The Economics of an Imbalanced Scale of Justice

By Anchal Bhatheja


The Law treats civil and criminal matters differently in terms of the degree of burden of proof required, the nature of courtroom procedure to be followed, the punishment to be awarded and so on. This is because civil matters concern only private individuals while criminal matters concern the society at large and it is worthwhile for the state with all its resources to make sure that the wrongdoers face the music for their wrongdoings. However, when the state with its umpteen resources in terms of money and machinery prosecutes an innocent individual with meager resources, the scales of justice tend to tilt on the side of the state.  This leads to a violation of the fundamental freedoms of the individual and causes the immense tangible and intangible cost to them.

The social cost of a criminal accusation is abysmal because it leads to ostracization of the individual and their family. It causes emotional damage, loss of dignity, healthy life and sometimes even life.

However, apart from this, a frivolous accusation can lead to immense economic costs as well. This cost includes the loss of employment opportunities. Concerning this, the court in State of West Bengal & OR’s. Vs. Nazrul Islam, has directed that a person facing a criminal trial or convicted of a criminal offence is not suitable for a government job. Any prospective employee is duty-bound to reveal criminal charges against them and the employer is supposed to conduct a background check in order to ensure that the employee does not have any criminal charges pending. Moreover, if a government employee spends more than 48 hours in police custody, they are suspended from their job. Likewise, private companies also conduct background checks to see if the prospective employee has a past criminal record. All this severely harms the reputation of the accused and kills their job prospects even after a delayed acquittal. In addition to this, as per Section 6(II) of the Passports Act, 1967, a frivolous accusation can also lead to the denial of the visa to go abroad in certain cases thereby, hurting the prospects of employment or education abroad.

Further, if the individual is wrongfully convicted post the accusation, the opportunity cost rises multifold. This is because many a time the innocent are incarcerated for decades and this bars them from working, earning and contributing to the family income and even after the release, the job prospects continue to stay bleak.

The pecuniary damage increases exponentially when a falsely implicated innocent is burdened with the exorbitant cost of litigation. The legal complexities immensely add up to the cost. In spite of the Supreme Court rules 2013, which prescribe a limit of Rs. 8,000 on the amount that can be charged by a lawyer for a single hearing, the prominent lawyers at the high courts and Supreme Court charge exorbitant fees for a single appearance which ranges from 10 to 25 lakh.

What adds up to the cost in terms of time and money, are the inordinate delays that have of late, become the most bitter reality of the Indian judiciary. With a backlog of 3.53 crore cases out which, 70% concern criminal matters, the Indian courts are colossally overburdened. This makes the enterprise of justice costlier and inefficient thereby not only affecting the innocent accused, but also the litigating state.

This problem takes an uglier shape when the accused has limited financial resources. Various facts like 75% death row convicts in India are below the poverty line, 68% of the prisoners in India are under trials and 65% of these undertrials are from the SC, ST and OBC categories are just treated as monotonous numbers that remain trapped in bulky government archives. This is how justice becomes a commodity and the higher bidder is able to secure it.

A rebuttal to the issue of commodification of justice, that is grounded in the constitution but is fact-free, is that article 39A provides that free legal aid is to be given to the under-privileged and this mechanism is capable of securing the preambular goal of social justice. It is fact-free because statistics suggest otherwise. This becomes clear from a report released by the center of the death penalty in May 2016 which stated that 60% of the death row convicts went beyond their financial capacities to ensure that they had a private lawyer to defend their case. This desperation to have private lawyers, despite the existence of free legal aid, conclusively stems from the lack of trust in the free legal aid system due to its inadequacies. This shows that the criminal justice system is not only excruciatingly painful for the innocent but is also very pro-rich in nature.

After discussing the consequences of a frivolous criminal case on an innocent, we ought to look at the roots of the problem. An individual might be implicated due to a false accusation or a wrongful prosecution.  The former occurs when an individual, intentionally or unknowingly files a false case against the accused and the latter occurs when any organ of state machinery at any stage of the trial, intentionally or negligently commits an error to the detriment of the accused. The problem of false accusations is attributable to private individuals whereas the problem of wrongful prosecution is attributable to the state. Despite being two distinct problems, both of them yield the same result which is that they take liberty and sometimes even the life of the accused.

Considering the enormous cost that is borne by the innocent, this problem calls for a quick solution because although the state guarantees life and liberty of every individual, it is impossible for the state to return this life and liberty after it has already taken them away.

Therefore, to curb the menace of malicious prosecution cases, the law needs to be extremely deterrent in nature because these false complaints might be made by private individuals for seeking personal vengeance or filing counter cases. Sometimes civil cases are turned into criminal accusations in order to pressurize the opposing party who tries to settle the matter in turn for a price.

In this scenario, the police need to be extra cautious while investigating the crime in order to make sure that the complaint is not baseless. Along with this, as per the recommendations of law commission, section 358 of the CRPC should be amended as it presently provides for a nominal fine of Rs. 100 to be paid by the complainant to the falsely accused person who gets arrested due to the false complaint in order to compensate them for the loss of time and expenses. However, the amount of 100 is extremely inadequate and is no deterrent at all.

 Then, the high courts should do away with the practice of sparingly or lethargically invoking its inherent jurisdiction to quash false FIRs under section 482 of the CRPC in order to make sure that innocent do not stand in queues for their rights for years. Further, during the trial, the directives in H.S. Bedi vs. National Highway Authority of India should be taken seriously. Pursuing to this, the court should not be hesitant in invoking section 209 of the IPC that provides for the punishment of the one who makes a false claim in the court of law which violates or has the potential to violate the rights of the adversary. A judge should make the best use of section 165 of the Indian evidence act that vests them with the power to question any witness or any party. The purpose of this provision is to provide for reasonable judicial discretion and ensure that the judge plays a pivotal role in discovering the substantive truth. Lastly, attempts should be made to evolve the compensation jurisprudence in these cases so that the falsely implicated person receives requisite monetary damages and rehabilitation.

Furthermore, for the purposes of curbing state’s intentional and unintentional errors while prosecuting an individual, the recommendations of the BS Chauhan report that saw the light of the day due to a Delhi court directive in the case of Babloo Chauhan vs. State Govt. of NCT, should be implemented with full executive commitment. These recommendations include drafting of specific provisions to deal with cases of miscarriage of justice because till now, the jurisprudence concerning this issue has only been crafted by judges and there is a dearth of posited legislations thereby, making the outcomes unpredictable. The report also recommends the establishment of fast track courts to resolve the matters of wrongful prosecution and conviction. Compensation should be intersectional in nature and should account for the pecuniary damage caused, litigation cost borne, reputation damaged and opportunities lost. Compensation should include non-pecuniary damages like counselling services, rehabilitation, and skill development opportunities. All these reforms cannot undo the damage caused to the innocent, but they can certainly prevent consequential damages.

Implementing all these reforms is important for materializing the principle of presumption of innocence until proven guilty and preserving the sanctity of articles 21 and 22. Any deviation from these principles, would not only tamper with the efficiency of the legal system and the society which would still have ascertainable cost, but it will also most importantly tamper with individual life and liberty which is the most valuable and in fact, invaluable as per the constitution and would have an unascertainable loss.

[The author is a second-year student at National Law School of India University, Bangalore.]


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s