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One of the fundamentals of the democracy is rule of law and this basic fundamental of democracy hurts when those who are meant to enforce the law take the law into their hand. Custodial death and unlawful detention are rampant in the Indian police system. According to National Crime Record Bureau 1888, custodial death happened from 2001-2020[1] and we should remember that much custodial death goes unreported in India. According to the latest available data of NCRB for 2020 76% of prisoners in India are under trial[2]. Unfortunately, our justice delivery system is very slow and it takes years for our courts to convict or acquit the accused. In 2020 two foreigners were acquitted by the court after they spend ten years in prison for an NDPS case[3]. Two men were cleared of UAPA charges after they spent nine years in jail[4]. There are several other examples in our country where the accused spent years in jail without conviction and the most unfortunate thing here is there is no compensation law in our country. However, no compensation can give back the time the accused spent in jail or give back the life of the accused who became the victim of custodial death but monetary compensation can help the accused and their family member in the second case to restart their life and stand on their own feet.

Awarding of compensation by constitutional courts

The Constitution of India does not mandate the right to compensation for unlawful detention or custodial death but compensatory jurisdiction is the Supreme Court’s judicial creativity[5]. Although the petitioner has the option to file a civil suit for damages against the state for unlawful detention it takes over a decade to conclude.  Supreme Court has evolved the compensation remedy over time by not leaving victims empty-handed in time taking civil suit by providing compensation to them. Bhagalpur blinding was the first case where Supreme Court recognized the right to compensation. In Bhagalpur blinding case police officials blinded thirty-one under-trial prisoners by pouring acid into their eyes[6]. Court noted that it should prepare new tools and make new remedies for better enforcement of the fundamental rights of people[7]. In this case, Supreme Court does not grant any compensation to victims since investigations on police officials were still pending but recognizing the right to compensation gave a gateway for awarding of compensation in future cases.  Rudul Sah v. State of Bihar was the first case where the apex court awarded compensation to the victim. Rudul Sah was acquitted of a murder charge by the criminal court in 1968 but he was unlawfully detained by Bihar police officials for fourteen years[8]. He was released when he filed a writ petition before Supreme Court. Although he was released before the date of hearing in the Supreme Court, the court continued to hear the matter and asked explanation from police officials for this unlawful detention. The court said that refusal to give compensation to Rudul would be a grave injustice and it will violate Art 21 of the constitution therefore court awarded thirty thousand rupees to Sah[9]. Court also clarified that award of compensation by a constitutional court would not bar the victim from invoking civil suit remedy.

Need for statutory law for providing compensation

The Constitution of India does not recognize the right to compensation but constitutional courts in India have recognized it and awarded it to the victims. This shows the seriousness of the judiciary on the issue of compensation but this seriousness is lacking in government officials. There is no definite clarity on what amount of compensation should be awarded by courts. Since there are no specific guidelines for formulating the grant of compensation the amount of compensation has been varying from a mere few thousand rupees in some cases to a few lakhs in other cases. Uncertainty in the legal system makes the matter worse for victims who are searching for justice. In a recent case, Supreme Court awarded fifty lakh to Nambi Narayan the former ISRO scientist twenty-four years after he was detained by Kerala police[10]. It is a serious concern that compensation was awarded after a very long period. This shows that parliament should step in and it should recognize the right to compensation as a statutory right.

Atal Behari Vajpayee’s government in 2000 constituted National Commission to Review the working of the Constitution. This commission recommended that Article 21 be amended and ‘an enforceable right to compensation’ be included to compensate any person whose right to life has been illegally deprived[11]. Unlawful detention and custodial death violate the right to life under Art 21 therefore the recommendation of this commission extends to these two acts.

 In Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi High Court of Delhi has expressed deep concern on the issue of the wrongful implication of innocent person who spent years in jail as under trials and finally they are acquitted[12]. High Court of Delhi also said that there should be a legislative framework for providing compensation to those who were wrongfully prosecuted[13]. High Court then directed the Law Commission of India to make recommendations to the government on this specific issue. In 277th report of the Law Commission of India titled “Wrongful prosecution (Miscarriage of Justice): Legal Remedies” noted that “miscarriage of justice resulting in violation of the right to life and personal liberty, including wrongful prosecution”[14]. It noted that recourse for this is available only under public law in the High Court or Supreme Court as a claim of constitutional tort against the state[15]. The law commission notes that “the currently available remedies only create an ex gratia obligation and statutory obligation on the state to compensate”. The Law Commission recommended making statutory and legal frameworks for wrongful prosecution. Article 9(5) of the International Covenant on Civil and political right says that victims of unlawful detention should have the right to compensation[16]. India is a signatory of this international treaty and ratified it but with reservation on the clause of right to compensation. The government of India explicitly said that the Indian legal system does not recognize the right to compensation. Many western countries recognize the right to compensation but in the case of wrongful conviction and this will not work in a country like India where trials take a very long time. European Convention on Human Rights also recognizes the right to compensation for unlawful imprisonment under Article 5(5)[17].


Our justice delivery system is very slow, about four crore seventy lakh cases are pending in Indian courts and trials take years to reach their conclusion. We need a uniform legal framework to compensate under trials who spent years in jail waiting for their trial in the court of law. However constitutional courts are proactive in upholding the fundamental rights of individuals by providing compensation but without proper framework and guidelines it takes time to deliver justice to victims and many individuals may not think of directly approaching the High court or Supreme Court because of lack of financial resources or legal knowledge. So, it is high time for India to make the right to compensation a statutory right or even a constitutional right.

Author(s) Name: Krishna Modani (Nirma University)


[1] Harikishan Sharma, “1888 custodial deaths in 20 years, only 26 policemen convicted”, The Indian Express, (November 16, 2021, 07:23 AM),,this%20period%2C%20official%20records%20show.

[2] Deeptiman Tiwary, “76% prisoners are undertrials; ratio is highest in Delhi, J&k”, The Indian Express, (May 4, 2022, 7:33),,were%20found%20to%20be%20undertrials.

[3] Amiya Kumar Kushwaha, “After spending nearly 10 years in prison, two foreigners acquitted by Delhi HC in NDPS case”, ANI, (May 18, 2020, 18:19),,were%20found%20to%20be%20undertrials.

[4] Mustafa Shaikh, “Two men, cleared of UAPA charges, regret the 9 years they lost in jail”, India Today, (June 18, 2021, 10:13),

[5]  ZIA MODY, 10 JUDGEMENTS THAT CHANGED INDIA 139 (Shobhaa De Books 2013)

[6]  Khatri And Others vs State of Bihar & Ors, 1981 SCR (2) 408, 1981 SCC (1) 627

[7]  Khatri And Others vs State of Bihar & Ors, 1981 SCR (2) 408, 1981 SCC (1) 627

[8]  Rudul Sah vs State of Bihar And Another, 1983 AIR 1086, 1983 SCR (3) 508

[9]  Rudul Sah vs State of Bihar And Another, 1983 AIR 1086, 1983 SCR (3) 508

[10]  Apurva Vishwanath, ISRO spy case: SC awards Rs 50 lakh to space scientist Nambi Narayanan, ThePrint, (14 September, 2018 01:37 pm),

[11] ZIA MODY, 10 JUDGEMENTS THAT CHANGED INDIA 155 (Shobhaa De Books 2013)

[12]  Babloo Chauhan @ Dabloo vs State of Govt. of NCT of Delhi, 247 (2018) DLT 31

[13]  Babloo Chauhan @ Dabloo vs State of Govt. of NCT of Delhi, 247 (2018) DLT 31

[14]  Law Commission, “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”, (Law Commission of India Report no. 277, August 2018),

[15]  Law Commission, “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”, (Law Commission of India Report no. 277, August 2018),

[16]  International Covenant on Civil and Political Rights, 16 December 1966,

[17] European Convention on Human Rights, 03 Sep 1953,