On 1 September 2020 Allahabad High Court, in the matter of Nuzhat Parween vs. State of Uttar Pradesh and Anr. (Khafeel Khan Case), held that the order for preventive detention of Dr. Kafeel Khan, under National Security Act is illegal. Therefore, the same was set aside by the court. However, this case brings to the limelight, an issue pertaining to wrongful confinement of an individual. The legal framework in India has a provision for victim compensation under Section 357 of Code of Criminal Procedure, 1973.
Under Section 357A of the Act, if the accused have been acquitted or discharged, then he needs to be compensated. The presumption made in the law is that the accused can commit an offence against a State or its constituent organs, the state itself cannot commit any offences (punishable under IPC) against the citizens.
A similar counterpart can be found in United Kingdom. The legislation in question is called the Criminal Justice System, 1988. Section 133, of the said act provides for compensation in cases of miscarriage of justice. An instance of invocation of this provision was witnessed in R(Adams) v. Secretary of State of Justice. In this case, the UK Supreme Court pronounced a landmark judgement where they have expanded the scope of the term “miscarriage of justice” by rejecting the contention that, only those who can prove their innocence would be entitled to compensation for miscarriage of justice. In their view, the word should also include the cases where fresh evidence can be given to negate the possibility of committing a crime by the accused. Additionally, the court observed that the provision will also cover the conviction due to deficiency of investigation process and trial.
It is interesting to note that both UK and India are signatories to the International Covenant on Civil and Political Rights. The Article 14(6) of the International Covenant clearly states that a person who has suffered punishment due to miscarriage of justice as a result of such conviction shall be compensated. However, it is disheartening to see that whereas UK has taken steps to abide by the mandates of this convention, India is arguably lagging behind.
It is also to be borne in mind that the issue of such miscarriage of justice the last two decades. Back in 1983, Supreme Court of India delt with the question of compensation for unlawful detention in the case of Rudal Shah v. State of Bihar (1983 AIR 1086). In this case, the petitioner who was detained in the prison for more than 14 years after his acquittal filed a habeas corpus petition under Article 32 of the Constitution, praying for his release on grounds that his detention was unlawful. Additionally, he prayed for other reliefs such as compensation for his illegal detention. The Supreme Court held that, the right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the state as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. The court passed an order that State must pay to the petitioner sum of Rs. 30,000/- as compensation. Further, the court held that Article 21 which guarantees the right of life and liberty will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention.
In my view, one of the means by which violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Refusal to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated.
A similar issue also arose before the apex Court in Bhim Singh v. State of Jammu & Kashmir (AIR 1986 SC 494). In this case court ordered the State to pay the compensation of Rs. 50,000/- to the MLA of Jammu and Kashmir assembly for not producing him before the magistrate within 24 hours of the arrest.
The latest of this chain of cases, where the Supreme Court has given an exemplary compensation is the case of S. Nimby Narayanan vs Siby Mathews and Ors. In this case the appellant was arrested on allegations of espionage. After investigation, the Central Bureau of Investigation submitted report before Chief Judicial Magistrate stating that evidence collected indicated that allegations of espionage against scientists, including Appellant, were found to be false and accused were discharged. Even after disposal of the case, the State did not take any action against the erring police officers. The petition was filed before the High Court to take necessary action against erring police officers for conducting malicious investigation. A single-judge bench quashed order passed by State whereby government had decided not to take any disciplinary action against police officers. On further appeal, division bench left it to the government to consider or not to consider opinion expressed by CBI in its said report for purpose of taking disciplinary action. This order was then challenged before the Supreme Court by the petitioner on the aforesaid grounds. The court held that the prosecution charges initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the petitioner. It was not a case where the accused was kept under custody and, eventually, after trial, he was found not guilty. The State police was dealing with an extremely sensitive case and after arresting the accused and some others, the State, on its own, transferred the case to the CBI. After comprehensive enquiry, the closure report was filed. An argument had been advanced by the State, as well as by the other respondents, that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The impugned submission was categorically rejected by the court. The court observed that in in this case, criminal law was set in motion without any basis. It was initiated, if one was allowed to say, on some kind of fancy or notion. Liberty and dignity of the accused which were basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. In the opinion of the court, this situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution and needs to be dealt with promptness. It is because life commands self-respect and dignity. The court also held that suitable compensation had to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the constitution withers away. Thus, the court awarded Rs. 50 Lacs as compensation.
The above cases provide an insight into the discrepancies of ad-hoc compensation scheme, one that functions on the discretion of the judiciary. Whereas, Rudal Shah received meagre Rs.30,000 for spending 14 years illegally detained but Bhim Singh received Rs. 50,000 for just six days detention. Again, S. Nimby Narayanan the exemplary compensation was given to the petitioner because of violation of the same fundamental right. Thus, this fragile knee-jerk attitude of the court in deciding the compensation raises a more intriguing question: whether one individual’s fundamental right is more important than the others’?
To this respect, the 277th Law Commission Report has recommended an amendment in Code of Criminal Procedure, 1973 to address the issue of wrongful prosecution. The report recommends
“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…”
In my opinion, while the law commission report is fairly comprehensive but little has been done to put the same into practice. Notably, these recommendations were made in 2018. Till date, the only progress that has been made in this regard is a PIL filed in the Supreme Court, praying that laws to be enacted to provide compensation to individuals who have been wrongfully prosecuted and convicted by the state. This lacklustre attitude certainly needs a complete overhaul. Additionally, It is high time India should adhere to its commitment under the International Covenant on Civil and Political Rights.This is what the law commission has relied upon while coming up with the 277th report.