In India, according to the latest data released by the National Crime Bureau, as many as 68% of the inmates in 1,387 jails across the country are on or awaiting trial. About 55% of those are Muslims, Dalits or tribals, and the proportion of convicts is only 32%.

This means that more than two-thirds of those languishing in jails have yet to be proved guilty, or otherwise, by the rule of law. Among them, about 40% spend on an average of six months in jail before being released. Some of them do longer time in jail because they do not have the means to secure bail.

But recently the government-appointed Law Commission, in its 277th report released last month, recommended a framework for not only determining the standards of wrongful prosecution but also for providing effective remedies to those who have been the victims of police and prosecutorial misconduct or malice.

Such measures include provisions for relief that extend beyond monetary compensation, and also the establishment of special courts to deliver meaningful justice in a timely manner.

The most significant aspect of the commission’s report is that it lays down a standard to determine effectively and, more important, justly  what “miscarriage of justice” should mean in the Indian legal system.

Standard to determine wrongful prosecution

The commission’s report is based on a 2017 Delhi High Court ruling, in which the court noted that there was a dire need to provide relief to those wrongfully prosecuted and incarcerated, and that legal measures must be put in place urgently.

According to international standards, as laid down in the United Nations’ International Covenant on Civil and Political Rights (Article 14(6)) and reflected in the laws of various Western countries, “a person can contend that there has been a miscarriage of justice only when a new fact establishes factual innocence of the claimant after a final conviction order by the final appellate court and after all avenues of appeal have been exhausted; thereby recognizing, wrongful conviction” (and suffering of punishment on its account).

However, the commission says this standard does not factor in the structural problems and systemic shortcomings of India’s criminal justice system.

This, according to the commission’s report, “does not include within its purview forms of miscarriage of justice that an accused person may suffer even if they are eventually acquitted. For example, illegal and wrongful detention, torture in police custody, long incarceration, repeated denial of bail, among others.

“A requirement that all avenues of appeal be exhausted and post which a new fact shows that there has been a miscarriage of justice‟ does not work in the Indian conditions because of the delays in the criminal trial/appeal process. Because of this, the accused person may be in prison (or suffer otherwise) for the period as long as or longer than the sentence for the offense for which he is ultimately acquitted.

Moreover, there are also factors like the state of use of forensic science in India, which is in a shambolic condition. This makes it almost impossible for an accused person to prove the existence of fact(s) after he has been prosecuted, tried and convicted.

Further, custodial torture is endemic in India, where many arrested persons are forced to confess under duress, and where there is a long history of police falsely implicating vulnerable persons, especially minorities and disadvantaged sections of the population.

Regarding this, the commission relied on the Supreme Court’s decision in the Mohammed Jalees Ansari case (2016), where the top court acquitted a Muslim man who had spent 23 years in jail after being falsely implicated in a terror case.

After this, a report filed by the Jamia Teachers Solidarity Association (a university professors’ collective that works in the field of civil liberties and democratic rights) documented numerous cases of Muslims being falsely implicated by police, and subsequently acquitted after enduring years of incarceration and torture.

Welcoming voices, and dissent

Criminal lawyers and activists who have an illustrious history of handling cases (and securing acquittals) of wrongful prosecution told Asia Times that they welcomed the commission’s recommendations, while an amicus curiae in the Delhi High Court case, who submitted his findings to the commission, found it to be lacking on some counts.

Professor G S Bajpai of Delhi’s National Law University, who was the amicus, told Asia Times that the commission had erred by conflating wrongful prosecution with malicious prosecution, because in many cases, the prosecution is faulty but not driven by malice.

Moreover, “the commission has ‘substantially erred’ by excluding the judiciary within its purview – there are cases aplenty where grossly erroneous actions on the part of judges have resulted in people having to spend years behind bars,” he said.

Dr Masnisha Sethi, who was the lead researcher and writer of the Jamia Teachers’ Association report, said: “The commission’s recommendations echo what the Jury of the Peoples’ Tribunal on Innocent Acquitted headed by Justice A P Shah, a renowned judge and jurist, had found in 2016, and that the investigating and prosecuting agencies can no longer claim that they act without bias in many cases.”

Sarim Naved, a Delhi- based criminal lawyer who has handled many cases of accused terrorists, told Asia Times: “Wrongful prosecution has to be defined in a wider way than it has been mentioned in the report. While it will be often difficult to show falsification of documents or evidence by the police, what the police do most often is ignore or discard evidence in the favor of the accused. So this has to be included within the definition of wrongful prosecution.”

While welcoming the schemes for compensation and special courts, Naved stressed that the commission should have recommended measures in criminal law that could be taken against errant and lying cops, and not left it to the discretion of special courts.