A wrongful conviction is a dreadful iniquity that exaggerates when an actual innocent person is put behind the bars for years and the real perpetrator is set free to hit the society back again. It advances either when an impeccant suspect is treated as guilty in legal proceedings or when he is obligated to take responsibility of a crime which was not committed by him so that the chances of punishments such as death penalty and elongated imprisonment can be averted. In American Law ‘not guilty’ is used to refer to the person who is to be exonerated rather than innocent because of the fact that factual innocence does not amount to actual innocence. Though both of these terms, referring to innocent person are used for the person who does not commit crime. In English Law, wrong conviction is described by miscarriage of justice.
Once Bill Rowling OAM explicated the false conviction and the troubles it creates in simple words:
“We fail ourselves if a wrong person is in jail. Police, prosecutors and judges are society’s agents: what they do in our name, wrongly or rightly, measures us as a people. One wrong conviction would be too many, if you were the one; imagine for a moment that it’s you locked behind bars, INNOCENT.”
Unfortunately, the rise in number of such exonerations elevates the unplumbed doubt about the veracity and equity so claimed and assured of by the criminal justice system. This fact is the cause for recent researches prompting various innocence projects dealing with exoneration of wrongfully convicted persons purporting reforms in justice policy designed to reduce the number of such convictions.
Myriad researches done so far and anecdotal evidences are testimony to the fact that the large magnitude of wrong conviction has an adverse effect on the mental health of the prisoner including posttraumatic stress disorders and anxiety disorders which are not likely to be found among actual guilty prisoners who are even sentenced life threatening punishments. The effect is so severe that it perplexes the cognition of exonerated prisoners to lead a usual life again after their acquittal.
On a global platform, only few countries have legally authorized monetary compensation for the persons who were falsely convicted and year by year the number of countries enacting compensation laws is rising which also focuses on providing compensation for health and recuperative services but the perturbing fact about India is that it does not have any compensation law for those who have dropped off the years of their precious life to the incompatible judicial system.
While dealing with wrongful conviction, national and global justice systems take into account the front and back end issues:
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Measures to prevent False Conviction
International law guarantees the right to a fair trial for protecting victims from unlawful detention and diminishing the proportion of wrongful conviction. International Standards concerning fair trial are invariably developing and bringing other rights as well within its ambit such as fair hearing, innocence presumption, right to know accusation, right to get sufficient time to collect evidences and legal assistance, right to appeal and examine witness and freedom from self-incrimination. There are various Human Right treaties and covenants which support the call for fair trial. Article 10 of Universal Declaration of Human Rights state, “everyone is entitled to full equality to a fair and a public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charges against him.”
An association of organizations namely INNOCENCE NETWORK works to provide legal and investigating services to those victims who are willing to prove their innocence and also protect their interest after their acquittal. It runs several awareness campaigns to eradicate the factors causing Wrongful Conviction.
The Wrongful Conviction Day is celebrated on October 2nd[1] launched by Association of Defense for Wrongfully Convicted to commemorate those who were kept in prison because of their ‘INNOCENCE’ and justice could not save them and to set aside a day for bringing the focus of everyone towards causes and remedies for wrongful conviction.
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Compensation to
victims of false conviction
There are several International provisions which strive to provide compensation for unjust conviction to those who have suffered a lot because of spending years in prison such as Article 14[2] of International Covenant and Civil and Political Rights. Several other states have their own legal or constitutional provisions to deal with issue of compensation. In United Kingdom, there are certain provisions which are to be followed by Home Secretary to pay compensation if an application is made for it.[3] In France provisions constituted in International Covenant on Civil and Political rights are followed.[4] In Germany, a specific law has been passed to recompense the loss suffered by wrongfully convicted.[5]
There is no criminal justice system which does not suffer fallibility which in turn leads to miscarriage of justice. Even when all the required laws are implemented, provisions are followed and standards are adhered with wrongful conviction does occur.Studies have revealed several factors which lead to miscarriage of justice (not based on scientific research). Most of the time there are more than one factor responsible for false conviction. Here is the list of such factors:
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EYEWITNESS IDENTIFICATION
Misguided eyewitness identification has become one of the leading causes of wrongful conviction. Although an error rate for misleading eyewitness has not yet been recognized because no such survey has been conducted so far in India but some experts on the basis of their experiences set it at near 25%. This is a scientific fact that human memory cannot keep all the information of whatever he watches because of which the periphery of that information devolves but its core is retained. This creates uncertainty in recollecting the face of culprit. Effects of extreme stress and focus on weapon diminish the ability to recall the face in turn the unconscious transference leads witness to impose the face of someone else on the perpetrator.[6]
While considering eyewitness as a judging factor, this has to be kept in mind that memory changes at the stage of recalling.
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FORENSIC SCIENCE ERROR
After misleading eyewitness, problems pertaining to evidences forwarded by forensic scientists and examiners another leading factor responsible for for wrongful conviction. These problems include incorrect methods adopted for analysing, incompetency of experts and inferior quality of forensic laboratories. In fact, many of the experts present their analysis on the basis of comparison between two factors which is subjective analysis varying from person to person as per their experiences but does nit involve any scientific method or tests.[7]
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FALSE CONFESSION
The conviction of Indians such as Kulbhushan Jadhav and Sarabjeet Singh in Pakistan Jail does not need any further explanation. They were not provided any basic legal assistance and principle of fair trial was violated and the confession obtained from by unfair means.[8] The third degree is till now being used verg commonly to obtain confession. A bill for enacting the law namely the Prevention from Criminal Torture could not be passed in parliament.
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PERJURY
Perjury is in fact the cause of corruption which has not even spared our judicial system undenting its core. Miscarriage of justice takes place when either of the parties involved in criminal proceedings such as informants, police, judicial personnel, prosecution, etc. pay each other in terms of money, money worth, drop of criminal case, etc. to conceal a relevant information which can be a decisive factor to acknowledge the real culprit[9].
In India’s context, our judicial system is in extreme need of reform to overcome the consequences arising out of wrongful conviction. In 1975, Sir William mentioned in Commentaries on the Laws of England “It is better that ten guilty persons escape than that one innocent suffer.” India adopted many of the provisions from UK’s legal system, but the principle of BLACKSTONE FORMULATION does not seem to be complied with.
In Adambhai Sulemanbhai Ajmeri vs. State of Gujarat[10],
the honorable Supreme Court exonerated all the six men convicted by Gujarat High Court for the attack on Akshardham Temple in Gandhinagar. Here also, there was more than one cause of wrongful conviction such as deficiency in method of investigation, nature of confession, no independent evidences etc. so highlighted by the Court.
The acquittal after 11 years which were lost to judiciary and the stigma of being associated with terrorism has engrafted so deep in their heart that can never be wiped off. No financial compensation can bring those lost years back and compensate for joys of life that were alienated.[11]. But compensation can make good the money spent on legal proceedings, can be used to establish a healthy life again.
Till now there are not any guidelines issued by higher authority providing the methods to calculate compensation. The apex court has provided compensation in various cases. That is why compensatory jurisprudence for violence of personal liberty is not new for India and emerged with the Supreme Court judgment invoking the rights to constitutional remedies[12], awarded compensation to victim of erring and arbitrary state.[13]
The demand for right for compensation to falsely convicted gained momentum when the Supreme Court dismissed a joint plea by six persons who were prosecuted and incarcerated for about eleven years and acquitted thereafter. Such judgments can be expected from the system in which judge rejected an appeal for compensation on the ground that mere acquittal does not authorizes a person to claim compensation as it would set a ‘dangerous precedent’.[14]
Actually, this kind of judgments set dangerous precedent for welfare of society.
The destiny of hundreds of innocent people and their shattered family is fading away in the walls of prison on inhuman charges of Islamic terrorism and Maoist extremism, depends on the independent, fair and reasonable verdict of our judges. Judges with such mindset, are really compatibleto make justice? It took more than a decade to consider innocents as innocent. Are they fast enough to deliver justice to protect those young souls from excruciating experience of conviction?
They say justice delayed is justice denied. Where is justice in wrong conviction? Nowhere.
The statistics which add more to our worries is our another misfortune. According to NCRB [15]statistics, over 55% of the under trials across the country are Muslim, Dalit or Tribes. Their population in country is 18%, 16.6% and 8.6% respectively, but they constitute 15.8% of total conviction and 20.9% of it’s under trials. Why is it so that only certain community or a specific section of society is targeted in a heinous criminal act?
How ironical it is that in a country where there are provisions for wrongful restraints and confinement[16] . There are no specific laws for wrongful conviction which lasts for years and for compensation which the acquitted seeks. Is it because such conviction involves accountability of government officers and is resultant of incapable judicial system.
What a caustic remark made by Ryan Truscott over false conviction and judicial proceedings:
“On a daily basis, wrongly accused and their families, friends and supporters are reminded that life and freedom are to be cherished. Charges and arrests that can take only moments to appear can take a life time to disprove. For the fortunate few that have not only courage but perseverance to see these cases through, they are to remember that even in country, where we are guaranteed our legal rights, the justice system is made of individuals like you and me and ‘to err is always human’.”
Wrong convictions are really a curse for society because in a country where justice needs to protect and safeguard an individual’s interest because of such conviction he needs to struggle with the system of justice. In a country like India the absence of any provision to tackle the problems arising out of such absence makes it even worse. Though the activism and legal awareness has brought this issue at least in light of concern but the desired goals are still a distant dream. Remember wrong conviction of an individual is equal to the conviction of one family, Simple Maths.!
References-
[1] Launched in 2015.
[2] When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of which such conviction shall be compensated according to law, unless it is proved that non disclosure of unknown fact in time, is wholly or partly attributed to him.
[3] Section 133 of Criminal Justice Act.
[4] As per Code de Procedure Penale.
[5] Compensation for Criminal Proceedings Act, 1971.
[6] State of Karnataka, by Deputy Superintendent of Police v. Ramappa Bhimappa Kattimani and Ors. 2006(5) KarLJ 85 in this case prisoner was acquitted on the ground of misguided eyewitness.
[7] Sabarkanth District Milk Union v. State of Gujarat and ors. (1996) 2 GLR 792.
[8] Aher Raja Khima v. State of Saurashtra 1955 (2) SCR 1285
[9] Umarao Lal v. State 1954 CriLJ 860.
[10] (2014) 7 SCC 716.
[11] In Mohammad Nisaruddin’s Case a 19 year old boy was arrested on the charges of accomplice in Bomb Blast in Muslim Education Institution in Hyderabad and exonerated after23 years.
[12] Under Article 32 of the Constitution of India.
[13] Rudal Shah v. State of Bihar 1983 (4) SCC 141.
[14] A bench comprising of J. Deepak Mishra and J. R. Bhanumati rejected the plea of the six acquitted individuals of Akshardham Attack case on July 5, 2016.
[15] National Crime Records Bureau’ report of study conducted in 2015.
[16] Wrongful restraint and Wrong Confinement defined under section 399 and 340 of the Indian Penal Code, 1860.
BY-
SHIVANI PANDEY
LAW STUDENT
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