Abstract
Unlawful detention is the breach of Human rights resulting in bad impact on physical health, emotional imbalance and psychological distress for the victims. In India, there are various cases of unlawful detention requiring efficient and effective compensation mechanism to redress the grievances of victims. One universally accepted method of protection of victims is the compensation to the victims of illegal detention or wrongful arrest.
Keywords
Unlawful Detention, Victim, Compensation, Constitution of India, International covenant on civil and political rights, Legal Framework.
Introduction
Illegal detention refers to the act of holding an individual in custody without legal justification or due process, violating their fundamental rights and freedoms. This association has been demonstrated using a variety of research methods with individuals detained in varying contexts in the UK, Australia, and the USA, comprising individuals of diverse backgrounds and circumstances. In this article, we will delve into the prevalence of illegal detention, its impact on individuals and communities, and the implications for human rights and the rule of law. We will also explore the ethical and legal considerations surrounding this issue, shedding light on the urgent need for reforms and safeguards to prevent and address illegal detention. Through an in-depth analysis of case studies and empirical evidence, we aim to provide a comprehensive understanding of the complexities and challenges associated with illegal detention. Illegal detention refers to the act of holding an individual in custody without legal justification or due process, violating their fundamental rights and freedoms. Illegal detention occurs when someone’s personal freedom is taken away from them without following the legal procedures. This covers detaining someone illegally, keeping them in a constraint at a location, and preventing them from getting there. The Constitution’s Article 21 is broken by this. Arrests are another type of incarceration. Nonetheless, the process outlined in the 1978 Code of Criminal Procedure must be followed in order to make an arrest. Even after an arrest, illegal detention may occur if the police do not follow the established protocol.
Bhim Singh Vs State of Jammu & Kashmir (1985)
“In this case, Bhim Singh, a member of the legislative Assembly of Jammu and Kashmir, was unlawfully arrested to prevent him from attending the assembly session. His wife filed a petition before Supreme Court seeking his release. Though Bhim Singh was released before the hearing, the court observed that in such cases of illegal detention, the illegality could not be ‘washed away or wished away’ merely by freeing the person and ordered the state to pay Bhim Singh monetary compensation of 50,000 rupees.”
Research methodology
The current body of literature has been consulted for this study project, including books, articles, research papers, court decisions, Google, etc. In a nutshell, the qualitative method was used.
Literature Review
In their research article “Right to Compensation for Wrongful Prosecution, Incarceration, and Conviction: A Necessity of the Contemporary Indian Socio-Legal Framework” by Udai Yashvir Singh and Smita Singh provide a comprehensive examination on right to compensation for wrongful prosecution as per international treaties and covenants and national legislation of several democracies, including the United States, Canada, and the United Kingdom.Authors provided the recommendation and suggested reforms to provide for statutory right to compensation.
In their research paper “victim compensation in India – recent analysis” by Mahantesh G S Mamatha R is of the opinion Every nation’s criminal justice system serves to defend the state’s and each person’s rights against dishonest people who deliberately violate social standards.
In the research paper “A Critical Study On Victim Compensation Under Various Laws Of India” by Aakriti Sharma provides detailed information about The Criminal Procedure Code serves as the foundation for the legal framework in India pertaining to compensating remedies for victims of crime. Provisions for awarding compensation to victims of crime can also be found in the Probation of Offenders Act, 1985, The Motor Vehicles Act, 1988, Consumer Protection Act, 1986, Indian Railways Act, Protection of Women from Domestic Violence Act, 2005, Sexual Harassment (Prevention, Protection and Redresses) Act, 2013, and Fatal Accidents Act, 1855. In addition to these laws, the Constitution’s framework for compensating victims can be found in Supreme Court rulings regarding the interpretation of fundamental rights, guiding principles of public policy, or Articles 32, 136, and 142, which allow the court to order the payment of compensation to crime victims.
Who is a Victim
Victim means a person who has suffer loss or injury due to any act or omission of accused person.
Injury of may be physical, mental or economical. such victim is known as primary victim.
Secondary victim means those persons who suffer due to injury or loss caused to the primary victim.
Example of secondary victim: spouse, children, or parents of the primary victim.
The legal definition of Victim, as per criminal procedure code 1973, includes:
“A person who suffered directly or threatened physical, emotional or pecuniary harm as a result of commission of crime, or in the case of a victim being an institutional entity, any of the similar harm by an individual or authorised representative of another entity or group who are essentially covered under civil and constitutional law and deserves assistance by the criminal justice system”.
Need and objective of victim compensation
The Hon’ble SC provides with the importance of victim compensation in Maru ram v. union of India.
“A victim of crime cannot be treated by the criminal justice system as a “forgotten man.” He was the one who faced the most difficulty. His family is devastated particularly in light of the death and injuries he sustained. This is on top of things like humiliation and loss of honour. Even if a life lost or an honour lost cannot be recovered, the monetary recompense will at least provide a sense of comfort.”
When a victim gets compensated for the injuries or loss suffered by him, It provides a great relief to the victim or victim’s dependants. It shows justice done to the victim and as financial help.
- Award of compensation shows that something wrong is done to the victim.
- Help the victim to overcome distress and injury suffered at personal level.
- Award of compensation helps victims in rehabilitation and restart of their lives.
Legal framework in India dealing with compensation mechanism for the victim of unlawful detention.
The Indian legal system’s provisions for providing recompense to victims of crime might be found in the Criminal Procedure Code. The probation of offenders’ Act,1958 also provide compensatory relief to the victims of unlawful detention.
Even the Constitutional scheme also provides for compensation through its various judgements in decided cases while interpreting directive principles of state policy or basic rights.
As per Article 32, Article 136, and Article 142 of Indian constitution. Compensation for crime victims may be ordered by the court.
The court has a legal obligation to provide relief to the victim even if the conviction or acquittal of the accused. when state does not success in finding the identity of the accused or do not get proper evidence and collection of relevant evidence to punish the Guilty then also the duty to award compensation remains unaffected. Such compensation needs to be paid as a legal remedy as per Article 21 of Indian Constitution.
Compensatory provisions as per Criminal Procedure Code
According to Section 357(1) and (3) of the Cr.P.C. allow the trial court to provide compensation to the victim of a crime. Under Section 354(4), the Appellant and the Revisional Court have the same power.
On the suggestion of the Malimath Committee, the Cr.P.C (Amendment) Act, 2008 (5 of 2009) included a new Section 357-A titled “Victim Compensation Scheme” with effect from December 31, 2009.
Section 357 Provide for Victim Compensation Scheme
All state and federal governments must create compensation schemes for victims and their dependents who have incurred losses due to Unlawful Detention or unlawful arrest.
The District Legal Services Authority and the State Legal Services Authority have the ability to determine the amount of compensation to be given.
Section 358 Empower the magistrate to grant Compensation, upto rupees 1000 to the Victim of illegal arrest or unlawful detention.
Compensatory provision as per Probation of Offenders Act,1958
if any person arrested is not found guilty, he shall be freed immediately, and the accused shall pay to the victim the sum as compensation for the physical and mental stress caused by him, as the court thinks appropriate.
Compensatory provision as per Constitution of India.
The solution to the problem of illegal detention or unjust arrest is contained in the Indian Constitution. Such improper acts are a clear violation of Article 21 of the Indian constitution, which protects life and personal liberty, as well as Article 22 of the Indian constitution, which protects against arbitrary arrests and illegal imprisonment.
Victims of wrongful confinement can seek compensation by filing a writ petition in the Supreme Court and the High Court.
Such compensation is not clearly specified in the Indian Constitution. Article 9 para 5 of the Covenant on Civil and Political Rights states that victims of illegal arrest or imprisonment have an enforceable rights to compensation.
However, India accepted the covenant with the proviso that the Indian legal system does not afford enforceable rights to individuals who claim to be victims of wrongful arrest or imprisonment by the state.
Due to the Supreme Court’s ruling in Rudul Shah v. State of Bihar, which held that: “Article 21 which guarantees the right to life and personal liberty will be deprived of its fundamental material if this court’s power were limited to passing orders of release from illegal detention, this limitation lost its significance. Payment of monetary compensation is one of the most effective ways to ensure that the mandate of Article 21 is duly obeyed and that the right is violated as little as possible.
Another Similar Case was of Bhim Singh Vs State of J&K(1985)
“In this case, Bhim Singh, a member of the legislative Assembly of Jammu and Kashmir, was unlawfully arrested to prevent him from attending the assembly session. His wife filed a petition before Supreme Court seeking his release. Though Bhim Singh was released before the hearing, the court observed that in such cases of illegal detention, the illegality could not be ‘washed away or wished away’ merely by freeing the person and ordered the state to pay Bhim Singh monetary compensation of 50,000 rupees.”
The petitioner in Sube Singh v. the State of Haryana claimed that his family member had been subjected to unlawful detention, torture while in custody, and harassment. However, the supreme court in this case declined to award any compensation due to the lack of convincing evidence and established the rule that compensation is not always given in cases of Article 21 violations.
In Phoolwati v. NCT, Delhi, the court ordered compensation of 300000 rupees to the wife of the deceased for the death of her husband caused in police custody.
Victim has the right to get compensated even if such unlawful detention exists for short span of time. Such was the case of Pankaj Kumar Sharma v GNCTD, an application was filed by the petitioner Claiming compensation for his wrongful arrest and imprisonment in the police lock-up. Justice Subramonium Prasad has ordered Rs. 50,000 to be taken from the salary of the negligent police officers and given as compensation to the petitioner even if illegal intention only exists for only 30 minutes.
The case of Meja Singh v SHO Police Station Zira, where Punjab & Haryana High Court hear victim’s case and ordered the Rupees 25,000 Compensation for illegal detention of victim.
CONCLUSION AND RECOMMENDATION
Rich compensation has been awarded by the Indian justice system to victims of unlawful arrests or detentions. The Indian legal system still has a lot of deficiency and few contradictions since courts have option to provide compensation to those who have been wrongfully detained. Furthermore, rather than imposing a legal duty on the State to compensate, the remedy of compensation imposes an ex-gratia obligation.
Till today, Indian courts have not established any guidelines regarding the appropriate amount of compensation. Instead, the courts exercise their discretion in determining compensation, taking into account the case’s facts and circumstances, the victim’s loss or injury, and any rehabilatory issues they may have experienced as a result of their unlawful detention.
Legislation that specifically compensates victims of wrongful detention does not exist.
There is a saying by Blackstone “it is better that ten guilty escape than one innocent suffer”. However, due to unlawful detention the innocent suffers and also his family, friends and relatives suffer.
Recommendations
- To pass specific legislation that establishes a legal entitlement to compensation from the state.
- The Indian Judiciary must establish stringent criteria for determining the appropriate amount of Compensation.
- The person who is guilty of committing unlawful detention and intentional illegal detention shall compensate the victim of such unlawful detention.
- The victim of unlawful custody must be provided assistance in readjusting to their pre-illegal detention status in society.
- The court that decides on the illegal detention case should also hear the compensation trial.
- Legal Aid and support must be given to the victim who is detained unlawfully or illegally.
References:
1. V.N. Shukla’s Constitution of India by Mahendra Pal Singh 13th edition
2.https://www.researchgate.net/publication/379340288_VICTIM_COMPENSATION_IN_INDIA_-RECENT_ANALYSIS
7. Criminal Procedure Code,1973
8. Criminology, penology and Victimology by Prof. N.V Paranjape [New edition 2020-21]
Name: Naveen Kumar
University: Central University of Haryana.