Hey Ira!
So looking forward to seeing you back in India when your second semester wraps up in Canada, four weeks from now. You’ve been away just nine months but I’ve really missed you.
I was on this thought when I read about Anokhilal’s decade-long emotional roller-coaster ride. In 2013, when he was just 21, a district court in Madhya Pradesh’s Khandwa found Anokhilal guilty of raping and killing a nine-year-old girl and handed him the death sentence. In July 2013, the Madhya Pradesh High Court upheld the verdict, and the death sentence too. It’d be 11 years before a second DNA test would absolve him of the crime.
For the next six years, Anokhilal spent every day in jail wondering when he would be hanged. Imagine that feeling of knowing your fate, knowing you will be hanged, knowing it will be a painful death, but not ‘when’. His case finally reached the Supreme Court in 2019, which ruled that Anokhilal did not have proper legal representation during his trial in Khandwa, and thus, there should be a retrial.
Three Trials, Two Death Sentences, One Acquittal
It took four years for the Khandwa court to try him again. So, four more years spent in jail as an undertrial. His ordeal was not over even after that. In 2023, Anokhilal was found guilty yet again and sentenced to death. Yet again. Imagine the trauma of being sentenced to death, not once, but twice!
Finally, Anokhilal’s fortune turned. A few months later, the Madhya Pradesh High Court ordered another retrial, saying that the expert who prepared the DNA report-which was key to his conviction-had not been examined in court, leaving a gaping hole in the trial.
In March 2024, after a team of lawyers from Project 39A, a legal reforms advocacy group, took up his case, Anokhilal finally got a proper trial. The cross-examination of the DNA expert tilted the case in his favour, with the expert conceding that Anokhilal’s DNA was not present in the victim’s DNA swabs. It also emerged that the witness who had last ‘seen’ Anokhilal with the victim had seen them together more than 36 hours before the crime, too long a duration to pin the rape and murder on him.
The court also found that the way the police seized and sealed the hair strands allegedly found in the victim’s hands was questionable. Anokhilal was a young vagrant back then, and thus, possibly, a convenient scapegoat.
Justice Denied, to Both Accused and Victim
In 2023, Anokhilal was finally acquitted by the same judge who had sentenced him to death. But, the travesty here is not just how shabbily Anokhilal was treated by India’s criminal justice system.
The same system also let down the family of a 9-year-old girl who was raped and murdered in 2013. Even after 11 years, they do not know who committed that horrible crime. Because, at the time, the police, the lawyers, the medical and forensic experts, the judges – everyone responsible for the delivery of justice in each of their capacities – simply didn’t do their job properly.
And, while it has been established that it was an aggregate of errors, incompetence, and acts of omission and commission by all the stakeholders of India’s criminal justice system, the appalling fact is that Anokhilal will not receive a penny despite being so horribly wronged by the system. India’s legal system is riddled with flaws, which are repeatedly outlined in court verdicts, and yet we don’t have the compassion to compensate an accused who has suffered years of wrongful incarceration.
The Bigger Tragedy – Anokhilal is Not Alone
But the scale of the tragedy is even larger. Why? Because the ‘anokhi’ or unusual story of Anokhilal is not very unusual after all. It is the story of lakhs of Indians.
The fact is that almost 43% of cases in India end in acquittal.
Add to this the fact that there are over 5 crore cases pending in India, of which 4.3 crore are in lower courts. As many as 1.7 lakh cases have been pending for over 30 years. Nearly three-quarters of India’s ‘jailed’ population – currently 5.75 lakh – are undertrials.
When we join the dots and link these facts, the enormity of the problem becomes clear. It means that 43% of India’s 4.34 lakh undertrials, currently stuck in various jails across India, will be acquitted and will be found innocent, at the end of their trial. It means that their stay in jail would have been wrong, the result of a gross failure of India’s policing and justice system.
Nearly 1.87 lakh citizens could be wrongfully incarcerated in India’s jails. How is this fair? And why are we unable to remedy the problem? ‘
There are many more worrisome facts. The percentage of undertrials in 2022 – 75% – was almost an 8 percentage point rise over the share of undertrials in 2013. The problem, instead of being remedied, is just getting worse. Also, 46.7% of India’s undertrials were in the 18-30 age group in 2013. This rose to 49.7% by 2022. So, almost half of India’s undertrials are ‘youth’, and 43% of them are innocent, but in jail. How does this sit with our aim of having a ‘reformatory’ justice system, and not one that is merely ‘punitive’? Very poorly. By wrongfully jailing thousands of our youths for years, we push them towards a life of crime. And we refuse to address the problem. We let it worsen year after year.
Here’s more – in 2019, across India, against a need of 25.95 lakh police personnel, as many as 5.28 lakh posts were unfilled. That is 20.35% of the country’s police posts lying vacant. Add to this inadequate training, especially in gathering sensitive forensic evidence, poor levels of gender sensitisation, caste and communal bias, custodial and extra-judicial violence and corruption, and you get a bleak nationwide picture of police departments for whom it is patently hard to be neither fair nor efficient.
Justice Delayed, By 557 Years
Finally, there’s the big elephant in the room: cases pending in India’s courts, and the quality of India’s judges.
Apart from the big fact about 5 crore pending cases, here are some related facts-between 2018 and 2023, India added another 2.1 crore cases to its list of pending trials. That underlines how little we have done to reduce pendency. In fact, on the contrary, the number has leapt by 72% in 5 years!
The Niti Aayog had said in 2018 that going by the current rate of clearing cases, the volume of pending cases then – 2.9 crores – would take 324 years to clear. Today, that’s gone up to 557 years. So, yes, we are looking at impossible numbers, and at impossible asks, if nothing changes. The good news is that we know this. The bad news is that we don’t seem to care.
So, why this massive case backlog? Why did Anokhilal wait for six years before the Supreme Court took up his case? Why did he wait four years for the Khandwa court to try him a second time? One massive reason is the government itself. India’s central and various state governments are litigants in 50% of India’s pending cases. If they settled half of these ‘out of court’, that alone would reduce pendency by 25%, that is, 114 years.
The Shortage Of Judges
The other reason is India’s refusal to update and modernise its court procedures. The ‘tareekh pe tareekh’ syndrome is well known – litigants and their lawyers chronically seek adjournments in court to delay cases, with judges obliging. This practice can be done away with overnight, but our lawmakers, our ‘netas’, have been lazy. None of these massive issues ever become significant election issues, and so they are never addressed.
There’s also the question of the number and quality of judges. In 2022, India had 14.4 judges per 10 lakh people. In comparison, the US has 150 judges per 10 lakh people, and European countries, on average, have 210.
Here’s a shocker (just in case all of the above was not!): in 2019, 66% of vacant district judge seats in Delhi could not be filled as the candidates could not score the minimum ‘cut-off’ marks. Also, in 2019, not a single candidate passed the district judge exam in Jammu & Kashmir even though the exam was held four times. In Tamil Nadu too, in 2019, out of 3,500 lawyers appearing for the district judge exam, not even one could make it through.
Jailed Wrongfully, But No Compensation
Meanwhile, we can only hope that Anokhilal has the tenacity to go back to court and demand compensation. Because as the law stands today, he is not entitled to any. It is up to the court to award compensation in a specific case if it sees that fit. To my mind, that is simply baffling. How is a battered Anokhilal, after 11 years of being jailed-more than half of which were spent on death row-supposed to gather the energy to claim compensation?
Surely, a certain basic amount should kick in automatically. How do we, as a nation, not have legislation that provides for at least a bare minimum amount of compensation for someone who has been jailed wrongfully? Even if we calculated it in accordance with India’s average per capita income – which is today around Rs 1 lakh per annum – it would give Anokhilal a sum of Rs 11 lakh to get started with his life again, with some minimum dignity. Surely we have the heart and the budget to do this?
So much food for thought for next-generation Indians like you, Ira. My generation seems to have fumbled with a lot of what we had set out to do. I hope you guys do a lot better.
Love, Papa.
(Rohit Khanna is a journalist, commentator and video storyteller. He has been Managing Editor at The Quint, Executive Producer of Investigations & Special Projects at CNN-IBN, and is a two-time Ramnath Goenka award winner.)
Disclaimer: These are the personal opinions of the author.
