The controversy over the Supreme Court’s order on the SC/ST Act, requiring a proper investigation before an arrest, is as good an inflection point as any to consider the endemic problem of wrongful arrests in this country. The very fact that every party wants the order to be reviewed and that the Centre is threatening an Ordinance to nullify it, is an indication of the sorry state of human rights in India. 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.
The consequences of violating this legal and ethical principle is evident every day; in just three recent cases—the Aarushi Talwar murder case, the 2G case and the Mecca Masjid bombing —people have had to be released for want of any evidence against them after spending years in jail. 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.
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 lakh, of which 70 per cent are undertrials. 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 per cent. A further 25 per cent of them will get off on appeal. 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. Many of our laws themselves are defective to the point of being blood thirsty: laws relating to dowry deaths, suicide, rape, domestic violence, atrocities against Scheduled Castes, sedition, terrorism are so crafted that the “accused” can be arrested 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, delays, witness intimidation, frequent transfers and lack of accountability ensure that 65 of 100 cases end in acquittal, either at the trial stage itself or in appeal(s). Meanwhile, of course, those arrested will languish in jail. This is what the SC is seeking to correct.
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. 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.
The 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 US, 29 states have legislated Wrongful Conviction Compensation statutes which provide compensation ranging from $50,000 to $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 a compensation of $3.4 million. In the UK and other developed countries 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 of torts, are missing.
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 cops 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 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
served in the IAS for 35 years and retired as Additional Chief Secretary of Himachal Pradesh
Email: avayshukla@gmail.com