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What a mess we have made of the criminal justice system. There is first a decline
in policing which is more serious than is known. Police lack the basic knowledge
of crime and criminals, with the result that they are unable to conduct proper
investigations and have to shoot down criminals, some of them petty and
undeserving of such harsh punishment, or make arrests indiscriminately. The way in
which TADA was misused is an indication of police inefficiency and perversity.
We have a fraternity of lawyers which is unwilling to talk of reform, and holds up
every measure that is required to speed up trials by threats of strike. The
report of the National Police Commission has been put on the back-shelf. The
150-odd reports of the Law Commission have not been opened. The accumulation of
cases is in millions. The ten-year time-frame for a decision in a case of a
brutal murder is not uncommon.
And then we are surprised at the lawlessness in UP, Bihar, the north-east and
other areas, the depravity of some of our politicians, and the link-up with
criminals. We are fast becoming a state in which the rule of law is only in name.
When will we wake up? Our only hope seems to be Public Interest Litigation and
the Supreme Court.
We have to admit to our shame that we are unable to rule with firmness and
dignity. Even tiny Singapore can teach us lessons. We want democracy but we do not
know how to preserve it. We want freedom but we give immunity to the worst
criminals in the land to misuse it. Every film poster shows a gun or a knife.
Almost every film extols violence by the police. It is coming to be accepted as a
normal way of dealing with criminals. In consequence, the trust and faith in law,
even in each other, is declining.
It was in similar periods in the past that adventurers trooped down from the
north. Nadir Shah looted Delhi. The Uzbeg, Amir Timur, erected pyramids of skulls
of our citizens as a normal routine. We sat paralysed, unable to combine. Are we
unfit to be rulers? Have we been slaves too long? Do we lack the ability to live
for the common good? The fact that in spite of all these we are a working
democracy is not due to our leaders but to our Constitution, to the electorate,
the Election Commission and the traditions of the land.
How do we go step by step to correct the defects in the criminal justice system
which have appeared in the last 50 years. The British left behind a system which
had a great deal of merit. For instance, a sessions trial was a day-by-day
affair. No postponement was possible. A murder case took six months for a
decision. Today it may take ten years or more, provided the witnesses are still
alive and can remember the facts. The conviction rate in consequence in contested
cases is almost zero. What are the steps we should take?
Our first concern should be to correct all that is going wrong in the police and
connected agencies. We have to prevent the political side from using the police in
an unauthorised way for their personal and party benefit. In addition, we need
legal reform, clearly-set judicial activism, and speedy disposal of cases, with a
time limit on trials of a type that has been placed on investigations.
A free media using television again and again to point out weaknesses would be
able to keep the problems before the people. Corruption has invaded the system
from end to end. We need powers (like Section 311 of the Constitution) to eject
those who are dishonest. A trial in a court of law can go on separately, and we
need to expose those police officers who show "results" in fake encounters.
The main recommendation of the National Police Commission, and one on which much
emphasis was laid, was the constitution of a statutory State Security Commission
to insulate the police from political interference of a partisan type. It would
consist of the Minister-in-charge of Police, one member each from the ruling party
and the opposition, and four persons unconnected with politics. This body is
essential in any democratic society to ensure that political direction as required
in a democracy is present, but the political forces do not attempt to use the
police for their personal and party ends, as they have been doing.
The basic aim of the commission is to make the police subservient to the law
first, and only thereafter to political dictation. That goes against the grain of
all politicians in power. In addition, it was the aim of the commission to raise
the status of the police in such a way that the common good is served in good
measure by impartial performance.
The Fifth Pay Commission has downgraded the police despite the clear indication of
the National Police Commission that their status should be improved. It is a
contradiction to depress the police, and then to ask for or expect improved
performance. The Pay Commission has left behind a legacy of discontent which will
hamper performance.
There are several recommendations of the National Police Commission and several
state commissions which need immediate attention. The decline in thana work is
serious, and primarily due to neglect by senior officers. In addition, there is a
shortage of manpower owing to the demand for security guards for individuals. The
sanctity of police station records like roznamchas, seizure memos and case diaries
is being lost.
Politicians take the help of the SHO for all their work in the community in many
places. If the SHO fails to help them or indicates that what they want is contrary
to law, he is threatened and often summarily transferred. The orders of the
Supreme Court that police investigations must be free from all interference are
yet to be enforced. What happens if someone breaks this injunction is not clear.
Mandatory judicial enquiries are needed for every death in custody, rape in
custody and firing in which more than two persons are killed.
We also need: (a) Clear orders that the SHO must not move in a locality with the
elected representatives for their support. (b) There should be no attempt by those
in authority to encourage police killings to deal with crime outbreaks except when
they are justified by law. (c) Transfer must only be ordered by those authorised
to pass orders. The tendency to give all powers of transfer to State Governments
is contrary to discipline. The power of transfer and disciplinary control
entrusted to the Directors-General and Superintendents of Police must not be
usurped by the government. (d) Regular inspection of thanas must be insisted upon,
and a formal report drawn up which must be seen and commented upon by senior
officers.
Many verbal orders are issued by ministers and other political leaders regarding
the conduct of police operations. Even while a riot is going on and there is need
for police impartiality as ordained by law, police are given verbal instructions
on who to arrest, who to release and what line to take regarding leaders. In
consequence there have been many riots which have been uncontrollable, and the
army had to be called out to restore order.
Verbal instructions to the police were strongly deprecated by Jayaprakash Narayan
who advised Charan Singh, then Home Minister, to constitute a police commission so
that clear orders on the subject may be issued. Interference in the course of
investigation and making use of the CBI and State anti-corruption agencies against
political opponents have to be stopped. ]be same goes for the imposition of orders
under Section 144 of CrPC to suit political parties, and the withdrawal of cases
purely on political grounds.
I hope the Supreme Court will take up questions raised by the National Police
Commission and the Law Commission and advise government to consider their
implementation. It would help to keep the reform of the criminal justice system
all the time on the agenda if the Law Commission is converted into a Criminal
Justice Commission.
A combined process is underway in India the politicisation of crime and the
criminalisation of politics. Combined with other factors like the politicisation
of the police, it can pose a real threat to democracy. 'Re leaders of the nation
have to find the answer. One way would be that if a politician is convicted by a
trial court, he should be suspended from the house, till such time as the
appellate court decides the case.
Our founding fathers could not have imagined that although we prize justice so
much, we would allow the system to go to rack and ruin when we got power. How do
we correct it now? Judicial activism is one important way, but it can only
indicate what needs to be done. Once again we will have to depend on the lawyers
who got us independence to preserve it from harm, by devising procedural changes.
We have to decide whether we want legal justice, decisions given in time, or live
with a system which permits criminals to roam free.
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