Compensatory Mechanism for Miscarriage of Justice in Cases of Prolonged Delay: The Case of India

Introduction

The compensatory mechanism in the criminal justice system has evolved in order to ensure a model of restorative justice. Compensations are largely awarded to victims of crime. But when an accused person undergoes the ordeal of prolonged incarceration due to inordinate delays in the completion of the trial or after a prolonged trial it is adjudged that the prosecution was baseless or wrongful, the accused’s sufferings are no less than the sufferings of the victims of crimes. These persons are the victims of improper functioning of the criminal justice administration and are sometimes made to pay a heavy price. This situation can be regarded as miscarriage of justice.

India has a robust criminal justice system, and it promises to every stakeholder a fair trial and justice. However, the Indian criminal justice system in the recent past has not been able to cope with the need for expeditious delivery of justice and other problems in this regard. The Honourable Apex court in the case of Nilabati Behera v. State of Orissa ² evolved a theory of compensation for constitutional torts. A new era of cases ³ contemplating action against the state under Articles 32 and 226 of the Constitution of India began. It indeed draws a distinction between the liability of the state to pay compensation in cases where grave violation of fundamental rights is involved and the liability of the state arising out of action for tort. Thereafter, persons’ life and liberty are guaranteed by Article 21 ⁴ intrinsically, and the state or the officer liable for infringement of the above article is susceptible to pay compensation.

Compensation is the manifestation of punitive damages against the state for the dereliction of duty on the part of state officials which has led to the violation of the fundamental rights of the victim. The Hon’ble Apex Court has, rather than relegating the petitioner to file an action for damages, considered and upheld the petitioner’s claim under Article 32 of the Constitution of India for damages for violation of fundamental rights. ⁵

Notable International Instruments on Miscarriage of Justice Due to Delay

International standards on the issue of miscarriage of justice are most viably governed through the International Covenant on Civil and Political Rights, ⁶ 1966 (‘ICCPR’). Several countries have adopted and enacted domestic legislations on the matter of miscarriage of justice. The United States, the United Kingdom, Canada, the European Union (EU), etc. have recognized miscarriage of justice accruing to prolonged delays, importantly.

International covenants, such as ICCPR, form one of the most crucial support systems to have recognized the issues like miscarriage of justice, in the first place. It would be theoretically very difficult for countries such as India which are the outcome of a slow and steady framework in building up its justice administration system. To implement and enforce the rules and procedures laid in International Covenants, whereas countries such as the USA lay greater viability on the International Conventions it imparts to be a signatory to and therefore it becomes feasible for such countries to implement the policy without much delay. Therefore, it does not require any greater understanding to ratify what seems to be a well-settled notion for the majority of countries. There have been various legal instances of cases where ‘justice delayed is justice denied’ has been contested as a grave injustice in the practice of legal norms.

From time to time, the reasoning must encapsulate the actual costs of fighting legal disputes in India, where justice is typically a beast that needs the proper juncture of caste, class, power and cash for it to be drawn out of its hollow corners. It is noteworthy that in India only the high-profile cases and the cases that have greater public interest are administered towards a speedy disposal. Other cases that do not have a strong political backing and which require not much attentive upkeep are mostly given long dates, with a lengthy time period between each hearing.

Most of the cases in India tend to suffer from prolonged delay not only because the witness or evidence is inadequate but also majorly because the lawyers themselves do not want speedy disposal. There have been various instances in India where due to such hefty delays either of the parties either dies or is unable to approach the court for justice.

India ratified ICCPR in 1968 ⁷ (with certain reservations) but is yet to comply with its obligations and enact a legislation for compensation of the victims of miscarriage of justice. Most of the member states of the EU have adopted a mechanism to accelerate criminal proceedings. In most of the member states, it is viable to request compensation for excessive durations of court proceedings. ⁸

ICCPR, in its article 9(4), provides:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

According to the United Nations (UN) Working Group on Arbitrary Detention, the guarantees are customary international law, and as a result, they are also binding on states that are not parties to the ICCPR. ⁹ Depriving an individual of liberty signals an inevitable power shift in the relationship between the detained individual and the authorities depriving that individual of liberty. International human rights have put in place safeguards to ensure that no arbitrary deprivation of liberty takes place. These safeguards include the right to be informed of the reasons for arrest and prompt notification of the charges, the right to be presented before a judicial authority without delay and the right to challenge the legality of detention before a judicial authority (Articles 9 (2), (3) and (4) of the covenant). International human rights law also requires compliance with several other safeguards aimed at preventing the possibility of arbitrary detention. These include the right of the detained person to notify family members of his or her whereabouts, the right to request and receive legal assistance and the right to request and receive medical assistance. ¹⁰

Article 14(3) of the ICCPR postulates certain guarantees for an accused person; among these guarantees, one very vital promise is to be tried in a court of law without undue delay, thereby making it very important that the person against whom a trial is run does not have to go through not only a long loss of his or her life but also the mental stigma, which can be quite damaging.

The report ‘Working Group on Arbitrary Detention on United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court’ laid certain principles and guidelines to aid and advise the member nations on the measures to adopt against this practice. These measures direct the concerned courts to decide on the matters of such violation and clearly remark ‘without delay’ in their basic directions, thereby making it very crucial to complete the justice delivery within the stipulated period. Yet, they fail to provide for any remedial means if such action is not complied with.

The Convention for the Protection of Human Rights and Fundamental Freedoms, also commonly called the European Convention on Human Rights, is the international covenant on human rights for Europe and also establishes the European Court of Human Rights. Any person aggrieved with any of its state party (any country of Europe) can contest such violation in front of the European Court of Human Rights.

Article 13 ¹¹ of the European Convention on Human Rights states the right to an effective remedy, further providing that anyone who is a subject to the convention and tends to receive rights and freedoms through it shall have an effective remedy before any competent national authority. The importance of this article can be linked with the case of Kudla v. Poland, ¹² wherein the applicant alleged that during the period of his detention on remand he did not receive adequate treatment, the period of incarceration was unreasonably lengthy, violating the right to be heard within reasonable time, and that there was no domestic remedy to complain about the prolonged delay of the criminal proceedings against him. The court held that there was a violation of Article 13 and further pointed out that the government did accept that there was no legal avenue for the applicant to raise any complaint about the length of the proceedings. Further, they accepted the aggregate of several remedies as stipulated in Article 13’s requirements. They failed to suggest the determination of charges incurred on the applicant or for providing him with enough redress on such prolonged delays that had already taken place. ¹³ This was open to interpretation for the ECHR to decide the quantum of such compensation; the only object was to decide the required remedy, which must be effective for law and practice. Article 13 consequently offers one option, that is, to provide remedies that are to be ‘effective’ if they can compel the court concerned to reach a timelier verdict or make the decision as to grant the party suitable compensation for such prolonged delays already incurred. Although in the present case an amount of 50,000 Polish zlotys was awarded in favour of the victim, ¹⁴ the court failed to provide any strong formula or structure to decide the quantum of such compensation.

Contemporary Legal Framework on Prolonged Delays

Access to justice is used to assess the fulfilment of an individual’s entitlement to justice, to make sure that legal redress does not become the preserve of some. It represents the ability of every person to enforce the fundamental rights and freedoms guaranteed by law. Such is the inference of those cases constituting victims of wrongful prosecution, as well as that of those people who tend to suffer because of a prolonged delay in getting a decision from the court. The principle of fair trial, which is the central pillar and main tenet of Indian constitutional law and the Indian criminal justice system, is also vitiated in such cases, resulting in a gross miscarriage of justice to the persons who are parties in such cases.

Despite the existence of such a vast number of provisions in our current legal system, these current legal remedies do tend to create an ex gratia obligation but not a statutory obligation for the state to compensate the victims of miscarriage of justice. There is a persistent need for an explicit and detailed law on this subject.

In a recent judicial pronouncement, ¹⁵ the Hon’ble Apex Court finally ordered the release of six convicts who were convicted with death for the rape and murder of nomadic tribe members. In a complete analogy, the court found that there was no scientific or corroborative proof with respect to the guilt of the six alleged perpetrators. Further, it was contended by the defence that during this confinement period, some of them developed psychiatric symptoms of the trauma they had to undergo while in jail. Dr Ashit Sheth, a psychiatrist, clearly opined that they were made to live under subpar and inhumane conditions for several years. They were put under solitary confinement, and worst of all, these men remained under the constant fear of death. Thereby, the court relied upon Article 142 to do complete justice and dispense compensation for these victims, and thereafter, they were compensated for this long-lost period of 16 years with a substantial amount of ₹5 lakh. Even though these men were finally acquitted yet the time period they lost undergoing the mental and physical torture cannot determine the rectitude of the judicial system we live in.

India’s performance on the question of fair and speedy justice has constantly been debated. It has several aspects that are to be questioned while discussing upon the issue on Miscarriage of Justice. On this, research pertaining to such miscarriage of justice has its ambit confined to wrongful incarcerations and prolonged delay in the justice delivery system. A notable problem due to the administration of justice is a backlog of cases which results in a huge delay in cases both criminal and civil, where such delays are not merely confined to the subordinate courts but rather inflate till the top—the Supreme Court. These problems have resulted in numerous reforms and proposals, such as increasing judicial strength, diverting the nature of cases from trial to plea bargain or merely offering alternative dispute resolutions. Although these reforms sound appealing, yet they have not shown any viable effect on the results.

The need for reducing judicial delays has been mapped to the ambit of victims, witnesses, undertrials, accused and respondents. For such subjects, the issues on court arrears remain critical for any judicial reform debate in India. The ideal answer depicts that the courts must do what they are constituted for—provide justice. ¹⁶ These arguments do not answer the question of this research—the need for a compensatory mechanism to balance the loss accrued on the victims of prolonged delays. In the context of a massive population and growing economy, to serve the law and to improve the basic social problems, the target group must be downtrodden, and in the context of pressing matters, a need for ‘judicial reform’ is utmost. ¹⁷

Starting from the landmark case of Rudal Shah v. State of Bihar ¹⁸ and those of Nlabati Behera v. State of Orissa ¹⁹ and D.K. Basu v. State of West Bengal ²⁰ to the recent case of Ankush Maruti Shinde v State of Maharashtra ²¹ in 2019, the Hon’ble Apex Court has from time to time recognized the need for remedy towards recovering damages from the state, as one telling way of preventing the violation of fundamental rights is ‘…to mulct its violations in payment of monetary compensation’. ²² The state’s outlook is as “a redeeming feature” ²³ ; “…an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement…to apply balm to the wounds of the family members of deceased victim who may have been the breadwinner of the family.” ²⁴

Compensation is deemed as an effective measure employed in restitution throughout history. Ancient societies held the same ideologies for both civil and criminal law, where both natures of cases were dealt with by the same authority but technically required the perpetrator to compensate the victim or the family for all/any loss that was a consequence of his direct action. However, the primary focus of this setup was to prevent any cause from the victim or his family to retaliate in vengeance. ²⁵ One can say it acted as a buyback for the peace broken by the offender. With the advent of the statutory framework, a line of segregation was made in the nature of offences, thereby laying down different kinds of punishment depending on the nature of offences. Criminal law transformed further in Reformative and Retributive theories, thereby primary focus shifted on the offender, rather than being responsive towards the victim. The recent trend in India has undergone a notable change too; the society’s perspective towards human rights has widened its scope to a more accomodating regime. Such scheme also gives rise to instances where the failure to provide compensation by the offender can lead to another punishment in the form of imprisonment. ²⁶ Thus, the most suitable source is the government fund, through which it may be feasible to compensate the victims of such offences where the state has the most notable role to play. The court has to take the call in such matters concerning the amount of compensation to be awarded. ²⁷ This would be crucial in saving the victims of the system from the inordinate delays in getting justice.

To suffice this research, one notable judgement is of State of Gujarat v. Kishanbhai, ²⁸ whereby the court stated:

22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent.

Inquiry into India’s Approach to Justice Delayed

The Indian criminal justice system functions on the principle that 1,000 culprits should go free but no innocent should ever be punished and convicted. ²⁹ The idea behind this was to reduce victimization, but on the other hand all it has done is produced more torture towards those who go through this system. This is not merely a common deduction but rather backed by strong evidence that portrays how this justice system is flawed in dispensing justice. ³⁰

The role of investigation agencies, the police, the court system, political pressure, and criminal prejudice have been some of the very few notions on the impending delays, as well as exceedingly stratified access to justice have on its own been a greater evil too. These instances have not only incurred an increase in the backlog of cases but also resulted in a catastrophic impact—the conviction of innocents. A similar inference was that of the Aarushi Talwar murder case, ³¹ where the discrepancies in the investigation agencies’ report led to the conviction of innocent parents who already had to face denigrative allegations of murdering their child. All hypothetical instances were laid before the court and thereby led to the conviction without any substantive evidence.

However, the vital question remains that even though there are numerous notable cases where acquittal was made but did the courts try to mend this flawed procedure. The constitutional mandate for speedy justice is absolute, yet unconventional. The justice system is widely criticized for its slow and casual nature. The issues such as wrongful incarceration remain untouched even after a clear and elaborative report by the Law Commission of India. The Indian legal system, through the Preamble and various articles, such as Articles 14, 19, 21, 32 and 226, tends to ensure timely dispensation of justice as a right of the citizens of India. Further it also ensues under Article 38(1), 39, and 39A in the Directive Principles of the State Policy, rendering legal obligation for the same.

The Supreme Court in various cases, such as People’s Union for Civil Liberties v. Union of India, ³² Vishaka and Others v. State of Rajasthan and Others ³³ and Nilabati Behera v. State of Orissa, ³⁴ has very well held the importance of conventions which have been ratified by India. The Constitution of India in Article 51(c) stipulates fostering respect towards the international laws and treaties. To highlight some of the provisions and facets such as Articles 141, 142, 144, and 145(1)(c) to render directions towards achieving justice, Indian states as well are obliged to make sure the conformity of such directions by way of Article 256. Further, Article 247 enables the union government to set up additional courts to attain better administration of laws in respect to List 1 (Union List). The Constitution has several times been amended to attain speedy disposal of cases.

The 42nd Amendment to the Constitution in 1976 allowed for the formulation of specialized tribunals to take up matters of different types of cases. The elaborative standpoint of the legislature in the context of timely and efficacious justice delivery is reflected by way of various statutes that describe explicit provisions for timely adjudication, trial and verdict. Such provisions tend to stipulate a period of maximum time limit or envisage a strict procedural framework for state action. It is very necessary to highlight some of the relevant provisions in civil and criminal procedure codes in force in India. Civil Procedure Code, 1908, ³⁵ through Section 89 provides for settlement of disputes outside the court; such settlement must be done under the guidance of court and with the consent of both the parties. Further, Order XXVII Rule 5B of the CPC, 1978, which was amended, ³⁶ casts a duty on the court in suits against the state to settle them at the first instance only. Further, Rule 1- Order XVII of the code provides for adjournments and the power of the court to delay its proceedings and hearings.

Notable provisions under the Criminal Procedure Code, 1973, ³⁷ pertaining to time frames or timely delivery of justice include Section 167- Procedure of investigation when cannot be completed within a span of 24 hours, Section 258- Provides the power of the court to stop the proceedings of certain cases, Section 309- when the proceedings can be postponed or adjourned, Section 311- wherein material witnesses can be examined, and Section 468- When the period of limitation has lapsed and the bar may take action against it; these provisions aim at accelerating the delivery of justice. ‘CrPC’ thereby postulates a statutory limit for timely completion of investigation, and Section 167 further aims to provide that failure of completing the investigation within the statutory time frame would lead to the release of the alleged person under custody on bail. Further, the 2005 amendment in CrPC laid down Section 436A, which stipulates that the maximum period for which undertrial prisoners can be detained is half the total period of imprisonment for the alleged offence, excluding those offences that are punishable with death. Subsequently, the absence of parties at various stages of investigation and trial influences the delay in the delivery of justice. It is relevant to highlight such provisions of CrPC that address such inferences. These provisions include Section 267- provision allowing criminal courts the power to require appearance, Section 270- official in charge of incarceration shall cause the person needing appearance under Section 267 to be produced in court, Section 271- the power to issue directive for investigation of witness in custody and Sections 284–287 which authorizes the concerned courts with the power to summon witnesses or issue directives for the assessment of witnesses.

The amendments made in CrPC in 2008 ³⁸ are particularly noteworthy, such as Section 21 of the amendment act, which provides an amendment to Section 309 of the principal act and adds the proviso stating:

Provided that when the inquiry or trial relates to an offence under sections 376 to 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.

Along with this proviso, an additional proviso shall be added stating:

Provided also that—(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.

Regrettably, Section 309(2), aimed at directly dealing with the problems of delay because of adjournment for non-attendance, has not yet been imposed.

In P. Ramachandra Rao v. State of Karnataka, ³⁹ a constitutional bench relied on CrPC provisions accruing the principle of justice delayed is justice denied. In case of All India Judges Association v. Union of India ⁴⁰ , the Supreme Court held that the number of judges should be increased from 10.5 judges per 10 lakh population up to 50 judges per 10 lakh population after filling up of vacancies every year for 5 years; and also on the context of the backlog of cases the necessary appointment must be done of ad hoc judges, abiding with adequate infrastructure with due appreciation of the 120th Law Commission Report ⁴¹ , 1987, and also in abidance to the 85^th Parliamentary Standing Committee Report, ⁴² 2001.

In the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, ⁴³ the Apex court appraised on the abidance of the procedural norms in respect to the time limits under the procedural laws. Article 21 of the Constitution of India is the broad foundation for the right to life and liberty and the due-process clause. The judgement of P. Ramachandra Rao v. State of Karnataka ⁴⁴ on the principle of ‘justice delayed is justice denied’ led to a fair warning that prescribing a time frame for trials was an overboard interpretation of Article 21 of the Constitution of India and undeniably would result in courts acting in an impermissible manner.

Therefore, at least in criminal trials, it would be imperative to exercise arbitrary termination of cases. ⁴⁵ The issue here remains even though the procedural reforms are mended in such a way to adopt the countermodels of foreign statutes in the manner of prescribed time frames but that would not be able to suffice with the already pending burden on the judiciary.

Moreover, one must very well understand that most of the pronouncements of the Apex court do appreciate the concerns behind lacking judicial trials, and the contemptuous expansion of the burden on the Indian judicial system is imperative; yet, all the reforms in policy would not be able to tackle the issues of today.

It was very well noted in the case of Smt. Rama Rani vs Arun Kumar Sharma ⁴⁶ that it was the fault of the entire judicial system because of which a victim struggled to get justice for around 13 years, and the worst of it was that the main victim had died during the course of justice, only due to the inconsistency in the decisions of the high court. The Apex court, while setting aside the irregular orders, also stated, ‘we are sorry to note that such a confusion has caused more than a decade’s delay in even the criminal trial commencing’.

The term Miscarriage of Justice has imputed its origin in various international and national legal instruments, but a clear distinction to its extent is yet to be defined. Indian judgements, while addressing miscarriage of justice in terms of cases involving what aggregates to delay in justice, have focused primarily on the burden to be assigned for such delay, but no court has addressed a statutory reform for compensating the victims of such burden.

The current set of remedies for grant of compensation in cases of miscarriage of justice remain very complex and uncertain. One can approach the Apex court in cases accruing fault on the part of state officials infringing an individual’s rights, but the ideal question remains unanswered that who ought to determine the amount of compensation, as such amount needs to adapt transparency and non-arbitrary award. It is also noteworthy that even though the claims can be argued based on Article 21, the explicit provisions in the Constitution remain lacking. Therefore, the remedies sought do not create a statutory obligation but a mere ex gratia obligation on the state to compensate. The most notable issue remains to be the quantum of the compensation to be awarded. Given the prevalent and sensitive nature of this issue and the obvious inadequacies of the available remedies, there is a persistent need for a stringent law on compensating the victims who have suffered such miscarriage of justice at the hands of the state machinery.

Conclusion

Compensation must be determined in terms of the rehabilitation cost that is crucial in supporting the victim. Thereafter, a holistic approach to such victim compensation schemes is vital, whereby covering not merely the monetary losses but also the non-monetary losses, such as the psychological trauma and the exploitation one undergoes while being imprisoned, very much requires to be realized and codified accordingly. Apart from defining the responsibility and role of the people responsible for it, it must be realized that for a successful compensation scheme, a sense of transparency is utmost necessary.

Victim compensation as a model in India is still impending and introverted. While the courts have from time to time ordained a justifiable compensation, uniformity in such quantum is required. While the courts in India do appreciate the need for compensation, there has not been any vital step in recommending a policy framework on this issue. Thus, this research highlights the lack of a statutory framework for such compensation.

As stated by the European Court of Human Rights in its Neumeister v. Austria ⁴⁷ and in a series of other pioneering judgements in this area, in criminal cases, ‘the period to be taken into consideration…necessarily begins with the day on which a person is charged’. ⁴⁸ As employed in Article 6, the concept of a charge—like that of a civil dispute—has an autonomous and substantive rather than formal meaning. ⁴⁹ According to the European Court of Human Rights, it may, in general, be defined ‘as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, ⁵⁰ but ‘it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect’. ⁵¹

One cannot put the plaintiff back in their original position by way of mere compensation, yet this does not mean that such a person is not entitled to fair and just compensation. ⁵² It is quite justifiable that the time frame to complete an investigation on a criminal case is quite undeterminable, but it is often said that most crimes have to be investigated as soon as possible to find debauched evidence that can imply conviction or acquittal. However, any time frame that goes beyond a reasonable period must suffice a just compensation for the loss incurred to such a person..

Reiterating what was pointed out in P. Ramachandra Rao v. State of Karnataka, ⁵³ the decisions of Common Cause ⁵⁴ (I), which provide for several categories of offences to be necessarily terminated within an imputed period, and such period of pendency have to be calculated from the date the accused is summoned to appear in the court. The court directs several kinds of cases and corresponding periods that reflect the time limit for commencement of the trial, and in case the trial is not started within the stipulated period, then such case would attract mandatory discharge or acquittal of the concerned person. ⁵⁵

The division bench also iterated certain cases where such directions would not be applicable. And similarly, other guidelines were given in the case of Raj Deo Sharma ⁵⁶ , where the court classified cases in terms of punishment (7 years being the mark of distinction), but this case merely provided for the release of the accused on bail or closure of the case. 2 years for offences with imprisonment less than 7 years and 3 years for offences with imprisonment more than 7 years. Although these directions were considered as legislations (outside the powers of Judiciary), thereby the case of A.R. Antulay ⁵⁷ was in direct clash to these directions, henceforth overruled, with the reason of laying limitation on inordinate delay is neither advisable nor practicable. Not only various countries have adopted such norms, but have also provided for strict adherence towards it. Looking at the Indian aspect of enormous backlogs in cases, the need for just compensation to such victims is vital. Steps for reforms can be made initially by state governments who bear the primary responsibility of creating victim compensation schemes and thereby address the question raised in this research. To quote Martin Luther King Jr. “Human progress is neither automatic not inevitable… Every step toward the goal of justice requires sacrifice, suffering and struggle; the tireless exertions and passionate concern of dedicated individuals. And the time is always right to do what is right.”