In October, the Supreme Court initiated a process that could mitigate the rigours of long periods in prison for innocent people. It asked for suggestions from the Centre’s two top legal officers on the possibility of compensating people who spend extended periods in prison but are eventually acquitted.
The issue of wrongful and arbitrary arrest is the primary concern. Compensation would not be needed if the practice of carelessly picking up citizens and incarcerating them were to become rare phenomena. To begin with, let us thus examine the lack of safeguards against arbitrary detention that is enabled by a system which
does not demand a high threshold of plausibility of guilt at the outset and privileges State prerogative over the rights of citizens.
What is of foremost concern is the low conviction rate in India. This clearly means that an unconscionably large number of people spend extortionately long periods of time in prison without having committed a crime, either prima facie or in final orders. The conviction rate for offences under the Indian Penal Code has been around 55% over the past few years.
More troubling is the paltry rate of conviction for offences under draconian detention laws. In the case of detentions under the Unlawful Activities (Prevention) Act, various estimates put the conviction rate at 2.2% between 2016 and 2019, less than 3% between 2015 and 2020, and 252 people of 8,947 (2.8%) between 2018 and 2022. The conviction rates for detentions under sedition laws were 33.3% in 2016 and 2020, and 3.3% in 2019.
The present regime has ratcheted up the use of these draconian laws to stifle dissent, harass political opponents, and create a climate of fear to intimidate the citizenry, raising the spectre of a police State. Between May 2009 and May 2014, 69 cases were recorded under the UAPA, while 8,719 cases were registered between 2014 and 2022, of which 222 resulted in convictions (2.5%).
In 2018, the Law Commission headed by B.S. Chauhan recommended the enactment of legislation to provide pecuniary and non-pecuniary compensation for wrongful incarceration and prosecution since no such legislative framework exists. With the Supreme Court pushing the recommendation, one hopes that there will be some movement in this direction. The point, however, is that while taking an initiative on compensation is a step in the right direction, there should also be a concerted attempt
to prevent arbitrary and malicious detention in the first place.
Let us be clear, the judiciary has to take a large share of the blame for innocents suffering long periods of incarceration. On the same day that it flagged the compensation issue, the Supreme Court refused to adjourn the bail hearing for Umar Khalid and others detained in the Delhi riots case but deferred the hearing to later in the week. This when the accused have already been in jail for over five years, with numerous bail pleas having been rejected.
Higher courts keep intoning the mantra, ‘bail is the norm and jail the exception’, but are very selective about applying it. All too often, people who have no way of influencing investigations and are not flight risks are denied bail and have to spend inordinate periods behind bars while powerful people are given get-out-of-jail cards freely.
Underlying the routine denial of bail, especially to political prisoners, as several constitutional and jurisprudential scholars have noted, is the highest court’s predilection for favouring reasons of State over citizens’ rights. The Indian Constitution, some legitimately argue, has great transformative potential. But for that to be realised, the weight of interpretation has to tilt towards fundamental rights and the principles of natural justice.
It is hoped that the move towards compensation will create a momentum that limits the policing powers of the Indian State.
Suhit K. Sen is the author of The Paradox of Populism, The Indira Gandhi Years, 1966-77