CRIMINAL JUSTICE SYSTEM

CRIMINAL JUSTICE SYSTEM

The Criminal Justice System refers to the structure, functions and decisions and processes of agencies that deal with crime prevention, investigation, prosecution, punishment, and correction.

Need for Criminal Law Reforms

1. Legislative issues

• Archaic laws: The primary laws are colonial and repressive in nature.
• Offender-centric laws: The existing system is focused on punishing the offender rather than providing relief or justice to the victim. Thus, there is a need to bring changes to benefit the victim.
• Nature of laws: Certain provisions of the existing law are seen as patriarchal, while some other provisions are accused of being misused by women. For example, until recently, adultery under IPC, S. 377 IPC, etc.

2. Police

• FIR Registration: Often delayed or even denied due to efficiency being judged on the basis of cases resolved, especially zero FIRs, even when the same has been made mandatory by the Supreme Court in cases of cognizable offences.
• Investigation: Corruption, huge workload, and accountability of police is a major hurdle in speedy and transparent delivery of justice.
• Arrest: Arbitrary arrest and the alleged highhanded behaviour of police officials have been in question for a long time. Example: Kerala custodial violence case 2020.

3. Prosecution

• Lack of coordination: Ineffective and lack of coordination among various agencies. Example: As seen in the Arushi Talwar Murder case.
• Presumption of innocence: Laws like the NDPS Act, the PMLA Act, and the FEMA have provisions for reverse burden of proof, which places the duty on the accused to present their case first.

4. Courts

• High pendency: According to the Economic Survey 2018-19, about 3.5 crore cases are pending in the judicial system, especially in district and subordinate courts.
• Poor conviction rate: For cases registered under the Indian Penal Code (1860), the conviction rate was 47% in 2015. Poor quality of investigations is a major reason behind this [Law Commission of India].
• Uncertainty: Concerning important matters such as the criteria for granting the death penalty.
• Differential treatment: A report from the Vidhi Centre for Legal Policy (2018) on the working of the Narcotic Drugs and Psychotropic Substances Act in Punjab highlighted disparities in sentences awarded to the accused in pharmaceutical drug cases, violating the principle of equality.

5. Prisons: [Holistically covered under a separate article]

• Undertrials: 69.05% (approx. 3.3 lakh) were under trials, primarily due to the slow adjudication process.
• Violation of Human Rights: Custodial deaths, poor management in terms of sanitation, medical facilities, etc.

6. Issues Related to Human Resource

• Attitudinal issues: Lack of empathetic attitude. Example: Madhya Pradesh High Court directed a man accused of sexual assault to get Rakhi tied on his wrist by the victim as a condition for bail [Aparna Bhat v. State of Madhya Pradesh].
• Nature of crimes: Increasing complexity of crimes, including cybercrimes and surrogacy.

7. Other issues

• Ineffectiveness: Laws have become tools for harassment of common people instead of protecting the rights of the innocent and punishing the guilty. Example: ISRO Spy case.

Recent Measures 

The Ministry of Home Affairs in May 2020 set up a National Level Committee to mull reforms to the existing criminal laws in India, including the Indian Penal Code (1860), The Code of Criminal Procedure (1973), the Indian Evidence Act (1872), and the Narcotic Drugs and Psychotropic Substances Act (1985).

Issues with the committee:

• Representation: Committee comprises 5 members, all male. There is no representation for religious and social minorities (Women, SCs, STs, differently-abled, etc.)
• Geographical spread: The members of the committee are from Delhi, Jabalpur (Madhya Pradesh), and Mumbai (Maharashtra). There is no representation for any of the five southern states, or from the east or the northeast of the country.
• Consultation method: Committee has also been accused of not promoting itself enough, and the singular online method to send in consultations only in English.
• Timing: Reform in the time of a devastating pandemic only adds to the exclusionary nature of the process, affording no opportunity for engagement for most citizens of the country.
• Deadline: To presume that the committee would be able to reform criminal law within the tight deadline of six months is preposterous.
• Lack of transparency: The terms of reference of the committee have not been made public.

Way forward/Recommendations of Malimath Committee

1. Reforms related to Investigation
   • Replacing the current Adversarial system: Adoption of Inquisitorial system of investigation practiced in countries such as Germany and France, where a judicial magistrate supervises the investigation [Malimath Committee].
   • Power of courts for examination: Courts be bestowed with powers to summon any person — whether or not listed as a witness — for examination, if it felt necessary.
   • Police custody: Police custody is now limited to 15 days. The Committee suggested this be extended to 30 days and an additional time of 90 days be granted for the filing of charge sheets in case of serious crimes.
   • For improving quality of investigation: Appointment of an Addl. SP in each district to maintain crime data, organisation of specialised squads to deal with organised crime, and a team of officers to probe inter-State or transnational crimes.
   • Evidence: Dying declarations, confessions, and audio/video recorded statements of witnesses be authorised by law and thumb impression be allowed only if the witness is illiterate.
2. Rights of accused
   • Abolishing Right to silence: Court be given freedom to question the accused to elicit information and draw an adverse inference.
   • Separate Schedule: 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.
3. Prosecution
   • Burden of Proof: 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.
   • Director of Prosecution: A new post to be created in every State to facilitate effective coordination between the investigating and prosecuting officers under the guidance of the Advocate General.
4. Victim centric efforts: Allowing victims to participate in serious crimes, provision for compensation, right to implead himself as a party, victim compensation fund to be treated as a state obligation.
5. Courts
   • Judge population ratio: The ratio is 19.66 per million people as of 2017 as against 50 judges per million in many parts of the world.
   • National Judicial Commission: Must have clear guidelines on precise qualifications, experience, qualities, and attributes that are needed in a good judge and also the prescription of objective criteria to apply to the overall background of the candidate.
   • Separate criminal division: Comprising of judges who have specialized in criminal laws.
   • Trial procedures: All cases in which punishment is three years and below should be tried summarily, and the punishment that can be awarded in summary trials be increased to three years.
   • Sentencing: A permanent Statutory Committee to prescribe sentencing guidelines.
   • Alternative modes of punishment: The Indian Penal Code has to be reviewed to enhance, reduce, or apply alternative modes of punishments, keeping in mind new and emerging crimes.
   • Reclassification of offences: Offences are currently classified as cognisable and non-cognisable. Instead, the Committee recommended classifying offences as social welfare code, correctional code, criminal code, and economic and other offences code.
6. Witness protection
   • Separate law: A separate witness protection law should be enacted, akin to the one in the United States.
   • Perjury: If during the trial, the witness is found to have given false evidence with the intention to affect the case, he/she must be summarily tried and be liable to punishment.

Way forward/Recommendations of Malimath Committee

1. Reforms related to Investigation
   • Replacing the current Adversarial system: Adoption of Inquisitorial system of investigation practiced in countries such as Germany and France, where a judicial magistrate supervises the investigation [Malimath Committee].
   • Power of courts for examination: Courts be bestowed with powers to summon any person — whether or not listed as a witness — for examination, if it felt necessary.
   • Police custody: Police custody is now limited to 15 days. The Committee suggested this be extended to 30 days and an additional time of 90 days be granted for the filing of charge sheets in case of serious crimes.
   • For improving quality of investigation: Appointment of an Addl. SP in each district to maintain crime data, organisation of specialised squads to deal with organised crime, and a team of officers to probe inter-State or transnational crimes.
   • Evidence: Dying declarations, confessions, and audio/video recorded statements of witnesses be authorised by law and thumb impression be allowed only if the witness is illiterate.

1. Rights of accused
   • Abolishing Right to silence: Court be given freedom to question the accused to elicit information and draw an adverse inference.
   • Separate Schedule: 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.
2. Prosecution
   • Burden of Proof: 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.
   • Director of Prosecution: A new post to be created in every State to facilitate effective coordination between the investigating and prosecuting officers under the guidance of the Advocate General.
3. Victim centric efforts: 
   • Allowing victims to participate in serious crimes, provision for compensation, right to implead himself as a party, victim compensation fund to be treated as a state obligation.
4. Courts
   • Judge population ratio: The ratio is 19.66 per million people as of 2017 as against 50 judges per million in many parts of the world.
   • National Judicial Commission: Must have clear guidelines on precise qualifications, experience, qualities and attributes that are needed in a good judge and also the prescription of objective criteria to apply to the overall background of the candidate.