What connects three professors — from Delhi, Kolhapur and Nagpur — to 17 residents of a village in Madhya Pradesh? All of them spent time in jail as
undertrials
or convicts before they were either
acquitted
or granted bail due to lack of evidence, with the courts questioning the cases against them.
Take the case of former Delhi University professor GN Saibaba.
Acquitted by the Bombay high court in March, Saibaba was
convicted
for Maoist activities under the Unlawful Activities (Prevention) Act (UAPA) and spent nearly 10 years behind bars as an undertrial and convict.
In its judgment, the high court observed that the prosecution failed to link Saibaba to any crime. “In fact, there is no evidence brought forth by the prosecution to connect the persons (Saibaba and other accused) with any actual act of terrorism which had taken place in the past or to demonstrate how the persons were directly connected with and responsible for the commission of any other act of terrorism,” the court observed.
After his release, Saibaba — who is disabled — said he had developed severe medical conditions in prison, including a heart ailment. The former professor was also denied permission to attend his mother’s funeral. “The
prison
department and government robbed me of fulfilling my mother’s wishes in her final days,” he said.
There are many other cases, not always in serious offences, where people spend years behind bars waiting to be exonerated. The term used to describe cases where a person is arrested, jailed and denied bail for extended periods of time falls under what can be categorised as “miscarriage of justice”.
Experts as well as a Law Commission report point to this problem being very prevalent in the
Indian criminal justice system
. The price for this is almost entirely borne by the person accused, like losing prime years of one’s life and emerging with health problems acquired during incarceration.
In countries like the US, and the UK, those who face
wrongful prosecution
are eligible to file claims for
compensation
, which are then evaluated. In India, courts have pointed to lack of evidence and even malicious or politically-motivated prosecutions. But those who suffer the legal process don’t even get an apology, forget compensation.
How bad is the situation?
According to National Crime Records Bureau data from all states for 2022, close to 75% of those in India’s 1,330 jails are undertrials.
Of the 4.34 lakh undertrials in Indian prisons, almost half are aged between 18 and 30 years, their most productive years economically. A total of 3.26 lakh inmates are facing cases filed under Indian Penal Code offences. The 2022 data indicates that the overall conviction rate for offences under the IPC is about 35%.
Take the case of the 17 people arrested from Mohad in Madhya Pradesh’s Burhanpur district in 2017. Their alleged crime was celebrating Pakistan’s victory in the ICC Champions Trophy final against India. Two of those aprehended were minors.
They were initially accused of criminal conspiracy and promoting enmity. During some court hearings, slogans like “Desh ke gaddaron ko, goli maro salon ko” (shoot the traitors) and “atankwadiyon ko phansi do” (hang the terrorists) were shouted at them. They were in jail for more than six years as undertrials. All of them were acquitted by a district court.
“After going through all the evidence, arguments and eyewitnesses, there was no proof that the accused raised slogans and burnt firecrackers,” the trial court’s judgment said.
In the case of Kashmiri professor Javed Ahmed Hajam, who was teaching at a college in Maharashtra’s Kolhapur district, his ‘crime’ was posting two WhatsApp statuses in August 2022 that got him charged with promoting enmity.
On August 5, his WhatsApp status said ‘Black Day Jammu & Kashmir’ to mark the abrogation of the state’s special status. On August 14, his WhatsApp status read: ‘Happy Independence Day Pakistan’.
Hajam spent about a month behind bars and then fought a legal battle for nearly two years before the case was quashed by the Supreme Court. The court said everyone had a “right to be critical of the action of abrogation of Article 370 and the change of status of Jammu and Kashmir”.
“If every criticism or protest of the actions of the State is to be held as an offence under Section 153A, democracy, which is an essential feature of the Constitution of India, will not survive,” the court observed.
The court also made an observation about the need to educate the police machinery on the fundamental right to freedom of speech and expression.
Worse under special laws
Under the stringent UAPA — where getting bail is even harder than other criminal cases — more than 24,000 people were accused in 5,027 cases registered between 2016 and 2020. Data revealed in response to a question in Rajya Sabha showed that just 212 people had been convicted in these cases, and 386 were acquitted.
Justice Abhay
Thipsay
(retd) — who was in the Allahabad and Bombay high courts — said in many cases undertrials are not being granted bail and judges are shirking bail applications.
Trial court has key role
“There is no doubt that there should be a process and it can emanate from the trial court’s judgment,” said Amit Desai, a senior Bombay high court advocate.
According to Desai, the trial court is the best place to decide who can be held liable or responsible in a case where a person has been wrongly persecuted by an investigating agency or the prosecution.
However, he said, some changes can be made to laws. An accused person, according to Desai, should have their rights enhanced just like the victims’ in the Criminal Procedure Code. “Balancing the rights of the victim and the accused is absolutely necessary,” he said.
Sanjay Hegde, a senior advocate who mostly prac tises in the Supreme Court, also felt there should be a law to allow courts to rule on cases where the rights of the accused are completely ignored or violated during their prosecution.“There should be legislation which defines these things so that the trial courts feel empowered to make such observations or pass relevant orders,” said Hegde.
The senior lawyer said cases where a person is acquitted for reasons other than wrongful prosecution shouldn’t be considered.
How much compensation?
Various suggestions about a special law to compensate victims did feature in a report submitted by the Law Commission in Aug 2018. But they have remained suggestions. The commission, headed by former Supreme Court judge Justice BS Chauhan, recommended a law to compensate victims of
miscarriage of justice
and special courts in every district that would decide cases quickly.
Anyone acquitted by a court in a case should be able to file a claim, the report said. These special courts could have the power to direct the authorities to initiate proceedings against erring officials.
The commission suggested an interim compensation between Rs 25,000 and Rs 50,000 in cases where a person spent more than six months in jail. It said the final compensation should be decided on the basis of all the losses caused to the petitioner — including loss of property, health, opportunities and family life.
The report said the court should also provide petitioners with “non-pecuniary assistance” for the rehabilitation of victims.
Justice Thipsay said the biggest challenge to addressing wrongful prosecutions is that society doesn’t feel very strongly about the issue. “People simply feel that if someone was wrongly prosecuted, he or she was eventually acquitted or discharged. So, that is enough,” he said. “There is no outrage, therefore the system feels that there is no need to do anything more,” he said.
