In a significant development, the Bombay High Court on April 23 observed that it cannot issue guidelines for creating a fund to compensate individuals wrongfully incarcerated, due to the absence of statutory provisions. The Court was hearing a Public Interest Litigation (PIL) filed by a 90-year-old petitioner seeking the establishment of a compensation fund for undertrials who have suffered due to malicious or wrongful prosecution.
In the absence of statutory backing, the High Court under Article 226 cannot issue guidelines to the Union or State Government, the division bench of Chief Justice Alok Aradhe and Justice MS Karnik orally remarked during the proceedings.
The PIL, filed under Article 226 of the Constitution, sought directions to set up a mechanism to compensate undertrials who had remained in custody for periods exceeding the maximum prescribed sentence or had suffered due to wrongful prosecution. The petitioner claimed that multiple representations were sent to authorities, but there was no response from the government.
Dr. Milind Sathe was appointed as amicus curiae in the matter. During the hearing, he submitted that in the absence of any legislative support, the Court does not have the jurisdiction to compel the government to create such a fund.
"The High Court can only recommend that the government consider setting up such a mechanism, but it cannot issue a writ of mandamus in this case," the amicus told the Court.
Dr. Sathe also referred to the 2018 Law Commission Report on wrongful prosecution, which had recommended that the State should bear a statutory responsibility to compensate victims of wrongful incarceration. However, he pointed out that the Union Government had not acted on the Law Commission’s recommendations and that the recently introduced Bharatiya Nagarik Suraksha Sanhita (BNSS) also did not include provisions for compensation in such cases.
Referring to past legal precedents, the amicus mentioned the Visakha case, in which the Supreme Court had issued guidelines due to a legislative vacuum. However, he argued that the present matter was different as there was no constitutional or legal vacuum that could justify similar judicial intervention.
After hearing the submissions, the Court aligned with the amicus curiae's reasoning and emphasized that it lacked the authority to frame such guidelines in the absence of a legal mandate. The Court clarified that while the Supreme Court possesses such powers, the High Court under Article 226 does not.
"We can only recommend the Central and State governments to consider the representation made by the petitioner," the Court said in its oral observation.
Following the Court’s remarks, the petitioner’s counsel requested permission to withdraw the PIL with the intention of approaching the Supreme Court. The Court allowed the request and dismissed the petition as withdrawn.
Case Title: Jawaharlal Sharma vs. Union Of India (PIL/18/2025)
