“Some birds aren’t meant to be caged”

– Ellis Boyd “Red” Redding, The Shawshank Redemption (1994)


‘Miscarriage of Justice’ in simple terms means the wrongful conviction of a person. It also means the failure of justice. For specificity, it can be defined as – “errors in the interpretation, procedure, or execution of the law – typically, errors that violate due process, often resulting in the conviction of innocent people.”[1]

The predicament of a wrongfully convicted person is very troubling as they have to suffer the ignominy of being in prison for a crime they did not commit. The plight of the convicts living in a prison is dreadful as they have to survive in grim conditions. Article 21 of the Indian Constitution guarantees a life with dignity which the innocent convicts lack.

There have been several instances that these convicts knock on the doors of the judiciary to seek redressal after suffering physical and mental ordeal. Unfortunately, there is no mechanism in place to guarantee any compensation for the same.

Position in India

The Indian Judicial System, no matter how perfect, has flaws of its own. Considering the subject of wrongfully convicted people, India has a population of approximately 67% undertrials currently living in prison. This number is substantially higher than those who have been convicted (32%)[2]

After conducting studies on an international level, it was also revealed that India ranks 16th among 217 countries when it comes to the highest population of undertrials[3]. The issue of wrongful convicts and their compensation was raised in Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi[4], where the High Court of Delhi expressed its concerns and stated – “There is at present in our country no statutory or legal scheme for compensating those who are wrongfully incarcerated.”.

There is a gross violation of Article 21 when a person is wrongfully convicted as they are deprived of their personal liberty and dignity. An argument was raised in Khatri And Others vs State Of Bihar & Ors[5] where the council was of the view that the liability to compensate a prisoner deprived of life and personal liberty is implicit in Article 21.

However, as mentioned in Babloo (supra) there exists no regulatory framework to provide compensation unless directed by the adjudicating court. This is a luxury that is not easily available. This is a grave problem as it also goes against the sacred human rights and the Fundamental Rights of dignity as laid down in the Constitution.

According to the concerns raised by the court in Babloo (supra) the Law Commission of India drafted a report for the same[6]. The report suggested that the Constitution is silent about the remedies and there exists no regulatory framework to compensate the victims of wrongful prosecution and a miscarriage of justice. They have also proposed key amendments in the Code of Criminal Procedure, 1973 (CrPC) to curb this problem.

Mental & Physical Health – Right to Health   

Before dwelling on the recommendations proposed by the Law Commission, we have to understand the necessity of providing compensation to wrongfully convicted prisoners. Any person living in prison suffers from mental and physical harm. Mainstream media has highlighted this problem through the medium of TV Shows and Films.

The British Show, which has now also been adapted in India, Criminal Justice and The Shawshank Redemption has shed light on the realities of prison and the life of prisoners. A prisoner is picked from their normal society and thrown into a bad moral environment which is harmful to them.

There are instances of brutality, violence, and rape which instils fear and anxiety in the prisoner. According to a study[7], among 118 subjects 33-40% of prisoners suffered from psychotic, depressive, and anxiety disorders after going to prison. The study also suggested that prisons are detrimental to mental health and prisoners have an urgent need of medical attention from mental health experts which is not provided to them.

This brings us to another issue regarding PTSD or Posttraumatic Stress Disorders in prisoners. According to another study[8], there exists a high level of PTSD among prisoners, most of the posttraumatic stress is caused by mental conditions that were left untreated in prison. It is evident that prisoners, living in unimaginable conditions suffer from mental problems and disorders induced by their experience in prison.

The Supreme Court of India has held that the Right to Health is integral to the right to life under Article 21 and the government should take necessary measures to provide facilities for the same[9].

This also includes the right to mental health, as health not only includes the absence of disease or infirmity but physical, mental, and social wellbeing as well, this has been properly articulated in the preamble of the 1946 Constitution of the World Health Organisation (WHO). A person convicted wrongfully undergoes the same treatment and experiences the same lifestyle as every other prisoner, this is detrimental to his/her physical and mental wellbeing.

Proposed Changes by the Law Commission

The Law Commission has proposed the following:

  1. A legal framework for the purpose of compensation. Here, the law commission has suggested that an amendment should be made in the CrPC which will decide a fixed amount of compensation in the event of a miscarriage of justice.
  2. Eligibility: – Here, the accused can apply for compensation if harm is caused to body, mind, reputation, or property because of the wrongful prosecution. The Law Commission has thus considered the importance of mental injury and mental health issues in this case as well.
  3. The Commission also recommended speedier disposals of cases regarding compensation through special courts. The issue of compensation has to be disposed of quickly because the interest of the accused should be met as fast as possible.
  4. One of the most important recommendations suggested by the commission is to provide both pecuniary and non-pecuniary assistance. This is where the court can also recommend counselling services to the accused as well as provide monetary assistance.

International Position

The key document which articulates the importance of a miscarriage of justice is the International Covenant on Civil & Political Rights, 1966 (ICCPR). The document says that the State is responsible for compensating the victims of a miscarriage of justice and wrongful prosecution.

According to Article 14 (6)[10] – “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

This document came as a saviour to those who suffered from the implications of miscarriage of justice. It also emphasized the importance of a legal framework for the purpose of compensation. As of today, several countries, including India have ratified the ICCPR. India is yet to implement the principles of the document in its laws.

Several changes were made in the regulatory laws regarding compensation all over the world, such as the Criminal Justice Act 1988 of UK, the “Strafverfolgungsentschädigungsgesetz” (StrEG) of Germany, the Federal & State laws of the United States were also changed to include compensation. It is high time that India also adopts the ICCPR and makes the recommended changes suggested by the Law Commission of India.


Miscarriage of Justice is a big problem in India and the world. Furthermore, the prison lifestyle and conditions of living are not friendly either. This can cause a lasting impact on the person’s wellbeing, especially when the person is innocent.

The right to health and dignity, which is considered the most important fundamental and human right, is at stake here. This right is directly affected when the person is wrongfully convicted. A suffered victim deserves monetary or non-pecuniary compensation for their ordeal.

This can be only done when the changes are brought in the existing laws of criminal procedure. Miscarriage of Justice is a grave mistake and should never happen, but if it does, then this is the most one can do to reward the victims. 

By Advay Vora, 3rd Year B.A. LL.B (Hons.), Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara