiescence. Laws like UAPA, MCOCA, (including their amendments to all established procedure) executivised adjudication and asked the judiciary to mind its own business in a jurisdiction that was entirely their own – the taking away of bail, changing rules of substantive evidence and procedure etc.
However, more than extraordinary laws, the judiciary’s abeyance to the security discourse was deeper. Examples of magistrates, across the country, overlooking evidence of torture, overlooking sound reasoning for arrests, allowing for detention of all kinds, and convicting accused on just allegations – thus subverting the very adversarial system – abound in the literature on terror prosecution in the country. The trials courts, and most of the high courts in the country, including the entire judicial framework of states, stood in abject complicity. With only the Supreme Court still reminding us that the rule of law needs to be followed. The result: most accused in bomb blasts cases spent 13-23 years in wrongful incarceration. They are walking out of prisons, slowly, with little semblance of mind or body.
The political problem
The terror discourse over the last three decades, has, through a political and criminal justice process, questioned both the belonging and loyalty of Muslims in India. A somewhat critical step in a Hindutva discourse of seeing Muslims as outsiders/Pakistanis, then as anti-nationals, and then as terrorists. The fringe Hindutva discourse of Muslims as outsiders was mainstreamed as Muslims as terrorists. Where else could nationhood possibly go from here? There is no greater anathema to the modern state than the terrorist. What gaping holes such a discourse leaves – for violent extremism to fester- is a question that cannot really be asked.
Judicial overview of such executive excess – subverting constitutional fabric – was disallowed, to an extent, legally and to a greater extent, through judicial acquiescence. Laws like UAPA, MCOCA executivised adjudication and asked the judiciary to mind its own business in a jurisdiction that was entirely their own.
While the problems of the Indian terror discourse is not the subject of the discussion here, what is critical at this juncture is the possibility of healing. Over the last decade, scores of young men have come out of prison after spending half their lives in violent repression. A way that the judiciary can help in the healing process is the acceptance of wrong. And small steps towards compensation and rehabilitation. Those steps would be a signal to other institutions to respect the constitution. Coming from the judiciary, it would not be out of step with the role that it has had to fulfil in recent times. For those whose lives have been destroyed, and who still look to the judiciary for some notions of democratic fabric, some semblance of dignity, that would be a life nurturing step.
The Legal Problem: compensation & rehabilitation
Article 14 (6) of the International covenant on civil and political rights (ICCPR), makes it mandatory for the Indian state to have a law on reparations. However, the Indian state has put a reservation on it. The provision, adopted by many across the world, stems from a simple, natural principle: if the state, in its performance of sovereign functions, has wrongfully taken away the life or liberty of an individual, it needs to remedy it.
The very idea of remedy, however, poses a jurisprudential problem when confronted with Article 21 of the constitution – the freedom of life and liberty. For, if wrongfully taken away, the state, whose very existence is to guarantee them, can neither return life nor liberty. Thus producing a central argument in the opposition to the lawful taking away of the right to life (death penalty): that the state should not take that it can never give. However, while the lawful taking away of life is few and far between in the Indian context, the wrongful denial of freedom of liberty is rampant and remains a right that needs to be addressed both in its idea and the method.
Law Commission recommends a law on reparations
The Law commission of India (LCI) in its 277th report has urged the Centre to honour its commitment both internationally and nationally by promulgating a law which not only provides for compensation and rehabilitation, but also enables the prosecution of erring officers when found to have maliciously prosecuted an innocent citizen. Most importantly, it has provided a framework for computing compensation and monetizing ‘loss’ in wrongful prosecution. The LCI’s report and recommendations are imbued with the right constitutional spirit, and in these times, where life and liberty can have such little value, it is truly radical in its scope.
India’s criminal justice system is teeming with circumstances that can wrongfully deprive a citizen of their right to liberty. Misconduct of investigative agencies, poor investigative skills, political pressure and criminal prejudice towards certain sections of the citizenry, an enormous backlog in the judiciary, as well as a highly stratified access to justice in the country, being just a few. However, considering that there are millions of cases in the country, does any acquittal warrant compensation? If yes, how does the exchequer deal with such an expense?
Most accused in bomb blasts cases spent 13-23 years in wrongful incarceration. They are walking out of prisons, slowly, with little semblance of mind or body. Over the last decade, scores of young men have come out of prison after spending half their lives in violent repression. A way that the judiciary can help in the healing process is the acceptance of wrong.
The LCI points out that the criteria for compensation should be wrongful prosecution as opposed to wrongful incarceration or wrongful conviction. Both wrongful incarceration and conviction can be either too narrow or too wide a criteria, considering acquittals that take place on pure procedural or benefit of doubt basis and common place judicial delays. For wrongful prosecution, the LCI points out two key criteria:
As per the LCI, maliciousness means prosecution without reasonable or probable cause. This includes levying a charge of negative intent on the investigative agency or certain police officers, and has always constituted a central criteria for remedial action from the state. Deliberate fabrication of charges, planting of evidence, conscious suppression of evidence that speaks of the innocence of the accused, as well the use of torture to coerce statements or to get an accused to turn approver knowing that the accused are innocent, constitutes malicious prosecution by the state. Instances of malicious prosecution in the country are fairly numerous and mostly found in the awnings of politically/electorally charged discourses like the ‘war on terror’, ‘Sikhs/Muslims as terrorists’, ‘urban naxals’ etc. However, maliciousness is devilishly difficult to prove and comes against various state firewalls, like the fact that most acquittals do not discuss these issues and are not “honourable” but on the criteria of giving the “benefit of doubt” to the accused apart from other challenges such as sec 197 of the CrPC (permission from central government before prosecution of a state officer).
Absence of good faith:
The LCI has come up with an ingenious criterion to close the vast gap between the impossibly high standards of proof required to prove malicious prosecution and the vastly loose category of all acquittals. Picking up from the criminal justice systems own concept of ‘good faith’ to mean lack of due care and attention thus the absence of a wrong intention is immaterial and the LCI turns it into a ground for compensation.
The very idea of remedy, however, poses a jurisprudential problem when confronted with Article 21 of the constitution – the freedom of life and liberty. For, if wrongfully taken away, the state, whose very existence is to guarantee them, can neither return life nor liberty.
The category works very well. For, in the vast majority of cases of wrongful prosecution where people have spent between 8-18 years in prison without doing anything wrong, what can, at best, be proved in court of law is carelessness, oversight and a lack of action on the part of duty bearers when it was due. In such cases of serious miscarriage of justice, a glaring combination of such oversights and inaction is visible, establishing a silken veil that hides malicious intent, and making it impossible to prove in a court of law. The LCI, very ably, constitutes such an absence of good faith – a requirement on the part of duty bearers while prosecuting its citizens – as requiring remedial compensation by the state. This ground also detaches the act of asking for a remedy by a citizen who is aggrieved with the necessity of attributing blame on somebody by bringing into its public law fold genuine cases of oversight where no one person or agency is responsible and yet the wrong has still been done.
The jurisprudence of loss
Irrespective of India’s reservation to Article 14 (6) of the ICCPR, the Supreme Court has periodically awarded such compensation, thus rejecting the reservation. In one of the first cases, the court awarded Rs 30000 – roughly equivalent to Rs 3.5lakhs in today’s time – to Rudal Shah in 1983, for 14 years of wrongful confinement even after being acquitted. The recent case being that of ISRO scientist Mr. Nambi Narayan who was granted Rs 50 lakhs after fighting a battle to prove his innocence for 22 years.
While the courts have themselves highly valued the protection of rights and have enabled state accountability for violation of Article 21 and 22 of the Constitution, its consideration of what those rights really mean for the citizens in a lived way has been little more than Shashi Tharoor’s idea of the “cattle class”.
Both instances reflect two key aspects. While the courts have themselves highly valued the protection of rights and have enabled state accountability for violation of Article 21 and 22 of the Constitution, even when the executive had denied it internationally, its consideration of what those rights really mean for the citizens in a lived way has been little more than Shashi Tharoor’s’ idea of the ‘cattle class’. Rs 3.5 lakhs for 14 years of wrongful confinement and Rs 50 lakhs for an ISRO scientist who was defamed, called a spy, whose career was destroyed and who fought a lonely battle for 22 years (where just the legal fees would have exceeded Rs 1 crore) reflects a lack of methodological approach to the issue: the Indian courts are unaware of the jurisprudence of reparations.
The wrongful denial of life and liberty are constitutional violations for the very reason that they are tied to various aspects of social – and not just legal – life and are essential for a wholesome existence and experience of being human. When wrongfully prosecuted, a citizen loses life – the opportunities, pursuits which create, mental and physical health, dignity and social standing – not just of herself but also of her family. Such loss, if at all can be monetised, can be done in an exemplary fashion. Exemplary damages need to be coupled with real costs, of fighting the legal battle in India where justice (in such cases) is a beast that needs the right intersection of caste, class, power and cash for it to be drawn out of its cavernous corners. A sum of Rs 50 Lakhs would not even cover a small percentage of the possible legal fees of the army of top lawyers of the country that Mr Nambi Narayan lined up in his defence, leave alone exemplary damages.
Exemplary damages need to be coupled with real costs, of fighting the legal battle in India where justice is a beast that needs the right intersection of caste, class, power and cash for it to be drawn out of its cavernous corners.
The judicial discourse, however, is moving. In the latest case of 2019, the SC acquitted six men who were wrongfully accused of murder and rape, and asked the Maharashtra government to pay them Rs 5 lakh compensation each. It pointed out:
“There is no investigation at all qua the four persons who were identified by PW8. On the contrary the accused in the present case were nomadic tribes and are falsely implicated and are roped in…As per the reports of Dr. Ashit Seth, a psychiatrist who examined one of the accused – Ankush Maruti Shinde, who was subsequently found to be juvenile, he has clearly opined that he has lived under sub human conditions for several years. He was kept in isolation under solitary confinement with very restricted human contact and in perpetual fear of death. He was only allowed to meet his mother, that too only infrequently. He was not even allowed to mix with other prisoners. Therefore, all the accused remained under constant stress and in perpetual fear of death. As they were facing the death penalty, they might not have availed any other facilities of parole, furlong etc. All of them, who were between the ages of 25-30 years (and one of the accused was a juvenile) have lost valuable years of their life in jail. The family members have also suffered. Therefore, in the facts and circumstances of the case, and in the exercise of our power under article 142 of the Constitution of India, we direct the state of Maharashtra to pay a sum of Rs 5,00,000 to each accused by way of compensation…”
The way forward
While the above judgement is a big forward in the Indian jurisprudence of loss, it is still not adequate. The courts would benefit by the LCI recommendations on how to calculate loss and approach rehabilitation. Providing the framework for calculating the compensation, the Law commissions’ report draws upon Innocence Network, India’s, literature on those who have been wrongfully prosecuted in the country- the list of people with long years of wrongful prosecution, the torture, the explicit detailing of its causes, and the international framework for its remedies. Drawing upon innocents testimonies, the LCIs’ report, points out the case of Md Nisaruddin Ahmed, accused in the 1993 railway blast case who was declared innocent after 23 years of custody, as one of the gravest instances of miscarriage of justice in the country. The reports recommends to the government of India:
“Compensation under this framework will include both pecuniary and non-pecuniary assistance…while pecuniary assistance will be in terms of monetary award as may be determined by the special court; non-pecuniary assistance will be awarded in the form of services such as counselling, mental health services, vocational/employment skills development, and such other similar services. Non pecuniary assistance shall also include a specific provision for removing disqualification attached to a prosecution or conviction…” Pg 89
This article uses some of the material earlier published by the author in Scroll.in
 T.S Eliot,Gerontion, https://www.poetryfoundation.org/poems/47254/gerontion
[Sharib A Ali is the founder member of Innocence Network, India and Programs Director at Quill Foundation. He is also an associate scholar with the department of anthropology, University of Bern. He can be reached at firstname.lastname@example.org.]