Prof. Kent Roach
One of my current research interests is the comparative study of wrongful convictions. Almost two decades ago, when I first taught in Singapore, my students assured me that there were no wrongful convictions. On a subsequent visit, I was pleased to learn that students had formed a club to study wrongful convictions. If any country maintains it does not have wrongful convictions, it is simply not looking hard enough to find them. In this essay, I would first highlight the approach taken towards wrongful convictions across jurisdictions, and then focus on the Indian experience.
Recognition of Wrongful Conviction
Focus on wrongful conviction is a fairly recent development, especially due to advances made in the field of DNA analysis. In Canada, wrongful convictions were not seriously recognized until the 1990’s with many but not all of the cases involving DNA. By 2001, the Supreme Court of Canada had substantively recognized the existence of wrongful convictions, by ruling that extradition to face the death penalty was unconstitutional not because the death penalty was wrong but because the risk of wrongful convictions.
American recognition of wrongful convictions has largely been tied to DNA with legislative reform to allow evidence to be obtained for DNA testing. The problem, however, is that most crimes do not produce DNA evidence. For example the Innocence Project in the US lists 375 people who have been exonerated because of DNA analysis but the US registry of wrongful convictions which is not limited to DNA cases lists 2,706 exonerations. Thus, while countries are focusing on DNA analysis to unearth wrongful convictions, it does not solve the fundamental problem: it merely provides proof of the existence of the problem. Then how might we solve the actual problem of people getting wrongfully convicted?
The Need for an Equality Perspective
Teaching with Amanda Carling, an Indigenous colleague, we are increasingly taking an equality based approach to understanding wrongful convictions. For too many years, not enough attention was given to the overrepresentation of Black and Hispanic people among the wrongfully convicted in the United States. In Canada, Indigenous people constitute about 30% of those in jail. They are more vulnerable to wrongful convictions because of poor defence representation, denial of bail, language issues, stereotypes associating them with crime, the harms caused by colonialism and difficulties obtaining post-conviction relief. There are similar problems in Australia.
An equality perspective seems important in India given the over-representation of various minority and disadvantaged groups in prison. There may be a danger of taking a neo-colonial approach to reform patterned on the American model which has tended to focus on the injustice to individuals and the fact that wrongful convictions often allow the guilty to go free. Even China has taken steps to recognize and compensate wrongful convictions, but such concerns have failed to transform either the punitive American or Chinese systems. Thus, it is necessary that India innovates its own approach to understand and deal with wrongful convictions. Currently, the progress on this seems to be disheartening due to negative precedents being set in certain cases.
As the English experience has proven, there is a particular risk of miscarriage of justice in terrorism and other emotive cases. In one recent terrorism wrongful conviction case, the Supreme Court of India recognized that men convicted of terrorism and even sentenced to death had been wrongfully convicted and detained for 10 years. The Court stated: “Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.” Despite these strong words of condemnation, the Court could have been more pro-active in requiring steps to prevent false confessions. To add insult to injury, the Court subsequently denied compensation to the wrongfully convicted men. This latter decision was made despite the Supreme Court of India’s strong tradition of awarding damages for human rights violations. The result is that victims of wrongful convictions received neither compensatory or preventive remedies as required by international law.
Although compensation is important, both international law and Indian courts in public interest litigation cases have recognized the need to take steps to prevent the re-occurrence of human rights violations. Compensation for the wrongfully convicted should not be simply a form of tax on poor criminal justice practices that contribute to wrongful convictions.
An Indian Approach to Wrongful Conviction Reform
What then should be done to prevent miscarriages of justice of India? That is primarily a question for Indian lawyers and reformers to answer. I would, however, venture to state that addressing the undertrial problem is part of a solution. Over 65% of those in prison in India are undertrials who have been denied bail. They often face long wait for trials. We know from the North American experience that people in such a predicament sometimes decide to plead guilty even if they have not committed the crime or have a valid defence. Women and disadvantaged groups may be under special pressure to plead guilty especially if they can receive a less harsh sentence or improve their conditions of confinement.
Another part of the solution may be for Indian judges to be proactive when they suspect that evidence before them is frail. Indian courts have a long history of supervising police interrogations in an attempt to prevent abuse. Indian courts have not hesitated to take active steps in public interest litigation. Such activism may be especially required with respect to the prevention of miscarriages of justice. I have written elsewhere that we need to combine adversarial and inquisitorial systems better to prevent miscarriages of justice. India may be in an excellent position to take creative and non-traditional steps better to prevent miscarriages of justice while still recognizing its moral and international law obligations to compensate victims of miscarriages of justice.
Judicial activism may be necessary because the wrongfully convicted are not a popular political constituency. A clearly factually innocent people may as in the US and China receive some sympathy and compensation, but people are loathe to give the benefit of the doubt to those who have been arrested and detained and are unlikely to see themselves as a potential future victim of miscarriage of justice.
Unlike in North America and the UK, Indian reformers may want to take a more holistic approach that does not focus on the problem of wrongful convictions in isolation from other problems in the criminal justice system. There is a benefit in linking wrongful convictions with other reform issues in a particular justice system especially those that involve police abuse, over-use of the criminal law and discrimination within the criminal justice system. Indian reformers can learn but should not be dictated by the foreign experience with wrongful convictions.
The Law Commission’s Promising but Partial Approach to “Wrongful Prosecutions”
The Law Commission of India to its credit has recently studied wrongful convictions in India. The Commission has wisely rejected an American style focus on factual innocence. At 5.3, the report of the commission concludes that “such a restrictive standard will fail to consider the systemic shortcomings of the criminal justice system in India, including miscarriages of justice caused when the accused is coerced into a false confession”. This is an excellent example of a reform approach that is sensitive to local conditions.
The Commission proposes a novel but intriguing focus on “wrongful prosecutions”. It defines these at 5.17 as the malicious or negligent prosecution of a person later acquitted. It includes as examples of wrongful prosecutions various wrongful acts such as abuse of persons and destruction and manufacture of evidence. It then suggests that this new standard should be read into the broad and traditional term “miscarriage of justice” that has long been used in systems influenced by England. The term “miscarriage of justice” is also used in Article 14(6) of the International Covenant on Civil Political Rights and may be preferable to wrongful convictions in its focus on rights violations and its recognition that unfair processes are harms in themselves even if, as is sometimes the case, we may never know for certain whether a person is guilty or innocent.
The Law Commission’s focus on “wrongful prosecutions” seems like a promising “made in India” response to the universal problem of wrongful convictions. It focuses more on state actions and avoids the urge, often seen in North America, of focusing on individuals whether they be the person deserving of “exoneration” or a rogue official who can be blamed for a wrongful conviction. To be sure, individuals deserving of praise and condemnation are involved in wrongful conviction and they should be compensated or blamed in appropriate cases. Nevertheless, the police, forensic science, prosecutorial services, the defence bar, the judiciary and the academy have a collective responsibility for the inevitable errors produced by any high volume criminal justice system.
One reservation I do have about the Law Commission’s report is that it only focuses on compensation for victims of wrongful prosecutions which as defined by the Commission would include victims of various human rights violations by police and prosecutors. As I argue in a forthcoming book Remedies for Human Rights Violations, international law increasingly defines remedies as requiring the state to take reasonable steps to prevent the reoccurrence of human rights violation. The need for preventive remedies is especially important if states are not simply able to buy their way out of rights violations by paying often modest damage awards. I look forward to learning about and from future developments in India to combat both wrongful prosecutions and convictions.
Prof. Roach holds the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. He was appointed a Member of the Order of Canada in 2015. His 15th book Remedies for Violations of Human Rights will be published by Cambridge University Press in 2021 and examines public interest litigation and damages in India as well as other democracies and under international law.
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