LAW AND JUSTICE FOR MALICIOUS PROSECUTION IN INDIA: TOWARDS A VICTIM-CENTRIC STATUTORY FRAMEWORK AND THE ROLE OF CIVIL SOCIETY

Abstract

The legitimacy of a criminal justice system rests on fair, impartial and lawful prosecution. When proceedings are initiated without reasonable cause and with malicious intent, they constitute malicious prosecution, eroding public trust and undermining justice. In India, such wrongful prosecutions, often driven by personal vendetta, political influence or institutional bias, have produced prolonged undertrial detention, reputational damage, psychological harm and financial loss. Although remedies exist under tort law and Section 211 of the Indian Penal Code, now carried into the Bharatiya Nyaya Sanhita, neither the Code of Criminal Procedure, 1973 nor the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a comprehensive statutory framework for relief, rehabilitation or compensation. This legislative gap produces inconsistent redress and limited accountability for prosecutorial and police misconduct. This paper undertakes a doctrinal and policy-analytic examination of India's fragmented remedial architecture, situates it against the persistently high undertrial share of India's prison population, and compares it with the structured, victim-centric approaches of the United Kingdom, Canada and Germany. It argues that India's constitutional jurisprudence on public-law compensation, though doctrinally sound, remains ad hoc and cannot substitute for dedicated legislation, and it proposes the architecture of a Wrongful Prosecution (Compensation and Rehabilitation) Act, built around an independent claims commission, scheduled heads of compensation, record-sealing and structured civil society partnership.