Wrongful Convictions: How can the state undo the harm?

Introduction:

In 2016, Nisarudin, who spent 23 years in jail after a TADA court in Ajmer sentenced him to life imprisonment was acquitted by the Supreme Court due to lack of admissible evidence.[1] While this might sound gruesome, his instance is not a rare occurrence with around 23,442 prisoners acquitted on appeal in the year 2015.[2] This plethora of cases, amounting to “miscarriage of justice” or in specific criminal law terms as “wrongful convictions” happen due to multiple reasons: inadequate investigation, malicious prosecution, false evidence or witnesses, or any failure on the part of the law enforcement and criminal justice system.

The price of it is however paid by these wrongful convicts or victims of wrongful conviction and their families. In Assam, innocent Madhubala was imprisoned for three years and her dumb and deaf daughter, unable to find her mother went suffered great trauma, all because of a case of mistaken identity on part of the investigation team.[3] All these heart-wrenching stories indicate one lacuna in the criminal justice system, wrongful conviction. This article explores the phenomenon of wrongful conviction, the role of the state, existing redressal mechanism, and International conventions protecting the right of those prosecuted wrongfully.

Wrongful conviction, in uncomplicated terms, is the erroneous conviction of an accused, an error that is revealed during the subsequent investigation or an appeal.[4] It is an unfortunate occurrence where individuals are wrongfully prosecuted, framed, and imprisoned losing years of their lives spent in prison despite no wrongdoing, whose trauma, loss of livelihood, and reputation lingers even if acquitted honorably.[5]

The inception of this notion is credited to the infamous “Scottsboro Boys” case where nine teenage black boys in Alabama were accused of raping two white women in 1931 and convicted causing an international uproar and after multiple retrials they were acquitted in landmark Supreme Court decisions, Powell v. Alabama[6] and Norris v. Alabama.[7] This incident sparked the much necessary debate on police prejudice, malicious prosecution of people of color and the deplorable conditions of prisons, and the inhumane treatment meted out.  These boys lost their entire lives to this trial and disgrace and were only pardoned in 2013, whose story served as an inspiration to the critically acclaimed novel “To kill a Mockingbird”.[8]

Wrongful Conviction in India

Even in the Indian context, there is a heavy trend of wrongful conviction or prosecution, with numerous convictions overturned during appeal due to lack of sufficient evidence, or motive, or plain malice.[9] Undertrial prisoners in India amounting to a whopping 69% of the prison occupancy can be classified into two categories[10], those detained during the investigation and those who were convicted but have appealed.

Wrongfully convicted refers to the second category of under trial prisoners. The former category may also have those who are being maliciously prosecuted, but they are not within the scope of this article. These accused individuals lose valuable years of their life due to tedious and complex trial procedures and even post acquittal, there lacks a proper mechanism which grants them compensation for their irreparable loss. This is a human rights violation, and a violation of the fundamental right of life, personal liberty u/a 21 of The Indian Constitution.

Due to the absence of a specific legal regime on this, the Indian judiciary has, over the years framed the remedy and compensation for those wrongfully convicted. The first such instance which took prominence was that of the Rudal Shah case[11] where the petitioner was unlawfully detained as an undertrial prisoner for 14 years who filed a Habeas Corpus writ u/a 32 before the SCI. The Supreme Court held that art. 32 encompasses the power of the court to grant compensation in such cases.[12] In various cases involving such conviction, the court has recognized the tortious action of the state and granted compensation for the wrong done.[13]

The court has, however, not recognized a universal right to compensation; in the Akshardham Terror case the court stated that acquittal did not automatically give a right to compensation, and allowing the same would amount to “a dangerous precedent”.[14] Even in the Gokul Chat bombing case, despite the accused spending 10 years in jail, no action was taken against the investigators and neither was any compensation granted.[15] In 2017, the Delhi High Court, recognizing the need for a legislative framework to rectify wrongful convictions, asked the Law Commission to thoroughly scrutinize the issue and recommend a framework to the state.[16]

The 277^th Law Commission Report

Based on the Delhi HC recommendations, the 277^th Law Commission report was dedicated to identifying and constructing legal remedies for wrongful prosecution.[17] This report found that the standard of miscarriage under the International Covenant on Civil and Political Rights (ICCPR), which was ratified by India, is not sufficient to cater to all the wrongful prosecutions in India.[18] It recommended the standard of miscarriage as wrongful prosecution, irrespective of the tenure spent imprisoned, targeting both procedural and prosecutorial misconduct, which are, according to the report, “the primary source of errors that results in innocent people being convicted for offenses they have not committed.”[19]  The regulatory framework proposed issued guidelines for awarding compensation to those subject to such misconduct and has five core principles which are discussed below:[20]

1. The ambit of wrongful prosecution includes any prosecution instituted without good faith or malicious prosecutions.
2. Claim for compensation can be made by an accused that was injured or any agent of the accused or any legal representative in case the accused has deceased.
3. A recommendation was made to institute courts in districts solely for wrongful prosecution compensation claims, ensuring a speedy delivery of justice to the victims.
4. The proceedings would follow summary procedure protocol and compensation would be paid by the central or state governments, responsible for such wrongful prosecution of the innocent.
5. Lastly, the report recommended that compensation would not be just monetary but would also include rehabilitation facilities such as employment facilities, mental health services for the trauma caused, and possible PTSD.[21] The compensation award acts retrospectively and wipes out the sentence passed convicting the victim in case the acquittal was issued in an appeal.[22]

Onus on the State to Undo the Harm

Despite such comprehensive recommendations, coupled with an obligation on the state to confirm with the ICCPR, there has been little to no recourse taken on this issue. The UNHRC, in 2007 while discussing miscarriage of justice under the ICCPR highlighted that states must legislate a framework to ensure compensation to those who are victims of a miscarriage of justice.[23] In 2018, The Protection of rights of wrongful convicts was introduced in the Lok Sabha but it has still not seen the light of the day.[24] The state prosecutes the accused in criminal cases, as a crime is considered as an offense against society.

Therefore, the responsibility of a wrongful conviction also lies in the state. There are numerous instances of misconduct on part of the investigative team, the police, therefore the state must rectify its mistakes. Further, the state has to guard and protect the fundamental right to liberty and life of its subjects as well, which is infringed when an innocent person is wrongfully convicted. The onus of rectifying this mistake and introducing a legislative framework not just to protects the right of those wrongfully convicted but also to prevent wrongful convictions.

Further, what is alarming is the fact that more often than not, minorities are targeted and subjects of wrongful prosecution. According to the NCRB data released in 2015, more than 55% of the undertrial prisoners constitute Dalit, members of the backward classes, and Muslims.[25]

Wrongful convictions of Muslims are painfully common under the TADA (Terrorist and Disruptive Activities (Prevention) Act, 1987) and UAPA (Unlawful Activities (Prevention) Act, 1967). in cases of terrorism and national security which hints to a pattern of prejudice driving the prosecution charges, method of investigation, all of which fails to hold when put to the test of the judicial system. It is therefore highly necessary that minorities are protected from malicious prosecution and spending years in jail because of the prejudice and substandard investigation. Political pressure is also another common cause of wrongful conviction, in high profile cases or cases of communal color, police are under immense pressure to nab criminals in a short amount of time which also results in numerous procedural faults which ultimately results in the incarceration of innocents while the actual offenders remain scot-free.[26]

As rightfully pointed out by the law commission report, central and state governments must address this common yet unfortunate miscarriage of justice. Claims of wrongful prosecution must all be speedily addressed and duly compensated for their loss. While compensation is the primary concern, the focus must also be given to prevent wrongful prosecution. There is a need to reform the investigative skills within the Indian law enforcement and this is no new news. Lack of evidence is one of the common grounds of acquittal, even where the accused is the offender. It is hence warranted that the government addresses the shortcomings of the criminal investigation system of the country.

International Stance on Wrongful Conviction and its aftermath

The ICCPR cast an obligation on the nations who have ratified it to meet their obligations arising from article 14(6), on the miscarriage of justice. Many countries have, either by amending their existing legislative texts or by formulating special legislations have met their obligations to ensure delivery of compensation to those wronged, which establishes the responsibility to rehabilitate and compensate. Examining the framework of Germany, a party to the ICCPR has introduced a concept called “official liability”, assigning liability to the state, and making it responsible to compensate. Article 34 of the German Constitution elaborates on this liability and acts as the primary source of law in this regard.[27]

Further, the country legislated the Law on Compensation for Criminal Prosecution Proceedings in 1971 which details the regime for compensation for wrongful convicts. Further, the country also has a legal framework, within the Law on Compensation for Law Enforcement measures, which deals with undertrial prisoners and compensation allotted to them. The comprehensive and thorough framework of Germany also lays down provisions for compensation claims under both its Civil code and criminal code.[28] The official is himself liable here, with the responsibility of the state being an indirect liability.

Conclusion

Where there is a right, there is a remedy, translation of the legal maxim “ubi jus ibi remedium” highlights the role of the state to compensate in case of violation of any right, human rights or otherwise. Wrongful conviction is a violation of the human rights of the innocent victims framed for offenses they did not commit, due to inadequate investigation, malicious or prosecution in bad faith which violates the right of liberty of an innocent individual and needs to be adequately compensated. The duty rests on the state to compensate wrongful convicts, just monetarily, but also non-pecuniary compensation. While the Indian government is attempting to strengthen the criminal justice system by widening the scope of UAPA, it is equally important on part of the state to strengthen the policy to compensate the wrongful convicts. Even after ratifying the ICCPR and after the 277^th LCI report, the failure on part of the state to ensure a framework regime for compensation is questionable and unjust. While the state primarily has the duty to prevent a wrongful conviction from ever happening, compensating the wrongful convicts is of equal importance and needs immediate attention.

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References:

[1] Sonam Saigal, Prisoners of the System, The Hindu (Feb. 20, 2017, 7:53 IST), https://www.thehindu.com/news/cities/mumbai/prisoners-of-the-system/article17333262.ece.

[2] Prison Statistics India 2015, National Crime Records Bureau, p. 75 available at https://ncrb.gov.in/sites/default/files/PSI-2015-%2018-11-2016_0.pdf.

[3] Anurag Bhaskar, Jailed for years: Why India needs a right to compensation for wrongful arrests & detention, The Print (July 9, 2019, 10:13 IST), https://theprint.in/opinion/jailed-for-years-why-india-needs-a-right-to-compensation-for-wrongful-arrests-detention/260336/.

[4] Auroshree, Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (Law Commission of India- Report No. 277), The SCC Online Blog (Sep. 8, 2018), https://www.scconline.com/blog/post/2018/09/08/wrongful-prosecution-miscarriage-of-justice-legal-remedies-law-commission-of-india-report-no-277/.

[5] Sanjeev Kumar & Abhishek Goyal, Wrongful Prosecution-Victim’s Rights and State’s Obligations, Mondaq (Feb. 1, 2019), https://www.mondaq.com/india/trials-appeals-compensation/777794/wrongful-prosecution-victim39s-rights-and-state39s-obligations.

[6] 287 U.S. 45.

[7] 294 U.S. 587.

[8] History.com Editors, Scottsboro Boys, History (Jan. 16, 2020), https://www.history.com/topics/great-depression/scottsboro-boys.

[9] Mohd. Jalees Ansari v. Central Bureau of Investigation, (2016) 11 SCC 544.

[10] Sahibnoor Singh Sidhu, Neither bail nor a remedy to avail- the ignorance of the government towards the 277^th report of the law commission of India, The Criminal Law Blog NLUJ (July 22, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/22/neither-bail-nor-a-remedy-to-avail-the-ignorance-of-the-government-towards-the-277th-report-of-the-law-commission-of-india/.

[11] Rudal Shah v. State of Bihar, (1983) 4 SCC 141.

[12] Id.

[13] Eleen Garg, The lost right to Compensation of Wrongfully Convicted Victims: A Critique, Lawctopus (Nov. 1, 2020), https://www.lawctopus.com/academike/the-lost-right-to-compensation-of-wrongfully-convicted-victims-a-critique/.

[14] Adambhai Sulemanbhai Ajmeri v. State of Gujarat (2014) 7 SCC 716.

[15] Srinivasa Rao Appasaru, 10 Suspects in 2005 Hyderabad Suicide bombing acquittal, The Hindustan Times (Aug. 10, 2017, 18:21 IST), https://www.hindustantimes.com/india-news/10-suspects-in-2005-hyderabad-suicide-bombing-acquitted/story-flI02EQzHjVARjq3WhFDdO.html#:~:text=As%20the%20case%20fell%20flat,from%20Bangladesh%2C%20were%20declared%20innocent.

[16] Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi, 2017 SCC OnLine Del 12045.

[17] Law Commission of India, Wrongful Prosecution (Miscarriage of Justice): Legal Remedies, Report no. 277 (Aug. 30, 2018), https://lawcommissionofindia.nic.in/reports/Report277.pdf.

[18] Supra 7.

[19] Supra 7.

[20] Supra 17.

[21] Supra 13.

[22] Supra 4.

[23] Supra 17 at 16.

[24] The Protection of Rights of Wrongful Convicts, Bill No. 218 of 2018, available at http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2314as.pdf.

[25] Mahtab Alam, Why Wrongful prosecution Should Become an Electoral Issue, The Wire (Apr. 4, 2019), https://thewire.in/rights/jail-wrongful-prosecution-electoral-issue.

[26] Nuno Garupa & Matteo Rizzoli, Wrongful Convictions do Lower Deterrence, 168 J.I.T.E 224, 225.

[27] Supra 17 at 22.

[28] Supra 17 at 23.