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

Examining the existing jurisprudence laid out by the Supreme Court on the subject of compensating those persons who are placed under wrongful arrest or detention, AISHWARYA MEHTA explains why we need a uniform legal framework for compensating all such detainees, especially in light of the recent rampant misuse of stringent laws like the Unlawful Activities (Prevention) Act, the National Security Act, and the sedition provision of the Indian Penal Code which has led to a hike in the number of political dissenters being placed under detention for long periods without due process.


AS per Article 246 of the Indian Constitution, the subject of ‘police’ is enumerated under the Seventh Schedule of the Constitution in the State List. Consequently, it is the duty of the state to regulate the police of that respective state.

One of the ways to make police liable for misconduct is through the court of law, where police officers could be directly prosecuted for purported misuse of power. Their liability under criminal law can be enforced through the Criminal Procedure Code, 1973 (CrPC) and the Indian Penal Code, 1860 (IPC), as well as even through the Constitution of India and administrative law.

Wrongful arrests, fundamental rights violations, and ad-hoc compensation

If there is any infringement of constitutional rights declared under Part III of the Constitution of India, courts have time and again held the police liable and charged monetary compensation from the state for the harm caused to a victim.

In the case of Rudul Sah vs. State of Bihar & Ors., 1983 SCR (3) 508, the Supreme Court ordered the state government to grant compensation to the petitioner after finding that he had been illegally detained for 14 years. Only a few months later, through its judgment in Sebastian M. Hongray vs. Union of India & Ors., 1984 SCR (1) 904 granted exemplary damages to two women whose spouses had been missing after they had been taken to an army camp by army jawans. The apex court held the state machinery liable for not finding the missing persons.

In both cases, the Court awarded compensation for violation of Articles 21 and 22(2) by police officials, but no reasoning was provided regarding how to calculate the quantum of compensation.

Also read: Are the Police Seen as Perpetrators of Crime or Protectors in India?

In the case of Saheli, a Women’s Resources Centre, Through Ms. Nalini Bhanot vs. Commissioner of Police, Delhi Police Head-quarters & Ors., 1990 SCC (1) 422 the Supreme Court awarded damages on the ground of complete and excessive violation of its sovereign power by the state government. The two-judge division bench, while deciding the amount of compensation, relied simultaneously upon the decision of the Punjab and Haryana High Court in Joginder Kaur v. The Punjab State, (1969) ACJ 28 and of the Supreme Court in The State of Rajasthan vs. Mst. Vidhyawati & Anr., 1962 SCR Supl. (2) 989 and held that state is vicariously liable for the acts of its employees. However, yet again the Court failed to provide any guidelines for deciding the amount of compensation, and it was left completely upon the discretion of courts to decide the amount of compensation to the wronged individual.

To sum up the jurisprudence on this matter, the Supreme Court has (correctly) held the State responsible for the tortious acts of its employees, which in these cases, are the police, especially where there has been a violation of fundamental rights due to the abuse of powers given to police officials.

In our country, unfortunately, instances of such misuse of power by police officials, including illegal detention, custodial deaths, brutality, and torture are fairly routine. However, to date there is no set of guidelines issued by the court regarding the calculation of the quantum of compensation to be awarded.

Furthermore, wrongful arrests lead to the violation of not only the arrestee’s rights, but also accrue net harm to the entire society. This manifests in multiple forms: the actual offender being at large within society, free to commit more offences; the drop in tax revenue due to the arrestee being denied the opportunity to work; the additional expenditure on the maintenance of the detainee in prison; the addition to the backlog of cases pending before an overburdened judiciary.

The deleterious result of the absence of such guidelines is evident in the recent case of Dr. Kafeel Khan, who was placed under illegal and unjustified detention on two separate occasions, both times for about nine months each. In the first instance, he had been booked for alleged dereliction of duty and medical negligence that led to the death of over a thousand children due to lack of oxygen at a state-run hospital in Gorakhpur, Uttar Pradesh, and arrested in September 2017. He was subsequently granted bail by the Allahabad High Court in April 2018, with the court ruling that there was no evidence of medical negligence on his part. In September 2019, a departmental inquiry finally cleared him of all charges, holding him not guilty.

Dr. Khan was again arrested in December 2019 by the UP Police for a speech he delivered at the Aligarh Muslim University earlier that month in the context of the anti-Citizenship Amendment Act protests across the country. He was charged under the IPC and the stringent National Security Act, 1980 (NSA), for allegedly delivering a speech that disturbed communal harmony. He was ultimately released by the Allahabad High Court in September 2020, with the High Court dropping charges under NSA against him, and observing that Dr. Khan’s speech actually promoted national integrity and unity. The High Court also came down heavily on the police for presenting insufficient evidence against him and violating his constitutional rights.

In July 2018, it was reported that Dr. Khan had gone bankrupt due to his continued unemployment, legal fees, and the social stigma related to his arrest due to which people stopped doing business with his family. In spite of his groundless detention for a combined period of over eighteen months that led him to financial ruin, he was not awarded any compensation either by the court or by the state.

Also read: Will the government compensate Dr Khan for his illegal detention?

Criminal Liablity Of Police Officials In India

There are various safeguards provided to police officials under CrPC in order to protect them from litigation for actions performed as part of their public duty. For instance, Section 132 of CrPC makes it mandatory to get prior sanction from the competent government for prosecution of police officials for any action done under Sections 129 to 131 that deal with public order and tranquillity. Further, as per Section 197 prior sanction from a competent court is needed to prosecute a public servant for a criminal act done in discharge of his public functions.

However, in the case of arrests of political dissidents made by police over the last few years, especially under the present union government, most of the basic tenets of criminal law, such as the safeguards afforded to accused persons, have not been followed by the police. Such acts of the police don’t warrant protection under section 197. This is because these acts done by individual police officers are not in compliance with the law, placing such are outside the scope of their official duty. Moreover, courts must always balance the safeguards granted to police under criminal law with the violation of fundamental rights of accused persons by police officials.

Powers Magistrates Can Exercise Against Illegal Detentions

The liberty of a citizen is of supreme importance in a democracy. Any deprivation of personal liberty has to be justified under the law.

The Magistrate is a key authority within our criminal law framework for maintaining checks and balances regarding illegal arrest and detention by public officials. According to Sections 56 and 57 of CrPC and Article 22 of the Constitution, police officials are supposed to produce the arrestee before the nearest magistrate within 24 hours. If the arrestee is not produced within 24 hours, the magistrate is empowered to hold the police official guilty of illegal detention.

It is a settled principle of law that magistrates are not allowed to pass remand orders without verifying the case diary, arrest memo and First Information Report to check whether the case is authentic or not. The Supreme Court recently held in Arnab M. Goswami vs. The State of Maharashtra & Ors. (2020 SCC OnLine SC 964) held that it is the responsibility of the courts to examine the FIR and police documents against the arrestee at every stage to check whether the accusation is genuine. It further emphasised that the fundamental right of personal liberty of a person cannot be abolished unless there is enough evidence against the accused.

However, in so many of the arrests made on the pretext of sedition and ‘anti-national activities’ in the last few years, be it the environmental activist Disha Ravistudents accused of stoking the Delhi riots last year, or the academics and activists arrested in the Bhima Koregaon travesty, there never appears to be sufficient evidence in the FIR to justify the prolonged detention of the arrestees.

Also read: #BhimaKoregaonArrests: How Courts dealt with arbitrary detentions, saying dissent is ‘safety valve of democracy’

This is a common refrain even among all the court orders that have granted bail to some of these arrestees in the last few years. In these cases, instead of providing safeguards against illegal detention, the Magistrates are seen to play a significant role in facilitating the detention of the arrestees.

The police officials also clearly and notably violated the guidelines regarding inter-state arrest issued in the leading case of D.K. Basu & Ashok K. Johri vs. State of West Bengal & State of Uttar Pradesh (AIR 1997 SC 610) while making several of the above arrests.

Need For A Law For Uniform Compensation For Unjustified Convictions

Earlier this year, a man from Uttar Pradesh, falsely accused of rape, was freed after 20 years in jail. While it must be celebrated that he is a free man now, but one cannot help think about the misery he must have faced during those years of incarceration, and how much of his life was wasted behind bars. It is clear that he should be compensated by the state for being wrongly detained by the state.

There are deep-rooted and structural faults in the Indian judicial system. Additionally, judges are also humans, and it is inescapable that errors might creep into their judgments. Therefore, there should be the remedy of restoration readily available to those who have been put through the agony of illegal incarceration.

Recognizing the gravity of this issue, among several others, the United Nations drafted and introduced the International Covenant on Civil and Political Rights (ICCPR) in 1954, which came into force on March 23, 1976. India ratified it and became a signatory to it on July 10, 1979.

Article 9(5) and Article 14(6) of the ICCPR deal with a judicial remedy to victims of unlawful or wrongful arrest in the form of compensation. A proper framework is needed for deciding the suitable amount of compensation to wronged individuals.

In August 2018, the union government received a report on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ from the Law Commission of India (Report No. 277). The report, among other things, suggested the formation of special courts to deal with claims of compensation within a specified timeframe. However, asking a victim to approach a special court for compensation would be akin to pushing them into another round of legal battle.

Also read: How Fair is Compensation for Human Rights Violations in India?

Recommendations for Estimating the Minimum Amount of Compensation

The following principles could be followed in framing a suitable framework for determination of compensation to persons put under unlawful detention by the State:

  1. The amount of compensation to a wronged individual must be calculated by equating it to a day’s value. Consequently, if a person has spent a year in jail then 365 multiplied by a day’s value will be the amount of compensation due to them.
  2. In calculating the amount of compensation to a wronged individual, the government should use the daily wage recommendation by the Union Ministry of Labour & Employment.
  3. Wage recommendation of Category B of unskilled industrial employees would be just and equitable for everyone.
  4. Additionally, the compensation, apart from the above wage amount, must also include separate components to reimburse the arrestee for their legal expenses, health expenses, and deprivation of goodwill and peace. A portion of the compensation should be collected by the Government as fine from the police officials who committed procedural lapses during illegal arrest and detention.
  5. Moreover, it is of paramount importance that the compensation is announced along with the judgement.

Data from the National Crime Record Bureau shows that the conviction rate in Unlawful Activities (Prevention) Act, 1967 and sedition cases registered between 2016 and 2019 has been pitifully low. This exposes the apparent design of the BJP government is to not convict, as the allegations are generally fabricated without any corroborative evidence, but to harass and send a message to dissenters by keeping them detained for long periods without any trial or due process.

Most democratic countries provide for compensation for wrongful compensation as an integral part of their criminal justice system. India being a signatory to the ICCPR, has failed to enact such laws. We urgently need such a legislation to provide for reparation to those wrongfully arrested because the compensation awarded by courts today in cases of illegal arrest and detention is arbitrary, unjust, and inequitable. Parity in terms of compensation for all is the need of the hour.

(Aishwarya Mehta is a 4th-year B.A.LL.B. (Hons.) student at Maharashtra National Law University, Nagpur.  Views expressed are personal.)
The Leaflet