Relevance: GS-2: Important aspects of governance, transparency and accountability; Role of civil services in a democracy
Key Phrases: Andrew Ashworth, Amartya Sen, Culture of Impunity, Law Commissions, National Crime Records Bureau
Context:
- Recently many reports asserted that India’s criminal justice regime is beset with problems which seem ingrained in not only the constitutive fabric of institutions, but also in the psyche of their functionaries.
- Professor Andrew Ashworth said, “A just and coherent criminal justice system is an unrealistic expectation of the people”.
- Reports argued that It is not India only reforming the criminal justice
system, but also ensuring that our system responses reflect an acceptance
from our
communities.
What are the Issues regarding the criminal justice system are highlighted in the Editorial?
- Poor Disposal of Pending Cases:
- There are more than 4.4 crore cases pending before the judiciary.
- It is unlikely that this problem will go away any time soon with existing sanctioned strength of the judiciary.
- Inaccessible and Unaffordable Justice :
- Justice mechanisms will remain inaccessible to marginalised classes of citizens.
- As Amartya Sen said, the Indian justice system follows a transcendental institutionalist approach where the focus is on getting the institutional arrangements right without regard to the issues that emerge from such arrangements.
- The focus has been upon institution building rather than capacity building, marginalisation of vulnerable sections of society is inevitable.
- Culture of Impunity—'Abuse of power by the police' :
- The colonial mindset with which the institution was created is persistent. It determines and governs the manner in which the police discharge their functions.
- Over stress on crime control and less regard on means adopted promotes such abuse of power.
- Such abuse will end up in extra judicial killings, custodial deaths and unholy nexus, which acts like termites to citadels of our democracy .
- Crime Prevention is a Utopian goal of India’s Criminal Justice
System:
- Achieving a hundred per cent rate of success in crime prevention through either laws or policing is an unattainable ideal.
- Successive empirical research studies have shown that higher punishment has little impact on lowering crime rates.
- Similarly, initiatives such as community policing mechanisms and situational crime prevention are yet to deliver any concrete results.
- 'Reformation and not Retribution' needs time to settle down in our
criminal justice system:
- Reformative principles in the treatment of offenders are yet to materialise.
- Even as several Law Commissions and committees have recommended reformative measures of punishment for offenders, these are yet to translate into practice.
- The problem of overcrowding of prisons, custodial punishments are seen by the governments currently as more effective measures.
- 'Dearth of reliable Data' for Good Policy Making:
- Unreliable state-sponsored data collection, maintenance and analysis mechanisms.
- The National Crime Records Bureau’s data mark the core of such data collection and analysis.
- The methodologies adopted by the reports can be criticised on multiple grounds.
- Little effort is made by the state to map the perceptions of justice by the victims and the common man. The state also does not seem to realise that there is a dearth of reliable data.
- The Prevalence of 'Chalta Hai' Attitude:
- The system and their functionaries assume that these problems will go away with time. Past experience shows that this is not true.
- On the contrary, it must be assumed that these problems are here to stay unless drastic changes are made concurrently at the institutional, social and individual levels.
What are the solutions suggested by the Editorial?
- Firstly, accept that only institutional arrangements cannot guarantee access to justice for the most vulnerable sections of society, our approach would automatically shift towards building the capacity of such sections to tap into the criminal justice system.
- Secondly, abuse of power by the police needs strict vigilance and that imposing mere ethical obligations on police officers will not resolve the problem.
- Need for developing independent investigative procedures and stern punitive sanctions against errant police officers.
- The problem of pendency of cases has acquired such huge proportions that we cannot dispose of all of these cases in 10 lifetimes, thus the recommendations of Malimath committees, Law commission and 2nd ARC needs to be implemented.
Do you remember the key Recommendations of the MALIMATH Committee report?
- Borrowing from inquisitorial system : The committee recommended that courts be bestowed powers to summon any person whether or not listed as witness for examination
- The Committee suggested that the court be given freedom to question the accused to elicit information and draw an adverse inference against the accused in case the latter refuses to answer.
- Code be brought out in all regional languages so that the accused knows his/her rights.
- The courts follow “proof beyond reasonable doubt” as the basis to convict an accused in criminal cases. This, the committee felt, gives “very unreasonable burden'” on the prosecution and hence suggested that a fact be considered as proven “if the court is convinced that it is true” after evaluating the matters before it.
- The State should provide an advocate of the victim's choice to plead on his/her behalf and the cost has to be borne by the State if the victim can’t afford it.
- Victim compensation is a State obligation in all serious crimes, Victim Compensation Fund can be created.
- Hiving off the investigation wing from Law and Order.Setting up of a National Security Commission and State Security Commissions.
- Setting up a Police Establishment Board to deal with posting, transfers, and so on.
- The higher courts, including the Supreme Court, should have a separate criminal division consisting of judges who have specialised in criminal law.
- It also has laid recommendations for humanitarian angle to the reforms by recommending a permanent statutory committee to prescribe sentencing guidelines and reforms regarding offenses against women. It also calls for periodic review of the entire criminal justice system.
Conclusion:
- Any project aimed at criminal justice reform must instead accept the problems we have as assumptions.
- Only then can we shift the discourse to bringing about holistic reforms in our criminal justice system.
- Appointing more judges and police personnel, deploying scientific techniques, beefing up forensic labs, and other infrastructure investments is the need of the hour.
Source: The Hindu BL
Mains Question:
Q. The biggest weakness of the criminal justice system today is its inability to function with integrity and political neutrality. Critically examine.( 10 marks).
