Can't Issue Guidelines In Absence Of Statutory Backing: Bombay HC Remarks In Plea Seeking To Create A Fund For Wrongly Incarcerated People

The PIL filed by a 90-year-old man sought directions to create a fund for compensating undertrials who have been in jail for period exceeding the maximum sentence allowed, for malicious and wrongful prosecutions. The petition stated that he had sent various letters to the authorities, but did not receive any response.

A division bench of Chief Justice Alok Aradhe and Justice MS Karnik had appointed Dr. Milind Sathe as the amicus curiae in the case.

Today, during the hearing, the amicus submitted that in the absence of any statutory backing, the High Court could not direct the government to create such funds. He stated that the High Court could only recommend the government to constitute such machinery as it is desirable.

The amicus referred to a 2018 Law Commission Report on Wrongful Prosecution, which recommended creating a statutory obligation on the State to compensate the victims of wrongful prosecution and a corresponding statutory right of compensation for the said victims.

The amicus stated that the Union Government did not consider the recommendations of the Law Commission. He said that the Union did not provide for any mechanism to compensate victims of wrongful prosecution in the recently enacted BNSS.

The amicus further referred to the Visakha case and stated that the Supreme Court had issued guidelines as there was a vacuum in the law, nonetheless, the rights concerned were guaranteed under the Constitution. He stated that the present case is not such a case where a writ of mandamus could be issued due to lack of statutory obligations. He submitted that issuing guidelines would amount to issuing a mandamus to legislate.

After hearing his submissions, the Court agreed with the amicus that in the absence of statutory backing, it cannot issue guidelines or issue writ of mandamus under Article 226 of the Constitution. It orally remarked that while the Supreme Court has the power to frame such guidelines, the High Court does not have such power under Article 226.

The Court also remarked that it could only issue recommendations to the Central and State governments to consider the petitioner's representation on the issue.

After the Court's remarks, the petitioner's counsel sought liberty to withdraw the petition and approach the Supreme Court.

The Court granted such liberty and dismissed the petition as withdrawn.

Case title: Jawaharlal Sharma vs. Union Of India (PIL/18/2025)