Between crime and punishment

Is the criminal justice system in India beleaguered beyond rescue?

DRIVING along Marine Drive in Mumbai, I was struck by an imaginative hoarding which read something like this: "Bharat has any number of problems. No solutions." This could well be a reference to the woes of India's criminal justice system. As crime figures soar - whatever official statistics may tell you to the contrary - the number of cases pending with the investigating agencies and courts is mounting. The faith of the citizen in the capacity of the system to dispense justice at a rate that will deter future crime has almost vanished.

Something that I heard recently could be amusing, but it is true. One high-profile accused, squarely guilty of squandering public funds that were at his disposal and charge-sheeted in several cases of fraud, is supposed to have remarked the other day that he was confident of being rescued by the Almighty before he could ever be punished. He was smug that none in his family had ever lived beyond 70 years. This colourful character is pushing his 60s. Can there be a sadder commentary on the effectiveness of our system?

Juxtapose this ridiculous situation with the cold fact that of every 100 crimes committed, only about 50 are reported to the police. Of these, the police choose to investigate just 25. The rest are buried, for a variety of reasons. In the next stage, about 15 of the 25 cases investigated go to court for trial, with action dropped in the case of the remaining 10 for want of evidence. Ultimately, of the 15 accused arraigned in court, only about five to 10 get convicted. This would mean that as many as 90 per cent of offenders go scot-free. This chunk of past offenders therefore have every incentive to repeat their "high profit-low risk" activity. Can anything be scarier than this?

We have the reports of several committees and commissions that have probed what ails the system. They contain impressive suggestions that are very attractive on paper. But nothing has changed. Amidst all this, the anguish of the common man over the inanity of the system is growing. More marked is his disgust at the lack of rapport between the police and the lower judiciary, which, in his opinion, contributes to social permissiveness. Given a chance, he would therefore opt for an arrangement wherein he can live without either and look for redress elsewhere. This is already happening in some parts of the country, especially in the north. The widespread preference for instant justice outside the lawfully established criminal justice system is dangerous because it questions the authority of the constitutional government itself. You and I as law-abiding citizens have every stake in a healthy criminal justice system that would protect the innocent and punish the delinquent quickly and adequately. If we do not show interest in bringing about the needed reform and sustain it, few else will. This is a desperate situation that calls for desperate and unorthodox remedies. It does not brook any delay, nor does it permit any pontification or theorising.

LET us begin with the police. The principal complaint is that the police do not register FIRs, or first information reports. We saw this problem in great measure in Gujarat recently, where the allegation was that even rape cases were being suppressed. There cannot be a graver dereliction of a duty prescribed by law (Section 154 of the Criminal Procedure Code). The media and some non-governmental organisations rightly made an issue of this appalling police failure. The State government has now intervened to set right the injustice, albeit after considerable initial reservation.

It is widely known that the reluctance of the police to register cases flows from, apart from a desire to keep the workload within manageable limits, an anxiety to keep crime figures low. There is here a tacit collusion between the police and the highest in the executive.

If we have to cut at the roots of this unholy nexus, the media will have to play a major role by educating the common man that the police, whether they like it or not, will have to draw up an FIR in respect of every cognisable crime. (All major offences such as murder, a physical attack that results in grievous injury, theft, robbery and burglary, to cite only a few, are cognisable.) Also, it is settled law that the complaint need not necessarily be filed at the police station which has the geographic jurisdiction. No Station House Officer can refuse to accept a complaint merely because the occurrence reported had not taken place in his charge. He will himself have to register the complaint and thereafter transfer it to the appropriate police station. Further, under Section 154(2) of the Criminal Procedure Code, the complainant is entitled to a copy of the FIR, free of cost. Courts can come down heavily on police officers who refuse to register an FIR. But this will not solve the problem as only a few instances are brought to their notice. It is the unlettered citizen who has to be educated to make the demand on the police himself.

Police investigations are notoriously slow. Some difficulties which operate against speed are genuine, quite a few spurious. The most valid one is the gross failure of the system to delink crime investigation from other chores, especially the maintenance of law and order. Volumes have been written on this. The temptation to use investigators for routine security duty is great, and this eats into the time available for solving crime. If, in spite of this, some crimes get solved, it is a tribute to the dedication displayed by a handful of officers who work tirelessly for the sheer joy of bringing an offender to book. Public pressure has to build on every government to ensure that it will separate the crime wing from law and order down to the police station level and prohibit the investigating staff from being gobbled up by the demands of law and order enforcement.

What gets the goat of many a complainant even more is that he is not at all kept informed of the progress in investigation. Except in a few cases where requirements of confidentiality militate against sharing information, there is no harm in doing so. Victims of crime confront a stone wall and rarely get to know what the police are doing. Very often cases are closed as 'undetected' without any effort to apprise the victim (who merely gets an intimation after the deed is done) as to why there is no alternative to such a course of action.

Such reticence infuriates the complainant, who is sometimes driven to the extent of attributing motives, very often unjustifiably, to the investigator, because the latter did not bother to explain why nothing more could be done. This lack of communication between the police and the victim is a major shortcoming that can be remedied only by supervisory officers who should call a complainant periodically and apprise him of the progress in investigation.

Summoning the victim and witnesses to police stations at odd times is another major irritant. What is even more objectionable is the failure to dispose them of quickly. Such lack of consideration, sometimes caused unwittingly because of the erratic schedule of the police staff, further alienates them from the community. With a little more planning of one's routine and by visiting the homes of witnesses sometimes to record statements, the police can evoke meaningful and helpful responses. This is a style of work that is not difficult to adopt. Training by supervisory officers can bring about this new work culture.

MOVING to the judiciary, the common man's perception is that the former can do a lot to undo any damage caused by the police to a complaint. The lower judiciary in this country has, however, not exactly distinguished itself in this regard. Delays in taking up cases for trial and the failure to show special consideration to victims of crime are cited as major sources of discontent. One cannot, however, blame grassroots judicial officers totally for these ills if one reckons the abysmally poor infrastructure that they have had to put up with and the incredible volume of work that is heaped on them. A commendable measure is the creation of the so-called fast track courts. One will have to wait for an assessment of its impact on the speed of proceedings.

I remember a former Chief Justice of India pleading for multiplying the number of existing courts on the basis of volume of work and the country's enormous population. While the logic is irrefutable, I am not quite sanguine that this will yield the desired result. What is needed is a new mindset.

Many criminal cases fail in court, to the utter horror of the victim, because the evidence suggests only a preponderance of probability and does not offer conclusive proof. In the not so distant past, while acquitting an accused one Judge hit the headlines by saying that he was morally convinced that the accused had committed the crime in question, but could not unfortunately convict him because of certain holes in the evidence. I quite appreciate the predicament of this Judge. This public admission by a Judge of his helplessness in dealing with the accused highlights the dilemma of the system.

In such a situation, it may help the ends of justice if more frequent use is made of Section 311 of the CrPC which permits any court to "summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined". Also relevant here is Section 482 which confers on High Courts inherent powers "to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". It will constitute a great change of judicial style if these provisions of law are applied in high-profile cases that had outraged the public sentiment, especially ones in which women and children had been the victims. Apart from enhancing public confidence in the judiciary, it will serve notice on the police that shoddy investigation will not pass muster and will actually invite judicial ire and consequent disciplinary action.

It must be acknowledged that the Supreme Court of India has lately displayed heart-warming anxiety over the need to tone up the efficiency of the criminal justice system. A rising crime graph and the increasing evidence of criminalisation of politics have possibly influenced it. Some recent judgments reflect a willingness to accept a slightly lower standard of proof in arriving at a verdict of guilt. This welcome change in favour of the prosecution is especially with regard to witnesses turning hostile for inexplicable reasons, the value to be attached to the evidence of an approver, the need to rely on the testimony of a rape victim even when unsupported by other evidence, and the significance of uncorroborated dying declarations. The bottom line is that the apex court will not countenance acquittals on flimsy technical grounds.

Finally, I am almost certain that the events in Gujarat will not fail to leave their impact on the judiciary. This is because Gujarat has exposed how the police, in the present scheme of things, cannot be expected to render the much-needed first aid to the victim. The National Human Rights Commission and the courts may have to step in with alacrity. There is great expectation that sooner or later the apex court will come out with a monumental ruling that will pave the way for enhancing the sensitivity and speed of the police and the lower courts, at least in cases where the weaker sections of society have been the target of collective violence. However, for this to happen, public opinion will have to be galvanised. The print and visual media have a major role to play in this. A brief exposure to the fundamentals of the criminal justice system for our students in schools and colleges through a suitable addition to the curriculum should help build a new generation of pressure groups which will demand, as a matter of citizen right, a proactive and impartial police and judiciary, especially at the grassroots.