A case for compensation

“The High Court judgement doesn’t just acquit Professor Saibaba, it indicts as well,” said Senior Advocate Mihir Desai. The lawyer was speaking to the Supreme Court Observer’s Sushovan Patnaik for a feature on Professor G.N. Saibaba’s recent acquittal by the Nagpur Bench of the Bombay High Court. “The tenor of the judgement suggests that he was falsely implicated,” Desai said, “If that is the case, why shouldn’t action be taken against the police, those who investigated the case?”

Action against the police and compensation for victims of unjust incarceration might come across as wishful thinking in a criminal justice system where acquittal is gratefully accepted as the endpoint of an attritional legal battle. Saibaba and his five co-accused, for instance, were in jail for more than a decade under UAPA charges. (“People go mad in there,” Saibaba said in an interview with SCO, “By the time they get judgement, by the time they are acquitted, it’s too late—precious years are forever lost.”)

Article 14(6) of the International Covenant on Civil and Political Rights, which India has ratified, provides for compensation according to law for persons who have suffered as a result of “miscarriage of justice.” In 2006, the United Nations Human Rights Committee had asked countries to enact legislation to ensure that compensation in such cases is paid “within a reasonable period of time.”

In India, there has been some conversation but little follow through. In its 277th report, published in 2018, the Law Commission recommended amendments to the Code of Criminal Procedure (CrPC) to account for malicious prosecution and the setting up of a Special Court to look at such cases. Some of the factors suggested by the Commission to determine the compensation amount included: length of incarceration and severity of the punishment; loss of health, income and livelihood; the reputational, psychological and emotional harm caused.

These suggestions were incorporated in a private member bill that was introduced in Parliament in 2023. They are missing from the Bharatiya Nagarik Suraksha Sanhita which will replace the CrPC from this July.

Over the years, there have been instances of individuals approaching the courts in the case of wrongful prosecution. A well-publicised instance was the former ISRO scientist Nambi Narayanan being awarded ₹50 lakh by the Supreme Court after he was exonerated of espionage charges.

Suing for compensation feels like a luxury available to those with means or a public image to preserve. They have access to lawyers who can advise them on legal strategy and media management. But, often, people who are in jail on flimsy or trumped-up criminal charges come from marginalised sections of society. After going through the rigmarole of incarceration, trial and acquittal, the last thing they’d want is to make more rounds of courts and lawyers’ chambers. Filing and chasing writ petitions in the constitutional courts is a privilege for most.

Like the legislature and the executive, even the judiciary is somewhat reluctant to wade into the inconvenient waters of compensation for malicious prosecution. In 2022, a Supreme Court bench refused to entertain a PIL requesting the framing of guidelines, citing that it would amount to stepping on the shoes of the legislature. Tellingly, the bench also remarked that this framework could create complications since acquittals were based largely on technicalities and rarely on merit.

In his commentary on the Saibaba judgement for SCO, criminal lawyer Harsh Bora pointed out that “for all its detailed analysis, the High Court’s judgement remained silent on what this acquittal means for the criminal justice system.”

Bora, who represented Saibaba in the Supreme Court, felt that the High Court could have “noted the blatant misuse and disregard of the law to carry out a visibly political prosecution.” Perhaps it would have sparked more serious conversations about compensation for wrongful criminal prosecution.

For justice to be truly done, it must be complete.

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