The Indian criminal justice system immediately needs to be made more victim-centric. Ending the backlog of cases in the judiciary, abandoning overcriminalization, ensuring police accountability and giving up colonial tactics are the way forward.

Union Home Minister Amit Shah recently stated that India’s criminal justice system is set to undergo a “major overhaul.” Later, he sought views from stakeholders and experts to reform the system to make it “public-centric.” The Supreme Court also expressed that the criminal justice system is “reform-oriented. The criminal law and the procedure, which falls in the Seventh Schedule (Concurrent List) of the Constitution, is arguably the most apparent relationship between a State and its citizens, revolving around the theories of deterrence, retribution or reformation.

The Indian criminal justice system, a legacy of British rule, functions with four subsystems: the Legislature, Enforcement, Adjudication, and Correction. The functioning is based on three statutes, viz. Indian Penal Code, 1860; Code of Criminal Procedure, 1973; and the Indian Evidence Act, 1872; besides several other special statutes with their own gruesome flaws. In the past, several committees, such as the Justice Verma Committee and the Justice Malimath Committee, have led to gradual, systemic reforms. Yet, the criminal justice system arguably reflects the idea of “power” rather than “justice.” It is contended that unless the reforms question power imbalance in the system, it would “beautify the facade.

Over the years, much has been talked about reforming the criminal justice system, but actual reforms are yet to be seen. This article highlights a few challenges where modernisation could (or should) take place.

Ending judicial backlog – freeing undertrials

Right to a speedy trial is the essence of criminal justice. As per the official eCourts website, the pending cases across the country can be seen to be above 50 lakh and 4 crores in High Courts and District Courts, respectively. Moreover, around 70% of those imprisoned are undertrials, which arguably makes the legal process itself a punishment for them. The National Human Rights Commission, holding the slow reforms in the system to be worrisome, stated that the delay in the disposal of cases led to human rights violations.    

Another significant reason for the pendency of cases is judicial vacancy. The 2020 India Justice Report (“IJ Report”) revealed that India has one judge for every 50,000 citizens. Furthermore, on prisons, the IJ Report noted that: “It is no surprise then that overcrowding is at 19 per cent, a jump of 5 percentage points from 2016 figures. Unnecessary arrests, conservative approaches to granting bail, uncertain access to legal aid, delays at trial, as well as the inefficacy of monitoring mechanisms such as Under Trial Review Committees continue to contribute to overcrowding.”

The statement “Liberty, once lost, is lost forever,” has historically been promoted by John Adams and perhaps by Benjamin Franklin too. This statement makes greater sense in the context of undertrials, as some of them end up staying imprisoned for a greater duration than they would have if convicted, even before their trial could begin. It ought not to be categorized as the judges’ fault but of the overall system that stands plagued with stagnancy, vacancy and loopholes. To overcome the backlog of cases, the judiciary needs to embrace a host of reforms. At the same time, it can stress on measures such as adopting Alternative Dispute Resolution mechanisms like Mediation, Arbitration for petty offences and the effective use of technology for proper case management.

Overcoming overcriminalization – adopting the “no-harm” principle

Criminal law is the ultimate weapon in a State’s arsenal to deal with its civilians. The overuse or abuse of criminal law to address and punish ordinary mistakes that could have been remedied by civil law is termed overcriminalization. Douglas Husak contended that “a statute must prohibit conduct that is wrongful, prevent harm, and impose liability only on those who are deserving.” In essence, a reasonable criminal code is one based on J.S. Mill’s “harm principle,” i.e., “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

As per Sanford H Kadish, excessive reliance upon the criminal law where it is not suited has acutely problematised the criminal justice administration. On average, India recorded 80 murder and 77 rape cases every day in 2020. This is because the law enforcement resources are limited, which is overburdened with petty “crimes” – such as the criminalisation of consumer goods (meat ban or alcohol ban), or the criminalisation of personal choices (inter-religious/caste marriages).

As per Tim Lynch, to address overcriminalization, policymakers should: “override the old maxim that ‘ignorance of the law is no excuse’ (given the breadth of the criminal codes now on the books, that doctrine no longer makes sense); strengthen the rule of lenity for criminal cases by enacting a statute that explicitly provides for the strict construction of all criminal laws; and, prohibit administrative agencies from creating new crimes.” To Jonathan Haggerty, addressing overcriminalization is essential to fixing a system that tears families apart, wastes taxpayer money and damages public safety. Rightly so, the legislature should amend or repeal redundant, superfluous, or outdated criminal prescriptions.

Improving enforcement – policing the police

Enforcement of criminal law is carried out through an institution often misused and at times abused, referred to as the Police, who are governed by the Indian Police Act, 1961. Since policing falls in the State List of the Seventh Schedule, they are managed by respective States. Raghavan argues that Public Order, Police, officers and servants of the High Courts and prisons are within the legislative competence of States. Thus, they all form an extended arm of the State.

Law and order in a society depends entirely on the quality of policing. However, as per the IJ Report, every police officer is responsible for the safety of 858 people, against the UN recommended 450. Hence, the force is highly overworked, which adds insult to the injury. For example, the Allahabad High Court was compelled to express “pain” over routine and unnecessary arrests made for offences punishable upto 7 years. The Supreme Court in Prakash Singh v. Union of India (2006) provided detailed guidelines on autonomy, accountability and efficiency of the police organization. However, not a single State across the country has fully complied with the Court’s prescription.

Incentive-based and community-oriented policing should be the end goal. The Review-Promotion system should be encouraged, as in, the promotion should depend on the service reviews. The decentralized Sheriff system seems to be the most efficient manner of policing. It reduces the sinister Politician-Police linkage and thus allows each to do their respective jobs. Further, research shows that community-oriented policing seeks to create police forces that are “preventative rather than reactive, focused on the overall quality of life rather than just enforcing the criminal code”. Upon taking any illegal actions or being held guilty of violating someone’s rights, police accountability must be fixed beyond the official’s suspension.

Giving up colonial tactics – NO to an antiquated system

The Madras High Court was, recently, of the view that “The melancholic part in our criminal justice system is that, we often find one blind leading another and the two finally ending up in a cul-de-sac.” NC Asthana points out that “[t]he reality of the exercise of the State’s power over the citizens has remained unchanged,” even after we got freedom from Colonialism. When we inherited the British legacy, we accepted all the statutes as they then were, with slight modifications, of course. Some laws that the British Crown had used to target freedom fighters still continued though, for example, sedition and preventive detention, just in case the independent Indian crown might be required to [mis]use them.

Apart from the statutes, India also inherited the practices that predominantly had their origin in the Mughal rule, especially in Northern India. Until recently, Delhi Police used to lodge FIRs with complicated Urdu-Persian vocabulary, to the extent that the Delhi High Court had to explicitly direct the Police that “[t]he use of Urdu words of common usage…may be permissible, [but] obscure and archaic expressions can find no place in an FIR”. The terms similar to “amanat mein khayanat” (criminal breach of trust) take some time to get versed with, and a layperson cannot be conventionally expected to know these, making the impact of the document where it is used dismally low.

India cannot become a superpower, wrote Vipul Mudgal, on the back of an antiquated criminal justice system. It should be a priority for the government to give away the colonial practices in the criminal justice system.

Victim centric approach – restorative justice

Restorative justice focuses on restoring the harm done to victims, holding offenders accountable, and, in many cases, involving the community in dispute resolution. Victim compensation is one of the most important domains of criminal justice. Unless the victim gets certain repatriation or monetary support, the punishment or “vengeance” against the culprit will serve no purpose. Some major amendments were made to CrPC in 2008 and 2013 that extensively recognised the rights of the victim. Sections 357 and 357A of the CrPC elaborate on the procedure for compensating crime victims. The latter section provides for each State in India to set up a victim compensation scheme in line with the CVCF guidelines.

However, even if it is admitted that a comprehensive victim compensation regime lies, what about those who are wrongly accused/arrested by the Police? It is not even the case that police do so “mistakenly,” as there are hundreds if not thousands of instances of people being acquitted after years in prison. Thus, Madan B. Lokur, a former Supreme Court judge, makes a case for compensating wrongfully arrested people while pointing out a series of instances where individuals have been acquitted after several years in prison.

Although Section 358 of the CrPC provides for compensation to a person groundlessly arrested by the police, it is seldom invoked or talked about. As a matter of fact, the SCC Online database shows only four judgements citing Section 358 (searched by section), of which two set aside the order for compensation made by the Magistrate. Nevertheless, the Supreme Court has repeatedly passed orders granting compensation for abuse/misuse of power by the Police/Administration in illegally detaining/abusing/torturing individuals.

The way forward

The lack of adequate enforcement mechanisms has slowed the justice system down, undoubtedly. However, the State’s unwillingness to negate drawbacks and promote growth is the actual megalodon. The undertrials need to be released, and the inhumane prison conditions require urgent reforms. At the same time, the State should not forget that the ultimate goal of criminal justice is to bring justice to victims, thus, it should be victim-centric. Justice to one might be an injustice to another, so, it must be accepted that it is impractical for the State to arrive at a juncture where all those affected would be happy with one system. However, the State is responsible for maximizing the well-being of all those affected, and so should it behave.

About the Author, Md Tasnimul Hassan is a Writing Fellow at the Fellowship for Freedom in India. He is currently pursuing an undergraduate degree in law from Jamia Millia Islamia, New Delhi.

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