Why victims of delayed justice deserve compensation
A few days ago, when the Allahabad High Court declared Vishu Tiwari innocent of the charge of rape, there was little reason to celebrate and far more room to introspect. Vishnu was arrested when he was 23, and it took two full decades for the state to give back his freedom. During that time, he lost everyone who mattered to him. Unfortunately, Vishnu is no aberration in our judicial system.
In 2006, India made history when Shankar Dayal of Unnao was found to have spent 45 years in jail awaiting trial after an accusation of attacking someone with a knife, for which the maximum penalty is three years if convicted. In a similar case, Jagjivan Ram Yadav from Faizabad was imprisoned for four decades simply because authorities “lost” his papers. The National Human Rights Commission (NHRC) reported that about 75 per cent of the prisoners in the nation are awaiting trial, and statistically a large fraction of these would likely be found innocent.
A common thread that runs across the undertrial prisoners is that they are poor, young and illiterate. Seventy per cent of them are either illiterate or barely literate (below class 10) and an equal percentage is from SC/ST and backward castes.
Poverty is perhaps the worst risk as it hits on two fronts. First, the economically backward are immediately legally disabled, as they cannot afford the legal costs needed to keep them from being jailed. Second, as NHRC itself found, even if bail was granted, many prisoners cannot afford to provide the sureties.
There is an array of positive interventions that I propose to enable the system to maximise the number of citizens who have access to an affordable judicial remedy.
First, there needs to be an upper limit on the duration for which the state can keep a person in jail without any conviction. This may be calibrated according to the nature of the crime, but under no circumstances it can be indefinite. The undertrials cannot be made to pay for the delays and mistakes of authorities and clogging of the judicial system.
Second, there needs to be a tracking system to analyse the data of law enforcement bodies and personnel, based on how many accused imprisoned by them eventually turned out to be innocent. Those law enforcement agencies which misuse their power to charge innocent people and make arrests must be identified and dealt with.
Third, the state must own up its responsibility in cases where lives have been ruined by languishing trials. The Vishnu Tiwaris of India deserve a sincere apology and compensation from the state for messing up its responsibility under Article 21 (Right to Life and Liberty) and Article 32 (Right to Constitutional Remedies) of the Fundamental Rights accorded by the Indian Constitution. The US, UK and Germany are among nations that have enacted laws where the state may have to compensate a person for miscarriage of justice.
In 2019, a US court announced a compensation of US $1.5 million to Richard Phillips, who spent 46 years in jail for a crime he never committed. We also need to start taking similar responsibility in our own cases of miscarried justice. We must value the freedom of our countrymen, and anyone found innocent after spending more than a year in judicial custody deserves compensation from the State for having failed to provide him/her the due process of law in time.
Fourth, India needs to significantly work on making its judicial process agnostic to the economic status of the convict. If an accused cannot afford bail, the state must provide financial support or even a loan to him/her to get the bail. Poverty cannot be a reason to be jailed. State also needs to benchmark the performance of lawyers provided under legal aid to poor defendants under Article 39-A (Equal justice and free legal aid) of the Constitution. In most cases, there is little zeal in them to perform. Performance of such legal aid, which is taxpayer-funded, must be openly available and act as a critical parameter when lawyers are considered for selection as judges.
Fifth, we need to rely on technology. The idea of putting someone in jail is to stop them from escaping legal trial and to prevent them from committing more crimes. Today, digital technologies, like wearable devices such as ankle rings, which are connected to GPS and impossible to remove, can provide an excellent alternative to jailing people. For instance, we really do not need to jail people for making offensive Facebook posts. There are better and easier ways to isolate them from social media while they undergo a trial. With a prison occupancy rate of 119 per cent, this will also help bring down overpopulation in jails.
Sixth, we need to evolve other punitive and reform methods rather than sending everyone to jail. In many countries, mandatory social work is a valid sentence for minor offences. Recently, India jailed many people for not wearing masks in public places. Could we not rather sentence such small offences to a few days of regular social service like cleaning up public parks? Incarceration is among the worst ways to reform an individual, and quite often it has a detrimental effect on the mental health of the convicted. Social work, on the other hand, is positive reinforcement.
There are nearly 3,30,000 undertrial prisoners in India, many of whom are reportedly innocent of the crimes they are accused of. The plight of these victims of miscarried justice must be at the centre stage and a topic that must be taken up on priority. The state is meaningless if it cannot provide justice, and justice delayed is justice denied.