India's wrongfully imprisoned get little relief as country lacks proper legal remedy

A Delhi High Court bench comprising of justices S Muralidhar and IS Mehta observed last week that presently there is no legal or legislative framework that aims to provide rehabilitation and relief to victims who are wrongly prosecuted and incarcerated and that a policy around this is urgently required. The bench stated that there is an “obvious gap” in the present legal scenario where there is no compensation or rehabilitation of such people.[caption id=“attachment_3972279” align=“alignleft” width=“380”] Justice for all? Image courtesy CCO[/caption] An order on the matter dated 15 September 2016 stated that there needs to be a proper examination of the issue, and the court sought the expertise of GS Bajpai, professor of Criminology and Criminal Justice, National Law School, Delhi by appointing him the amicus curiae. Bajpai submitted a detailed report where he reviewed the practices in the United Kingdom and the United States of America wherein victims of wrongful or malicious incarceration are compensated. In fact, Bajpai’s research indicates that there are 32 states in the USA, including the District of Colombia where are there specific laws that provided both monetary as well as non-monetary compensation to the wrongfully incarcerated. His report also shows that specific government schemes in the UK and New Zealand also provide remedies and relief to such victims. However, India’s laws remain silent about this. The concern of the bench about this issue is immense: There is, at present, in our country no statutory or legal scheme for compensating those who are wrongfully incarcerated. The instances of those being acquitted by the High Court or the Supreme Court after many years of imprisonment are not infrequent. They are left to their devices without any hope of reintegration into society or rehabilitation since the best years of their life have been spent behind bars, invisible behind the high prison walls. The report referred to a number of judgments wherein the Supreme Court had stated that compensation can be awarded if Fundamental Rights under Article 21 of the Constitution had been violated. In Khatri v. State of Bihar (1981), the Supreme Court stated: The liability to compensate a person deprived of his life or personal liberty otherwise than in accordance with procedure established by law was implicit in Article 21." In Rudul Sah vs State Of Bihar And Another (1983), chief Justice YV Chandrachud held: 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. In Bhim Singh v. State of Jammu and Kashmir (1985), the courts affirmed that when a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. In the case of Sant Bir v. State of Bihar (1982) the court provided compensation to petitioner stating that he was entitled to this as he was illegally detained. The above cases were referred to by Bajpai. However, he understands that these are “episodic” instances where the victim of illegal detention has been compensated for rehabilitation. The government of India has no welfare schemes or measures for rehabilitation of such individuals. The report also looks at specific provisions in the Code of Criminal Procedure of India. Sections 357 and 357 A to C of the CrPC have provisions for compensation to victims of crimes. However, the implementation of these legal provisions is dependent upon the efforts of the legal services authorities and various government officers. Section 358, the report states, provides “token relief” in compensating “persons who are groundlessly arrested”. The provisions take into account the suffering of the innocent prisoner as well as his/her family that faces deprivation and hardship. The report suggests that there should be an omnibus legislation that looks at the needs of the victims of crime as well those incarcerated wrongly, and this legislation should look at compensation as well rehabilitation and reintegration of such persons. However, there are two issues with this proposal. One is that an omnibus legislation that combines rehabilitation and compensation of both victims of crime and wrongful incarceration is unlikely to be implemented effectively. The suffering of survivors of violent crimes and those who are illegally detained can be both examined under Article 21 but they should not be addressed by one legislative framework. Secondly, when debating this proposed legislation, it is immensely significant to look at and deliberate on the policy in a way that it is intersectional. Prison Statistics of India data from 2013 (NCRB) indicates that Muslims, Dalits and Adivasis who are the most vulnerable people in India make up more than half of India’s prison population. A total of 53 percent people in prison are either Muslim (20 percent), Dalit (22 percent) and Adivasi (11 percent). The  2015 data from Prison Statistics India suggests that 31.2 percent of prisoners in India belong to the Other Backward Classes category, while 20.9 percent belong to Scheduled Castes and 13.7 percent belong to Scheduled Tribes. In 2014, Colin Gonsalves, a human rights lawyer and activist, affirmed that the poverty of these communities are often obstacles to their relationship with the legal system – Our system has an ingrained communal and casteist bias. Also, the proportion of these communities in the police officers and even judiciary is less. These are key factors behind this shocking imbalance. This systemic problem needs to be examined and be reviewed through this legislative framework. A rehabilitative scheme for the wrongfully imprisoned without examining intersectional issues such as economic, social and communal divides will be futile.