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India needs a law to compensate the wrongly-imprisoned – columns

On September 1, the High Court (HC) of Allahabad passed an order declaring that Dr Kafeel Khan had been wrongly detained by the Uttar Pradesh government, under the National Security Act of 1980. The 42-page order of the court makes for damning reading. It points out that Khan was deprived of the material on the basis of which he could have made representations against his detention; on substance, Khan’s 23-minute speech in Aligarh on December 12, 2019, which formed the basis of his detention, had been misrepresented by the police; taken as a whole, the speech was in support of national unity and peace, instead of seeking to undermine public order or create disunity. Furthermore, Khan had been detained on February 13, 2020 — a good two months after the speech — thus implying that there was, at best, a tenuous connection between his intention and any genuine apprehension that he would cause public disorder.

As the HC judgment makes clear, the State had no case that justified keeping Khan in preventive detention, and depriving him of his liberty. In fact, the circumstances — Khan was served a preventive detention order immediately after he had been granted bail in another case — strongly suggest that this was vindictive State action. While the eventual judgment setting him at liberty is, therefore, to be welcomed, it is important to remember that at the time of his release, Khan had spent months in jail, all under the stated goal of “preventing” future crime, and without a trial.

In this respect, however, Khan’s case is not unique or isolated. Earlier this year, the Jammu and Kashmir HC found that many detention orders that had been issued after the effective nullification of Article 370 on August 5, 2019, had no merit at all, and deserved to be quashed. Once again, these orders came after the detainees had already spent many months in prison.

On multiple occasions, governments have attempted to circumvent judicial orders, as well as the formal expiry of detention periods, by slapping fresh charges on troublesome individuals, in order to keep them in jail. The problem is not restricted to preventive detention: The Indian justice system is notoriously slow, and on more than one occasion in recent years, individuals accused in terror attacks have been released after 11, 14 — or even 23 — years in prison, with, at the time of the final hearings, the State’s case falling apart.

This raises an important issue of justice: If individuals have been deprived of months and years of their life for no justifiable reason at all, restitution of some sort must be provided. While lost time cannot be returned, and harassment cannot be undone, at the very least, compensation can mitigate some of the harm caused.

This is not only a question of justice, but also a question of deterrence: A part of the reason why the State feels comfortable with incarcerating people for long periods without any justification is that it is a costless exercise. At best, months or years later, a court will find these individuals innocent, and order their release. But nothing more will happen, and State authorities will not be held to account for their wrongful action.

Therefore, it is important to have rules for stringent compensation in cases such as Khan’s — and others — where courts find that detention or imprisonment has been entirely unjustified. Unfortunately, in 2014, when this issue was raised before the Supreme Court (SC), in the context of people who had spent many years in jail upon false accusations of a terror attack, SC rejected arguments for compensation, on the basis that it would set a wrong precedent.

This, it is submitted with respect, is an incorrect view that must be urgently reconsidered. Not only is compensation for wrongful imprisonment a matter of justice, but it is also the first step on the road to holding a powerful State — that regularly abuses vaguely-worded preventive detention laws and the slow-moving justice system — to account.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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