Reforming the Repressive Criminal Justice System

 

 

 

Reforming the Repressive Criminal Justice System

The Criminal Justice System in India was established by the British Raj.  Its implementation rests with the three institutions- the police, the courts and the prisons. The objective of the criminal justice system is to do justice, control crime and prevent crime. Of late, the system has come under severe criticism for failure to deliver justice and protect citizens’ rights. The courts have become passive spectators, routinely accepting arrests and mindlessly sending people to police custody or judicial custody, without examining the grounds of arrests.

There are around 150 policemen for one lakh people, as against 222 recommended by the UN, with 30 percent of posts vacant. There is a huge backlog of cases.  According to the government admission in Lok Sabha on February 3, 2021, the number of cases pending before the Supreme Court had swelled from 57,346 in 2018 to 63,146 in 2020; the pending cases in High Courts jumped to 56, 42,567 in 2020 from 44, 88,926 in 2018; and in district and subordinate courts the cases shot up to whopping 37,183,418 as on January 28, 2021 as against 29,173,911 on December 10, 2018.The judicial system is cracking under its own weight.

Corruption, inefficiency and partisan functioning plague the criminal justice system, with poor quality of investigation and long incarceration of under trial prisoners undermining the peoples’ faith in the system.  In September 2020, some 1.6 crore criminal cases were pending in courts for more than 10 years. As per the National Crime Records Bureau data on prisoners in 2019, seven in ten, out of 4, 78,600 people in jails, were the under trials.. 

The Madras High Court held the view that let 1000 culprits escape, but no innocent person should be punished:  “An impartial investigation is the basic requirement for any investigation. A fair investigation is also a part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution”. The manner in which the Police  across the States, particularly in Delhi and UP,  the students and the activists are arbitrarily arrested  and sent to jail on cooked up charges, without investigation and evidence,  indicates alarming rise in incarceration of innocent persons. An innocent person does not deserve to suffer the turmoil of long drawn litigation. It goes against the Blackstone’s principle of ‘beyond a reasonable doubt’ as the burden of proof in criminal law.

The verdict dated February 23, 2021 of the Additional Sessions District Judge- Dharmender Rana- passed while releasing on bail Disha Ravi, a climate activist- charged of sedition, offers a ray of hope and sets a bench mark for the criminal justice system in India.

The verdict reads:

 “Citizens are conscience keepers of government in any democratic nation and cannot be put behind bars simply because they disagree with the State’s policies…The offence of sedition cannot be invoked to minister to the wounded vanity of governments. Difference of opinion, disagreement, divergence, dissent, for that matter, even disapprobation, are recognized legitimate tools to infuse objectivity in State policies…There is not even an iota of evidence connecting the perpetrators of the violence on January 26 with the accused…Our 5000 years old civilization had never been averse to ideas from varied quarters…The right to dissent is firmly enshrined under Article 19 of the Constitution of India, freedom of speech and expression includes the right to seek a global audience. There are no geographical barriers on communication.”

The Judge further observed that-

“It is not mere engagement with persons of dubious credentials that is indictable, but it was the purpose of engagement. Any person with dubious credentials may interact with a number of persons during the course of social intercourse as long as the interaction remains within the four corners of law, people interacting with such persons, innocently or for that matter fully conscious of their dubious credentials cannot be painted with the same hue.”.

This historical judgment is bound to have repelling effect on the functioning of the police and the courts. Earlier the gutsy Disha said in the Court:”If highlighting farmers’ protest globally is sedition, I am better off in jail.” We owe our existence to such people of courage and conviction.  Had it not been for Gadhiji, the apartheid would not have ended in South Africa. He was the greatest rebel in human history, and but for him, India would have continued to be enslaved by foreign rulers. And had it not been for Martin Luther Kind Jr. the blacks in America would have never secured the civil rights on par with the whites. Barack Obama, whose ancestors were slaves, would not have become the President of a most powerful country in the world.

Michelle Bachelet, the UN High Commissioner for Human Rights, had rapped the Government of India (February 26, 2021) over the farmers’ protest and its action against the journalists and the activists. She said: “charges of sedition against journalists and activists for reporting or commenting on the protests by farmers, and attempts to curb freedom of expression were disturbing departures from essential rights principles… the right to peaceful assembly and expression should be protected.”  And commenting on the restrictions and clampdown on civil society and activists in J&K she observed: “Raids against human rights defenders exemplify the continued restriction on civil society, and resulting impact on the rights of the people of Kashmir to impart and receive information, and to engage in free open debate on government policies affecting them”.

The Vohra Committee (1993) had revealed criminalization of politics- nexus between criminals, politicians and bureaucrats-with the criminals enjoying the patronage of politicians and protection from the government functionaries.  Advocate Ashok Bhan says a Magistrate should “: take an independent view of the need for custody and was not to act as a post box for the police or prosecution. The Magistrate is the most empowered judicial officer in the criminal justice system and there is a need for the fearless and assertive judicial magistracy” We need independent and fearless police officials and Judges.

The reforms required in the criminal justice system in India:

(a)   Making the police accountable for misusing and abusing the criminal laws, particularly the Sedition law, the UAPA and the NSA, .to falsely implicate and punish  innocent people, for extraneous reasons, as is the pattern  these days;  

(b) Debarring the investigating agencies- Police, CBI, NIA,ED,IT,CVC- from taking  government jobs after retirement, at least for five years;

©    Providing extensive training for the  Police and the judicial officials of subordinate courts  on the nature, scope and applicability of various sections of IPC and other criminal laws to make them humane, sensitive, responsible and accountable;

(d)    Penalizing the police and the prison officials who brutalize and torture detainees and  under trial prisoners;

(e)   Preventing political interference in the functioning of the police, the investigating agencies and the courts; and

(f)    Fixing and enforcing a time bound disposal of cases. The cases should not be allowed to linger on for years, defeating the purpose of justice.

The reforms in police and criminal justice are crucial to safeguard democratic rights of citizens.  As Justice Madan Lokur says, “We cannot have a modern Indian state unless the police, which is the kingpin of the criminal justice system, is reorganized and restructured”.  Prime Minister Nehru, way back in his letter dated 31 December 1958 to the Chief Ministers, expressing concern for inordinate delay in disposal of cases by courts, had said:”There is one matter which has been troubling me very considerably. This is judicial delays…the inevitable conclusion that procedures have to be simplified…the fact remains that the present system with its procedure delays justice so much that it sometimes ceases to be justice.” The snail’s pace system of justice, especially the repressive criminal justice system, needs urgent reform.