But in many cases, such as the Nambi Narayanan one, the burden of proof should not be on the accused.
That the government is examining the Law Commission’s recommendation on legislating a new provision for “wrongful prosecution”, as The Economic Times has reported, is good news, especially in the context of the miscarriage of justice in the case of ISRO scientist Nambi Narayanan where the Supreme Court awarded him `50 lakh as damages for being implicated in a fabricated case. Narayanan, as is by now well known, was appointed the head of ISRO’s team to develop a cryogenic engine, required if ISRO was to develop a more powerful rocket. Since India did not possess the technology, and Narayanan had just been hired to develop it, it was always obvious he could not have been guilty of espionage and leaking the technology to the Maldivian Mariam Rashida. Yet, he was convicted on this charge.
Worse, while the CBI had filed a closure report in May 1996—Narayanan was arrested in November 1994—the Kerala government continued to investigate the case for another two years. And while Kerala politics—and the fight between Karunakaran and Antony—played a big role in the case being registered and followed up, it is still not clear why the Intelligence Bureau (IB) argued it was espionage, especially since this upended India’s cryogenic plans.
The Law Commission’s suggestion to have a law on “wrongful prosecution” is a good idea because the “Indian legal system does not recognize the right to compensation for victims of unlawful arrest and detention” despite there been several landmark cases where the Supreme Court ordered damages from the government to prevent violation of fundamental rights of the accused. So, the Law Commission recommended “enactment of specific legal provision for redressal of cases of miscarriage of justice resulting in wrongful prosecution”. And the ambit of wrongful prosecution is to include both malicious prosecution—one without reasonable or probable cause—as well as “prosecutions instituted without good faith”. The standard proof, the Law Commission said, would be one where, based on the evidence produced, “a reasonable man could have come to the same conclusion”. In each such case of wrongful prosecution, the Law Commission has recommended, the government seek indemnification from the officials who were responsible for the original act. This is, needless to say, a good provision since, it is only when officials are held responsible for their actions, that they will be careful about their actions; indeed, the government is also doing something similar when tax officials are evaluated on the basis of whether they have made frivolous tax demands. It has, to, however, be carried to its logical conclusion since, in cases like Narayanan, it is difficult to believe the case could have carried on for so long, and against such a high-profile individual, unless it was cleared at a very high level; holding just the investigating officials responsible will be unfair.
The suggestion that the burden of proof—to show that the prosecution was malicious or done without good faith—be on the accused, however, seems unfair; ideally, the burden of proof should be on the prosecution. Indeed, in the Narayanan case, where it has taken him 24 years to get clearance from the Supreme Court, does the Law Commission expect that he will now go to court to prove the prosecution was malicious? Other than this, the Law Commission’s suggestions are good and must be incorporated into the law at the earliest.