The wrongfully jailed have the right to compensation
A Bench consisting of Justices Vikram Nath, Sanjay Karol and Sandeep Mehta of the Supreme Court, while acquitting a death row convict on July 15, 2025, stated that it is the domain of Parliament to enact a law to compensate victims of wrongful imprisonment. Although the law provides for compensation to the victims of crimes under Sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the jurisprudence of rehabilitation of the victims of abuse of power is not so well established. It would be intriguing to decode why the learned judges stopped one step short of delivering a verdict on the subject and refrained from exercising their power to do ‘complete justice’ under Article 142 of the Constitution.
Jean-Jacques Rousseau, the legal philosopher, wrote: “Man is born free, but is everywhere in chains." He argued in his work ‘The Social Contract‘ (1762) that restrictions on individual liberty is necessary for the protection and well-being of society; it is a reality that this has resulted in wrong incarceration of many suspects and innocent individuals also.
As per the statistics given in the National Crime Records Bureau report ‘Crime in India, 2022’, a total of 53,90,233 persons were arrested by the police in criminal cases in that year, whereas only 10,55,181 arrestees could be convicted. This indicates that the conviction rate hovers around 25 per cent. The Dharamvira Police Commission (1977-80), constituted to find the reasons behind police atrocities during Emergency, concluded that 61 per cent of the arrests were unnecessary, substantiating the allegation that the police indulge in indiscriminate arrests and misuse of powers.
Criminal laws empower the police to arrest the accused persons in cognisable cases after gathering adequate evidence against the suspects; although arrest becomes inevitable for the purpose of collecting proof itself in some heinous cases.
The SC has clarified in Joginder Kumar case (1994) that arrest should not become a mechanical exercise, it should be need-based, undertaken after due application of mind. The court has on a number of occasions said that having the power to arrest does not validate its use in every case.
India has signed the UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985. The declaration outlines the principles of fair treatment, access to justice and support for victims of crime and abuse of power, bringing the signatories under legal and moral compulsions to enact a law on the subject.
As a result, in 2009, after the recommendations of the Malimath Committee (2003), the definition of ‘victim’ was introduced in the Criminal Procedure Code, 1973 (CrPC). The concept, though, remains incomplete because it does not include the victims of abuse of power by government agencies. However, the SC kept expanding the definition of ‘victim’ in criminal procedures and imposed liability on the state to compensate and rehabilitate such sufferers.
In the case of Rudul Shah (1983), the SC granted compensation of Rs 30,000 for not releasing him from jail even 14 years after his acquittal; Bhim Singh (1985), a Panther’s Party MLA from J&K, was awarded Rs 50,000 for illegal detention beyond 24 hours after arrest. In Nilabati Behera (1993) case, while granting compensation of Rs 1.5 lakh in a custodial death case, Justice Verma of the SC removed all kinds of ambiguity by categorically stating that Article 32 imposes a constitutional obligation on the SC to forge new tools for providing complete justice and enforcing the fundamental rights, which also enables it to award monetary relief in appropriate cases.
In Arvinder Singh Bagga vs State of UP (1995), the SC gave a new perspective to the jurisprudence of victim compensation stating that the State may recover the amount of compensation awarded to a victim of police atrocities from the defaulting officer.
The Constitutional Bench of the SC in Ankush Shivaji Gaikwad (2013) prescribed that there exists a mandatory duty on the court to apply its mind to the question of compensating victims in every criminal case; In Re-Inhuman Conditions in 1382 Prisons (2017), the SC observed that as per Article 9(5) of the International Covenant on Civil and Political Rights 1966, a victim of unlawful arrest and detention has enforceable right to compensation.
The victims of abuse of power may bring two different types of action in the courts: one under the public law and another under the civil law for ‘false prosecution’ and ‘illegal arrest’. The public law remedy entails duty of the welfare state to rehabilitate its citizens in distress and may be resorted to by invoking the writ jurisdiction in the absence of any other suitable mechanism.
Since civil proceedings are lengthy and abuse of power is difficult to prove due to the protective umbrella of ‘action taken in good faith’, many legal luminaries believe that the three-judge Bench in the current case missed the opportunity to give law on the subject and fill the legal vacuum. Police professionals, though, hold a contrary view and argue that police procedures during investigations are subjected to judicial oversight at every stage and attaching liability for such validated actions would not be appropriate.
Under these circumstances, misuse of the power to arrest may be prevented to a great extent by raising the standards of supervision and accountability on the part of the superior police officers. Additionally, the magistrates need to come out of the stereotypes and undertake meaningful and purposeful scrutiny of the investigation procedures and release the arrestees on bail if they appear to have been wronged.
The state is under moral and legal obligations to honour its social contract with the people and rehabilitate the victims of abuse of power. It should not hesitate to enforce the ‘perpetrator-pays principle’ against the defaulting investigators.
KP Singh is former DGP, Haryana.
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