Reforming the Criminal Justice System
by Amitabh Thakur on 16 Feb 2013 4 Comments

The Delhi gang-rape case has opened a Pandora’s Box and one of the most hotly debated topics emerging out of this is Police Reforms and improvement in the criminal justice system. As is well-known, the criminal justice system, which is generally defined as the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts, is one of the State’s sovereign and most fundamental functions. It is universally acknowledged that better criminal justice can be achieved through improved coordination among law enforcement, courts, and correctional agencies.  


The initial point is definitely law - criminal law, in this particular case. Law is a system of rules usually enforced through a set of institutions. The purpose of law is to provide an objective set of rules for governing conduct and maintaining order in a society. It is no point iterating that law comes in the realm of legislation. That is why one of the primary focus of attention in the aftermath of the Delhi atrocity was to have a tough, sensitive and effective law against rape and other women related crimes.


Criminal law has two major faces - procedural law and substantive law. Criminal Procedure Code 1973, associated with the Indian Evidence Act 1872 may be called the base of Indian procedural law. The Indian Penal Code 1861 is the major substantive criminal law in India, though there must be many hundred other criminal minor acts spread to various fields like Aircraft Act, Air (Prevention and Control of Pollution) Act, Armed Forces (Special Powers) Act, Cattle Trespass Act, Central Excise Act to Child Labour (Prohibition and Regulation) Act, Child Marriage Restraint Act, Cinematograph Act to Wild Birds and Animals Protection Act, Wild Life (Protection) Act and Young Persons (Harmful Publications) Act.


Think of any particular field of life and you will find a criminal law on it. A few months ago, I incidentally come across an Act called the Sarais Act 1867, regarding shelters for travellers. Section 14 of this Act deals with penalty for infringing the Act or its regulations. It says that if the keeper of a sarai offend against any of the provisions of this Act or any of the regulations made in pursuance of this Act, he shall for every such offence be liable on conviction before any Magistrate to a penalty not exceeding twenty rupees, and to a further penalty not exceeding one rupee a day for every day during which the offence continues. Today, a penalty of Rs. 20 after getting convicted for such a serious offence seems abysmally low. It becomes a “mockery of the legal process.” Similarly, an extra penalty of Rs. 1/- per day seems equally insufficient.

If this penalty by a Sarai or Hotel for infringing the provisions of this Act were at least Rs. 20,000/day, it would have some effect in achieving its purpose. But the Sarai Act is not the only one that needs rethinking and re-evaluation. In the same vein, we have many provisions in the IPC where the monetary upper limit and/or the prescribed fines are so abysmally low that they have lost all meaning.


Here is what section 67 of IPC says-

67. Imprisonment for non-payment of fine, when offence punishable with fine only. If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.


One can readily see that amounts like Rs. 50/- and Rs. 100/- have no meaning today. The IPC and many other laws would have been fine in their time and we don’t need to scrap them in totality. No sane person would suggest getting rid of the entire edifice on which the Indian criminal justice is based. But at the same time, we need to realize at least three things -


1] There are many offences that were considered serious in the 1860s but which seem to have lost much of their relevance today. For instance, cattle theft and even traditional forms of dacoity are possibly outdated modes of crimes today.


2] Many newer crimes have emerged - all kinds of computer related crimes, internet based offences, many financial crimes fall in this category


3] The value of money today is at a completely different level from the 1860s. A rupee would have meant something then; today it would not mean anything to the majority of the people.


Considering these three factors, there seems to be an immediate need to change laws as per the requirements of our contemporary era, compatible with today’s global and local societal norms, values, cultures and ethos.


Then there is the enforcement mechanism - the Police Department, to which I belong. Police is the most visible wing of governance. A Hindi saying goes, Jo dikhta hai vo bikta hai (What is visible, sells). A natural corollary of this would be that what is visible is abhorred or condemned or blamed. And so the Police immediately come to mind whenever we talk of crime. Crime and criminals get associated with Police much better than they get associated with law or the law courts. This is possibly because of the visibility of Police.


This means we need to be more concerned about our police system. Since it is the interface between the people and the law, there is a need to make it sophisticated, professional, charismatic so that every person who comes in contact with the police system is genuinely impressed. Impression and perception are two of the most important commodities related with policing.


The USA or UK do not have a policeman on every street or corner. But the feeling of law enforcement officers watching is so deeply ingrained in these places that most people think many a times before trying to play with law. The natural result is discipline and cohesion. In contrast, in India the first tendency is to break laws.


We have reasons for doing so. When I see a Minister, a leader of a political party, an IAS or IPS officer, an MLA or MP, or an industrialist getting away with his crime, I get emboldened to try to get away with it. This cascading effect is popularly known in Development Economics as the trickle-down theory, from one to another and so on and so forth. The number of law breakers increases incessantly and makes it difficult for the law enforcers to get their writ imposed on those trying to play with law.


It there a way out? It cannot be one-sided. If at all we are interested in improving our policing system, it will have to be a holistic effort, taking care of many fronts simultaneously. A few immediate steps include -

1)      Increasing the strength of the police force

2)    Drastically reducing the emphasis on VIP security

3)     Reducing (and subsequently eliminating) the gap between the superior and subordinate officers in the Police department

4)    Changing the work culture in Police from being a totalitarian top-down approach to a friendly, professional and bottoms-up approach

5)     Having genuine concerns towards the problems of subordinate staff in the Police force

6)    Delinking police from extraneous controls

7)     Treating policing as a specialized professional subject

8)    Making special emphasis on behavioural changes in police personnel


Once the police submit a report to the Law Courts, it is up to the Prosecutors and the Judges to complete the circle of the criminal justice system. Indeed, they are possibly the most important part of the structure as it is only the Judges and the Magistrates who have the final authority of calling a person a convict. Till the time the Law Court has finally put its mark, a person is only an accused. It is the Magistrate who finally declares him a convict.


What is disturbing is that there is possibly least monitoring at this final stage. If a person commits a crime and no FIR has been registered, there is wide public uproar. If an FIR has been registered but the accused has not been arrested, there are loud voices of protest. The public also follows the filing of the charge sheet. But once the case has been submitted to the Court, people tend to forget it. After this it may take years before a case is finally decided. I remember a case where ex Jharkhand Chief Minister Shibu Soren was found ‘not guilty’ in a murder case after a trial of 39 years. 39 years!


It follows that we need to broaden our vista of focus and scrutiny beyond the police and understand that as long as a verdict is not delivered fast, the entire exercise could be wasted. We need to devise means, methods and procedures through which the trial courts and magistrates are held responsible for their performances, particularly regarding the time taken to decide a case.


There should be some prescribed time limits for deciding cases and trial courts should be directed to adhere to these time limits. Endless trials are synonymous with weak and flagging democracy. Let us strive to end this system of “taarikh par taarikh” (date after dates).


These are just a few basic changes that are immediately required to bring about a better and more satisfying criminal justice system. There would be many more. But what is clear is that people in this country are yearning for a change in the Criminal Justice System and we need to act accordingly.


The author is a serving IPS officer in UP; the views expressed are his own

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