Compensatory Mechanism for Miscarriage of Justice in Cases of Prolonged Delay: The Case of India

Date01 July 2021
Published date01 July 2021
DOI10.1177/23220058211015689
Article
Compensatory Mechanism for
Miscarriage of Justice in Cases of
Prolonged Delay: The Case of India
Abhinav Mishra1
Abstract
There have been several studies on the issue of justice delayed, but no rigid step has been taken in
lieu of the victims who suffer as a result of such dawdling processes. Despite the existence of a vast
number of provisions in our current legal system, current legal remedies do tend to create an ex gratia
obligation but not a statutory obligation for the state to compensate the victims of miscarriage of
justice. There is a persistent need for an explicit and detailed law on this subject. The idea underlying
this research is to portray the need for a rigid compensatory mechanism for prolonged delays in judicial
processes and decisions. Thereby construing a need for strong legislative action towards this issue and
reflect upon the grey area in Indian Legal Framework.
Introduction
The compensatory mechanism in the criminal justice system has evolved in order to ensure a model of
restorative justice. Compensations are largely awarded to victims of crime. But when an accused person
undergoes the ordeal of prolonged incarceration due to inordinate delays in the completion of the trial or
after a prolonged trial it is adjudged that the prosecution was baseless or wrongful, the accused’s
sufferings are no less than the sufferings of the victims of crimes. These persons are the victims of
improper functioning of the criminal justice administration and are sometimes made to pay a heavy
price. This situation can be regarded as miscarriage of justice.
India has a robust criminal justice system, and it promises to every stakeholder a fair trial and justice.
However, the Indian criminal justice system in the recent past has not been able to cope with the need for
expeditious delivery of justice and other problems in this regard. The Honourable Apex court in the case
of Nilabati Behera v. State of Orissa2 evolved a theory of compensation for constitutional torts. A new
era of cases3 contemplating action against the state under Articles 32 and 226 of the Constitution of India
began. It indeed draws a distinction between the liability of the state to pay compensation in cases where
grave violation of fundamental rights is involved and the liability of the state arising out of action for tort.
2 Nilabati Behera v. State of Orissa. A.I.R. 1993 S.C. 1960.
3 Baldev Singh v. State of Punjab (1995) 6 S.C.C. 593; Vijayan v. Sadanandan K and another (2009) 6 S.C.C. 652; Ankush Shivaji
Gaikwad v. State of Maharashtra (2013) 6 S.C.C. 770; Manohar Singh v. State of Rajasthan and Ors. 2015 (89) A.C.C. 266 (SC);
Suresh and Anr. v. State of Haryana 2015 (2) S.C.C. 227.
Asian Journal of Legal Education
8(2) 194–204, 2021
© 2021 The West Bengal National
University of Juridical Sciences
Reprints and permissions:
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DOI: 10.1177/23220058211015689
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Corresponding author:
Abhinav Mishra, 1/539, Ratan Khand, Sharda Nagar, Lucknow, Uttar Pradesh 226012, India.
E-mail: abhinav83m@gmail.com
1 Advocate and Social Researcher, Lucknow, Uttar Pradesh, India.

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