Abstract
The first part of this article examines wrongful convictions in India. In part because of the absence of a jury, appellate courts, including the apex court, are more willing to evaluate whether the evidence for a conviction is sufficient than appellate courts in other common law systems. From 2016 to 2022, the High Courts and the Supreme Court have acquitted over two hundred accused in death penalty cases alone. The willingness of appellate courts to acquit is a strength of the Indian system that should be maintained. At the same time, remedied wrongful convictions in India likely represent only the small tip of a larger iceberg. For example, no remedied wrongful convictions involving guilty pleas, DNA exonerations, crimes that were not committed, or that were remedied after appeals were exhausted were discovered in the research for this article, though these types of wrongful convictions are common in other democracies. The Indian record of discovered and remedied wrongful convictions confirms that, as in other countries, terrorism cases are particularly susceptible to wrongful convictions. This suggests the exception for terrorism cases from its proposed abolition of the death penalty by the Law Commission of India in its 2015 report is not justified. The death penalty presents a real risk of executing an innocent person. This article also examines wrongful prosecutions and wrongful pre- trial detention in India. It argues that the Law Commission of India was justified in its 2018 Report on focusing on this phenomenon given that over three-quarters of prisoners in India are subject to pre-trial detention. An exclusive focus on wrongful convictions and claiming innocence may not be appropriate for developing countries where most prisoners are awaiting trial. The Law Commission’s still unimplemented proposals for the creation of a separate court where malicious prosecution would have to be established are critically examined. It is suggested that to increase access to justice, criminal courts should award damages and that only negligent prosecution or detention should have to be established. However, given low conviction rates in India, such an alternative proposal could significantly increase the number of accused who might receive compensation. Although compensation for wrongful pre-trial detention is warranted, other steps to improve access to bail and to allow the accused to challenge the state’s case earlier in the pre-trial process are also required.
Recommended Citation
Roach, Kent
(2024)
"Wrongful Convictions, Wrongful Prosecutions and Wrongful Detentions in India,"
National Law School of India Review: Vol. 35:
Iss.
1, Article 12.
DOI: 10.55496/WWQA3810
Available at:
https://repository.nls.ac.in/nlsir/vol35/iss1/12
Digital Object Identifier (DOI)
10.55496/WWQA3810
