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Even so many years after independence, the Indian criminal justice system is clogged with corruption, unprofessionalism and illegitimacy. What it is described as in theory, perhaps does not hold in reality. With people of different moral standards working for its implementation, biases follow and so do mistakes. The real sufferers are the poor and middle class whose cases are not taken up without bribery, especially at lower courts and High Courts. It becomes more difficult in case they fight against any rich and powerful person. The investigation departments are majorly responsible for the paperwork to be done before prosecution. Due to improper training, discrepancies are found in FIRs or false cases are registered along with deceptive evidence due to political pressures or corruption. The input rate in the judiciary is much higher than the output rate. As of May 2022, over 4.7 crore cases are pending in Indian courts across different levels of the judiciary.[1] This not only scraps courts’ time but leads to wrongful prosecution. NCRB’s report ‘Prison Statistics India 2020’ showed that nearly 76% of the total prisoners at the end of the year 2020 were under trial. The suffering that under trial prisoners undergo becomes irreplaceable for life. Long-standing proceedings and pressures from investigative agencies take a toll on their physical and mental health. Till the time they are declared innocent by courts after months, crucial years of their lives are lost and they find themselves less productive than before. Their reputation in society and professional life remains at stake. What more, then, can be done except providing compensation to those wrongly prosecuted.  Reparations are the need of the hour. India ratified the ICCPR in 1996. Article 14(6)[2] of ICCPR provides that in a case where the conviction of a person is reversed based on the discovery of a new fact and indicates a miscarriage of justice, such person should be compensated. In countries like the United Kingdom, the United States, and Germany, the State assumed statutory responsibility for compensating the said victims.[3] However, India has not developed any such legislative mechanism for compensating the victims. Courts have provided ex gratia payments in limited cases including serious violations of fundamental rights and not others. In Babloo Chauhan @Dabloo v State Govt. of NCT of Delhi[4], the Delhi High Court expressed grave concern about the state of innocent people who are incarcerated or prosecuted wrongfully and the absence of a legislative framework for compensation.[5]

Inadequacy in current remedies in India
  • Private Law: Private law remedy is availed through a civil suit. The State can be held vicariously liable for tortious acts of its servants and liable to pay compensation. However, a uniform application of civil remedy is missing in jurisprudence. In the case of State of Rajasthan v. Vidyawati Mst.[6] the court awarded damages to the plaintiff for the death of her husband that took place due to negligent driving by a servant of State. However, in the case of Kasturi Lal Ralia Ram Jain v. the State of U.P.[7] where a police officer stole the plaintiff’s property, it applied the principle of sovereign immunity and denied any relief.
  • Public Law: Public law remedy is applied more assertively than civil law remedy since it comes from Constitution. It is available in case of violation of fundamental rights under art 21[8] of the Constitution. In cases like Rudal Shah v State of Bihar[9], Nilabati Behera (Smt.) Alias Lalita v. State of Orissa and Ors.[10]Supreme Court cleared that monetary compensation will be available to victims in public law under Art 32 or Art 226[11] of the Constitution as strict liability for violation of fundamental rights to which defence of sovereign immunity will not apply. No exemption is available to the State for the wrongful act of its servants. In addition to monetary compensation, courts also provide punitive damages.
  • Criminal Law: ‘Indian Penal Code, 1860’ and ‘Criminal Procedure Code, 1973’ provides substantive and procedural safeguards. Where IPC lays down provisions like the liability of public servants, malicious prosecution, and liability for presenting false evidence, etc., CrPC lays procedural safeguards such as the rights of the arrested person. Sec 197[12] of CrPC also immune public servants from criminal proceedings for an act done on duty.

It is observed that though remedies are provided in some cases, there are discrepancies in provisions for compensation. Ensuring its wider reach through a uniform framework of compensation mechanisms is essential. The Law Commission of India presented its report in 2018 providing for such a mechanism.

Recommendations of the Law Commission

In 2018, the Law Commission of India, after a detailed examination, made recommendations to Govt. of India. It recommended solutions inspired by other countries while recognising the limitations of the Indian criminal justice system. Some of these are:

  1. It suggests wrongful ‘prosecution’ to determine ‘miscarriage of justice’ instead of ‘incarceration’ or ‘conviction’. It is because the other two do not take into account the miscarriage that one suffers during the time before acquittal such as torture in police custody, long incarceration, etc. It is essential since the proceedings go on for years in many cases.
  2. It also recommends a legal framework wherein Special Courts can be set up to dispose of compensation cases expeditiously. The claimant will bear the burden of proof and the standard for deciding will be on the balance of probabilities. Such courts will follow summary procedures.
  3. The compensation will be pecuniary as well as non-pecuniary and in addition to those available against the State for wrongful prosecution. Non-pecuniary assistance will be awarded in the form of services such as counselling, mental health services, vocational/employment skills development, and other similar services.[13] Such progressive remedies are essential for the effective rehabilitation of victims. It can prove to be revolutionary if implemented.


Wrongful Prosecution is a grave injustice against any moral society that is potent to vandalise the lives of the affected. False and fabricated cases land innocent people in prison for years. Rehabilitation is a challenge not only for the victim but also for the complete society. Both monetary and non-pecuniary compensation are aligned along the modern understanding of rehabilitation. The present criminal justice system fails over scales of effectiveness and bona fide implementation of existing safeguards. A proper legislative framework for redressal needs to be set up based on the recommendations of the Law Commission. However good the recommendations are, the effectiveness depends on their implementation. This is possible through a well-trained staff in police and other investigative departments. Cooperation between the legislature, executive, and judiciary is essential for preventing injustice and providing a remedy to the victims in the true sense.

Author(s) Name: Asmita Verma (National Law University, Delhi)


[1] Sumeda, ‘The Clogged State of the Indian Judiciary’, (The Hindu, 10 May 2022)  <> accessed 15 July 2022

[2] International Covenant on Civil and Political Rights, 1966, art.14(6)

[3] Auroshree, ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (Law Commission of India — Report No. 277)’ (SCC Online Blog, 8 September 2018)  <;> accessed 15 July 2022

[4] Babloo Chauhan @Dabloo v State Govt. of NCT of Delhi (2017) Criminal Appeal No. 157/2013

[5] Auroshree (n 2)

[6] State of Rajasthan v Vidyawati Mst., (1962), AIR 933

[7] Kasturi Lal Ralia Ram Jain v the State of U.P., (1964), AIR 1039

[8] Constitution of India, 1950, art.21

[9] Rudal Shah v State of Bihar (1983), AIR 1086

[10] Nilabati Behera (Smt.) Alias Lalita v State of Orissa and Ors., (1993), AIR 1960

[11] Constitution of India, 1950, art.32 and art.226

[12] Code of Criminal Procedure,1973, s 197

[13] Law Commission of India, Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (Law Com. No. 277, 2018)  6.11