Since the elevation of the Bharatiya Janata Party (BJP) to power on the national level, India has been witnessing a state-driven clampdown on the rights of its citizens in furtherance of the ruling disposition’s ideological agenda. The BJP- a right-wing, Hindu Nationalist party that believes in replacing India’s pluralistic, secular democracy with an ethnocratic Hindu state, secured an absolute electoral majority on its own for the first time in the 2014 General Elections under the leadership of strongman Narendra Modi and replicated its performance in the 2019 elections. Under its watch, arrests of dissidents, activists, journalists and intellectuals, who refuse to toe the regime’s line, have become increasingly more common, with scant regard paid to evidence and guidelines  enshrined  in  the  Code  of  Criminal  Procedure  (CrPC).  Religious  minorities  have become especially vulnerable as they routinely face systematic state persecution and violence from vigilantes. Draconian laws, such as the Unlawful Activities Prevention Act (UAPA) and Prevention  of  Money  Laundering  Act  (PMLA),  in  effect,  sanction  preventive  detention  by making  bail  well-nigh impossible to procure. These laws initially aimed to combat criminal activities, such as terrorism and money-laundering. However, the present government has since amended the statutes to bypass some of the most fundamental principles of fairness, such as the presumption of innocence and the right to be heard. The process has thus become the punishment, making these laws a handy tool for the state to crack down on dissent. The continued  incarceration  of  activists  from  diverse  backgrounds  pertaining  to  a   civil  society gathering at Bhima Koregaon and journalists like Siddique Kappan whose bail plea was rejected in October last year, are some of the most egregious instances of the misuse of these laws. In the former case, following the breaking out of violence at a gathering called by activists belonging to the Dalit community, a group of intellectuals and human rights activists affiliated with different institutions from all across India were linked to the incident on sketchy evidence and arrested. One of them, Fr. Stan Swamy, died in incarceration, whereas others had to spend more than three years in prison before securing bail. Repression of civil society organisations, independent media houses, and think tanks using investigative agencies has become commonplace under the Modi regime.

This state of affairs is prevalent despite judicial decisions over the years that have characterized detention for long periods without trial as a violation of the right to life and personal liberty as provided under Article 21 of the Indian constitution. The Supreme Court has also provided a set of guidelines in D.K. Basu v. State of West Bengal, for police officers to follow, concerning arrests. In Joginder Kumar v. State of U.P., the court stressed the need for sufficient justification for arresting the accused. Acknowledging that most of the arrests in the country were either unnecessary or unjustified, the court established a set of safeguards such as immediately informing the relatives and friends of the accused about his arrest.

However, judicial diktats have failed to dissuade the state from committing unlawful arrests, primarily due to the absence of a legal framework to affix accountability. In the face of repeated instances of non-compliance with its directions and recognizing the need to provide the victims with a remedy, the apex court, in Rudal Sah v. State of Bihar, observed that true relief didn’t simply constitute a release from imprisonment; instead, compensation had to be provided to the victims to mitigate, in some measure, the harm suffered by them as a result of spending long periods in incarceration. The court has since then, unequivocally asserted multiple times that compensation is the ‘only appropriate remedy’ in cases of violation of Article 21.

Despite past decisions, recent actions of the judiciary reflect a change in its stance, as exhibited in the Akshardham case, in which the Supreme Court decided not to grant compensation to people who had wrongfully faced prosecution and detainment, even while acknowledging that the accused had been the scapegoats of a conspiracy. This particular decision of the judiciary shows that giving compensation is still a matter of judicial discretion in India, and depends on the deliberations of individual benches. However, the Akshardham case decision is in stark contrast  to  the  protections  that  are  supposed  to be provided by Articles 9 (5) and 14 (6) of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 (5) of the European Convention on Human Rights (ECHR). Specifically, these sections lawfully outline that there should be an enforceable right to access these payments in cases of unlawful prosecution and detention. While ratifying the former covenant, the Indian government confessed that no such right existed in India. Conversely in Spain, a statutory right to compensation exists in cases where there is proven judicial or procedural error concerning arrests. Spanish courts have applied this  principle  to  even  those  cases  where  the  accused  is  made  to  undergo  detention  by the authorities after following every safeguard and gets acquitted after the trial. Such a position avers that rights can’t be curtailed by the state simply on the suspicion of guilt, or by maliciously imputing guilt on the basis of flimsy evidence- principles that desperately need to be  incorporated into Indian criminal jurisprudence.

As of now, the absence of a clear statutory or constitutional right to compensation in cases of unlawful prosecution and detainment encourages the state to continue to abuse its power and disobey expressly laid out judicial directions. The arbitrary arrests of dissenters and journalists are the most glaring evidence of the abusive repression. Such actions not only intimidate the regime’s critics, but also whip up public support for the BJP’s ideological project, as the government misrepresents these actions as strong measures intended to maintain national security. Seen together with the attempts to erode the autonomy of democratic institutions, discriminatory laws, and policies targeting religious minorities, undermining of federalism, and widespread proliferation of hate speech and fake news, such acts of repression threaten the foundations of Indian constitutionalism. One possible solution, therefore, would be to elevate the right to compensation for violation of Article 21 to the stature of a fundamental right; the legislature can viably incorporate this right into Article 32 of the Constitution, which provides for the right to secure remedies for the enforcement of fundamental rights by approaching the Supreme Court. Adopting such a measure would bind the state to legally having to compensate individuals who have had to endure long years of wrongful imprisonment, thereby serving both as a remedy for the victims and an effective deterrent against such actions in the future.

Bibliography

Statutes

1. International Covenant on Civil and Political Rights
2. European Convention on Human Rights
3. Constitution of India
4. Code of Criminal Procedure

Cases

1. Sebastian M. Hongray vs Union Of India 1984 AIR 571
2. Shri D.K. Basu State of West Bengal 1997 1 SCC 416
3. Rudul Sah State of Bihar 1983 AIR 1086
4. Bhim Singh, MLA State of Jammu and Kashmir AIR 1986 SC 494

Other Sources

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2. Loganathan, S. (2022). Watch | Data Point: UAPA, 153A, PMLA: What do these laws have in common? The Hindu. 8 Sep. Available at:  https://www.thehindu.com/data/watch-data-point-uapa-153a-pmla-what-do-these-laws-have-in-common/article65865206.ece [Accessed 27 Nov. 2022].
3. Shantha, S. (2022) Bhima Koregaon Violence: Four Different Theories, but No Justice in Sight.  The Wire.  Available at:  https://thewire.in/rights/bhima-koregaon-violence-four-different-theories-but-no-justice-in-sight [Accessed 27 Nov. 2022].
4. The Indian Express. (2016). Akshardham terror attack case: SC refuses compensation plea of acquitted persons. Available at: https://indianexpress.com/article/india/india-news-india/akshardham-terror-attack-case-sc  -refuses-compensation-plea-of-acquitted-persons-2895251/ [Accessed 27 Nov. 2022].
5. poderjudicial.es. (n.d.).  C.G.P.J – Leyes.  Available at:  https://www.poderjudicial.es/cgpj/es/Temas/Compendio-de-Derecho-Judicial/Leyes/Ley-Organica-6-1985–de-1-de-julio–del-Poder-Judicial [Accessed 27 Nov. 2022].
6. Nair, R (2022) Violations of Rights and Compensation: India’s Failure to Adhere to International Standards. The Leaflet. Available at: https://theleaflet.in/violations-of-rights-and-compensation-indias-failure-to-adhere-to-international-standards/ [Accessed 27 Nov. 2022].