Vivek : Issues & Options

Reforming the Criminal Justice System

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Justice JS Verma Committee that recently submitted its findings titled as ‘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 – and, therefore, the need for reforms.

Law Enforcement:

Indeed, some of the Indian laws have become old, archaic and out dated. Yet, largely India’s laws and regulations are satisfactory, but it is the enforcement of these laws that is challenging. Why? According to Bureau of Police Research and Development (BPRD), the Police in India “suffer with a variety of organisational, procedural, personnel and behavioural ailments and paradoxes”1 The ‘Draft National Policy on Police Training’ identifies major dimensions of change and challenges as regards the police organisation: rise in white collar and organised crimes, economic changes and socio-political instability resulting in public protests, demonstrations and mass violence; social disparities, anomalies, lawlessness and permissiveness, leading to a higher rate of juvenile delinquency, alcoholism, and social disorder; acceleration of social mobility giving birth to new patterns of criminal acts, declining standards of morality and degeneration of ethical values; proliferation of social legislation and increasing burden of social responsibilities of the police leading to gradual decline in respect of law, rampant corruption, increasing materialism at all levels, increased police stress, and an aggressive approach among police officers themselves for solution of their problems; smuggling, espionage, subversive activity along the international borders, terrorism and threat to national security and integrity; increasing communal and caste intolerance; information technology revolution resulting in the growth of cyber crimes; and increasing public expectations.2

However, the numbers of policemen have not caught up with the mounting challenges. Statistically, the number of policemen per 100,000 people in India is 137.8 as against the minimum UN norm of 220. In other words, one policeman is required to look after 761 people. The ‘Actual’ strength of Civil Police, including District Armed Police in the country during 2011 stood at 1,281,317 against the ‘Sanctioned’ strength of 1,660,953. The vacancies run over 23 percent.3At national level, India has an average of one constable for every 1.53 sq kms of geographical area. As a result, there is an extraordinary workload on an average policeman, which has adversely affected his efficiency, performance and morale. When it comes to quality, the functional image of police in India is not satisfactory. Police-Community relations are normally “brief, contextual and even negative in nature.”4

Poor quality of policemen is partly due to lack of proper training. Not much has changed since the Gore Committee on Police Training observed that “our considered view is that police training, except in some of the central police organisations, is currently in a state of general neglect. The training arrangements in the different States are unsatisfactory qualitatively as well as quantitatively.”5

There are indeed training institutions for the Indian Police Service (IPS) officers but there is little training for constables and sub-inspectors.6

On the average a Police officer is retrained only once in about twenty years. Training of police personnel has been accorded low priority by most state governments for two reasons: (i) the available staff are so stretched that there is no time for police personnel to be sent for training; and (ii) lack of training infrastructure in most states. 7An amount of Rs.709 crores was spent on police training at all India level during 2010-11 which was only 1.43 percent of the total police expenditure of Rs. 49,576 crores.8

What India requires is, as Padmanabhaiah Committee advocated, a “highly motivated, professionally-skilled, infrastructurally self-sufficient and sophisticatedly trained police force.”9There has to be conscious and serious effort to strengthen the overall professionalism and capacity of the police. Due attention is required for proper training, development of advanced forensic skills and facilities, and separation within the police of responsibility for conducting investigations from the day-to-day responsibilities for maintaining law and order. As BPRD rightly points out, the procedural quagmire tends to make police an object of social distance and popular distrust. The penal and procedural police aspects will have to be reshaped according to the democratic, secular and egalitarian aspirations of the Indian people and their Constitution. Behavioural reforms and attitudinal change at the individual and department levels are required to be brought about with a view to developing professionally sound, individually courteous, functionally democratic and morally strong people to man the police organization. A modernized police organization will become progressive in their functioning and democratic in their behaviour.10

Lack of proper equipment like weapons, gadgets, protecting gears and communication devices for police personnel is yet another issue. Police constables are poorly armed and the firemen lack protection. There has to be routine upgradation of equipments as per world standards. Use of the state of the art technology is important to have an edge over terrorists. The Centre has already been assisting states by providing separate funds for police modernisation. ‘Modernization of State Police Forces Scheme’ has been in implementation since 1969-70.11The objectives of the Scheme are to meet the identified deficiencies in various aspects of police administration, and reduce the dependence of states on Central Police Forces/Army. Keeping in view the difficulties expressed by the states to contribute a matching share towards implementation of the scheme, it was revised on 22 October 2003. The revised scheme includes change in funding pattern after grouping the states into two categories, namely, A and B, on the basis of threats from insurgency/Naxalite militancy/cross-border terrorism being faced by them. Focus has been on fortification/upgradation of police stations in terms of infrastructure, weaponry, communication equipment and mobility in naxalite affected districts. Yet, most of the states are found wanting in utilisation of police modernisation funds. They do not even have perspective action plans for modernisation. As a Parliamentary Committee rightly points out,

“… when it comes to the control and superintendence of police forces, the States do not want to yield even an inch of their jurisdiction. But at the same time when it comes to improve and strengthen their police forces, they simply raise their hands expressing their inability to do so because of financial constraints.”12

The Centre also has to share the blame for releasing funds late. Partly the reason for delay is due to states’ failure to submit ‘utilisation certificates’ on time. But, overall the scheme has undoubtedly made some positive impact on strengthening the ‘first responders’.13Apart from insisting a national standard, monitoring of modernisation of state police forces should be periodically undertaken by the Central government. In the modernisation, needs of the local and district levels should be taken into consideration instead of pushing things from above. This will require updating educational levels in the security forces and developing a technological and scientific temper.

Emphasis should be on capacity building from the police station level itself, so that the police are better equipped. Each police station should aim at being self-sufficient and needs to be given the required resources in terms of anti-riot gear, better weapons, nucleus of a mobile forensic unit and be connected to a networked criminal database management system. Ironically, as on 01 January 2011, 350 Police Stations did not have telephone facility; 107 Police Stations were without wireless sets; and 38 Police Stations were having neither.14 Rectifying this ‘communication gap’ is important. Every city should have a modern police control room with digitized maps. Connecting all police stations in the country through an intranet is not a luxury, but an imperative. Currently, the database of each agency stands alone, with its owners having no access to other databases. As a result, crucial information that rests in one is not available to another. In order to remedy this deficiency, the government has decided to set up NATGRID, under which 21 sets of databases would be networked to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies.15But, this ambitious project is yet to get operational.

Adjudication:

The main problem in this component of criminal justice system is 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 35,909.16The total number of pending cases in the High Court and subordinate courts was around 3.2 crore as on 31 December 2010 of which around 85 lakhs cases were more than five year 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.17 There were 3,146,326 cases for investigation during the year 2011 including the pending cases from previous year.18

Due to this, there were enormous delays in the adjudication, increases in litigation costs, loss or diminished reliability of evidence by the time of trial, and unevenness and inconsistency in the verdicts that ultimately are reached at trial. Consequently, large numbers of under trials languish in jails while awaiting trial. In many cases, the detention under trial even exceed beyond the maximum periods to which they could be sentenced if convicted. Justice delayed is of course justice denied. Such incapability of the judiciary in delivering justice on time has the danger of reduction of faith in the justice system among the people; low conviction rate has created a perception that crime is “low-risk, high-profit business”.19 Presently, compared to China and Japan, where the conviction rate in criminal cases are about 98 percent, the corresponding rate in India is much lower.20 This has resulted in huge under trails and overcrowding of prisons, which in turn, has significantly brought down the deterrence value of the criminal justice system. Two measures are suggested:

i. It is important to increase the number of judges. As suggested by the Supreme Court, present ratio of about 13 judges per million people should be raised to at least 50 judges per million people in a phased manner.21 While working autonomously, better rapport between police and prosecutors could certainly improve the condition.22

ii. Present Adversarial System is not only insensitive to the victims’ plight and rights, but also does not encourage the presiding judge to correct the aberrations in the investigation or in the matter of production of evidence before court. The judge in this system is more concerned with the proof. As suggested by the Criminal Justice Commission, some of the good features of the Inquisitorial System23 can be adopted to strengthen the present Adversarial System of common law to increase the rate of conviction.

Simultaneously, a number of judicial and legal bottlenecks must be removed to improve India’s enforcement regime. In addition to electronic filing systems, India’s courts need more judges, higher filing costs (to discourage frivolous litigation), improved tracking of cases, more alternative options for dispute resolution, pre-litigation measures and plea bargaining. Specialized courts should be set up to replace civil courts in the appeals process. Judges and courts who are trained in specific areas of the law would be better equipped to consistently enforce laws and judgments in a relatively small area than courts which are forced to deal with widely disparate areas of law. Setting up such courts ought to be a joint effort of the government and the bar. Enforcement could be improved by better training for the police and judiciary; placing a limit on the number of adjournments and injunctions granted; and imposing higher costs on parties that lose commercial disputes. Lawyers are also to a large extent responsible for the lax enforcement regime. Most of the times lawyers not only fail to fix an ailing system but nurture and exploit it.

Correctional System:

It is widely known that Indian jails are overcrowded. As on 31 December 2011, total capacity of jails in the country is 332,782 as against 372,926 jail inmates. The occupancy rate at all-India level works out to 112.1 percent. Ironically, the number of under-trials stood at 241,200, constituting 64.7 percent of total inmates.24 Uttar Pradesh has reported the highest number of convicts (23,910) under IPC crimes followed by Madhya Pradesh (14,434) accounting for 21.4 percent and 12.9 percent respectively of the total IPC convicts (111,987) in the country. There were 48,656 persons lodged as under-trial prisoners in various prisons of the country for committing crimes under Special and Local Laws (SLL). The highest number of under-trial prisoners (11,779) was reported under NDPS Act which accounted for 24.2 percent of the total under-trial prisoners under SLL followed by Arms Act (18.6 percent) and Excise Act (12.0 percent).25

The main objective of ‘correction’ strategy is to induce positive change in the attitude of criminals. The emphasis is on the basic trust in the ability of the criminal to rehabilitate himself to proceed towards a re-adaptation of his behaviour. But there are certain issues that require attention. Firstly, are prison conditions good enough for correction? There are two aspects involved in imprisonment: ‘imprisonment as punishment’ and ‘imprisonment for punishment’. In the first aspect, the very solitary confinement and denial of societal contacts is regarded as punishment. In the second aspect, apart from the first aspect, the added physical, mental and other kinds of humiliation are considered as part of punishment. The latter aspect, by default, gets activated due to poor prison conditions resulting in the counter-productiveness of the whole corrective system.26 This should change; prisons are principally meant for rehabilitation. Secondly, care should be taken that the internment should not become a kind of “Staff College” for the criminals to plan and regroup.27

The Justice Malaimath Committee on ‘Reforming Criminal Justice System’ rightly observes that “The entire existence of the orderly society depends upon sound and efficient functioning of the Criminal Justice System.” Unless it is made sure that criminal justice system functions with speed, fairness, transparency and honesty, it is difficult to bring down prevailing “crisis of legitimacy”. Improving law and order requires cooperation across all rule-of-law institutions. Police reform alone would not suffice to quell crime if police capture criminals and then corrupt judges release them and if prisons allow convicts to enlarge their criminal empires while behind bars, or if laws do not exist to keep them in jail for adequate periods of time.

Endnotes

  1. Bureau of Police Research and Development, Bureau of Police Research and Development, Indian Police: An Introductory and Statistical Overview, p. 2, available at http://bprd.nic.in/writereaddata/linkimages/1645442204-Volume%201.pdf, accessed on 04 November 2012.
  2. Ministry of Home Affairs, Bureau of Police Research and Development, Draft National Policy on Police Training, 14 November 2006, available at http://bprd.nic.in/index2.asp?slid=361&sublinkid=153&lang=1 , accessed on 06 November 2012.
  3. National Crime Records Bureau, Crime in India 2009 (New Delhi: NCRB, 2010), p. 167
  4. Bureau of Police Research and Development, Indian Police: An Introductory and Statistical Overview, p. 3. Full report is available at http://bprd.nic.in/writereaddata/linkimages/1645442204-Volume%201.pdf, accessed on 06 November 2012.
  5. Ministry of Home Affairs, Gore Committee Report on Police Training, Chapter I, para 2, full report is available at http://bprd.nic.in/writereaddata/linkimages/9180652084-THE%20GORE%20COMM... accessed on 01 November 2012.
  6. Interview with GK Pillai, http://news.rediff.com/interview/2010/feb/15/number-of-policemen-per-100...
  7. See Finance Commission of India, 13th Report, p. 222, para 12.90.
  8. http://www.humanrightsinitiative.org/postoftheday/2012/Police_Data_File7..., p. 84.
  9. Quoted in Second Administrative Reforms Commission, 5th Report (Public Order), June 2007, para 1.8.
  10. Bureau of Police Research and Development, Indian Police: An Introductory and Statistical Overview, pp. 4-5. Full report is available at http://bprd.nic.in/writereaddata/linkimages/1645442204-Volume%201.pdf, accessed on 07 November 2012.
  11. For detailed statistics of fund allocation under the scheme from 1969 to 2010, see http://www.indiastat.com/crimeandlaw/6/planandbudgetforpoliceforces/4781...
  12. Parliament of India, Rajya Sabha, Department-Related Parliamentary Standing Committee On Home Affairs, 98th Report on the Demands For Grants (2003-2004) of the Ministry of Home Affairs, presented to Rajya Sabha on 08 April 2003, para 42.2.
  13. Om Shankar Jha, “Impact of Modernisation of Police Force Scheme on Combat Capability of the Police Forces in Naxal-Affected States: A Critical Evaluation,” IDSA Occasional Paper No. 7, December 2007, pp. 26-28.
  14. Bureau of Police Research and Development, “Police Communications,” available at http://bprd.nic.in/writereaddata/linkimages/1027356060-Chapter%20%207%20..., accessed on 08 November 2012.
  15. “War on terror: CCS clears NATGRID project,” India Today, 06 June 2011.
  16. Kian Ganz, “Supreme Court’s battle against backlog in cases,” Live Mint, 07 June 2012.
  17. PRS Legislative Research, “Pendency of Cases in Indian Courts,” 06 July 2011, available at http://www.prsindia.org/administrator/uploads/general/1310014291~~Vital%..., accessed on 08 November 2012.
  18. National Crime Records Bureau, Crime in India 2011 (New Delhi: National Crime Records Bureau, 2011), Chapter 4.
  19. Ministry of Home Affairs (Government of India), Committee on Reforms of Criminal Justice System, Vol. 1, March 2003, para 1.3.
  20. For details of conviction rates for IPC and Special and Local Laws during 2011 is available at http://ncrb.nic.in/CD-CII2011/cii-2011/Table%204.12.pdf.
  21. In its judgement, the Supreme Court bench consisting of judges B Kirpal, G Pattanaik, and V Khare observed that “We are conscious of the fact that overnight these vacancies cannot be filled. In order to have Additional Judges, not only the post will have to be created but infrastructure required in the form of Additional Court rooms, buildings, staff, etc., would also have to be made available. We are also aware of the fact that a large number of vacancies as of today from amongst the sanctioned strength remain to be filled. We, therefore, first direct that the existing vacancies in the subordinate Court at all levels should be filled, if possible, latest by 31st March, 2003, in all the States.” All India Judges Association and Others vs. Union of India and Others, AIR 2002 SC 1752, 2002 (3) ALD 39 SC, 2002 (4) ALT 41 SC, 08 February 2001
  22. R. K. Raghavan, “Reforming criminal justice systems,” Frontline, vol. 20, Issue 2, 18-31 January 2003.
  23. Inquisitorial system is followed in France, Germany, Italy and other Continental countries. In this system, power to investigate offences rests primarily with the judicial police officers (Police/Judiciare), who draw the documents on the basis of their investigation. Exclusionary rules of evidence and hearsay rules are unknown in this System.
  24. National Crimes Records Bureau, “Prison Statistics India 2011,” available at http://ncrb.nic.in/, accessed on 07 November 2012.
  25. Ibid.
  26. For a detailed exposition on this aspect see Ronald Crelinsten et al., Terrorism and Criminal Justice (Massachusetts: Lexington Books, 1978), pp. 35-38.
  27. Paul Wilkinson, Terrorism Versus Democracy: The Liberal State Response (Portland: Frank Cass. 2001), p. 116.

Published Date: 8th February 2013

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