The law should deter wrongful prosecution

Not quite enough attention was drawn when the Allahabad High Court acquitted Vishnu Tiwari a couple of months ago. He was arrested, tried and convicted in a false case of rape filed against him due to an alleged dispute over a land after almost two decades. Innocence and acquittal in this case have no meaning for Vishnu who has lost everything during this period. The tale of Vishnu in this country is not an isolated one as several thousands in this country are behind the bars as undertrial. And there are ‘wrongfully prosecuted’ ones whose number is not known to us.

Following this case, a petition was also filed in the Supreme Court praying for directions for framing of guidelines pertaining to compensation of victims of wrongful prosecution. In highlighting the problem of wrongful prosecution, the petition can potentially benefit our criminal justice system (CJS) in myriad ways. The plea relies upon the Delhi High Court judgment in Babloo Chauhan versus Delhi wherein J Muralidhar had lamented the absence of a legal framework for providing relief to victims of wrongful prosecution. In the same case, I was appointed as amicus curiae by the Delhi HC and it had been my submission that a scheme must be developed to provide for comprehensive assistance to such victims. Consequently, the Delhi HC had referred the issue to the Law Commission, which culminated in the 277th Law Commission Report (LCR).

In this context, a shift in our CJS from rights-based due process values towards a repression of crime at all costs is fairly obvious. The recent string of baseless detentions and subsequent release of accused upon judicial intervention points to a questionable trend to arrest first and find justification later. A significant part of the problem lies in the lack of legislative/institutional accountability of the functionaries who perpetuate such injustices with impunity. On display is a violation of constitutional and statutory rights, accompanied by a blatant disregard for the psychological, sociological and economic implications of the abuse of power for the victims and their family members.

These unfortunate victims are discarded as unheeded ‘by-products’ of our criminal justice factory. A prominent example of such a victim is that of Adambhai Sulemanbhai Ajmeri. In 2014, Adambhai was acquitted by the SC in the Akshardham terror attack case after spending more than 11 years in prison for a crime in which he had been thoughtlessly and falsely implicated. His trials and tribulations during the period translate into extensive custodial torture, incarceration, loss of livelihood, psychological harassment, social stigma, rigours of criminal trial and much more. With the loss of their sole breadwinner, his family had to rely upon the benevolence of neighbours for meals and leftovers. His children had to discontinue their education, both for want of financial resources as well as stigmatisation at the hands of their peers for being the wards of a purported terrorist. The situation did not change much after acquittal and release either. Adambhai was unable to secure a job, mostly because the acquittal barely changed the social stigma which was already attached to his name and person. The absence of provisions under any act, regulation, rule, law or bye-law to remedy, redress or alleviate such suffering is perturbing.

In its discussion, the 277th LCR correctly espouses wrongful prosecution as a negligent or malicious procedural misconduct on part of the police or prosecutorial agencies which culminates into the prosecution of an otherwise innocent person who is ultimately acquitted for the reason of his innocence. Even though there is a growing concern about the increased reporting on the instances of wrongful prosecution, the current discussion and action around wrongful prosecution can best be termed as deficient.

The legislative framework envisaged by the 277th LCR is still too under-developed to merit a complete implementation. First, the discourse around miscarriage of justice has a specific context within which it is placed and the context of ‘wrongful prosecution’ can be differentiated from the same. The LCR, however, holds ‘wrongful prosecution’ to be the standard of ‘miscarriage of justice’ in India. Secondly, even though the Commission accepts ‘negligent procedural misconduct’ as an ingredient of wrongful prosecution, the cause of action as proposed by the LCR can only arise in cases of ‘malicious prosecution’ and ‘prosecutions instituted without good faith’. In effect, such definition ends up excluding particular instances where the prosecutions are attributable to technical lapses on part of the erring functionaries.

Thirdly, the framework proposed by the LCR robs the victims of their victimhood by continually using the term ‘accused’ to denote the person aggrieved by wrongful prosecution. Fourthly, the mechanism for compensation as proposed by the Law Commission is likely to run into many of the issues which are facing the existing compensation mechanism under Section 357 of the CrPC. The proposed scheme merely lists out the factors which must be taken into account by the court for computing the quantum of compensation without providing for a concrete method. The same could lead to arbitrariness in calculation. Perhaps a scheme of computation and disbursement of compensation as recently envisaged by the Delhi HC in the case of Karan versus State could be developed for this purpose.

Fourthly, as is the case with Section 357, the lack of definite time-frames within the legislative framework of the LCR could potentially delay the award of compensation and its receipt. Lastly, whereas the scheme proposed by the LCR allows for the court to direct the State to proceed against the erring official in accordance with the law, it doesn’t allow for the court to fix individual responsibility of such erring official. Another measure to increase accountability could be the promotion of restitution. The court must be allowed to order restitution to be paid to the victim directly by the erring official.

The discourse on wrongful prosecution in India is still pubescent in many respects, including the lack of a conceptual clarity in its definition. While the recommendations of the 277th LCR are a noble attempt, research is required into the political, social and economic aspects of wrongful prosecution. Neither can the need for a legislative framework governing wrongful prosecution and its compensation be denied. Nevertheless, insofar as it furthers the discourse on wrongful prosecution, the impugned petition is welcome indeed.

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