By: Dhruv Kohli* |
On January 29, 2022, 44-year-old Kevin Durgar was released after spending nearly 20 years in prison for a crime that he had not committed. Kevin, who was innocent, was sent to prison as the authorities "mistook" his identity to be that of his brother, who was the actual perpetrator of the crime and it took nearly 20 years for the authorities to realize their mistake and make amends. While nothing can bring back the lost 20 years of Kevin's life, the state authorities are bound to compensate him as per the law of the state of Illinois. In addition to monetary compensation, Kevin would also be given non-monetary compensation, allowing him to reintegrate within society and restart his life. Kevin's case reminds us of Assam's Madhubala Mondal, who spent three years in prison due to "mistaken identity." However, while Kevin has the recourse of law to restart his life, for which the state would have to provide him with compensation, there exists no such recourse for people like Madhubala. The present article in this context looks to elaborate upon the need to have a framework to compensate those who are wrongfully convicted and takes the exercise to explain what exactly a law for compensation should look like.
Compensatory Jurisprudence in India- An Overview:
Compensatory Justice means "money which a court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal value for his loss."[1]In the landmark Indira Sawhney judgment, the court held that "compensatory justice is not merely affirmative action, it is also distributive justice." Thus, the aim of compensatory justice is to provide counterbalancing benefits to those individuals who have been wrongfully injured in the past so that they could be brought up to the level of wealth and welfare that they would now have had if they had not been disadvantaged.
Compensatory Jurisprudence has emerged as a full-fledged branch under the ambit of public law remedy wherein the courts have handed out compensation for violation of fundamental rights, specifically Article 21, which is, in addition, to remedy available under tort law. The aim behind giving out compensation is twofold; firstly it is a way of regulating the relationship between the victim and the wrongdoer and secondly, it also regulates the relationship between the victim and the administration of Justice.[2]
As back as the year 1962, with its pronouncement in State of Rajasthan v. Vidhyawati, the apex court established a new branch of judicial activism wherein compensation was granted to citizens wronged because of State actions. Again in Khatri (II) judgment, the apex court, while answering a set of questions, had held that "State is liable to pay compensation to victim for violation of their right under article 21". It was finally the pronouncement in the famous case of Rudul Shah v. State of Bihar wherein the apex court held that the court could pass an order of grant of compensation by exercising its jurisdiction under article 32 of the constitution. Since Rudul Shah, the courts in India have time and again ordered the payment of compensation in a variety of cases ranging from death due to police action to death due to open manhole, birth after vasectomy, and loss of vision in eye camp, etc.
Compensation to wrongfully Imprisoned- The History and the discrepancy:
Having looked at the history of compensatory jurisprudence in India, we now shift our attention to the issue at hand, compensation to those who are wrongfully convicted. The case of Rudul Shah incidentally referred to a case of a man who had wrongfully spent 14 years in prison. The Apex Court, in its judgment, had awarded the petitioner Rs. 30 000 (in addition to 5,000) already paid as the court had felt that the petitioner could not be left "penniless." Again, in the landmark decision of Bhim Singh v. State of J&K, the petitioner, who was an M.L.A., was illegally arrested by the police authorities for about two days. By placing reliance on Rudul Shah, the court favoured the petitioner and ordered the authorities to pay him compensation to the tune of Rs 50,000. In Dr. Rini Johar & Anr. v. State of M.P., the first petitioner was wrongfully arrested for 17 days, whereas the second petitioner was arrested wrongfully for 21 days. The apex court ruled that there was a definite violation of article 21 of the constitution and awarded damages to the tune of Rs 5 Lakh to each of the petitioners.
A perusal of these three apex court judgments reveals that the law in India allows for compensating those who are wrongfully imprisoned and have to spend time in prison for no fault of theirs. However, the present article shall focus on the discrepancy relating to the amount the courts in our country award.
In the Rudul Shah case, the petitioner spent 14 years in jail, for which an overall amount of Rs 35,000 was given to him. When adjusted with inflation, in the present time, it would be somewhere around Rs 5,47,000. In Bhim Singh, however, the petitioner was wrongfully arrested for about two days and was paid an amount of Rs 50,000, which, when adjusted with inflation, becomes somewhere around Rs 6,83,000. In the infamous case of I.S.R.O. scientist S Nambi Narayan, wherein he had spent 50 days wrongfully in prison, the apex court had awarded him damages worth Rs 50 Lakh.
There have been several other cases wherein this arbitrariness is visible. The Patna H.C., for instance, awarded damages to the tune of Rs 5 Lakh to a man who was wrongfully arrested and kept in jail for 35 days. In Hardeep Singh's case, the petitioner, who had spent nearly ten years in prison, was paid a meagre sum of Rs 2 Lakh, whereas in another case, where the petitioner was kept in jail for 11 days, and he had to fight his legal battle for ten years, he was given a sum of Rs 10 lakh. In Prempal v. The Commissioner of Police & Others, the petitioner had spent two and a half years in jail, and he was awarded Rs5,32,000 at 6% simple interest in addition to an amount of 30,000. In Algamal v. State of Tamil Nadu, the petitioner was wrongly arrested for a few hours and subsequently was awarded compensation of Rs 2lakh. The Bombay HC awarded damages worth Rs 5 Lakh to a person who was wrongfully arrested for five days. Similarly, the M.P. H.C. awarded damages worth Rs 5 Lakh to an individual who was illegally detained for four months. In contrast, the same H.C. awarded a sum of only Rs 1 Lakh to a man who was imprisoned wrongfully for 12 years.
All the above cases plainly show the arbitrariness present in the system when it comes to the award of damages in cases of wrongful incarceration. Often, the argument is that there can be no set framework in such cases, and hence, such cases are to be decided on a case-case basis. However, instances showcase that the compensation is based on 'what the judge believes to be correct’. The same concern was reiterated by the Hon’ble Delhi HC, when it called for the formation of a specific law for compensation of those who were wrongfully imprisoned. Therefore, the very presence of this subjective element has rendered this remedy arbitrary and episodic.
Law Commission Report 277- A half-hearted attempt:
In August 2018, in response to Delhi H.C., the law commission submitted report 277 titled "Wrongful Prosecution (Miscarriage of Justice): Legal Remedies." The report's purpose was to look into the issue of wrongful incarceration and suggest a practical framework to overcome the issue, as there existed no direct framework on the issue. As per the report, there are about 4,19,623 prisoners in our country (as per the prison stats of 2015), and within this number, 67.2% remain as undertrial prisoners. Of these, 25.1% remain in prison for more than 1 year, whereas 17.8% spend up to 1 year as undertrial prisoners, 21.9% of the undertrials were in prison for 3 to 6 months, and 35.2% spent up to 3 months in prison. A straightforward inference that could be drawn here is that amongst the undertrials, there is a possibility of a section of undertrials being innocent and still would have to undergo wrongful incarceration.
The report looked deep into this issue. During this process, it also referred to legislations present in foreign jurisdictions. It acknowledged that when it comes to providing compensation in cases of wrongful incarceration, the remedy is "episodic and is not easily available to all similarly situated persons."
The report called for the establishment of special courts to look specifically into such cases. The report also called for an amendment of the relevant statutes that would make compensation a legislative obligation and recommended several factors that should be considered while deciding the compensation amount. These factors include the severity of punishment, loss of family life, loss of reputation, loss of opportunities, psychological harm, etc. Furthermore, in addition to monetary compensation, the report had also recommended non-monetary compensation, which includes counselling, skill development services, etc.
The point wherein the report lacked was, it believed that "it does not appear feasible for the law to lay down a fixed amount of monetary compensation to be paid." As per the report, the guiding principles or the factors suggested by it would guide the court to decide the amount of compensation. The factors suggested by the law commission in its report itself promote the "subjective element" which renders this remedy arbitrary in itself. Even without the presence of a specified law, judges take into consideration the factors mentioned in the report, and from the cases cited above, it becomes evident that the factors do not actually 'guide' the court as the compensation that is handed out is highly arbitrary.
Instead of 'fixing' a specified amount, this report should have suggested an amount for every day/month/year that a person has spent under wrongful incarceration. What this essentially means is that if a person spends one year under wrongful incarceration, then the compensation given to him would consist of a base amount (which would be calculated on the above basis) plus an amount that the court would decide based on the factors mentioned within the law commission report.
Conclusion:
Time and again, courts have pronounced that uniformity is at the core of the judicial discipline. The present system of award of compensation strikes at this very core thought process. Not only is the award of damages arbitrary and thus, against the very basic principles of judicial uniformity, the absence of a law on compensating those who have been wronged because of state actions strikes directly at one of the most fundamental rights of our constitution, the right to life. Since the pronouncement in the Maneka Gandhi case, the right under article 21 has been given an expansive interpretation by the courts. The right to life of an individual inevitably takes a hit when he has to suffer wrongfully because of state actions. The least that could be done for such individuals is that the state is asked to compensate them so that they could attempt to reintegrate themselves within the society, thus effectively applying the expansive interpretation of article 21.
The Apex Court had held that award of damages is only to be given in cases wherein the violation of article 21 is 'patent and inconvertible' and 'shocks the conscience of the court.' The very fact that a person has to undergo a prison sentence for no fault of his is itself a failure of our nation's justice system. Allowing for compensation only in cases where the 'conscience of the court is struck' eventually increases arbitrariness, further adding to the misery of an individual who has already suffered a lot.
While time and again, the demand for a law on fair compensation has been raised, it needs to be realized that any such law would have to comprise a fixed basic pay (as specified above) which would be combined with factors mentioned in the law commission report. This would assist in removing arbitrariness from judicial decisions to a certain extent and allow to give a meaningful effect to the right mentioned under article 21.
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*The author is a 2nd-year student at Gujarat National Law University, Gandhinagar.
[1] 3 Ramanatha Aiyar, Advanced Law Lexicon 918 (Lexis Nexis 2005).
[2] Vijay Singh, Compensatory Justice Jurisprudence in Indian Public Law- An Analysis, 3 NLUALPR, 1, 2 (2018).