Reforming the Criminal Justice System

IN NEWS:

The Ministry of Home Affairs (MHA) has constituted a national level committee for reforms in criminal law.

CRIMINAL JUSTICE:

• The criminal justice system is essentially an instrument of social control. Society considers some behaviours as dangerous and destructive that it either strictly controls their occurrence or outlaws them outright.
• Criminal Justice system refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence.
• Punishment: The simple meaning of 'punishment' is the infliction of some kind of pain or loss upon a person for a misdeed. Punishment is the means of social control.

THEORIES OF PUNISHMENT:

There are different kinds of punishment that a person can face. In order to understand them, one needs to understand the theories of the punishment.

I. Deterrent Theory

• Deterrence refers to 'discouraging'. The very purpose of selection of this type of punishment on offenders is to deter them from committing crime.
• According to this theory, the object of punishment is not only to prevent the wrongdoer from indulging in it the second time, but also to set an example to other persons who have similar criminal tendencies.
• The theory seeks to create some kind of fear in the mind of others by providing adequate penalty and exemplary punishment to offenders which keeps them away from criminality. Thus, the rigor of penal discipline acts as a sufficient warning to the offenders as also to others.
• Deterrence works at two levels:
  • Individual level: Refers to the effect of punishment in preventing a particular individual from committing additional crime. The justification of the punishment is that the criminal is to be punished simply because he has committed a crime.
  • General level: It is based on the assumption that punishing individuals who are convicted of crimes will set an example to potential violators who, being 'rational' beings, would wishing to avoid such pain, will not violate the law. The punishment instills terror in the minds of evil-doers and an awful warning to all others who might be tempted to imitate them.
• Countries such as Pakistan, Iran, Iraq and Saudi Arabia have adopted the deterrent theory as the basis of their penal jurisprudence.

II. Retributive Theory

• Retribution is the most ancient justification for punishment. It suggests that the severity of punishment should be proportionate to the gravity of the offence.
• The retributive theory regards punishment as an end in itself. It aims at restoring the social balance disturbed by the offender. Retributive punishment gratifies the instinct for revenge or retaliation which exists not merely in the individual who had been wronged, but also in society at large.
• However, in the modern views, this theory is generally condemned as vindictive approach to the offender.

III. Preventive Theory

• The preventive theory has the object of preventing or disabling the criminal from committing the offences. The offender is disabled from repeating the offence by punishment like forfeiture of an office, imprisonment, exile or death. 
• The theory gets its importance from the notion that society must be protected from criminals. However, Critics point out that preventive punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the association of hardened criminals

IV. Reformative Theory

• According to this theory, the objective of punishment needs to be reformation of the offender. This process aspires to make a criminal a responsible citizen as much as possible.
• According to reformationists, a criminal is to be studied like a patient in his entire socio-economic milieu, and not in isolation to understand causative factors leading to criminality and the attempt to be made to reform and rehabilitate the offender. So, this is not a punishment virtually but rather a rehabilitative process.
• While awarding punishment, the judge should study the character and age of the offender, his early breeding and family background, his education and environment, the circumstances under which he committed the crime, the motive which prompted him to indulge in criminal activities, etc. The object of doing so is to acquaint the judge with the circumstances under which as the offence was committed so that the punishment meted out will serve the ends of justice.

EVOLUTION OF CRIMINAL JUSTICE SYSTEM IN INDIA:

• Kautalya’s ‘Arthashastra’ and Manu’s code are earliest examples of law and regulations in the country. Here the ruler/king is identified as the source of law.
• In the medieval ages, Muslim Sharia laws prevailed in the country, with Quran as the source of law. Qazis were appointed to deliver justice.
• In British India, the Charter Act of 1661 granted by Charles II (1630-1685) made provision for the use of English criminal law in India.
• Based on the 1833 charter act, the first Law Commission under the Chairmanship of Lord Macaulay prepared the Indian Penal code
• The Government of India Act, 1935 laid the foundation for the modern-day judicial system in India
• After Independence, the Constitution became supreme. It derives its power from the people. The Constitution of India is the guiding light in all executive, legislative and judicial matters of the country.

PRESENT SYSTEM:

• Indian penal code, 1860 forms the foundation of criminal justice system in India. The code was drafted by the first law commission of India under the chairmanship of Lord Macaulay. The Code consolidates the whole of the law on the subject and is exhaustive on the matters in respect of which it declares the law.
• The Criminal Procedure Code, 1973 (CrPC) is the main legislation on procedure for administration of substantive criminal law in India. It provides the machinery for the investigation of crime, apprehension of suspects, collection of evidence, determination of guilt or innocence and the determination of punishment of the guilty. It also deals with public nuisance, prevention of offences and maintenance of wife, child and parents.

ADMINISTRATIVE SETUP:

PREVIOUS EFFORTS AT REFORMING:

I. Malimath Committee (2000) on reforms in the Criminal Justice System of India (CJS)

• The Committee had opined that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”
• Some of its major recommendations were:
  • Rights of the Accused: A schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.
  • Justice to the victims: The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation.
  • Police Investigation: Separation of the investigation wing from Law and Order.
  • Court and Judges: It suggested the increase in strength of judges and courts and reducing the vacations of court on account of long pendency of cases.
  • Power for court to summon any person: Court’s power to summon any person, whether or not listed as a witness if it felt necessary.
  • Witness Protection: suggested separate witness protection law so that safety and security of witness can be ensured and they can be treated with dignity.
  • The inquisitorial system of investigation: The Inquisitorial system is practised in countries such as Germany and France should be followed
  • Periodic review: A Presidential Commission was recommended for a periodical review of the functioning of the Criminal Justice System
  • Substitution of death sentence: Substitute with imprisonment for life without commutation or remission.
  • Victim Compensation Fund: A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated from organised crimes can be made part of the fund.

II. Justice Mulla Committee on Prison reforms:

• This committee had given a number of recommendations such as:
  • Moving ‘Prisons” to concurrent list
  • Government should come up with a national policy for Prisons, establish national commission on prisons and an all India service namely Indian Prisons and Correctional Services
  • Incorporate the “principles of management of prisons & prisoners” in the DPSP
  • The State shall provide free legal aid to all needy prisoners

III. Judicial reforms:

• Tele law scheme: by Ministry of Law and NALSA, aimed at providing legal aid services to marginalized communities and citizens living in rural areas through digital technology.
• The Supreme Court recently formed a Committee on Prison Reforms chaired by former apex court judge, Justice Amitava Roy, to examine the various problems plaguing prisons in the country, from overcrowding to lack of legal advice to convicts to issues of remission and parole.
• Pro-bono legal services: It is a web-based platform through which the interested lawyers can register themselves to volunteer services for litigants who are unable to afford it.
• Nyaya Mitra - It is aimed at reducing pendency of cases across selected districts, with special focus on those pending for more than 10 years.  A retired judicial officer, or an executive officer with judicial experience, will be put in charge of assisting those suffering due to judicial delays.

IV. Witness Protection Scheme, 2018:

• It provides for protection of witnesses based on the threat assessment and provides for a State Witness Protection Fund for meeting the expenses of the scheme.  This fund shall be operated by the Department/Ministry of Home under State/UT Government

V. Periodic review of IPC provisions:

• Judiciary has struck down and read down several colonial era provisions so as to be in line with the modern day liberal thinking. The decriminalization of homosexuality and changes in laws related to adultery are examples of the same.
•  The legislature has also played its part. The decriminalization of suicides is an example in this regard.

WHY ARE REFORMS NEEDED:

POLICE SYSTEM:

• Under reporting: There is clear evidence of under-reporting. For instance, comparing the most recent police reports on sexual violence with the most recent nationally representative household survey shows less than 0.1% of women who were victims of sexual violence went to the police.

• Pendency: Between 2011 and 2015, states spent 4.4% of their budgeted expenditure on policing on average but this has reduced to 4% over the last four years. This, coupled with outdated investigation methods and political interference means that both core police activities (enforcing daily law and order) and more long-term criminal investigations are compromised.

• Poor victim & witness protection measures: Cases of attacks on victims and witnesses are frequent in India. The inefficient witness protection mechanism either prevents the witness from helping the case or, as in many cases, makes them turn hostile.
• Shortage of manpower: India’s police force is understaffed in comparison to its own sanctioned strength. There are only 144 police officers for every 100,000 citizens, which is also far behind the UN recommended ratio of 222.

LEGISLATIONS:

• Colonial era laws: The IPC as a law was created much before the emergence of constitutional democratic regime and therefore it has significantly failed in capturing the essence of these principles.
• Gender bias: The IPC is also inherently patriarchal. The legal provisions relating to obscenity, prostitution and trafficking adopt a sexist approach and in many cases the agency of women has not been recognized in a liberal context.
• Obsolete punishments: The current punishments do not reflect the significant developments which have taken place in penology and correctional administration. For instance, the punishment types do not have the mention of community services, restorative provisions and other community-based obligations for offenders.
• Rising complexity of crimes: New forms of crimes, such as financial and cybercrimes, and new methods adopted by criminals to execute them is on the rise in India. But the existing investigation or legal provisions are not updated to keep pace with these developments.

COURTS:

• Low conviction rates: According to National Crime Records Bureau (NCRB) data, the conviction rate is 47%. However, crimes against women, such as rapes and dowry deaths, continue to see a low conviction rate, of around 20%. Even among the convicted, a lion’s share belonged to abject poverty or marginalized sections.

• Geographical barriers or distances from courts can cause great difficulty to litigants, accused, witnesses, if they have to undertake day long trips to reach the courts, only for the matter to be adjourned. Distance also determines the probability of appealing the decision of a lower Court to a State High Court or to the Supreme Court.
• Judicial delays: With over 3.4 crore pending cases, ours is one of the slowest judicial systems in the world. According to the National Judicial Data Grid, one out of every four trials in courts has been pending for more than five years.
• Cost of Justice: The expense for getting judicial relief in India is quite steep, with the cost escalating to millions in the upper judiciary. This is aggravated by the prolonged adjournments and delays by advocates and courts.
• Prevalence of extra judicial bodies: Despite being declared illegal by the Supreme Court, Khap panchayats continue to dominate the judicial proceedings in the country, especially in the rural areas. However occasionally come in conflict with the law, like in cases such as caste-based discriminations and honor killing.

PRISONS:

• Shortage of manpower: 33% of the total requirement of prison officials still lies vacant and almost 36% of vacancy for supervising officers is still unfulfilled. Delhi’s Tihar jail ranks third in terms of a severe staff crunch.
• Overcrowded: According to the Prison Statistics India 2015 report by the National Crime Records Bureau (NCRB), India’s prisons are overcrowded with an occupancy ratio of 14% more than the capacity. Coupled with understaffing, the inevitable outcome is sub-human living conditions, poor hygiene, and violent clashes among the inmates and between the inmates and the jail authorities.
• Under-trials: The under-trial prisoners account for 67.7% of the total prisoners i.e. 2 of 3 persons in Indian prisons are under-trials. They are often subjected to psychological and physical torture during detention and exposed to subhuman living conditions and prison violence.

WAY FORWARD:

• Update laws: Review of IPC should also be looked into. The government needs to initiate detailed studies so as to bring the laws in line with our constitutional, liberal values and changing dynamics of the society.
• Financial resources: Better financial allocations and infrastructure needs are to be ensured to the police, judiciary and prisons.
• Transparent appointments and fixed tenure: The appointment into the police forces, especially in the higher ranks, should be made in a transparent manner, preferably through an independent appointments committee. Also, they should be given fixed tenures, so that they can work independently. This can not only improve the working of police forces, but also help reduce the political interference in the forces.  
• Separation within police forces: Separating the investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. Several committees and the Supreme court has observed that separation of investigation and law and order is the core to police reforms.
• Infusion of technology: Technology must be leveraged wherever possible to improve the reporting of cases, quality of investigation and conviction for offences. Also, technology can be leverages to improve the accessibility to the judicial system.
• Capacity building in police: Vacancies in the forces must be filled to reduce workload of the forces as well as ensuring better policing. The police force must also be provided with mandatory basic forensic and psychology training and periodic workshops to sharpen their abilities.
• Strong action against police brutality: When police play the role of judge and executioner, there is no following of procedure established by law. Extra judicial executions are an anathema to the Rule of Law. Hence, fair investigations and stringent legal actions must be taken against all cases of extra judicial killings in the country.
• Witness protection: The state has to ensure that witnesses are protected for telling the truth in courtrooms. In this regard, the government should initiate measures to create a witness protection act and review the exiting Whistleblower Protection Act.
• Judicial reforms are a necessity to improve people’s trust on Rule of Law. For the same, the judiciary and executive should work hand in hand. Proactive measures must be taken to reduce the vacancies in judicial posts, improve budgetary allocation to judiciary, improve accessibility, reduce cost of justice and create avenues of alternate dispute resolution.
• Prison reform is a long overdue process in India. The government should look at the recommendations made by Mulla committee and Amitava Roy committee and ensure humane conditions in the prisons.

PRACTICE QUESTION:

Q. Large number of undertrials is a serious issue in prison management. Identify the challenges ailing the criminal justice system and suggest reforms?