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This article has been written by Oishika Banerji, an undergraduate student of Amity Law School, Kolkata. This is an exhaustive article that deals with the recent instances of miscarriage of justice. 


Justice is an essential part of every individual’s life. The system of courts has been set up in any nation for the purpose of regulation of justice. The courts are looked up to for being the instrument for safeguarding justice. It is this feature of the courts that helps in building a relationship of trust between the common citizens and the courts. When this relationship is affected by wrongful influence on the courts, the consequence is the miscarriage of justice. The burden of a miscarriage of justice lies on the courts itself. The Supreme Court of India observed as the highest court of appeal in the land is the holder of rule of law. It is the apex court who gets to decide what is correct and what is wrong as the final bidder to justice. Miscarriage of justice on the part of the apex court initiates turmoil in the entire country and that is when the public fails to trust the courts of the nation. 

The question arises on the very existence of the court system in the nation. Delivering justice is a difficult job because justice must not only be delivered but also must seem to have been delivered. This signifies that the responsibility of the courts does not end after just delivering the verdict which provides justice to the parties in the case but after the court ensures that there is an application of the judgment delivered. In some recent days, there have been instances of miscarriage of justice which has not only affected the parties involved in the case but also the public at large. Miscarriage of justice even creates doubts in the minds of many as to who is responsible for it, the courts, or the judges who deliver the judgment. Either way, it affects the integrity of the very establishment of the court system. 

The judicial system has therefore adopted several ways in order to reduce the increasing amount of miscarriages in the delivery of justice in order to carry out its purpose efficiently without any obstacles. At times they are successful and at others, they can fail as well. Therefore it is the judiciary who must have a check on itself to prevent miscarriage in delivering justice. 

What is the Miscarriage of Justice

Miscarriage signifies failure whereas justice can be interpreted as justness or righteousness. Therefore miscarriage of justice symbolizes the failure of the pronouncement of what is right and just. Miscarriage of justice occurs when an innocent is held as guilty thereby providing ways for the actual guilty party to escape from the scene. The criminal justice system is supposed to be designed as such that it includes both, punishing the one who is declared guilty and acquittal of the innocent. If there occurs an absence of any one of these elements, miscarriage of justice will definitely take place. It is true that the criminal justice system can neither guarantee punishment for the guilty nor acquittal of the innocent but it can definitely try to do the same. Once an innocent person is tried as a criminal, it becomes difficult for him to lead a normal life even after being acquitted from the wrongful prosecution. Therefore in such situations, it is the responsibility of the State to ensure a normal life to the person. The same remedial method where the State regulates statutory responsibilities by providing compensation to the victims of wrongful prosecution has already been adopted by the United States, United Kingdom, Germany under Article 14(6) of International Covenant on Civil and Political Rights which is read with General Comment 32 of the United Nations Human Rights Committee. 

The High Court of Delhi in the case of Babloo Chauhan @ Dabloo v. State Govt. of NCT of Delhi, focused on the rehabilitation of the victims of wrongful prosecution in order to help them lead a normal life after their acquittal. The court stressed the formation of a legislative framework that will regulate a committee to look after these innocent victims. Wrongful prosecution and humiliation of the innocent party is the consequence of miscarriage of justice. Miscarriage of justice cannot only happen through the courts but can also happen through the investigating officials at ground level. Innocents suffer from the same also. 

Taking a note on these things the Supreme court in a landmark judgment dated 2016 dealt with an old case named Rudul Sah v. State of Bihar and declared that the innocents who have suffered from poor investigation and had to face trials of wrongful prosecution will be provided with compensation by the concerned State. Causes of a miscarriage of justice can be by a hasty decision on the part of the court in certain cases to clear out pending judgments that are to be issued, plea bargaining which involves providing of incentive to the judge hearing the case in order to declare the innocent as guilty, the bias in the investigation procedure by the officials, evidence that is gathered by the police associated with the offense are often subjected to destruction, judicial misconduct on the judges part. Thus miscarriage of justice is an unwanted activity carried out by the judiciary or the investigating officials that contravenes with human rights to a large extent. 

Recent instances of miscarriage of justice 

The case of Parsa Kente Collieries Ltd v. Rajasthan Rajya Vidyut Utpadan Nigam Limited, where ultimately the leave was granted, was decided by the Supreme Court in haste and without much discussion. The case which was supposed to be decided to be heard by the summer vacation bench of the court according to the notification dated May 9th, 2018 was taken up by a different bench altogether. The case was in the hold because the court could not come to a conclusion for the case due to lack of evidence. Further, the court took up the case of May 21st itself hearing the argument from one of the concerned advocates. The judgment date was provided on the next day itself. The judgment was passed without informing the counsels who were involved with the case. This move by the court seemed unclear because the matter was not of such urgency that was required to be dealt with before the prescribed date. This judgment was therefore held to be one of the instances of miscarriage of justice for there was no necessity involved and the court made its decision in haste and with the intention of clearing out the pending cases. 

Similar to this case, another case in which the court acted in the same way, was M/s Adani Power (Mundra) Ltd v. Gujarat Electricity Regulatory Commission and Ors. In this case, as well, the verdict of the court was not passed on the dates that had been listed but on a new date set by itself. This makes it clear that the court was acting under bias in favor of one of the parties involved in the case. Both these cases were associated with Adani Business groups and as the judgments were passed in favor of the group, the business group made a profit of crores of rupees. Both the judgments passed were made in an unjust and hurried manner which is improper abiding the rules of the court. It is possible that the court came with a judgment as it deemed fit but the procedure,  through which the cases were carried out both being associated with a large corporate group, was not in a fair manner.

Another incident that proved to be a miscarriage of justice by the court was in the case of Zulfikar Nasir & Ors v. State of Uttar Pradesh & Ors famously known as the Hashimpura massacre. The Hashimpura massacre dates back to the time when the country was ruled by the Rajiv Gandhi government. The massacre involved the killing of about forty-five Muslim men who were being carried away by a truck of the Provincial Armed Constabulary. Those men were unlawfully detained and kept under custody without reasonable justification. Therefore the activities carried out by the men of Provincial Armed Constabulary were clearly illegal. The deaths which resulted was when the Muslim men were in custody. The High Court made it clear that the victims’ families had the right to know the reason and the truth as a part of their access to justice because neither the men who were taken away ever returned nor their dead bodies were handed over to their families. 

Twenty years after the incident took place, the court acquitted all the accused men of the incident on grounds of lack of transparent evidence in a judgment of 2015. This step of the court raised several questions and debates on the system of delivery of justice in the country. After the case remained neglected for so many years in the High Court of Uttar Pradesh, such a step by the apex court was indeed a signal of a miscarriage of justice that was being carried out. The compensation which was decided by the Uttar Pradesh government to be provided to the families of the victims of the massacre was not put to effect as well. Simply categorized as genocide by many legal experts, the negligence of the court on this subject was not welcoming. The court might have passed a verdict based on a reasoned decision but it should also have made some ways of recovery of justice for the families of the victims and should not have delayed the case with such importance for so many years. Since a lot of terrorism acts have been carried out by the jihads, often innocent Muslims have been subjected to cruelty and harassment by the claim by investigating officials who declare them guilty.

The court had recognized the carrying out of miscarriage of justice by the police officials in the case dated 1996 where the officials had arrested a few Muslim men declaring them responsible for the explosion which took place at Lajpat Nagar Market in New Delhi. By a 2012 judgment, these men were acquitted from the same. This instance would have been an example of a gross miscarriage of justice if the court would not have reviewed the investigation that was carried out by the police officials. After the 2011 attack, a new investigating team was formed in order to avoid mismanagement and carelessness to carry out any investigation in the future. This incident which took place after the formation of the new time expresses the way as to how the carelessness and negligence on the part of the officials made innocent men suffer for a wrongful prosecution of a case they were not even associated with. This instance also throws light on the function of the Supreme Court which is carried out efficiently by putting a check on the activity of the police officials involved in the case. Along with the courts, the responsibility to check the negligence on the part of the officials lies on the government as well. The State Governments must be made aware of the fact as to how the cases are being handled in his State. Strict actions must be made to carry out in order to make the officials work diligently with care. 

Taking a cue from Indian cases to an international case, the insights of a miscarriage of justice is nothing new there as well. The United States of America has been facing racial issues for a long time now and therefore the judgment passed by the Florida bench in the case of Florida v. George Zimmerman which involved the killing of Trayvon Martin, an African-American teenager by George Zimmerman, an American was not a welcoming one for it increased the long-existing racial issue in the society and was therefore declared to be a miscarriage in the delivery of justice. In this case, the defendant was injured in the killing of the plaintiff and therefore claimed self-defence on his part. This helped him to get acquitted from the murder charges made on him. Several Civil Rights activists were against this decision for this was declared to be a biased judgment. The court might not be wrong in its judgment but the fact that a teenager was killed without a reasonable cause should have been taken into concern. These instances that have been provided above are when the case has reached the court and have been heard by the same. 

There are several other instances that result in a miscarriage of justice even before the situation reaches the courts. Notable among them are the rape cases. Several times it has happened that the sufferer of the rape cases is forced to withdraw their petition from the court on grounds of pressure exerted from the society, families involved, and political reasons. This indicates the grave miscarriage of justice taking place by the courts because of the lack of support it is supposed to offer to the sufferers and preventing withdrawal of the claims that are taking place. The suppression of Black people by the Whites has been a long drawn social battle. The courts are there in order to promote equality and clear away the differences that are existing. The judgment by the Florida bench in the case of Florida v. George Zimmerman proved out to promote the differences that were already existing in society. It is always advisable that the courts conclude a case with a decision based on reasons and clarity, the absence of which leads to miscarriage of justice.

Rape cases are a sensitive societal issue and in such cases, it is not difficult to file charges for there are legislatures pertaining to only rape. The police officials have claimed that even after a successful investigation of the case, it takes a back due to a lack of the court’s participation in such cases. Followed by this the delay in the decision-making power of the courts have been well known by the nation through the case of Mukesh & Anr v. State for NCT of Delhi & Ors, commonly known as the Nirbhaya case. After nine years of the case, the victim received justice when the court ordered a death penalty for the rapists. But not all rape cases have the resource and support like that of Nirbhaya’s. This reflects the loopholes associated with the court system which gives rise to a miscarriage of justice. The instances which have been mentioned above have taken place in the last five to ten years. The fact that they have been cited is because they reflect as to where the country and the world as a whole is leading to. At times when the courts have come to rescue the sufferer from being denied justice, they have also remained silent or absent when justice has been denied.  


Ways to avoid a miscarriage of justice 

No court wants to pass a verdict that can lead to miscarriage in the delivery of justice. It is not that only courts are responsible to deliver a verdict filled with injustice but also the investigating officials which come before the matter reaches the courts. Miscarriage of justice however if occurs should be avoided in order to ensure transparent, affordable, and uniform delivery of justice by the courts. Some of the ways to carry out the same have been provided below.

Special Courts

Miscarriage of justice becomes a common phenomenon when the courts are overburdened with cases and make a decision in haste in order to cut down the number of pending cases. Whenever a decision is made in haste, decisions are bound to be unjustified by nature. In order to avoid the same, special courts have been recommended and are set up to handle a few cases and provide speedy delivery of justice without any loophole. Special courts have been recommended to be set up in every district to put a check on the carrying out of wrongful prosecution. The claim of being wrongfully prosecuted can be brought in by the injured person himself. The burden for proving the wrongful prosecution rests on the claimant himself. The special courts are equipped with an efficient system of filing the case, payment modes for clearing out the fees, a list of timelines for the disposal of any case, the limitation period for filing an application, etc. These have made the court system easier, faster, and smoother for the common citizens. This is one way in which there can also be a check in the activities of the judges which can filter miscarriages from occurring. Upon getting a claim, the special courts are supposed to provide the parties involved in the case with a notice of hearing of the appeals. After hearing the case and the appeals from both sides, the special court will provide an award for damages, be it pecuniary or non-pecuniary are available to be provided to either party in the case. This makes the entire legal procedure easier for the parties as well as for the courts. Before providing compensation to the victim, the court must take into consideration a few factors which are listed below:

  1. Financial background
  2. Emotional harm caused to the aggrieved party
  3. Damages caused to the health of the aggrieved party etc.

Human Rights

Human Rights are basic rights guaranteed to every citizen irrespective of whichever background they come from. Human rights are inclusive of the rights to have a free trial, right to freedom of speech and expression, liberty which can be counted as the fundamental elements for preventing a miscarriage of justice from taking place. Article 6 of the Human Rights Convention guarantees the right to free trial which symbolizes that every individual is to be considered as innocent until proven guilty. Liberty is guaranteed by Article 5 of the Human Rights Convention. By the term liberty, it is meant that the process of prosecuting someone will take place based on the procedure provided and the person detained must be aware of the reasons as to why he has been in the situation.

Guarantee of getting access to justice within a stipulated period of time also comes along liberty. Article 10 of the Human Rights Convention deals with the freedom to speech. This freedom helps an individual to get access with other people who can help him out of the trials or can provide a greater scope to ask for justice such as the media. Media can even prove to be helpful in investigating a case minimizing loopholes in the same to prove a party to be innocent.  Miscarriage of justice is bound to happen if the court is hesitant in making a decision or reaching to a conclusion of a case. Human rights can act as a check to avoid such things from taking place but the decision on any case rests on the court’s discretion only. What most courts can do is to follow the human rights that have been laid down in order to avoid losing the trust of the public from the system.

Principles of Natural Justice

Principles of natural justice have been an important regulator for preventing a miscarriage of justice. Similar to human rights, the Indian Constitution has provided the principles of natural justice in some of the provisions in it in order to protect the public rights. If miscarriage of justice takes place then it is the people in general who are affected the most. Principles of natural justice underline all other statutes present and therefore it is essential to be kept in reference for the effective functioning of the Constitution, violation of which amounts to the arbitrary exercise of powers. 

Curative petition 

Curative petitions are those petitions that act as the last constitutional resort for compensating the grievances present in the court after the review plea that had been filed have been exhausted. It was in the case of Rupa Ashok Hurra V. Ashok Hurra and Anr where the Supreme Court adopted a curative petition for the first time in order to prevent the occurrence of a miscarriage of justice. The court, in this case, has ruled that that curative petitions can only be filed if the petitioner in the case can prove that there has been a contravention with the principles of natural justice. Along with this the burden of proving that the court was ignorant of the presence of curative petition while passing the verdict rests on the petition as well.

Although curative petitions are taken under concern in exceptional cases being observed in open court hearings, it is one of the instruments of eliminating miscarriage of justice from occurring along with providing restrictions on the abuse of the power of the courts. Curative petition in simple terms can be known as a second review by the courts on its own judgments that have been declared already. The power of the Supreme Court to consider its judgments after declaring it as binding is vested under Article 137 of the Constitution of India. The suffered party has a legal right to file an appeal to the court for reviewing its judgment for the second time in a row which must be made by following the rules as has been laid down by the court.


Judicial review  

Judicial review is one such power of the courts by the regulation of which the courts can check the constitutionality of the functions of the legislature and the executive wings of the government. It is true that miscarriage of justice does not always occur through the directives issued by the courts, but can also result from the influence of the legislature and the executive wings of the government. Several instances have occurred which proves that the influence of the executive and the statutes framed by the legislatures can put the judiciary in a dilemma as to what verdict is to be declared. Going by the safe side, the courts often fail to follow the path of justice and subsequently, it leads to miscarriage of justice. In order to avoid the same, the courts can regulate the power of judicial review to keep a check on the other wings of the government and rather than getting influenced independently, the three organs of the government can work interdependently in order to avoid the arising of a situation which can cause a miscarriage of justice.


Miscarriage of justice is not a welcoming step because it is in contravention with human rights. Miscarriage of justice raises a lot of interrogations for the judiciary as well. The aim of the judiciary is to remedy injustice. Miscarriage of justice erases this aim of the judiciary because it leads to injustice on the part of the parties who are involved in the case. The judiciary is aware of its duties and responsibilities which it owes to the citizens of the nation. Therefore the necessity to guide the courts does not arise. Already the judiciary on its part has taken a lot of remedies in order to suffice the miscarriage of justice. More of such remedial methods are to be adopted by the judiciary in order to successfully carry out the application of law and safeguard the innocent by providing justice. One must not forget that the courts have been a guiding light for several cases provisioning justice to both the parties involved in the case. At times default does occur but for that the trust that courts have built through ages with the public in general. The remedies and instruments provisioning safeguards that have been adopted by the courts will in turn also help in keeping intact the independence of the judiciary and thereby function efficiently.



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