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  • Writer's pictureIRALR


This blog has been authored by Ritu Raj, a first year student of B.A. LLB. at National Law University and Judicial Academy, Assam


Arbitrary arrest, wrongful conviction, imposing preventive detention on anyone is not a new thing in India. On 15th August 2021, we will be celebrating our 75th Independence Day from the British Rule, but unfortunately, we are still following some of the British regime's draconian laws. Last year in September, Dr. Kafeel Khan, a BRD Medical College lecturer, was released after seven months because there was no evidence against him. He was detained under the National Security Act, 1980 for undermining public orders. However, the Allahabad High Court found that the Uttar Pradesh Police misrepresented his statement and ordered the UP police to release him. Dr. Kafeel Khan was denied his right to liberty for seven months without any evidence against him. Nevertheless, there was no action taken against the police authority for unlawfully detaining him for such a long time.

Article 22 of India's Constitution talks about the protection and rights granted to the individual detained under various preventive detention Acts. Here, first of all, we must understand the difference between arrest and detention. If any individual is arrested, he is charged for some crime, whereas if any individual is detained, he is detained just based on suspicion, and there is no charge of crime against him. This detention directly contradicts Article 21 of the Constitution of India, which talks about the rights and liberty of an individual. However, Article 21 of the Indian Constitution has been continuously attacked, be it the emergency period, the abrogation of Article 370, or during the protest of the Citizenship Amendment Act.

Miscarriage of Justice is also a violation of human rights. This unlawful detention creates a feeling of social stigma and ostracization in the individual's mind and the loss of time that the individual spent in jail. Let us take the example of Mohammad Aamir Khan, whom Delhi Police in 1997 arrested on kidnapping charges. Further, the police filed several more cases portraying him as a terrorist. He was also severely tortured in jail. However, slowly he got acquitted in all the 18 cases, but this cost him 14 years. Even after his release, he faced a plethora of issues. He has also undergone adverse psychological conditions, which affected his mental status badly. He also faced social hatred from his neighbours due to those false accusations. Article 20(2) of the Constitution of India protects an individual against double jeopardy, i.e., no person should be prosecuted and punished twice for the same offense. However, this provision is violated because these societal hatreds force these peoples to peril twice for something they have not committed.

Case studies

In 1953, Rudal Shah was arrested on charges of murdering his wife. He was later acquitted in 1968, but the State's negligent act and its authorities cost him his precious 15 years. Later on, when he filed for compensation again, it was delayed by the authorities. Due to the State's ignorant attitude, he was forced to face physical and psychological damage for something he had not done.

In 1953, the Rajasthan Police arrested Nisarudin for a bomb blast in an educational institution. After the trial, the lower court sentenced him to life imprisonment under the Terrorist and Disruptive Act (TADA). When the accused went to the Supreme Court, the apex court observed that police custody's confession is not admissible and acquitted the boy. Nevertheless, due to the lower Judiciary's negligent act, the boy was behind bars for 23 years and was not granted any compensation.

In another case where a man from Assam was detained illegally for three years under a mistaken identity, it forced her deaf daughter to wander around and later on, which led to the man's death causing irreplaceable damage to her daughter.

If we closely examine these cases, we will see that the victims and their relatives have been impacted.

National and international perspective

Under International law, an illegal arrest is considered a very grave human rights violation. In terms of other countries' perspectives, plenty has different laws to avoid miscarriages of justice such as this. The United Kingdom has a different code, namely the Criminal Justice Act of 1988, which has a provision for wrongful conviction victims. In the United States, they have dual liability through state and federal laws in this regard.

A case moves from the District Court to the Apex court in our country, i.e., the Supreme Court, a very lengthy and complex procedure. Here, the cases' long pendency and the complex procedural requirement adopted by the Judiciary make it very hard for the victims to file for remedy. In granting any relief, the judicial system needs transparency, and this practice has exacerbated the situation.

Here the State needs to find something unique beyond the procedural norms adopted by the Judiciary. There should be a comprehensive transformation policy that could spread legal awareness among every section of our society. Justice delayed is justice denied, and it clearly shows that both the State and the Judiciary are on equal footing for the miserable conditions of the victims.

In the International arena, the International Covenant on Civil and Political Rights, 1966 talks about the ways in order to prevent miscarriage of justice in society. Article 14(6) of the International Covenant on Civil and Political Rights, 1966 states that the State has to pay compensation if any person is wrongly convicted, and after that, he has been pardoned due to his innocence.


If we talk about India, we do not have any law that talks about compensation for the victims of preventive detention, wrongful detention, and wrongful arrests. It all depends on Article 32 and Article 226 of the Constitution of India and judicial interpretation. There are no clearly laid principles for their compensation due to which creates much confusion. In many cases, the courts provide compensation, whereas, in many, they do not. If we study the court's judgments in the past, we can conclude that there are three types of remedies in this context, i.e., the Criminal Law remedy, the Public Law remedy, and the Private Law Remedy.

If we talk about the Criminal Law remedy, Section 168 of the Indian Penal Code deals with public servants' offenses. In the case of Mohd. Jalees Ansari & Ors. v. Central Bureau of Investigation, the accused was arrested for a bomb blast in Hyderabad under the Terrorist and Disruptive Activities (Prevention) Act. Later, after a confession, he was convicted by the District Court and spent 23 years in jail. When this case was brought up in India's Supreme Court, the Court observed that the confession was not valid as it was taken by using coercive force, and hence it not admissible. Hence, the Supreme Court of India set aside the TADA Court's order and freed him from all the charges.

There are many situations where the investigating authorities tamper with the evidence that results in false convictions.In these types of cases, only monetary compensation is not sufficient. Even these monetary compensations are not granted because it is solely based on judicial interpretation due to lack of proper legislation. There should be proper separate legislation which must have straightforward procedure and conditions for the provision of compensation to the victims of wrongful conviction. In those cases where there is a malice intention of the investigating authorities, there should be a criminal liability on those officers to prevent miscarriage of Justice.

The next one is the Public Law solution derived from Articles 21 and 22 of the Indian Constitution. Article 21 addresses the right to life, while Article 22 addresses the right to be free from arbitrary arrest and imprisonment. In this case, Articles 32 and 226 of the Indian Constitution play an important part in seeking compensation. The last one is the Private Law remedy, which talks about civil suit provision against the State. Article 300 of the Constitution of India gives the right to sue the government of India. It follows the principle of vicarious liability, where the master is liable for its agent's actions. In the case of State of Bihar v. Rameshwar Prasad Baidya & Anr, it was held that the criminal trial initiated by the State was a form of malicious prosecution here, the State was liable to pay compensation to the victim.

As previously mentioned, proper law, consolidated legislation combines the people's rights and responsibilities. In judicial interpretation, there is no clear-cut provision that defines the exact quantum of compensation. Along with compensation, there should also be provisions of criminal liability in case of malice intention of the investigating authorities during the investigation. The State should also form an independent body for an impartial investigation, which again follows a lengthy procedure established under Section 79 of the Civil Procedure Act, 1907. Miscarriage of Justice and wrongful conviction will always be considered a grave human rights violation, and this must be resolved by bringing legislation and enforcing it efficiently.


India is a welfare society, as shown by the vast expansion and improvement of the legal system. There are several situations in which the state struggles to fulfill its obligations, either deliberately or unwittingly. These kinds of cases are called gross violations of human rights. Civilized society is an essential element for any peaceful and law-abiding nation. The government must uphold the principle of natural Justice. Those who are convicted wrongly have various forms of effects on them. They are deprived of their fundamental rights, and they depend on the mercy of the State. Even the provision of compensation is based on judicial interpretation, which again gives colossal trauma to the victims and their families.

In its 277th report in 2018, the Law Commission of India also suggested various provisions to prevent the miscarriage of Justice, but it was, as usual, overlooked by the government. Here the Judiciary, along with the State needs to take adequate steps and make a collaborative decision to change the complex and lengthy system of our country to protect the victims' rights.

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