Dr. Kafeel Khan, of the Gorakhpur tragedy fame a couple of years ago who tried to save infant lives by buying oxygen cylinders out of his own pocket and was jailed by the UP government for it, has been freed by the Allahabad High Court which found no evidence against him. He was kept in various prisons for eight months without legal justification. Dr. Khan, however, is one of the lucky ones.

This government has been in an overdrive this past year to lock up anyone who can think independently of its propaganda machinery, or express himself 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 3005 cases have been registered under UAPA between 2016 and 2018, more than 350 in UP alone. Tellingly, however, in 2016 (the last year for which data is available) 22 cases out of 33 which were decided ended in acquittal: in other words, two out of three arrested were found not guilty. 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.

But in the process thousands of innocent persons would 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 why this 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 his personal liberty without reasonable evidence against him 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 about 4.50 lakhs, of which 70% ( 3.10 lakhs) 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 the national conviction rate for IPC offences is just 45%; in other words, of the 3.10 lakh undertrials in jail 55% or 1.65 lakhs will be found innocent for want of evidence ! A further 25% 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.

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 entire 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 blood thirsty- 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 public/ political/ media pressure is so intense that an arrest-any arrest-is the only way to get them off their backs. Thereafter shoddy investigation, external influences, lengthy delays, witness intimidation, frequent transfers and lack of any accountability ensure that 65 of 100 cases will inevitably end in acquittal, either at the trial stage itself or in appeal(s). 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 May 16 2014 . But by then their lives had been destroyed as they had spent the intervening ten years in jail.

There are hundreds, if not thousands, of such cases playing out every year. Should the nation not compensate them for the miscarriage of justice 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 legal process, but it is nonetheless no solace to the victim. All four are rampant in India.

Genuine 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 USA 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, 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 or 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 SC laid down the legal responsibility of the State in no uncertain terms:

“The State must repair the damage done by its officers to the petitioner’s rights. It may have recourse against its officers.”

Over the years both the Supreme Court and various High Courts( MP, Jharkhand, Kerala, Bihar, Assam, Madras) have also awarded compensation to petitioners in their writ jurisdiction, the most notable and recent one being the Rs. 13 million reparation paid to the ISRO scientist Nambi Narayan by the Kerala govt. 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 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. 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.

Wrongful confinement of any type by any agency of the state is a violation of human rights, and 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 are put in place to compensate the victims of wrongful arrests/ convictions 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.

Here is a PIL crying out for suo moto attention of the Supreme Court, one of far more consequence for the common citizen than a suo moto contempt petition.

Avay Shukla is retired from the Indian Administrative Service.

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AVAY SHUKLA