On August 17, 2021, the Gwalior Bench of the Madhya Pradesh High Court delivered an important judgment in which it granted monetary compensation for miscarriage of justice that resulted in over 11 years of wrongful imprisonment of 3 innocent persons (appellants).
While doing so, the Bench of Justices GS Ahluwalia and RK Shrivastava invoked the doctrine of Constitutional Tort and directed the State to pay a compensation of ₹3 lakh to each appellant. It further observed that the State is at liberty to recover the compensation amount from the salary/pension of the investigation officer who connived with the complainant to frame the appellants.
This was not the first case of compensating a victim of wrongful imprisonment. Though many courts have done it in the past, in some cases, courts did not order for payment of compensation as no legal framework exists for the India. In this piece, I will reflect on the principle of Constitutional Tort and the problems associated with its enforcement due to lack of a legislation.
Further, I will enlist model legislation developed in foreign jurisdictions for reference. In conclusion, I suggest the adoption of the Law Commission of India's recommendations in its report on wrongful prosecution.
Constitutional Tort is a liability imposed on the State and its officials for remedying the violations of fundamental rights by way of monetary compensation. Explaining the concept, the US Supreme Court in Biven v. Six Unknown Persons had observed that in absence of the explicit right to file a civil lawsuit against federal government officials who have violated fundamental rights, this right can be invoked. Constitutional protection would not be meaningful if there was no way to seek a remedy for its violation, the Court held.
In India, the absence of a legislative framework doesn’t restrict Constitutional courts from exercising their inherent powers to award monetary compensation for wrongful imprisonment. The Supreme Court in Rudal Shah v, State of Bihar held,
"...that Article 226 and 32 cannot be used as a substitute for enforcement of rights and obligations which can be enforced efficaciously through ordinary processes of courts. However, the Court will award compensation as a public law remedy under 226 to victims of assault, battery and false imprisonment. In absence of a law, the only effective method open to the judiciary to prevent violation of that right and secure due compliance with mandate of Article 21, is to award monetary compensation."
On similar lines, the Supreme Court and several High Courts have awarded monetary compensation for wrongful imprisonment, custodial torture and custodial death. Further, India’s obligation to award compensation stems from Article 9(5) and 14 (6) of International Covenant on Civil and Political Rights (ICCPR) which obligates India to compensate victims of wrongful prosecution in accordance with law.
The absence of a legal framework or guidelines for award of compensation and calculation of monetary damages renders the remedy arbitrary, as it is difficult to establish any formal or informal tariff of compensation payable. Moreover, the remedy is dependent on the facts of each case. In many cases, the courts, in the absence of a legal framework, have denied the right to compensation despite proven wrongful imprisonment of over a decade.
The United Nations Human Rights Committee in its General Comment No. 32 (2007) explained the obligation of States in cases of miscarriage of justice, observing that it is necessary that State parties enact legislation ensuring that compensation as required under Article 14 (6) of the ICCPR can in fact be paid and payment is made within a reasonable period of time. In view of international obligations, many States have translated their commitment into domestic law and conferred upon victims of wrongful imprisonment a statutory right to compensation by conferring powers on courts or administrative tribunals to determine the compensation amount in cases of miscarriage of justice. Some of the developed models are provided below.
1. United Kingdom
The Criminal Justice Act, 1988 of the UK contains a separate chapter on right to compensation and requires the Secretary General of the State to pay compensation to a victim of wrongful punishment. It also provides for factors to be taken into consideration while assessing the amount of compensation. These include harm to reputation, seriousness of the offence, severity of punishment, and conduct of the investigation and prosecution. The law limits the amount of overall compensation depending on the duration of incarceration i.e less than 10 years or more.
In the UK, a Criminal Case Review Commission is established to ascertain whether a person has suffered miscarriage of justice. Any person who believes that they have been subjected to wrongful punishment can apply to the Commission to have their case reviewed. Moreover, the UK Police Act, 1996 imputes the liability of wrongful acts of the constables on the Chief of Police and holds him accountable for misconduct of the constables under his control; he is treated as a joint tortfeasor. The Act provides for payment of damages from the police fund.
The German Constitution under Article 34 provides that the State would be responsible for violation of the public duty of its employee, and in case of intentional or gross negligence, the recourse against the individual officer shall be preserved. In addition, the German Parliament had enacted the Law on Compensation for Criminal Prosecution Proceedings, 1971. Additionally, the German Criminal Code and Civil Code contain provisions on compensation for victims.
No law has been enacted in Canada yet, but guidelines titled the Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons were issued by the government to give effect to its obligation under the ICCPR.
It is time that the Indian legislature develops a code for compensating victims of wrongful imprisonment.
In 2018, the Delhi High Court had expressed that without a law for enforcement of the right to compensation, the discretion of the Court is exercised arbitrarily and in an indeterminable manner. The Court had requested the Law Commission to undertake a comprehensive examination of the issue and make its recommendation to the government. In view of the High Court’s request, the Law Commission in its Report No. 277 titled Wrongful Prosecution (Miscarriage of Justice): legal Remedies, submitted to the government in August 2018, had recommended for development of a legal framework to pay monetary compensation for wrongful punishment that results in mental and social trauma. It further recommended the adoption of a model bill it had prepared to amend the Code of Criminal Procedure and insert a new chapter concerning right to compensation.
The Law Commission’s recommendations are in consonance with the ICCPR obligation and judicial verdicts in India and should be heeded to allow victims of wrongful imprisonment an opportunity to enforce their right to compensation for wrongful imprisonment.
Siddharth Sijoria is an advocate practicing at the Madhya Pradesh High Court at Gwalior and the Supreme Court.