Neither bail nor a remedy to avail- the ignorance of the government towards the 277th report of the Law Commission of India

By Sahibnoor Singh Sidhu

Image for CCLS Blog Post by Sahibnoor S. Sidhu


The Delhi High Court via an order in the case of BablooChauhan v. NCT of Delhi(247 (2018) DLT 31) had requested the Law Commission of India (“LCI”) to examine the issue of relief and rehabilitation of victim of wrongful prosecution and incarceration. The High Court was of the strong opinion that it was problematic that there existed no criminal or civil remedies available to such victims and only in rare circumstances were such victims compensated. There indeed exists a plethora of case laws that indicate instances that amount to “miscarriage of justice.”  The LCI restricted its 277threport to the cases of malicious prosecution i.e where the person accused was not guilty of the offence made out against them and the police or the prosecution indulged in misconduct.

The need for this report and the importance of its recommendations is amplified by the fact that India has one of the highest ratios of under-trials v. convicts in the world, with a large number of them being eventually acquitted. This blog shall look at the situation of prisons in India, then the available remedies, and finally the efficacy and probability of the implementation of the recommendations of the LCI in its report.

The Indian Prison Story

The LCI report was submitted to the Law Ministry in August 2018, however, since then the National Crime Records Bureau released another report in early 2019highlighting the statistics of prisons and comparing them with previous years. The report compares statistics from 2016, 2017 and 2018. The important statistics from the report are reproduced below for easier reference. (Table 1)

Year No. of Prisons Capacity of Prisons Total Prisoners (occupancy rate) Prisoners- Convicts Prisoners- Undertrials
2016 1412 3,80,876 4,33,003 (113.7%) 1,35,683 (31.3%) 2,93,058 (67.68%)
2017 1361 3,91,574 4,50,696 (115.1.%) 1,39,149 (30.87%) 3,08,718 (68.5%)
2018 1339 3,96, 223 4,66,084 (117.6%) 139,488 (29.92%) 3,23,537 (69.4%)

Table 1: Comparison of Prison Statistics from 2016 to 2018 (all figures as of 31st December of the respective year; the table excludes detunes and other prisoners)

The above statistics reflect the status on the 31st of December of each year. It does not take into account prisoners who were imprisoned for a short duration and released in the same year. In the year 2018 a total of 18,47,258 inmates were admitted to the different prisons across India of which 46,084 are still in prison. It is clear from the above table, that while the number of prisons has been decreasing over the years, the total number of prisoners lodged in these prisons has only increased. Further, while both- the number of convicts and under-trials increased every year, the increase in the number of convicts was significantly lower than the increase in the number of under-trials being incarcerated.

This is evidence of the generally heavy trend in the Indian legal system to incarcerate people. The story gets grimmer as we look at the situation of women and the children that accompany them in prison, as reflected in the following table. In another jolt to the efficacy of the Indian prison system, as the work pressure on the prison staff increases each year, they are continuously under-staffed with one staff member for almost 8 prisoners. (Table 2)

Year Women-Under-trial (%age of total) Children with Under-trial women Women-Convicts (%age of total) Children with Convict women Prison Staff- Sanctioned Prison Staff- Actual Strength (%age of sanctioned)
2016 1192 (72.28%) 1409 400 (24.24%) 459 81,568 53,370 (65.43%)
2017 1077 (74.07%) 1252 365 (25.1%) 417 83,288 57,307 (68.80%)
2018 1376 (79.44%) 1590 355 (20.49%) 408 85,840 60,024 (69.92%)

Table 2: Women Prisoners and Prison Staff from 2016 to 2018 (all figures as of 31st December of the respective year; the table excludes detunes and other prisoners)

While the figures are discouraging for even a sliver of doubt of actual carrying out of justice, it is not a surprise. Hence, while close to 80% of women in prisons are under-trials, with the ratio increasing each year; the jails are continuously functioning with only less than three quarters of the sanctioned strength. This situation is what makes exponentially increases the importance of this report by the LCI.

Remedies- Do We Have Any?

The LCI recognised that India had an obligation to ensure some form of legal remedy for miscarriage of justice as a party to the International Covenant on Civil and Political Rights (“ICCPR”) (Article 14.6). It also reminded the government that most developed nations like the UK, USA, Germany, Australia etc. had laws relating to compensation for malicious prosecutions and miscarriage of justice. Further, the LCI categorised possible remedies into three categories- public law remedy, private law remedy and criminal law remedy. The first two remedies deal with the locus standi of the person wrongly incarcerated and the remedy available is only pecuniary in nature which can be accessed by invoking a writ. The third category deals with criminal prosecution against people responsible for the miscarriage of justice.

The public law remedy arises from the violation of an individual’s fundamental rights under Article 21 and 22 of the Indian constitution and they can invoke a writ under Article 32 or 226, holding the state responsible for its failures. The private law remedy, on the other hand, deals with civil suits for damages against the state for the actions of its officers, the scope for which has been constantly narrowed, as also observed by the LCI. There exist various provisions under the Indian Penal Code, 1860, Criminal Procedure Code, 1973 and the Indian Police Act, 1861. These provide for punishments for public servants for investigative and prosecutorial misconduct leading to the wrongful imprisonment of an innocent person.

These remedies as they exist in their current form are inadequate and inefficient, for many reasons. Firstly, most of these come into action only when there is a judicial proceeding underway, excluding the miscarriage of justice between initial arrest and a legal initiation of proceedings in the courts. Secondly, these provisions do not hold the state responsible to monetarily compensate for the wrongs committed by its officers and monetary compensation is still a rare phenomenon. Thirdly, the laws in question are archaic. The burden of proof on the complainant is exorbitantly high considering the fact that he/she is facing the powerful nexus of state prosecutors and police officers. For instance, to punish someone under Section 211 of the IPC for a false charge of offence with the intent to injure, it is essential that the accused was fully aware that there was no just or lawful ground for the charge. This, however, excludes officials who behave recklessly and makes ignorance a literal bliss.

Despite these glaring inadequacies and loopholes in the current laws and the real potential of their misuse, there still is no law which directly holds the state monetarily responsible to compensate a victim of miscarriage of justice and at the same time punishing the perpetrator, leaving the victims at the mercy of the courts. The further judicial process is lengthy and arduous further discouraging people from initiating legal action against the state.This is especially harmful in a legal system where 1,34,904 out of the 4,66,084 prisoners lodged in jails are completely illiterate as per the 2018 Executive Summary of the National Crime Record Bureau.

What the LCI Proposes We Do?

The prevalent standard of miscarriage of justice in Western jurisprudence and the ICCPR is the uncovering of a new fact that overturns the final conviction order made at the exhaustion of all legal forums. However, the LCI finds this standard to be insufficient and proposes that miscarriage of justice should include instances of procedural misconducts like- framing false record, false declaration, false evidence, fabricating evidence, destroying evidence, bringing false charges, trying a person in a manner contrary to law or acting in violation of any other direction of law. This broader ambit will allow more people to claim compensation and check loopholes like a forced confession, an acquittal at High Court level etc. that continue to plague the Western legal systems.

The LCI recommended that there needs to exist a clear legal framework providing compensation to the victim as a matter of right and not as an ex gratia grant by the State. It also highlighted the need to deliver this compensation quickly and hence recommended designation of special courts in each district for this purpose. It further recommended that the cause of action would be “wrongful prosecution” something which still doesn’t exist in India and would include malicious prosecutions and those instituted without good faith. The compensation would cover damages to body, mind, reputation or property resulting from such “wrongful prosecution.”

The recommendation of the LCI is to make these proceedings, summary proceedings with the burden of proof on the claimant to prove on a “balance of possibilities” that they were wrongfully prosecuted. There should be time limits on the special court to dispose the case and for the payment of compensation. At last, the LCI recommended that the statute should include factors on which the compensation would be based and a provision for interim compensation as well. For the fulfilment of these recommendations, the LCI attached a draft bill amending the CrPC, which has not yet been passed by the Parliament.

The Road Ahead

Organisations like the LCI and the National Human Rights Commission are constituted at consistent intervals to address a pressing need for the re-examination and enforcement of law. However, these reports rarely see the light of the day after having been submitted. There is indeed a lot political capital that governments have to spend to get any bill through the Parliament, and criminal justice system reform seems to be on the bottom of the government’s priority list. Out of the 262 reports that had been submitted by 20 Law Commissions between 1950 and 2015, only 92 had been implemented and there is no indication that the trend will see a sudden change in the current regime.

Furthermore, considering the current political atmosphere, where the government has widened the scope of the Unlawful Activities (Prevention) Act and also allowed the liberal use of the provision of the National Security Act, 1980, the inclination of the governmental policy is towards strengthening criminal law application. However, this strengthening is not accompanied by an equally zealous policy for the reintegration and rehabilitation of wrongfully incarcerated people into civil society. This balance is essential for a healthy legal and political system.

While an absolute overhaul of the system as recommended by the LCI seems utopian, the government can ensure a stricter scrutiny of the actions of the police force by forming a district-wise judicial committee which can request and investigate anonymous complaints against police excesses. The courts, especially, courts of the first instance have a heavy responsibility to ensure that due consideration is paid to the age and the previous record of an accused and that state-sponsored representation is effective and not a mere formality. Clearly, India has a long and hard journey before the recommendations of the LCI’s 277th report come true and the State takes up the responsibility to voluntarily compensate people for the almost irreparable damage caused to them and their lives.

[ The author is a 4th-year law student at O.P. Jindal Global University, Delhi NCR, India.]


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 )

Twitter picture

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

Facebook photo

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

Connecting to %s