Experts have expressed “serious concerns over the slow pace of reforms in the criminal justice system to ensure speedy justice”.
Indian Criminal Justice System – Constitutional Provision
Criminal law, including all matters included in the Indian Penal Code, Criminal procedure, including all matters included in the Code of Criminal Procedure feature under the concurrent list of the 7th Schedule as entries-1, and 2 respectively.
Certain exceptions are also provided under these two provisions(Entry-1, and 2) of the 7th Schedule.
For example, offences against laws with respect to the matters specified in List-I or List-II of the 7th Schedule of the constitution, excluding the use of naval, military or air forces or any other armed forces come under this category.
Evolution of Criminal Justice System of India – From Ancient to Present
- The jurisprudence of Ancient India, which was shaped by the concept of ‘Dharma’, prescribing various rules of right conduct.
- The codes or rules of conduct can be traced to various manuals that explained the Vedic scriptures, such as ‘Puranas’ and ‘Smritis’
- The King had no independent authority but derived his powers from ‘Dharma’ which he was expected to uphold.
- The distinction between a civil wrong and a criminal offence was clear.
- While civil wrongs related mainly to disputes arising over wealth, the concept of pātaka or sin was the standard against which crime was to be defined.
- The Mauryas had a system of rigorous penal system which prescribed mutilation as well as the death penalty for even trivial offences.
- Dharmasastra of Manu, recognized assault and other bodily injuries and property offences such as theft and robbery.
- During the Gupta’s era, the judiciary consisted of the guild, the folk assembly or the council and the king himself.
- Judicial decisions conformed to legal texts, social usage and the edict of the king, who was prohibited from violating the decisions.
Indian Criminal Justice During Medieval Times
- India was subjected to a series of invasions, beginning in the 8th Century A.D. and ending in the 15th century, stabilizing by the time of Mughal Rule.
- Followed a criminal law that classified all offences on the basis of the penalty which each merited, including retaliation (blood for blood), specific penalties for theft and robbery and discretionary penalties.
Criminal Justice System in its Present Form
- The Criminal Justice System in India follows the legal procedures established by the British during the pre-independence era.
- An Indian Penal Code (IPC) defining crime and prescribing appropriate punishments was adopted in 1860, prepared by the first Law Commission of India.
- It was developed in line with the English criminal law.
- Code of Criminal Procedure was enacted in 1861 and established the rules to be followed in all stages. This was amended in 1973.
- The NN Vohra Committee, set up in 1993, observed increasing criminalization of politics, talked of the unholy nexus.
- It was an effort to push the reforms in the criminal justice system.
- In 2000, the Government of India formed a panel headed by the former Chief Justice of Kerala and Karnataka, Justice V.S. Malimath, to suggest an overhaul of the century-old criminal justice system.
- In 2003, the Justice Malimath Committee submitted a report with 158 recommendations.
- The Committee opined that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”
Issues with criminal justice system in India:
- With nearly 30 million criminal cases pending in the system (the annual capacity of which is only half that number), and with another 10 million or more cases being added every year, whatever is left of the system is bound to collapse completely unless some radical alternatives are adopted urgently.
- Even after adjusting for increasing population, India’s crime rate has been rising over the years. The decade from 2005 to 2015 saw a 28% increase in complaints of cognisable offences, from 450 per lakh population to 580.
- According to the National Crime Records Bureau:
- More than 80% of reported crimes went unpunished due to several reasons and the loopholes in the present criminal justice system.
- More than 66% of India’s prisoners are undertrials, which is over twice the global average of 32%. Of these 2,54,857 undertrials, more than 2,000 have been in prison for over five years. Overburdened by the flood of arrestees (nearly 75 lakh were arrested in 2012, according to the National Crime Records Bureau), prisons have experienced an increase in the number of undertrials and overcrowding.
- India has one of the lowest police-population ratios, of 131.1 officers per 1,00,000 population (against the UN norms of 222). Corruption is also an endemic problem.
- Transparency International found that 62% of people reported paying bribes during their interactions with the police. Misaligned incentives to arrest persons (for example, to demonstrate the progress of investigations) have resulted in 60 per cent of all arrests being “unnecessary or unjustified”.
- Against a UN norm of 222 police personnel per lakh of population, India’s officially sanctioned strength is a paltry 181, and the actual strength is an abysmal 137. Similarly, all the judges in the country add up to just 18 per million population, despite a three-decades old Law Commission recommendation to increase it to 50, which itself is at the low end of the ratio in developed countries.
- There are also enormous shortfalls in the number of police chowkis, weapons, forensic science laboratories (FSLs) and the like. For example, Nearly a million items sent for forensic examination in India, representing a shocking 38% of all such cases, remain unattended for a year or more.
Reasons for poor criminal justice system:
- Underproductive: The criminal laws are out-dated. This has led to harassment of innocent civilians by the government agencies and very high pressure on the judiciary to dispose-off the cases with limited and redundant laws. For example, Dramatic Performance Act, 1876.
- The inefficiency of Judiciary: The system takes years to bring justice and has ceased to deter criminals. Furthermore, there is no cooperation between the judiciary, prosecutors and the police. Many of the guilty go scot-free while the innocent remain on under-trial. According to the NCRB data, about 67.2% of the total prison population consists of under-trial prisoners.
- The complexity of crime: The number of crimes has increased rapidly in recent times and the nature of crimes is also increasingly becoming more complex due to technological growth and innovation. India’s criminal justice system is not encompassing the new era’s novel crimes. Inefficient investigation procedures have led to a haphazard investigation of crimes and delayed justice. Increase in cyber-crimes, fake news, mob-lynching etc are some complex crimes.
- Access to justice: The rich and the powerful are hardly convicted even for serious crimes. The ever-growing connection between politics and crimes is making justice of the poor and the marginalised society highly difficult.
- 5.Lack of public confidence: In the current times, the civilians have stopped relying on the CJS as it is expensive, complicated, inefficient and has long-winded procedures. This has led to current social problems like mob lynching. Recently, sub-inspector was being lynched by a mob.
- Penal code: Penal code should be modified to incorporate the present day societal, economic, and other changes.The Penal code can be divided into various codes incorporating social offences, correctional offences, economic offences and a Indian penal code (which will deal with cases that warrant 10 years punishment or more).
- Police processes: Institutional reform including proper investigation of crimes, rationalisation of court systems by inducting technology, limiting appeal procedures to a minimum. In Prakash Singh vs Union of India, Supreme Court ordered that reform must take place. The states and union territories were directed to comply with seven binding directives that would kick start reform.
- Victim centric: The system should be victim centric to ensure that the victims get justice. The victim should get a chance to put forth his case and quick completion of trials is needed to ensure that they do not lose faith in the system.Fixing responsibility quickly and transparently will maximise the sense of justice to the victim.
- Prison reforms: Reforming the property based bail system, provision of proper legal support to remove problem of undertrials, improvement of prison conditions is needed.Thus, India needs to reform its archaic system to incorporate more efficient practices like restorative justice, plea bargaining, etc. that will ensure a more robust criminal justice system.
- Malimath committee has recommended many reforms which need to be implemented. Some of the important recommendations of the Malimath committee are as follows:
- Need for more judges to dispose-off a large number of pending cases.
- Constitution of a National Judicial Commission to deal with the appointment of judges to the higher courts and amendment of Article 124 to make impeachment of judges.
- Creation of separate criminal division in higher courts that have judges specialising in criminal laws.
- Article 20 (3) of the Constitution, which protects the accused from being compelled to be a witness against himself/herself, needs to be modified. The courts should be given freedom to question the accused to give information and draw an adverse inference against the accused in case the latter refuses to answer.
- Victim Compensation Fund should be created under the victim compensation law and the assets confiscated from organised crimes should be made a part of it.
Criminal Justice System in India is currently in a state of uncertainty and is highly unpopular due to its inefficiency. Clearly, the reforms in India’s Criminal Justice System are a need of the hour. The government needs to draft a clear policy that can inform changes in the Indian Penal Code and Code of Criminal Procedures. The reforms should not only make CJSI more efficient but also be sensitive to both the innocent and the needs of the law enforcing officers.
Source: Indian Express