The problem that I have been requested to address is: should there be a method of compensation and reparation for those who are acquitted after long periods of incarceration? The question can be explained in one word – yes, there should be such a method. But I would like to go away with the topic; It’s not only a problem of compensation for staying in jail and getting acquitted, there are numerous other issues and events in our criminal justice system for which compensation must be given.
All the discussants have registered that the draconian law of sedition and the Unlawful Activities (Prevention) Act (UAPA) should be removed but my view is that these laws are not working everywhere and will continue where they are, on the statute books. On the opposite, the National Security Act (NSA) is being attached to this list. So, you have the use of NSA in Manipur, and in Uttar Pradesh where the Allahabad High Court burned down more than 90 preventive detention orders published under the NSA. So, it’s not only sedition and UAPA, but we’re working to see the growing use of the NSA to suppress heresy and prevent people from opposing the State.
On the issue of compensation, I would like to go back a short bit into the past. Compensation for infringement of human rights is not something unusual in our jurisprudence, although it is doing actively considered these days. I would like to quickly name five important judgments delivered by the Supreme Court.
The first one is of Rudul Sah of 1983. He was acquitted after a trial in 1968 but regrettably, he remained in jail even after acquittal and was released in 1982 after 14 years. The Supreme Court granted him a compensation of Rs. 30,000 which may have been quite a lot at that time but also gave him the freedom to file a civil suit for compensation.
Sebastian Hongray was a matter of some characters who were plucked up by the Army and finally disappeared. The Supreme Court ordered their production but the event was denied. Nevertheless, evidence revealed that they were in the administration of the Army and since they were not produced, it was believed they had died, or in any case, they had passed. The Supreme Court granted the family of the victim’s Rs. 1 lakh as compensation.
Professor Bhim Singh was an MLA in the legislative assembly of Jammu and Kashmir in 1985. He was going to visit the assembly session but was pulled up on the way and not allowed to visit the assembly session. He arranged a petition – he’s a professor and a lawyer – and the Supreme Court needed to understand how it is reasonable to pick up a person like this and catch him away. He was granted Rs. 50,000 as compensation.
In 1989, Saheli, an NGO had registered a case with respect to death in police custody and Supreme Court awarded Rs. 75,000 as compensation.
In 1993, the Supreme Court released a judgment in the case of Nilabati Behera, whose son died in police custody. His body was next spotted near some railway track. The Supreme Court granted her Rs. 1,50,000 as compensation.
So, the grant of compensation is not something new. The Supreme Court has awarded compensation for disappearances, pulling up a person, and dying in custody. But for any reason, after Nilabati Behera’s case in 1993, or maybe these unlawful arrests did not get a place or for any other purpose which I don’t know, the jurisprudence of awarding compensation for infringement of human rights further or less died under.
Now we’re confronted with this dilemma once again. So, we had the case of Nambi Narayanan – an eminent scientist. He was illegally arrested and the Supreme Court ordered Rs.50 lakhs as compensation. This was a few years ago.
More recently, Akhil Gogoi was captured and arrested under the UAPA for more than a year. When his case was brought up for framing of charges, the Trial Judge removed him on the ground that no offence under the UAPA was made out. This was not a case of discharge but of acquittal. But, no compensation was granted to him. There was a notice of the requirement to build guidelines supporting the UAPA and the sedition law but nothing has come out of it.
Reasonably newly, Munawar Farooqi was published by the Supreme Court – why? Because the police arresting him did not comprehend the guidelines placed down by the Supreme Court in the case of Arnesh Kumar in 2014. So, even though the Supreme Court may lay down guidelines, but if the police determine not to follow them, they will not. No compensation was granted to Munawar Farooqi for his unlawful arrest.
What is the result of all this? The result is that in the case of the Manipur activist, the Supreme Court ordered his release by 5:00 pm. Can you believe that this is the state we’ve grown to? The courts now ought to give a timeline and say “isko 5 baje tak release karo ya 6 baje tak discharge karo.”
It is the responsibility of the jail officials and the police to release a person when the court declares to release him. They can’t say “nahi nahi, I will release him whenever I feel like it”
You can go on giving orders – “jo hume karna hai vo hum karenge”
So, let’s see the whole summary of our criminal justice system. Let’s not see at one character. Let’s see the bigger picture. Where are we going? This is the problem. What is the remedy? Compensation is one, responsibility is another. Mental health is both necessary, if not more important because grave injustice will continue with the victim for the rest of his or her life. This will become a constant influence on the lives of their family and their own kids. They will cherish it forever. It is really time to wake up.
Short Text of Justice Madan Lokur’s Speech at a webinar by CJAR-
“Discussion On DEMOCRACY, DISSENT AND DRACONIAN LAW- Should UAPA & Sedition Have A Place In Our Statute Books?”
