Reforming criminal justice systems

Print edition : January 31, 2003

The system of criminal justice administration in the country has hit the rock-bottom and nothing short of political will and assertive public opinion can rejuvenate it.

NOT a day passes without the media lambasting the criminal justice system, especially the police, for its omissions and commissions. It is often difficult to take umbrage at such criticism because the ills of the system are too obvious to even the most superficial observer. Media scrutiny is rightly focussed to serving the public cause. Having said this, it is equally true to say that there are occasions when the media commit grave blunders on facts as their reporters hardly spend time on some needed research. Sweeping generalisations based on impressions, even where statistics are available for a lucid analysis, tend to misinform the readers. It is in this context that I would commend to my friends in the media that they should read the volumes being brought out by the National University of Juridical Sciences (NUJS), Kolkata. Under the able guidance of its Vice-Chancellor Dr. N.R. Madhava Menon (who earlier presided over the National Law School University, Bangalore, with great distinction), the NUJS has embarked on a project to bring out a report on the criminal justice administration in each State and at the Centre.

Entitled Criminal Justice India Series (Allied Publishers, 2002; Rs.235), three reports - West Bengal, Karnataka and Uttar Pradesh - have been released till now. Each covers the areas of police, prosecution, criminal courts and corrections in separate sections. Carrying reasonably researched material that is authentic, it provides a meaningful insight into the various facets of what is otherwise an intricate problem. As for the objective of the publication, Dr. Menon himself says: " It is premature to pass judgments on the basis of data presented... What is expected to happen... is to make concerned circles capable of asking relevant questions for further study directed towards reform." Is this not one of the media's roles?

The three States whose reports have been released till now represent three different regions of the country. Those who have been in government or have been otherwise closely associated with it know that notwithstanding the one national fabric that is India, there are regional variations in terms of quality of responses which account for the imbalance in the standards of administration. From the criminal justice perspective, these differences are to an extent contributed by the size of the State, its population and density, the level of literacy and the crime rate, namely, number of crimes per 100,000 of the population.

The Table shows how the three States look like in terms of these fundamentals. Per se these figures may not convey any great sense, except that a large State with a high population density and a relatively low literacy rate such as U.P. makes policing much more difficult than in a State like Karnataka with a lower density and higher literacy. In U.P., there is a need for greater police mobility and a mindset that is in tune with rural demands. A State like West Bengal has many parallels with Kerala, apart from being a Communist stronghold. Both have high literacy rates that I believe accounts for a more intensive public scrutiny of police conduct and, as my colleagues from the two States have always told me, less conventional discipline within the police force, especially among the constabulary, which brings its own problems of personnel management.

One serious drawback of all studies of crime and its management in our country is the basic flaw in statistics. How do you explain the low crime rate in the most crime-ridden Uttar Pradesh? While the high population accounts for the low per capita figure, by tradition, U.P. is known for a systematic suppression of crime. Writing in the Indian Police Journal (January-March 1999), former Director General of Police N.S. Saxena said: "... crime concealment on a massive scale is being practised for so many decades... there is a conspiracy of silence from top to bottom." It is not as if other State police forces are angels! It is just that they are a little more scrupulous about this. While the efficiency with which crime statistics are collected and organised (in the form of "Crime in India" brought out annually by the National Crime Records Bureau) has improved, the credibility of figures dished out has not at all gone up because of the known basic dislike for bringing on record all the crime that is reported to the police.

Expectedly, the police emerge in a very poor light in the NUJS study. The comments of the West Bengal Human Rights Commission quoted by NUJS tell the tale of the police perhaps of the whole country: "Records maintained in police stations are not based on facts, but on convenience... Evidence is fabricated so as to implicate the targeted individual... Monetary considerations largely determine the fate of investigations."

There is consensus among researchers in the three States that the police can do with more manpower, equipment and incentives, and less work. In fairness to government, it should be brought on record that a lot has been done to expand police resources. Assistance from the Union Home Ministry to States has been extremely positive and generous. One example is the help given to Karnataka and Tamil Nadu in the operations against Veerappan. While the objective in this instance is yet to be achieved, generally speaking, police response to major problems such as terrorism has become sharper than before. Is the common man impressed with this? The answer is an emphatic `no'. He still feels that he has to contend with an unfriendly police station if he has to lodge a complaint. This is a distressing situation, and any number of studies have identified the problem without offering any radical formula that would transform the image of the police. Possibly no formula can be worked out, until the ambience in which the police perform their functions rids itself of arbitrariness and corruption that seem to lie beyond the pale of law.

Does this assessment born out of despondency take us anywhere? Lasting reforms can come about only through such savage criticism of systems. This has been the case in many countries, especially in the United States, where the early 20th century police were more corrupt and brutal than its present Indian counterparts. Things began to change after a public debate and the activist role played by some enlightened police chiefs. Let us hope that this happens in our country as well.

The one stick with which the police are beaten all the time is the poor conviction rate of their cases in court. The quality of police investigation is often assailed for its lack of thoroughness, and also on many occasions, for the lack of integrity. The criticism of the police is no doubt true in many instances. What is little known however is that prosecutors available to the police are not always the best available in the field. Their modest professional acumen and heavy workload militate against success in court. The situation has been compounded by the lack of rapport between police officers and prosecutors. The issue that has not been settled is whether the latter will report to the former or be totally independent. Section 25 of the Criminal Procedure Code lays down that no police officer who had taken part in the investigation or is below the rank of Inspector can be appointed as an Assistant Public Prosecutor (APP). This has been interpreted to mean the police are legally prohibited from supervising APPs who should remain autonomous. As a result, the gulf between them has become wide, and this has adversely affected prosecution performance in court. The NUJS report on West Bengal says: "They (APPs) are certainly not to act as tools in the hands of the Government or any other executive authority. At the same time... they have undoubted duty towards their client, that is, the State, and they, being public servants, have social accountability also. They cannot be absolutely indifferent to the result of the case."

This is the crux of the problem. Merely improving the quality of police officers and APPs is not enough. Unless the two work as a team after sinking their egos, conviction rates will remain low. The victor here is the offender and the sufferer is the victim of crime. There cannot be a more cruel irony that brings odium to criminal justice administration. The Central Bureau of Investigation's (CBI) practice of consulting legal advisers/prosecutors even as an investigation progresses is one sure way of enhancing the quality of investigation and promoting better relations between the two groups. At present, in the State Police, there is very little consultation between them during investigation. This is certainly a serious shortcoming.

CRIMINAL courts in the country suffer from almost all the ills of the police - heavy workload, poor infrastructure, an uneasy relationship with the public and corruption. The one major criticism is the mounting case pendency, contributed greatly by a cumbersome procedure in courts, which is actively promoted by the members of the Bar. Several mechanisms such as Fast Track Courts, Special Courts, Family Courts and Lok Adalats have had only a marginal impact. As a result, the atmosphere that prevails in District and lower courts is unedifying. This is what the team that prepared the U.P. report had to say after visiting some courts: "The market-like atmosphere... was appalling. Thousands of people hung around apparently uncertain about when their cases will be heard. Their harried faces and tired looks mirrored a feeling of exasperation and their total ignorance about the cumbersome complexity of law in action."

Perhaps more than anywhere else in civil administration it is here that one sees a collusion between public agencies and individuals to ensure that the guilty are not punished. There is an unconcealed desire to slow down proceedings to favour the aggressor and the law-breaker. It is this desperate situation that accounts for more and more violent crime aimed at getting instant justice and settling grievances outside the ambit of law. I foresee a search by the public for many more avenues of private resolution of conflicts and this has dangerous implications for public peace. Not that this is not already happening. But it could become the order of the day with less and less numbers ever wanting to approach the police or the courts.

Prisons and correctional administration play a crucial role in executing sentences and managing the future lives of offenders. The common man knows precious little about how the system operates and how it can be used to control crime. It is this ignorance that promotes abuses which are horrendous and strike at the roots of faith in humanity.

Overcrowding of jails is not a new phenomenon. Their capacity far exceeds the number that remains incarcerated at any time. The U.S. has tackled this problem through periodic construction of new prisons. This is an expensive proposition that we can hardly afford. It is widely known that undertrial prisoner population contributes appreciably to aggravating the problem. For instance, during 2000, the prison population in U.P. comprised only about 5,600 convicts as against 44,000 undertrials. The only answer to this unfortunate situation therefore is minimum judicial custody during trial and expeditious proceedings in courts. While the latter is a pipe dream, courts can do a lot to restrict the numbers of those confined even while judicial proceedings are on.

Probation aims at rehabilitation and reform of transgressors of law who are generally not hardened criminals and who do not display a recidivist tendency. A well-organised and motivated probation administration can work wonders at bringing down crime. Standards of such administration are uneven in our country. Some regions have done well. Many others have been culpably callous. The need for enriching the content of work expected of probation officers and enhancing their career incentives cannot be overstressed. There is here scope for private initiatives to complement governmental efforts. This is especially welcome in handling juveniles who are more amenable to reform than older offenders.

The inescapable conclusion is that criminal justice administration has hit the rock-bottom in our country. Governmental response to mounting criticism has been in the form of appointing Commissions, some of which have no doubt turned in meaningful reports. A lot is expected of the Justice V.S. Malimath Commission now at work. Nothing can however change the scene without a massive political will and an assertive public opinion. As days pass by, hopes of generating these are fast fading. Posterity will not forgive us when the system actually breaks down. The prospects of such a breakdown subsuming all our token efforts until now are forbidding.

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