Earlier this month, Delhi University professor G.N Saibaba, who suffers from a 90 per cent physical disability, was acquitted by the High Court of charges under the Unlawful Activities (Prevention) Act, the UAPA.
He had been in detention for more than nine years, during which time his already fragile health has deteriorated and he has been terminated from his job. The Supreme Court has rightly refused to stay his exoneration and release.
Some years ago, Dr Kafeel Khan of the Gorakhpur hospital tragedy fame— who tried to save infant lives by buying oxygen cylinders out of his own pocket and was jailed for it by the Uttar Pradesh government — was freed by the Allahabad High Court, which found no evidence against him.
He had been kept in various prisons for eight months without legal justification. Dr Khan, however, was one of the lucky ones.
This government has been in overdrive these last 10 years to lock up anyone who can think independently of its propaganda machinery or can express themselves in opposition to its anchors and spokespersons — academists, activists, the rare journalist, students, NGOs...
One of its main instruments in this pogrom is the deadly legacy bequeathed it by the Congress, the UAPA ( Unlawful Activities Prevention Act) — now suitably amended by the BJP to fit its image.
NCRB data shows that 5,023 cases had been registered under the UAPA between 2018 and 2022, and 701 under the sedition sections. During the period 2014–2020, however, 10,522 persons were arrested.
Tellingly, according to information furnished by the Ministry of Home Affairs in the Rajya Sabha in 2021, the conviction rate of arrested persons under this Act is less than 2 per cent! In other words, 97 out of 100 arrested persons are ultimately acquitted.
And this is only at the trial court stage; after the appeals process, the convicted figure would come down even further.
This exposes the government’s game: the idea is not to convict — since the charges are usually trumped up and without any evidence; the intention is to harass, teach “them” a lesson, intimidate and take them out of circulation for as long as possible. The government has nothing to fear if its cases fail in court, for there is no accountability and there are no penalties.
But in the process, tens of thousands of innocent persons have been locked up for months and years without reason. Anjum Zamarud Habib was in prison for 5 years, Mohammad Amir Khan for 14 years, the Akshardham temple blast accused for much longer before being exonerated of terrorism charges.
That is why Kafeel Khan was lucky and this is why it is as good an inflection point as any to consider the endemic problem of malicious prosecution and wrongful arrests in this country — and whether or not the state should provide reparation to these victims of deliberate state excesses.
The guarantee that no citizen shall be deprived of their personal liberty without reasonable evidence against them is the bedrock of human rights and the corner stone of an equitable system of justice.
As the criminal justice system heads towards total collapse and the government compensates by legislating more and more draconian laws, stipulating arrests without any inquiry and/or no provision of bail, such detentions shall surely increase. It is time to address the issue rationally.
Citizens in India are being confined illegally on a colossal scale, either in police lock-ups or in judicial custody. Our prison population is in excess of 5 lakh, of which 70 per cent are undertrials who have not yet been convicted of any offence. The majority of them are not likely to be convicted either.
According to NCRB data again, the national conviction rate for IPC offences is just 45 per cent; in other words, of the 3.50 lakh undertrials in jail, 55 per cent — or 2..45 lakh — will be found innocent for want of evidence! A further 25 per cent of them will get off on appeal.
But they would have spent years behind bars, deprived of their liberty and natural rights, their future blighted by the stigma of imprisonment, unemployment and broken families.
Why were they arrested in the first place ? Why did the courts send them to judicial custody if there was no prima facie evidence against them?
The answer is nothing short of an indictment of our criminal justice system: callous apathy, venality and incompetence of the police, failure and lack of due diligence on the part of our lower courts and complete indifference of the policy makers.
To begin with, many of our laws themselves are defective to the point of being bloodthirsty — laws relating to dowry deaths, suicide, rape, domestic violence, atrocities on scheduled castes, sedition, terrorism are so crafted that the 'accused' can be arrested straightaway without the need for any corroborating evidence.
This is grist to the police mill which in any case is more interested in 'closing' a case by arresting someone than in ensuring that actual justice is done by catching the real culprits.
Quite often, the public/ political/ media pressure is so intense that an arrest — any arrest — is the only way to get them off the police's back. Thereafter shoddy investigation, external influences, lengthy trial delays, witness intimidation, frequent transfers and lack of any accountability ensure that at least 55 of every 100 cases will inevitably end in acquittal, either at the trial stage itself or in appeal.
Meanwhile, of course, those arrested will languish in jail.
The same bizarre process applies to convictions after trial.
In the Akshardham Temple blast case of 2002, six accused were convicted by the trial court and High Court: three were sentenced to death and three others to imprisonment ranging from 10 years to life. All six were acquitted by the Supreme Court on 16 May 2014. But by then their lives had been destroyed, as they had spent the intervening 10 years in jail.
There are hundreds, if not thousands, of such cases playing out every year. It boggles the mind how two judges, on the same set of facts and evidence, can come to such polar opposite decisions — life sentence by one and acquittal by the other.
The other question is: Should the nation not compensate them for the miscarriage of justice, at least financially, even though no reparation could possibly bring back the years lost, the reputations tarnished, the families torn apart?
There are many types of wrongful confinement:
false arrest: detaining a person without lawful authority;
wrongful arrest: taking someone into custody without prima facie evidence;
wrongful imprisonment: confining someone without just cause or without using legal channels;
and wrongful conviction: imprisoning someone on grounds/ evidence subsequently found to be inadequate.
The first three are blatant violations and transgressions of the law; only the last type is a consequence of a (defective) legal process, but it is nonetheless no solace to the victim. All four are rampant in India.
The really genuine and accountable democracies have accepted that victims of a necessarily imperfect criminal justice system are entitled to reparation from the state, and have devised mechanisms for it.
In the US, 29 states have legislated Wrongful Conviction Compensation statutes which provide compensation ranging from US$ 50,000 to US$100,000 for every year of wrongful imprisonment. A typical case is that of one Marty Tankleff, who was wrongly convicted for the murder of his parents and had to spend 17 years in incarceration before he was acquitted in 2007. He was awarded compensation of US$ 3.4 million dollars.
In the UK, Canada, New Zealand and Germany too systems exist for the state to be sued in such cases. It is next to impossible to do so in India because both specific legislation and a general law are missing. We have failed to enact a law on reparations even though India is a signatory to the International Covenant on Civil and Political Rights.
The framework for having such a law exists, however.
Articles 32 and 26 of the Constitution allow the Supreme Court and the high courts, respectively, to pass orders and provide relief in such matters, and it is the constitutional right of a citizen to approach the courts.
There is also a wealth of jurisprudence and case law to mandate that the state pay compensation for wrongful confinement. The relevant landmark judgments by the Supreme Court are in Bhim Singh vs State of Jammu and Kashmir and in Rudul Sah vs State of Bihar (1983). In the latter case, the Supreme Court laid down the legal responsibility of the State in no uncertain terms:
Over the years, both the Supreme Court and various high courts (Madhya Prdesh, Jharkhand, Kerala, Bihar, Assam and Madras) have also awarded compensation to petitioners in their writ jurisdiction, the most notable and recent one being the Rs 1.3 crore reparation paid to the ISRO scientist Nambi Narayan by the Kerala government for arresting and hounding him for 26 years on false spying charges.
But this sporadic, discretionary, pick-and-choose approach is certainly not adequate.
Let us not forget that most of the undertrials and victims of police high-handedness and judicial apathy come from the weakest sections of society (economically and socially) and do not have the resources to file writ petitions and engage expensive lawyers.
Nor do they have the social eminence of a Nambi Narayan to motivate the media to take up their case.
There should be a simple, specific legislation that can be accessed at the level of a district court or even a statutory authority like the district magistrate.
The law should, among other aspects, lay down the compensation to be paid for both pecuniary and non pecuniary damage caused to the petitioner by his illegal confinement and the scale of reparation should be based on that.
There should also be a provision for recovery of the amount from the salaries of the officials involved. This is necessary to curb the growing enthusiasm of the police to carry out any illegal order of their political bosses, or even to indulge their own brutish instincts.
The standard argument of governments has been that the state cannot afford the financial burden.
Yes, there would be a cost: a back-of-the-envelope calculation shows that if even 50 per cent of undertrials are ultimately released and compensated by Rs 50,000 for every year of wrongful incarceration, assuming that (a) each of them has to be given compensation for five years and (b) that one-fifth of the undertrials would be released/need to be compensated each year, the annual payout would be Rs 1,250 crore.
To put that in perspective, however, that is just 15 per cent of what the Prime Minister's special planes cost, or 30 per cent of what the Statue of Unity cost the exchequer, or less than 25 per cent of what the Prime Minister spent on his publicity last year. Surely a vaunted 4 trillion dollar economy can bear this cost of destroying hundreds of lives?
And this figure shall come down drastically over time once the positive spin-offs of this reparatory policy kick in. These will include:
better investigation of cases and collection of evidence, leading to fewer unwarranted arrests and reduction in the number of undertrials over time;
fewer adjournments in courts, with more accused being released on bail;
with financial accountability now being fixed, the police becoming more circumspect in detaining people and in framing them to manufacture 'results';
governments, both state and central, being more careful and discerning in filing appeals against acquittals (an invariable practice currently) since now there may be a further cost attached if the appeals are not successful;
the case load in the courts at all levels coming down, making the whole justice system more efficient, even generating financial savings in the juridical ecology.
Wrongful confinement of any type by any agency of the state is a violation of human rights. When it occurs on the scale that it does in our country, it amounts to a negation of an equitable justice system.
The prevailing concept of 'arrest first, gather evidence later' is abhorrent to the spirit of jurisprudence. One can understand the indifference of the government and the parliamentarians, but what is inexplicable is the silence of the judiciary and the bar.
Is it because the former is equally guilty through its casual approach and the latter because this infringement of fundamental rights is good for business?
Whatever the reason may be, it is high time laws were put in place to compensate the victims of wrongful arrest/ conviction and to punish the perpetrators. At the least, this would have a salutary effect on the way our police conduct investigations and the judges examine evidence.
The people have voluntarily given the state enormous power over their lives in order to live in a just and lawful society; when the state errs in the exercise of this power it must offer reparation to its victims. Not doing so would be breaking a covenant that is the bedrock of a democracy.
Avay Shukla is a retired IAS officer and author of The Deputy Commissioner’s Dog and Other Colleagues. He blogs at avayshukla.blogspot.com
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