Articles, Ex-gratia

The Judicial Practice of Awarding Ex-gratia Reliefs: An Analysis

-By Vaayu Goyal* and Kunal Saini**


Under the Indian criminal justice delivery system, a victim of a groundless arrest is denied the right to be adequately compensated for the mental agony, stress, and deprivation of personal liberty. In order to remedy this mischief and cater the lacuna, the Indian judiciary has adopted the Ex-gratia method of granting compensation which involves a sense of moral obligation and prudence on the part of the courts instead of entitlement or availability of a right to the victim. Subsequently, such a grant acts as acknowledgement of errors committed by the law enforcement agencies rather than acknowledgements of liability towards the groundless arrested victim. Albeit the Indian courts follow the principle of Fīatjūstitiaruatcælum” which means ‘justice must be done though the heaven falls’, instances of groundless arrests are routine.  The provision for compensation to victims of groundless arrests is laid down under Section 358 of the Criminal Procedure Code 1973. It is pertinent to note that the provision stipulates that a Magistrate in such cases may grant compensation not exceeding one thousand rupees, hence leaving the courts seldom invoking the intent of law rather than the letter and adopting the Ex-gratia approach of granting compensation by exercising their judicial power liberally in order to meet the ends of justice(Hari Singh and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127).

Blatant Ignorance of Domestic and International Provisions

Deprivation of personal liberty to a groundless arrest victim marks as a blot on the existential need of dignity and freedom of a person. The Hon’ble Supreme Court has recognized this denuded personal liberty as some palliative and not as an availment of right for the victim (Rudal Shah v. State of Bihar, AIR 1983 SC 1086). The Hon’ble Supreme Court has rightly recognised “Personal Liberty” as something more than a mere animal existence. (Kharak Singh v State of U.P 1963 AIR 1295). Further, expanding the horizons of the procedure established by law, the Hon’ble Supreme Court has perennially transformed the applicability and procedure under Article 21 as being right, fair and just. (Maneka Gandhi v. Union of India, (1978) 1 SCC 248).Applying the same principles, , the Hon’ble Supreme Court has rightly pointed out that the role of the police is to protect a person and not to abduct a person, in doing so, the court awarded a compensation of Rs.50,000 to the person who was arrested groundlessly. Similarly, Article 20 also enshrines the principles of fair trial.

The wrongful incarceration of an individual is against the commonly accepted principles enshrined in the International Covenant on Civil and Political Rights 1976 (ICCPR), to which India is a party.

Article 9(5) of the ICCPR which clearly sets out a “Right to Compensation” to be provided to victims of unlawful arrests and detentions. Article 14 of ICCPR which aims at ensuring proper administration of justice, was widely deliberated by the United Nations Human Rights Committee in its General Comment No.32 of 2007, wherein it was accepted that State parties must enact legislation to ensure timely payment of compensation as required by the Convention. A denial of availment of a right to compensation results in an act of blatant ignorance of the country’s international obligations.

Upholding the Spirit of the Law: A Rights-Based Approach

Scapegoats of wrongful actions of State are incorrect from the very standpoint of the social contract theory. Social contract theory is the foundation on which legal systems around the world are based, whereby the state undertakes to protect its citizens in exchange for the citizens accepting the law of the land. An individual who is subjected to a wrongful practice of the state finds himself helpless in the void created by inadequacy of a Rights-Based Approach to social justice. An Ex-gratia award by the courts fails to do justice as it does not lead to acceptance of blame and since it is not in the form of a right, there’s no legal requirement to make such a payment. Further, there is no uniform parameter present to decide who would be eligible for such an Ex-gratia award. A legal framework that attributes the right to seek compensation or even rehabilitation to victims of wrongful arrest would further the spirit of Article 14 by eliminating the scope for arbitrariness. 

In order to adequately address such concerns, the State must favour a ‘Rights-Based Approach’. One can trace the existence of a Rights-Based Model from the Universal Declaration of Human Rights 1946 which caters to human dignity and basic services available to the people. For conceptual clarity, a Rights-Based Approach adopts a method of empowering and guaranteeing a right to the person involved and ultimately imposes a duty on the State to fulfill the obligation.

An individual who is wrongly arrested is exposed to harrowing conditions while undergoing trial. The mental agony and social stigma that an individual is exposed to during such a detention needs to be accounted for when the arrest is found groundless or wrongful. The inadequate rehabilitation and compensatory framework further adds to this problem. Establishing a legal framework to enable an individual to seek adequate compensation while holding the officer responsible, is the central idea behind pursuing a Rights-Based Approach. If incorporated, such an approach would greatly empower victims of fallacies of law. An individual who is wronged by the state suffers from low self-dignity and thus a Right Based-Approach helps provide the victim a sense of redemption as a matter of right and not just a mere act of gratification. 

Conclusion: The Way Forward

Predicaments arising from the Ex-gratia approach adopted by judiciary for compensating victims of groundless arrests include the lack of entitlement of a right and the subsequent failure of acknowledgement of liability leading to a situation where judicial proceedings are being merely guided by moral precepts, which does not adequately serve the spirit of restorative justice. The Law Commission of India, in its 277th Report on “Wrongful Prosecution (Miscarriage of Justice): Legal remedies” tries to overcome such a lacuna by identifying the need for an effective legislative framework for redressal mechanism which tries to remedy the injustice caused to such victims through a framework of rights rather than an Ex-gratia approach. The Commission suggests establishment of Special Courts, which would enable the grant of compensation to be streamlined by following certain guiding principles/factors to enable a case to case determination of compensation instead of fixing a straight-jacket amount of compensation to be awarded. Further substantiating the aspect of restorative justice, the Commission also addresses the need for pecuniary and non-pecuniary compensation in order to rehabilitate the victim into the society. The Report of the Law Commission must be given due importance while taking the first step towards building a justice system that would be successful in ensuring redemption for an individual who is subjected to unfair treatment by the law of the land, the very purpose of which law is to protect the very individuals that it has failed. The statutory provisions related to compensation for victims of groundless arrests warrant a complete paradigm shift from an Ex-gratia grant approach to a more comprehensive Rights-Based Approach that adequately reinstates status quo for such victims. 

The author* and the co-author* are 5th year students of School of Law, Christ University, Bangalore.

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