Colin Gonsalves interview: ‘Policemen who pursue malafide cases should face crippling fines’

The recent spate of FIRs invoking sedition charges against journalists for allegedly sharing unverified information on social media about the death of a protestor during the farmers’ tractor rally on January 26 has prompted a former Supreme Court judge to call for an interventionist approach by the apex court to deal with the “rampant abuse of the criminal justice system”.

The latest National Crime Research Bureau data shows that only 3% of sedition cases resulted in convictions in 2019, even as the number of cases filed rose by 165% from 2016 . The pattern is mirrored in cases filed the Unlawful Activities (Prevention) Act, which saw a 33% increase in arrests in this period. In 2019, the latest year for which data is available, 11% of UAPA cases were closed and chargesheets were filed in only 9% of cases.

As the Law Commission noted in its report, legal remedies available to people who are wrongly or maliciously prosecuted are inadequate.

Scroll.in spoke to senior Supreme Court advocate and founder of Human Rights Law Network Colin Gonsalves on the need for a legal framework to make the state pay for violating civil liberties by way of wrongful or malafide prosecution.

There have been many cases where a judicial finding of acquittal has been accompanied by an indictment of the investigating agency for negligent or wrongful prosecution. Yet in only a handful of cases has compensation been given.

In a democracy, isn’t it an infringement of the fundamental right to life and liberty of individuals, sometimes for dozens of years, as a result of malicious prosecution? And there still exists no legislative framework to deal with it.

It is an outrage not to have a clear statutory provision for the misuse of the Criminal Procedure Code, it is an outrage that malafide criminal prosecution by policemen go unpunished. There are provisions in the Criminal Procedure Code to award compensation and even though the Supreme Court has said that compensation should be awarded properly and correctly, there are hardly any cases of meaningful compensation.

How do you compensate a person who has been incarcerated for years and then acquitted honorably ? And I emphasise honorable acquittal – it means there is no evidence against us at all. That is to say that the accused is not being acquitted on the basis of benefit of doubt. It means that it is the sort of case where you shouldn’t have been proceeded against at all in the first instance. Why should one not get substantial compensation for that, that’s the first question

There are provisions of law that allow for compensation to be paid but like I said, it is a grossly neglected section. Secondly our notions of judicial compensation are very old and obsolete. Probably for a case of wrongful prosecution, the court may order Rs 1 lakh, Rs 2 lakh.

Take the Akshardham case, where the Supreme Court lamented that this was a case with absolutely no evidence, and the accused were in jail for 11 years, how much would you compensate a person? Going by normal judicial standards which are so obsolete, probably some lakhs here and there, why should it not be 1 crore a year for taking a person’s liberty away with malafide intent. So we are yet to come to a standard which stings the government.

And secondly it should be so severe that the policeman is rendered bankrupt. Punish the man to such an extent that part of that compensation should be taken from his earnings, pension or gratuity. Unless that happens malicious prosecutions will not stop.

Take for example the recent cases of Sudha Bharadwaj and the rest [in the Bhima Koregaon case]. Suppose there was a specific provision saying honorable acquittal, malicious prosecution and the like, the state shall pay exemplary and punitive compensation to the accused – one, so that the accused is rendered to a better situation than one before the arrest so that society makes up for the gross injustice done to that person. And that the court may order that part of the compensation should be paid by the policemen concerned and the prosecution agency. Punish everybody. The prosecutor for not doing his duty and allowing malicious prosecution, take compensation from the entire team of police officers.

But what about cases where there has been no judicial determination of conviction or acquittal yet? Isn’t the process the punishment, the purpose of prosecution in some cases, it would appear is to harass critics of an administration, deny them liberty for long periods.

There are some jurisdictions, I think South Africa has the provision that if your criminal trial does not finish within two or three years, the criminal prosecution automatically lapses. One can add an alternative that for every year that prosecution continues after one year without trial, the government is liable to pay a huge sum of money to the accused persons, irrespective of the outcome of the trial.

You are never going to correct and reform the criminal justice system, unless you punish the government with punitive fines, and you punish the prosecutor and policemen with punitive damages. So if you don’t finish your trial within a period of one or two years, costs accrue immediately and not symbolic costs, real punitive costs. Why can’t the government appoint judges, there is a shortfall of judges to the extent of something like 50%. Which means your delays are deliberate, it is structured into the system that we will give you less prosecutors, less judges and we expect the trial to linger for five years. So there should be a statutory provision saying you pay after one year, 1 lakh a month.

In recent days, charges of sedition have been invoked against journalists reporting on the farmers rally, with identical FIRs being filed in multiple states.

The Press Club of India, the Editors’ Guild of India, the Press Association, the Indian Women’s Press Corps, the Delhi Union of Journalists and the Indian Journalists Union in a joint press meet held that the sedition cases that have been slapped on journalists for sharing “unverified” news during the farmers’ tractor rally in Delhi on January 26 reeks of a conspiracy.

Sedition law is very clear that it is not mere words but action to overawe the state by use of arms. Now all the journalists’ cases are only words and not action. Secondly all the words were inoffensive, they were not words inciting people to overthrow the state. Therefore this was clearly not sedition, there was no action and the words were benign. Now when you use sedition law on instructions of some senior official in government, probably the home minister, to use the sedition law viciously, when on the face of it, that is by looking at the FIR you can make out there is no sedition, why should compensation and punishment not follow? Criminal prosecution and huge compensation should follow the deliberate, malicious prosecution of every journalist.

In the case of Manipur journalist Kishore Chandra Wangkhem, it was one year before bail was granted. Kishore Chandra should file a case that he should get one year, one crore compensation, for deliberate, malicious prosecution under sedition.

Does the police have sovereign immunity ?

There is Section 197 of the Criminal Procedure Code which deals with sanction for prosecution, but this deals with sanction for an act in the course of public duty. Every act must be in the course of public duty.

Let us say a journalist is being prosecuted for sedition, when she is writing about a government’s misdeeds, it obviously has nothing to do with public duty.

There is no immunity for an act which is illegal and not in the course of public duty. Is victimisation of journalists a part of your public duty? Obviously not. Is a fake encounter a public duty, to kill a person in cold blood? Policemen who are corrupt, is it part of your public duty to take bribes? So this notion that as a policeman you are immune is an obsolete notion of the powers and rights of the policeman.

Have courts been using existing provisions to deal with cases of wrongful/malicious prosecution?

Courts are not alive to these provisions at all. In fact courts could use existing provisions to order fantastic compensation.

There is nothing stopping the sessions court judge saying that this is a case of malicious prosecution by the police, there was no evidence on record, the evidence shown to me by police was either fanciful or illegally obtained, I therefore hold that this is a case of malicious prosecution. I notice that his or her precious liberty has been taken away for 5 years, liberty of a human being cannot be calculated in terms of money, even if I take a conservative approach to compensation, I cannot go below the figure of Rs 1 crore for illegal detention, I therefore direct that Rs 5 crore be paid to each accused person.

Secondly, I find that the police have engaged in criminal conduct of malicious prosecution under the Indian Penal Code, I therefore direct that a copy of this order be sent to the local police station and FIRs be registered against such and such police officers and that they be prosecuted in accordance with the law expeditiously.

Do we then require a separate statutory provision as the Law Commission recommended in its 227th report?

It is required because our politicians and policemen are not inclined to look at the real meaning of the law, They want something in black and white. So it should be given in black and white.

So that no excuses can come forth.

The Law Commission report says at this point, it does not appear feasible for the law to lay down a fixed amount of monetary compensation to be paid.

You can’t specify the amount in the law. But the law can say that for a case where the court has concluded that this prosecution commenced without any evidence, or without reasonable evidence, the compensation shall not be less than Rs 50 lakhs per year of incarceration. Where the judge has concluded that the prosecution has commenced malafide, the compensation should be not less than one crore.

It can be said that it shall be open to the court to say that certain part of the compensation will be paid for by the police persons concerned.

Smitha Nair is a journalist in Mumbai.