HVK Archives: Crisis in criminal justice - I
Crisis in criminal justice - I - The Hindu
N. R. Madhava Menon
()
6 May 1997
Title : Crisis in criminal justice - I
Author : N. R. Madhava Menon
Publication : The Hindu
Date : May 6, 1997
As we approach the third millennium and complete half a century of independent
governance, the nation's agenda is crowded with troubling issues of survival,
stability and development. But crime and corruption threaten the very foundations
of the republic. India is still not a country with a high incidence of crime
considering the size of the population and the changes it is undergoing. The
problem is with the near-total inefficiency of the criminal justice apparatus to
be able to "manage" the crime problem and to offer the minimum level of protection
to the citizen. The criminal justice system is a shambles unable to protect
society and seemingly incapable of correction.
The story of criminalisation of politics and the symbiosis between politics, crime
and bureaucracy, including police, is too startling to be believed. Criminal
syndicates are operating from within the institutions of governance destroying
their credibility. Organised economic offences, threatening the very foundations
of the fiscal health of the nation, are slowly but steadily getting entrenched,
contributing to a parallel economy and feeding destabilising forces all round.
Private armies and mafia groups rule the roost and police are powerless.
How can the depredations of a few criminal elements hold the country to ransom
making nonsense of our commitment to the rule of law, human rights and democracy,
How can a criminal justice system survive if it keeps for decades several million
cases in arrears, if it keeps acquitting 95 out of every 100 criminal cases
processed by it after spending a great deal of money and time, if it tolerates an
increasing number of undertrial prisoners in prolonged detention and if it is
unable to arrest the growing number of custodial deaths and torture?
These are troubling questions and today everyone looks to the judiciary to save
the nation from the mess we have created for ourselves. It is too big a task for
the judiciary alone to resolve. It requires pubic opinion. political will.
institutional reform and sustained, co-ordinated action at different levels of
government to achieve results.
The purpose of reform of criminal laws is three-fold: (a) to decriminalise
wherever possible and to create a category of what may be called civil offences or
correctional offences to find alternatives to criminal trials: (b) to evolve the
concept of a Code of Federal Offences or national crimes in order to enable the
Central agencies to investigate and launch prosecution of organised crimes,
serious economic offences affecting the country as a whole and political
corruption of specified categories: and (c) to facilitate the involvement of
people, including the victim, in the prevention of crime and in the administration
of criminal justice.
We need to have two types of codes even after attempting large-scale
decriminalisation. The Penal Code will have only cognisable crimes or crimes
which Parliament considers too serious to warrant detailed trial and penal
dispositions. The Correctional Offences Code will contain non-cognisable offences
which shall all be compoundable and capable of settlement with fines and other
alternative remedies. In short, the criminal courts will deal with Penal Code
offences according to the procedure prescribed for the trial of warrant cases on a
day-to-day basis. The correctional offences will be dealt with by the Lok
Adalats, select tribunals and Nyaya Panchayats. Imprisonment is to be avoided as
a sentence in correctional offences and whenever it becomes necessary. it shall
not be for less than one year and will be subject to review by the Sessions Court.
The preponderance of evidence will suffice to sustain a conviction if the charge
is contested and trial is held. The idea is to convey the basis for approaching
reform in the substantive and criminal laws.
The second part of the proposal on law reform concerns the enactment of a Federal
Offences Code. Economic offences such as bank frauds, FERA violations,
environmental crimes like the Bhopal gas leak tragedy, drug-trafficking, corporate
crimes, arms smuggling and serious cases of political corruption deserve to be
dealt with by a specialised central agency. Today it is being entrusted on an ad
hoc basis to the CBI, which is working under a variety of constraints. With
economic liberalisation now under way and the sophistication economic crimes
assume in the context of technological developments, there is no way to protect
national interests except with a powerful investigating agency supported by
enabling legislations in both its substantive and procedural aspects.
Today the "soft justice" syndrome prevails even for the most serious economic
crimes imaginably destructive of the economic health of the country. In fact.
many of these crimes grow with the "market" and only an extremely competent and
efficient regulatory system can manage it within reasonable limits. Otherwise,
these white collar crimes can easily subvert the system and make "liberalisation"
an economic disaster. We do urgently need a strong criminal code and an efficient
system of detection, investigation and prosecution if the "economic terrorists"
are to be kept in cheek and the credibility of our legal system is to be
maintained. The use of the preventive detention laws and the institution of
commission of inquiry are not the appropriate strategies for economic and
political crimes. The amnesty that the Government offered to tax evaders is a
demonstration of the inability of the system to strike against clever criminals
who act as if they are above the law.
The Vohra Committee. set up in the context of the series of terrorist attacks in
Bombay, found extensive, entrenched links between internationally powerful
criminal elements and mafia groups, on the one hand, and politicians, police,
government servants and economic interest groups, on the other. It was alleged
that even the judicial system was being influenced by the mafia. The Supreme
Court was told that 95 per cent of crimes were within the purview of the State
Governments and therefore the Centre was unable to deal with them. Special courts
and speedy procedures were envisaged for facing the challenge of organised crime.
Perhaps it is worthwhile to consider the revival of the jury system in the trial
of such offences. Deterrent and exemplary punishments have to be awarded to such
dangerous criminals. All these would require a Federal Criminal Code incorporating
substantive and procedural laws pertaining to select crimes endangering national
security. This is not a matter which can be left to the State Governments some of
which are inefficient and corrupt.
The third major component of the criminal law reform is with regard to increased
participation of the public in the prevention of crimes and administration of
criminal justice. This is part of the democratisation of justice to make it more
transparent, accessible and accountable. There are many ways in which this could
be accomplished including by juries, lay judges, people's courts or Lok Adalats,
community policing, neighbourhood crime prevention councils, Nyaya Panchayats and
women rights commissioners. Without extensive participation by the people,
neither crime prevention nor successful criminal investigation is possible.
Another important requirement for a better criminal justice system is increased
autonomy to police, particularly the investigative and intelligence wings. If
acquittals are too many, if there is inordinate delay in processing criminal cases
and if there is intolerable corruption and public dissatisfaction with the
administration of criminal justice, police have to take a major portion of the
blame. Where a powerless constabulary constitutes an overwhelming majority, hardly
any serious effort is made in criminal investigation. Not even one per cent of
policemen are available for crime investigation. Most of them are not trained in
modern methods of investigation and because of political interference many
competent men are not keen on investigation of sensitive cases. The common
response, therefore, is to delay as much as possible in the expectation of a
promotion or a transfer or a direction from the higher-ups. The public,
therefore, has to go to court seeking expedition in investigation or pleading for
a transfer of the case to the CBI. Of late, even the CBI has become a delaying
mechanism.
Investigation of crimes has to be saved from corrupt politicians who in the name
of exercising powers of superintendence distort the course of justice by using an
inexhaustible range of tricks and gimmicks. Ultimately, they leave police totally
demoralised, incapable of enforcing the rule of law and inefficient, to do the
normal work of investigation and prosecution. The National Police Commission
recommended wholesome remedies but because they are inconvenient to the corrupt
and criminal elements within the government and outside, they are shelved
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