In light of Dr. Nambi Narayanan’s case resurfacing in the legal discourse, TANMAY MALIK argues for Indian jurisprudence to urgently adopt a robust and statutory guaranteed framework against wrongful prosecution.
THE case of Indian Space Research Organization ex-scientist Dr. Nambi Narayanan’s wrongful prosecution in 1994 was pushed back into the limelight in April 2021, when the Supreme Court of India directed the Central Bureau of Investigation to probe the role of Kerala Police Personnel in the issue.
Criminal rights discourse in India has been marked by names like Syed Wasif Haider (who spent eight years in prison on rioting and murder charges among others, before being acquitted in 2009), Madhubala Mondal (a victim of mistaken identity who spent three years in jail before being released in 2019), Md. Ali Bhat (released in 2019 after being wrongfully accused of terrorism and spending 23 years in prison), and Mohammad Aamir Khan (imprisoned on terrorism charges in 1998 at the age of 18, and released in 2012 after a partial acquittal), among many others.
Issues that form a part of the news cycle have a limited lifetime, post which they vanish. Like in the case of Dr. Narayanan, much water flows under the bridge after each incident of wrongful prosecution. These instances mark the miscarriage of justice as well as the devastation of the lives of innocent people.
The Indian jurisprudence for wrongful prosecution, while long-standing, is nebulous at present. Multiple remedies exist in such cases; however, none was designed for the specific purpose of miscarriage of justice due to wrongful prosecution.
The most availed remedy is to claim compensation from the State for breach of fundamental rights provided for in Part III of the Indian Constitution. After the wider interpretation of Article 21 of the Constitution being set by the Supreme Court in its judgment in the case of Maneka Gandhi vs. Union Of India (1978), the apex court has in further judgments held compensation to be a “practicable and inexpensive” remedy.
Guidelines for compensation, while a great step forward, are ultimately insufficient and obsolete — existing for determining when compensation must be given (Sube Singh vs. State of Haryana & Ors., 2006), but non-existent when it comes to determining the quantum of compensation. This relative change was captured by Justice V. Gopala Gowda of the Supreme Court in his decision in Adambhai Sulemanbhai Ajmeri & Ors. vs. State of Gujarat (1947), in which he characterised the public law remedy as an ‘episodic and indeterminate’ one. In the private domain, the remedy is represented as damages under torts or as a civil suit.
The remedy is nevertheless severely restricted due to sovereign immunity defence, and has thus led to decisions favouring as well as failing the victim.
While National and State Human Rights Commissions can also suo motu hear the matter and recommend compensation, compliance by states accounts for a meagre 20% of all instances. Other perpetrator-centric options include departmental proceedings under Sections 7 and 9 of the Police Act, 1861, or prosecution under Sections 166-167, Sections 190-195 and Sections 218-220 of the Indian Penal Code, 1860.
India is yet to adhere to international standards and stand parallel to the West with regards to delivering justice to the victims of wrongful prosecution. The International Covenant on Civil and Political Rights was ratified by India in 1970 with reservations to the right to compensation under Article 9 (5). Model jurisprudence that exists in other nations, include the United Kingdom with its Criminal Justice Act, 1988, Germany with its doctrine of official liability under Article 34 of its Constitution, the United States of America with Code Title 28, and New Zealand, which has guidelines for compensation in cases of wrongful conviction.
In 2017, in Babloo Chauhan @ Dabloo vs. State Govt of NCT, Justice S. Murlidhar of Delhi High Court requested the Law Commission of India (LCI) to make recommendations to the Government of India, preferably a legislative framework, for miscarriage of justice due to wrongful prosecution. The LCI, in its 277th Report titled Wrongful Prosecution (Miscarriage of Justice): Legal Remedies recommended an amendment in the Code of Criminal Procedure, 1973, for establishing a statutory right to compensation for wrongful prosecution.
After deliberating various thresholds to avail the right, the Commission found ‘wrongful prosecution’ congruously inclusive over ‘wrongful conviction’ and ‘wrongful incarceration’.The remedy can be sought against “any harm caused to any accused, of body, mind, reputation or property, actual or as a probable result of the wrongful prosecution.”
Key recommendations include (i) establishing special courts for speedy justice; (ii) remedy capable of being availed even by the legal heirs and agent of victim; (iii) summary disposal of complaints; (iv) interim compensation of at least Rs. 25,000; (v) overlooking limitation period if ‘sufficient cause’ found; (vi) defined, but not exclusive, factors to determine final compensation. The provisions shall go a long way in advancing justice, if accepted.
The time for change is now
Three years after the report was tabled by the LCI in August 2018, the Government of India is yet to take heed of its recommendations.
The discourse on this matter has been sparked to life once again by the case of Dr. Nambi Narayanan. It has received widespread attention and has stimulated a demand for action by the public as well as the government. The sphere of influence has been so expansive that even pop-culture is trying to capture it, with the film ‘Rocketry: The Nambi Effect’ set to release this year.
We must strike when the anvil is hot to transform this discourse into material action.
Wrongful conviction decimates lives of prisoners, as rightly noted by Supreme Court in Thana Singh vs. Central Bureau of Narcotics (2013) – “the damning finger and opprobrious eyes of society draw no difference between the two (imprisonment for the purposes of trial, and imprisonment on conviction)”. It is ignoble to expect a victim of the criminal system to fight for justice against the mighty state machinery; a statutory right is the least that can be provided to rekindle their ravaged life.
It is not enough for there to be checks on the Indian Police force; these checks ought to be robust and comprehensive. It is high time for a permanent solution to this transient yet recurring problem in the Indian legal system, in the form of a comprehensive legislative framework.
(Tanmay Malik is an undergraduate law student pursuing B.A., LL.B. (Hons.) at NALSAR University of Law, Hyderabad, India. The views expressed are personal.)