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This is the full text of former Supreme Court Justice Madan B. Lokur’s speech at a webinar by the Campaign for Judicial Accountability & Judicial Reforms titled ‘Discussion On Democracy, Dissent and Draconian Law – Should UAPA and Sedition Have A Place In Our Statute Books?’.
When reparations are considered, we shouldn’t overlook the impact of wrongful arrest and imprisonment manifesting as mental trauma in the acquitted and their families.
The question that I have been asked to address is: should there be a system of compensation and reparation for those who are acquitted after long periods of incarceration? The question can be answered in one word – yes, there should be such a system. But I would like to go beyond the topic; It’s not only a question of compensation for being in jail and getting acquitted, there are several other events and incidents in our criminal justice system for which compensation must be given.
All the speakers have indicated that the draconian law of sedition and the Unlawful Activities (Prevention) Act (UAPA) should be abolished but my view is that these laws are not going anywhere and will remain where they are, on the statute books. On the contrary, the National Security Act (NSA) is being added to this list. So, you have the use of NSA in Manipur, and in Uttar Pradesh where the Allahabad high court struck down more than 90 preventive detention orders issued under the NSA. So, it’s not only sedition and UAPA, but we’re going to see the increasing use of the NSA to quell dissent and prevent people from disagreeing with the State.
On the topic of compensation, I would like to go back a little bit into history. Compensation for violation of human rights is not something new in our jurisprudence, although it is being actively discussed these days. I would like to briefly mention five historic judgments delivered by the Supreme Court.
The first one is of Rudul Sah of 1983. He was acquitted after a trial in 1968 but unfortunately, he remained in jail even after acquittal and was released in 1982 after 14 years. The Supreme Court awarded him a compensation of Rs 30,000 which may have been quite a lot at that time but also gave him the right to file a civil suit for compensation.
Sebastian Hongray was a case of some persons who were picked up by the Army and subsequently disappeared. The Supreme Court directed their production but the incident was denied. However, evidence showed that they were in the custody of the Army and since they were not produced, it was assumed they had died, or in any case, they had disappeared. The Supreme Court awarded the family of the victims Rs 1 lakh as compensation.
Professor Bhim Singh was an MLA in the legislative assembly of Jammu and Kashmir in 1985. He was travelling to attend the assembly session but was picked up on the way and not permitted to attend the assembly session. He filed a petition – he’s a professor and a lawyer – and the Supreme Court wanted to know how it is possible to pick up a person like this and take him away. He was awarded Rs 50,000 as compensation.
In 1989, Saheli, an NGO had filed a case with regard to death in police custody and Supreme Court granted Rs 75,000 as compensation.
In 1993, the Supreme Court delivered a decision in the case of Nilabati Behera, whose son died in police custody. His body was later found near some railway track. The Supreme Court awarded her Rs 1,50,000 as compensation.
So, the award of compensation is not something new. The Supreme Court has granted compensation for disappearances, picking up a person, and death in custody. But for some reason, after Nilabati Behera’s case in 1993, or perhaps these illegal arrests did not take place or for some other reason which I don’t know, the jurisprudence of granting compensation for violation of human rights more or less died down.
Now we’re faced with this problem once again. So, we had the case of Nambi Narayanan – an eminent scientist. He was illegally detained and the Supreme Court directed Rs 50 lakhs as compensation. This was a few years ago.
More recently, Akhil Gogoi was arrested and detained under the UAPA for more than a year. When his case was taken up for framing of charges, the trial judge discharged him on the ground that no offence under the UAPA was made out. His was not a case of discharge but of acquittal. However, no compensation was awarded to him. There was a mention of the need to frame guidelines under the UAPA and the sedition law but nothing has come out of it.
Fairly recently, Munawar Farooqi was released by the Supreme Court – why? Because the police arresting him did not follow the guidelines laid 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 decide not to follow them, they will not. No compensation was awarded to Munawar Farooqi for his illegal arrest.
Mohd. Habib, a man from Tripura was detained in Bengaluru on allegations under the UAPA. He was in jail for four years and was discharged because there was no evidence against him. This too was a case of discharge and not one of acquittal after trial. However, he was not awarded any compensation.
There are several cases of persons who are directed to be released by the courts but are not released. About 25 years ago, some persons were directed to be released from Tihar jail by the Delhi high court. Tihar Jail did not release them for 15 days in violation of high court orders. It was then directed that they should be compensated for the illegal detention.
Sanjay Dutt was granted bail by the Supreme Court but continued in detention at Yerwada Jail in Pune for two days. Why? Because the order of the Supreme Court could not reach Pune earlier.
Recently, three activists were granted bail by the Delhi high court. What did the police and prosecution say? They said that Aadhar card chahiye, unka address check karna hai. How is it that the police did not check their Aadhar card when they were arrested or check their addresses? What is going on? So, when orders are passed by the court, is it that – agar hum isey manna chaahte hein toh hum palan karenge, nahi chahte, toh nahi karenge.
About two weeks ago, persons who claimed to be juveniles had been in Agra jail between 14 and 22 years. The Supreme Court directed their release but Agra jail did not until the Supreme Court said that they would take remedial action. Then Agra jail complied and released them.
What is the consequence of all this? The consequence is that in the case of the Manipur activist, the Supreme Court directed his release by 5 pm. Can you imagine that this is the state we’ve come to? The courts now have to give a timeline and say isko 5 baje tak release karo ya 6 baje tak release karo. It is the duty of the prison authorities and the police to release a person when the court says to release him. They can’t say nahi nahi, I will release him whenever I feel like it. You can go on passing orders – jo hume karna hai vo hum karenge.
No compensation was awarded in any of these cases except for the Tihar Jail prisoner who got Rs 1,000 a day for 15 days that he was illegally detained.
Fake encounters are another area of concern. No compensation is awarded for fake encounters. Justice Deepak Gupta and I had to deal with the case of a 12-year old boy in Manipur who was shot in the back on the ground that he is a terrorist who was trying to run away. Justice Santosh Hegde – a very eminent judge who had retired by that time – was earlier asked to look into the incident. He reported that it was a fake encounter and no such thing as alleged against the boy had happened. No compensation was given until we had to intervene.
In Uttar Pradesh, as many as 119 people have been killed in fake encounters following the thok do policy. 119 people! The allegation is that all of them were trying to run away, all of them were trying to snatch guns from the police, and all of them were deadly criminals. How is that possible? Has any enquiry been conducted? Or is it that the police can shoot them and say that they were dreaded criminals and this is as per their thok do policy?
It is the same thing in Assam where if a prisoner tries to run away, they shoot him. So, five people have already been killed in fake encounters. What about compensation for them?
So, it’s not only cases of acquittal but there are so many other kinds of cases where compensation must be given.
There are reports that in Surat, 122 people were acquitted after 19 years. All of them were not in jail for that long, but some of them were in jail for quite some time. This is a case of acquittal after many years, but no compensation has been given to anyone.
Bashir Ahmed Baba is a resident of Kashmir. He was travelling to Gujarat to attend an anti-cancer camp. He was arrested on the ground that he was a terrorist and was detained for 11 years. See the irony; what was he going to do? He was going to attend an anti-cancer camp so that he could help the people in Kashmir, to understand how to treat cancer and how to deal with cancer. However, they put him inside; he was acquitted but not awarded any compensation.
I have mentioned about some persons lodged in Agra Jail for periods between 14 and 22 years. It’s not just a question of acquittal after many years, which could be for a variety of reasons. The entire criminal justice process has to be looked into – starting from arrest as in the case of Munawar Farooqi, until the framing of charges as in the case of Akhil Gogoi, until the trial and acquittal. This is very important. It’s nice to say that UAPA should go, and sedition should go – but I don’t think they are going anywhere, and probably the NSA is going to be used more frequently from now.
So how can people deal with this situation? The only answer is accountability which has to be in two forms: One is financial accountability where sufficient amount of compensation must be given. If Nambi Narayanan can be given Rs 50 lakhs, surely a good amount of compensation can be given to all those people who have been wrongly arrested and detained. Once the courts start telling the police or the prosecution that you better pay Rs 5 lakhs or Rs 10 lakhs, I think they will probably come to their senses and not make unnecessary arrests. This is one aspect.
The second aspect of mental trauma which we have not looked into at all since we believe that after giving compensation of say Rs 5 lakhs, sab theek ho jaayega. We overlook mental trauma – not only for the person who believes that he is innocent and is eventually proved to be innocent but also for his kin. That person undergoes severe mental trauma for being in jail for many, many years for something that he’s not done or for some false charges or some useless charges as in the case of the activist from Manipur who said something about gau mutra and was detained under the NSA. What about the mental frame of mind of that person? What about the psychological impact? What about the emotional impact on him? What about the psychological and emotional impact on his family and his children? They will go to school and they will be told that your father is in jail. Why? Because he’s a terrorist. Because he has committed sedition. Why? Because he’s a national security threat. And what has he done? He has done nothing; he has gone to attend a camp on anti-cancer treatment and for 11 years he’s in jail. A child will go through school for 11 years or 12 years. We’re not looking at that right now.
The mental trauma is also extremely important because we will have people who are frustrated, whose families are frustrated, whose friends are frustrated, whose relatives are frustrated – here is a man who is innocent and wrongly incarcerated. And for what? For something which he hasn’t done? What is the kind of society that we are trying to develop through this process?
There is now evolving a concept of ‘soft torture’. We know about third-degree methods; we know about second-degree torture methods as well. We now have soft torture instead. One example will be overcrowding in jails. In a cell originally meant for one person, there are four persons. So, who gets to sleep on the platform – will the stronger prisoner get to decide? So, there is surely inconvenience for those jailed at the time of sleeping. Add to this, the issue of hygiene; I have been to some custodial observation homes for children. In a dormitory for 50 children, there are supposed to be 50 but there may have been more – but there is only one functional toilet. What kind of hygiene do you expect? Jails are perhaps slightly better. Isn’t this a torture of some kind?
Another cause of concern is nutrition – we have dieticians telling us about how many calories to eat and what not to eat, when to eat – are none of these applicable to prisoners? What about child prisoners? Children have been kept in detention under the Public Safety Act in Jammu and Kashmir. What was the nutrition given to them? Do we know about the status of hygiene in their place of captivity? Medical facilities is another area of concern – isn’t a person entitled to proper medical facilities? Even if he’s a prisoner and what difference does it make that he is a prisoner?
There is the case of Hany Babu whose eye was said to be in a very bad shape and when it appeared that he might lose his sight, he was sent to a hospital – but not before that. Stan Swamy – everyone has spoken about Stan Swamy. Why could he not be given medical treatment earlier? Isn’t denial of medical treatment soft torture? Soft torture is not physical where you beat up a person – it’s a form of systematic denial of basic facilities.
There was a report recently of a person who was allowed to go out from his cell for only two hours in a day. So, he is locked up for the rest of 22 hours – almost in solitary confinement or equivalent to solitary confinement. Isn’t that soft torture?
So, let’s look at the entire conspectus of our criminal justice system. Let’s not look at one aspect which Anjali and Prashant have asked me to look at – acquittal after long periods of incarceration. Let’s look at the larger picture. Where are we heading? This is the question. What is the remedy? Compensation is one, accountability is another. Mental health is equally important, if not more important because grave injustice will remain with the victim for the rest of his or her life. This will have an irreversible impact on the lives of their family and their own children. They will remember it forever. It is indeed time to wake up.