Renaissance of Law and Order in India

By Sangram Jai Singh, Noida International University, Noida

Editor’s Note:  

An initiative to maintain law and order such that it operates in transparency and accountability, so that the public comprehends the dynamic changes in addressing the prevention of crime and the impact of restoration of criminal justice in India is required. The aim is to focus on the urgent need for reforms in the criminal justice system in India and the principal objective of a criminal justice system is to impart a sense of security to the people. The main problem in this component of the criminal justice system is that a huge backlog of cases are present due to resource and manpower constraints; hence, the criminal justice system must take stringent steps to rethink the processes and organizational arrangements in modernizing and streamlining them into full effect.

Introduction

The time has come that our law and order gets a new face in order to achieve priority matters in reforming the criminal justice system as we know it today and to operate in achieving goals that will more fully deserve the pride and support of the masses of the society at large. The new initiative shall and will operate in transparency and accountability, so that the public comprehends the dynamic changes in addressing the prevention of crime and the impact of restoration of criminal justice in India. The Justice J S Verma Committee that recently submitted its findings in a report titled ‘Report of the Committee on Amendments to Criminal Law’ has once again brought to focus the urgent need for reforms in the criminal justice system in India & the principal objective of a criminal justice system is to impart a sense of security to the people; however, India’s criminal justice system has not been able to deliver on what is expected of it and is, in fact, under immense strain, There are problems in all the three components-

  • law enforcement,
  • adjudication, and
  • correction[i]

To be blunt, India’s law has become archaic having no appearance of changing in the foreseeable future.  The main problem in this component of criminal justice system is a huge backlog of cases due to resource and manpower constraints. By mid-2012 there were 61,876 cases pending in the Supreme Court; of these, the number of unresolved cases older than one year has increased to 40,658 from 35,909[ii]. The total number of pending cases in the High Court and subordinate courts was around 3.2 crore as on 31st December 2010 of which around 85 lakh cases were more than five years old; pendency has increased by 148 percent in the Supreme Court, 53 percent in High Courts and 36 percent in subordinate courts in the last 10 years[iii]. There were 3,146,326 cases for investigation during the year 2011 including the pending cases from the previous year[iv].

Procedures of Criminal Justice As they stand today

The Criminal Procedure Code, 1973 provides for the procedure to be followed in investigation, inquiry and trial for every offence under the Indian Penal Code or under any other law[v]. The process starts when a person commits a crime/felony and any reliable source who may be a victim or witness reports that particular incident and registers a first information report (FIR) for a cognizable offence or non-cognizable offence as the procedure applies; after that, an enquiry is set in and later the officers investigate the crime/felony and try to identify a suspect and with sufficient evidence issue a citation to him/her to appear before the honorable Magistrate, where the matter is sorted. Section 154[vi] provides that any information received in the police station in respect of a cognizable offence shall be reduced into writing, signed by the informant and entered in the concerned register. Section 156[vii] requires the concerned officer to investigate the facts and circumstances of such a case without any order from the Magistrate in this regard. As soon as the Magistrate receives information about the commission of a cognizable offence he/she can order an investigation. Section 157[viii] of the Criminal Procedure Code provides that:- If the officer-in-charge of a police station suspects the commission of an offence from the statement of FIR or when the Magistrate directs or otherwise, the officer or any subordinate officer is duty-bound to proceed to the spot to investigate the facts and circumstances of the case and if necessary, take measures for the discovery and arrest of the offender. Under Section 173 of the Criminal Procedure Code the investigation procedure ends with the submission of a police report to the magistrate and after that an inquiry is instituted under Sections 177 to 189 of the Code.[ix].

The last but not the least, the third and final stage is trial which can be defined as the judicial adjudication of a person’s guilt or innocence[x].

Under the CrPC, criminal trials have been categorized into three divisions which have different procedures which can be bifurcated into three parts namely:-

  • called warrant, 2) summons, 3) summary trials.

Section 2(10) of the Code defines the term “warrant-case”. Warrant-case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years[xi].

A trial of warrant cases is dealt under Sections 238-250 of the Code[xii]. In respect of offences punishable with death, life imprisonment or imprisonment for a term exceeding seven years, the trial is conducted in a Sessions court after being committed or forwarded to the court by a Magistrate. A “summons case” means a case relating to an offence not being a warrant case, implying all cases relating to offences punishable with imprisonment not exceeding two years[xiii].

 Summary trials are dealt under Sections 260 to 265 of the Code. The High Court may empower Magistrates of the first class to try certain offences in a summary way whereas second class Magistrates can summarily try an offence only if it is punishable only with a fine or imprisonment for a term not exceeding six months[xiv]. A fact to be noted is that in a summary trial no such sentence of imprisonment for a term exceeding three months can be passed in any conviction.

The Indian criminal justice system is meant to prevent the occurrence of crime and to punish the transgressors and the criminals and also to rehabilitate the transgressors and the criminals and further on compensate the victims as far as possible. That being said, the aim of this system is to maintain law and order in the society and show the society at large that this system is flawless making it a deterrent to the offenders preventing them from committing any criminal act in the future. In reality the citizens of our own country itself are not deterred by the criminal justice system; they say that India is a country of “Jugaad” which translates that anything is possible to get done whether illegitimate or legitimate. That being said, it is of course due to the corruption present in the largest democracy in the world. The word corrupt occurs in Sections 196, 199, 200, 219, and 220[xv] of the IPC which denotes impropriety brought about by bribery, undue influence resulting in acts which are not consistent with the proper discharge of official duty or the rights of others and implies that an act is done dishonestly without integrity for the sake of unlawful gain or advantage. It also implies moral turpitude and intentional fraud and is synonymous with intentional wrong doing[xvi]. Regardless, a point worth mentioning is that our judiciary has taken important measures over the past few years, such as:-

  • Public interest litigation
  • Bail justice jurisprudence
  • Prison justice
  • Compensation to the victims
  • Legal aid and legal services

Legal & Critical Analysis

Our country’s criminal justice system over the years has been facing an increase of cases of about three crore and these cases are presently pending in various courts. In most cases citizens have little hope of getting justice in their lifetime. Corruption and abuse of court processes are rampant. It seems to the middle class that the rich have their way of getting things done in their favor; whereas law in its own is not flawed, but some of the officers in power are corrupt. Those who are corrupt live by the motto of “money is my religion”. The judiciary is one of the pillars on which the edifice of the constitution is built. It is the guiding pillar of democracy. What is happening inside it is a fascinating study. It is a logbook showing that, often the judgments of the Apex court are degenerated into a dismal failure. There are many self-inflicted wounds. This is the story of 67 years of the Supreme Court[xvii]. The procedure laid down under article 145[xviii] of the Indian constitution, holds that the honorable Supreme Court in performing its functions faces a lot of technicalities. The Supreme Court is duty bound to grant relief under Article 32[xix] and it is mandatory on the Supreme Court as the word “the supreme court shall” is very well stated in Article 32. Despite that being the fact and law of the land, the honorable Supreme Court, least to say is reluctant in carrying out its function to par. In the big picture there must be a process to tackle the situation wherein the interest of justice, good conscience and equity be deemed.

Transparency International gathered data and information that about 62 per cent people in India reported paying bribes to a police officer therein at the time of the offence while they committed any offence (for example, not wearing a helmet, driving without a license) and so on. Misaligned incentives to arrest persons (for example, to demonstrate the progress of investigations) have resulted in about 60 per cent of all arrests being “unnecessary or unjustified”. Needless to say, Prosecutors lack the very basic facilities, such as access to legal databases, research and administrative assistants.

The honorable Delhi High Court, in a March 2014 order, noted that the prosecutors’ laptop allowances exclude payment for internet facilities and legal databases; they do not have exclusive office space in courts and lose files because of insufficient file space. As the court observed, “one of the predominant causes for delay in the disposal of criminal cases is due to the shortage of public prosecutors”[xx].

India has around 15 judges per million population despite the 2002 Supreme Court order in All India Judges’ Association directing an increase to 50 judges per million by 2015.

Remedy

  • There aren’t many solutions/remedies available, as simply sanctioning an increase in the judge-population ratio does not account for the existing reality of 4,564 judicial vacancies. The police officers usually spend most of their time on VIP security, instead of criminal investigation. Thus, one can say that there are three officers for every “protected person”, but only one officer for 761 common citizens. Similarly, fast-track courts do not resolve the underlying structural problems since they function within the same procedural framework as regular courts.
  • The purpose of reforms should be bringing criminal justice functionaries together and starting a conversation. Instead of merely announcing new initiatives, emphasis should be on ensuring the utmost implementation of existing provisions, such as regularizing the functioning of the under-trial and Periodic Review Committees. To come to a conclusion, the efforts should focus on the regard of improving data collection and digitization, and so on mapping the existing reform landscape to prevent duplication of work.
  • The Supreme Court order and the government decision are steps in the right direction. Nevertheless, a lot more needs to be done to mainstream the prison reform agenda to ensure that our under trial prison population is commensurate with, or below, the global average[xxi].

The role of Public

By virtue of our country’s judiciary, the people of our country have the power to file public interest litigations that indeed contributes to the interest of the public at large. With the help of this power, non-governmental organizations, or the court itself (Suo Motu) or any ordinary person of reasonability, may produce before the honorable court to satisfy needs in the interest of the public. Then there came the  fast-track courts which  have been established and the judge-population as well as police-population ratios have doubled through public interest litigation.

Evolution of the criminal justice system

In a recent landmark order in Bhim Singh v. Union of India[xxii], the Supreme Court directed the fast-tracking of criminal cases, and the release of under-trial prisoners who had completed at least half their maximum prison term pursuant to Section 436A of the Code. Bringing attention to the plight of those languishing in prisons while awaiting trial, the court’s order coincides with the Narendra Modi government’s mandate to decongest prisons by releasing under-trials[xxiii].

The Challenges

The genesis of crime and the fear of crime rank as the most important issues in the public opinion polls. A great sense of urgency on the part of the public and a rapidly changing policy response creates a compelling need for policy relevant research. The system’s process of handling crimes in general or domestic violence cases, matrimonial cases or the handling of the administration of justice offences, and the use of restorative justice methods to complement the work of the court system. Administration of justice offences need an integrated, collaborative approach that includes the participation of police, corrections, prosecutors, defense counsel and judges[xxiv].

Important Issues

  • Domestic violence needs a well-considered plan to improve safety for intimate partners and their children; one that is grounded in the best available evidence and results from recent initiatives.
  • There is a legitimate controversy surrounding the current handling of these cases. In the course of developing a strategic plan to reduce domestic violence in the states and union territories, the broad scope of disagreement in the community should be addressed on the basis of the best evidence available to be filed in a public interest litigation, so that the process of minimizing the plight of crime reduces as initiatives will be prevailing as soon as the system gets a face in the administrative section.

Suggestions

Our Judicial system needs a complete reorientation. There should be more transparency in the appointment of Judges. The words of Parkinson “delay is the deadliest form of denial” holds the very key in igniting the criminal justice system to the right path. Further on, implementation of the jury system be so done even though the circumstance of each case differs in veracity. The judiciary, nonetheless is duty bound to go beyond reasonability and provide justice in time without further hindrance. In other words, the criminal justice system must toss and turn to give a second look to the criminal justice system in order to expedite proper scrutiny of the matters at hand; moreover logistic and technological support should be maintained. Serious offences should be classified for the purpose of specialized investigation by specially selected, trained and experienced investigators. The burden with other duties like security, maintenance of law and order etc., should be entrusted exclusively with investigation of serious offences only; as technology advances the alteration of society alters. With that, crimes are brought up to new levels, so, in order to cope with the high technological apparatuses one must be reasonable and put up certain criteria to provide remedies. On a positive note, our country tries to maximize the number of convicts in all prisons who are educated, reformed and taught to be a law abiding citizen as well to minimize the negativity and humanize their sense which in the aftermath render a very stable law and order in the country.

Ways Ahead

The authority (the Criminal Justice System) must expedite the processes and organizational arrangements resulting in modernizing and streamlining them into full effect. The criminal justice system must be made responsible for the acquisition, analysis and reporting of criminal justice data. The Criminal justice system needs to establish and supervise the methods needed to systematically gather data in the performance which measures and collects a plethora of other useful data which can be regularly reported on and featured as part of the Criminal Justice annual report, in the pursuit to establish the correctness which was not prevalent earlier; along with the aforesaid the criminal justice system should provide for a specific judicial complement.

  • A subject to review the process every three to five years or whatever may be satisfying accordingly such will be implemented;
  • Giving Permission to  the Attorney General to refer questions concerning the judicial administration to the Court;
  • Provide and for a professional judicial administration officer with a defined role and responsibility.;
  • The Honorable Court should establish a voluntary Advisory Committee on Judicial Administration, including people with expertise in private and public management.

Edited by Subhashini Narayanan

[i]http://www.vifindia.org/article/2013/february/08/reforming-the-criminal-justice system#sthash.Ezv05Yts.dpuf  Dr.N Manoharan, Senior Fellow, VIF

[ii] Kian Ganz, “Supreme Court’s battle against backlog in cases,” Live Mint, 07 June 2012

[iii] PRS Legislative Research, “Pendency of Cases in Indian Courts,” 06 July 2011,

[iv] National Crime Records Bureau, Crime in India 2011 (New Delhi: National Crime Records Bureau, 2011), Chapter 4.

[v] The criminal procedure code 1973  r/w The Indian penal code 1860

[vi] The criminal procedure code 1973

[vii] The criminal procedure code 1973

[viii] The criminal procedure code 1973

[ix] The criminal procedure code 1973

[x] The criminal procedure code 1973

[xi] The criminal procedure code 1973

[xii] The criminal procedure code 1973

[xiii] The criminal procedure code 1973

[xiv] The criminal procedure code 1973

[xv] The Indian penal code 1860

[xvi] Prof.S.N Mishra the Indian Penal Code r/w Burdwick, the law of crimes, vol. 1. Pp. 143-144

[xvii] http://www.legalservicesindia.com/article/article/judicial-process-in-india-464-1.html

[xviii] Article 145 of the constitution of India

[xix] Article 32 of the constitution of India

[xx]  http://indianexpress.com/article/opinion/columns/on-trial-the-criminal-justice-system/2/

[xxi] http://indianexpress.com/article/opinion/columns/on-trial-the-criminal-justice-system/

[xxii] Supreme Court W.P. (Crl.) No. 310 of 2005

[xxiii] http://indianexpress.com/article/opinion/columns/on-trial-the-criminal-justice-system/

[xxiv] UN Security Council

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