‘On the verge of collapse’

A.P. Shah: "There is a need for overhauling the system both at the investigation stage and in courts as well as prisons."

IN an interview with Frontline , A.P. Shah, Chairman of the Law Commission, highlighted the major problems of the country’s criminal justice system, including the large number of prison inmates who are under trial, the socio-economic profile of the prisoners, and the collapse of the legal aid system. Excerpts:

The 245th Law Commission report seems to blame the arrears and backlog of cases largely on poor judicial infrastructure. What are the limitations of this approach?

The report is in response to a reference from the Supreme Court which was primarily about the pendency of cases and related infrastructure issues—more courts, more judges and similar such issues—and therefore it is a limited report. There are other issues concerning access to justice. I feel that the judicial system as a whole is suffering from some very serious problems such as delays, high costs, a complete lack of court management, lack of efficient alternative dispute-resolution mechanisms. We have to address these issues. The criminal justice system is on the verge of collapse.

The Chief Justice recently said it was so broken that the process itself had become a punishment. There is a huge backlog, both civil and criminal. We have extremely archaic laws. We have age-old processes and procedures, which are not used in most countries. For instance, we need to update the Criminal Procedure Code [CrPC] and the Civil Procedure Code [CPC]. We need substantive changes in the procedural codes. The Commission is working on the amendments to the CPC in its application to commercial courts. This can then subsequently be used as a template for reforms in the CPC. We are also looking at a comprehensive review of our criminal laws. We are looking at various issues in the criminal justice system—right from policing to the prisons. For instance, the decriminalising of some offences; introducing new offences such as those relating to mass-scale communal violence; and rationalising the classification of offences into bailable, non-bailable, compoundable, non-compoundable. There is a need for overhauling the system both at the investigation stage and in the courts as well as the prisons.

The Chief Justice of India recently made a statement about the large number of undertrials in prisons. Why do you think this is so?

This shows the lack of institutional responses to the deprivation of liberty of undertrial prisoners. Though Section 436 (A) of the Indian Penal Code says that an accused should be released if half the period of punishment is spent as an undertrial, the provision is not being implemented. It includes offences other than those punishable with life, less serious offences. There is a lack of awareness among the prison authorities. There are a huge number of undertrial prisoners all over India. Former Union Law Minister Veerappa Moily took some initiative, following which lakhs of undertrials were released on bail. But the problem persists. Therefore, there is a need to rationalise our bailable and non-bailable offences. For every offence, the person accused need not be incarcerated for long periods. Perhaps, in some cases he need not be arrested at all.

The processes in the court are very archaic and not very litigant friendly. The Supreme Court made a reference last month to the Law Commission for a re-engineering of these processes in the lower courts. There is a need for the use of technology and simplification of processes. For example, technology can be used to make available to a judge whatever information is available with the prison authorities. All the information should be available to all the authorities, the bail and how long he has been in prison, etc., processes about payment of court fee. This project is being carried out with the help of the National Law University Delhi [NLUD].

We are looking at the use of technology at various stages to bring some kind of uniformity. The Supreme Court called for reports from the High Courts in this regard. The High Courts have given their suggestions and outlined existing practices. These reports have been referred to the Law Commission. We are looking at these reports. Finally, we will suggest to the Supreme Court how these processes can be rationalised on the basis of the best practices of the High Courts and we will make our own suggestions.

We are working on the criminal justice system where similar issues arise, such as lack of coordination between the courts and the legal aid system. These can be changed by useful application of technology. These are some of the issues that can be looked into apart from the infrastructure issues. We are taking up the issue of making alternative dispute resolution [ADR] mechanisms more effective. Though lok adalats are working reasonably, we have not really encouraged mediation in a comprehensive way. Section 89 of the CPC provides for ADR mechanisms. We want to make a report to the government to expand the scope of ADR.

The issue of Pakistani prisoners who have completed their prison terms still languishing in Indian jails has come to the fore once again. Some of these prisoners are being detained in prisons in Amritsar and Alwar, including prisoners who are mentally challenged, deaf and dumb.

This is absolutely shocking. Way back in 1993, the Supreme Court said that the maintenance and improvement of public health was one of the obligations of the state that flowed from Article 21. The necessary sequitur is that the mentally ill have a fundamental right to receive mental health care and humane living conditions. This is an implicit right in Article 21. When it was brought to the notice of the Supreme Court that a large number of mentally ill persons were detained in prisons and that they were termed as non-criminal mentally ill (NCL) by the prison authorities, the court declared that the admission of an NCL to jail is illegal and unconstitutional, whether he is a citizen of India or otherwise. This incarceration of mentally ill persons is absolutely unconstitutional, there is no doubt about it. The mentally challenged should not be in jails. Also, there is no law that can permit those in authority to detain a person once his term is over. I’m assuming that some of these prisoners have been detained in detention centres probably because their stay in India is unauthorised. But keeping them in imprisonment or their continuation in imprisonment is clearly illegal.

In response to a public interest litigation (PIL) petition in the Supreme Court asking for Pakistani prisoners to be freed, the Home Ministry filed an affidavit in which deaf and dumb persons were referred to as “goonga”.

This shows the complete lack of sensitivity on the part of the authorities concerned.

What can be done for the relief of these prisoners?

Someone should file a PIL on their behalf. They should be released and placed in a centre where mental health care is available. I’m surprised that this has taken so long.

The socio-economic profile of prisoners also often becomes a factor in the delivery of timely justice. How can our criminal justice system address these issues?

Yes, this is a reality. Let us take the case of the death penalty. Research, including recent surveys carried out by the NLUD and many other institutions, has shown that most death-row convicts who avail themselves of legal aid are unable to have lawyers of their choice. My perception is that for the poor the chances of getting convicted are higher than a person who gets adequate legal representation in court. This is a reality. A number of undertrials are in prison because they are unable to furnish bail bonds.

What are your views on the legal aid system as it is functioning at present?

The provision of legal aid is a part of the constitutional obligation of the state. The question is whether we have been able to provide competent and adequate legal representation for all the accused. Though we have some infrastructure—the National Legal Services Authority is the body that provides for the legal aid panel lawyers—the payment made to lawyers is meagre. In some States, the payment might not exceed Rs.500 per case. Many State governments are not prepared to raise the pay structure. Apart from that, there are no regulations specified for the assessment of the competence of legal aid. We have not checked the performance of the legal aid system at all. There is no mechanism by which a complaint against a legal aid lawyer or an insistence on change of lawyer can be addressed. No action can be taken against them at present. Only the Delhi High Court provides a scheme for reasonable payment to legal aid lawyers.

A relook at the system is much needed. One needs more funds for improving this system. A proposal to make a two-year compulsory stint with the legal aid system for lawyers could be one way of addressing this issue. Even if this does not happen immediately after graduating, at some stage of their career they can devote time for this kind of service.

We could look at the public defender system prevalent in the United States, where the state provides lawyers. There is a public defender’s office. The funding comes from both the State and the federal government. There is no training for legal aid lawyers. Lawyers without any experience are representing the accused. There are no ethical guidelines. Ideally, the Bar should provide a panel of 40-50 senior lawyers every year to the court who would devote some portion of their time to legal aid cases. The Bar also needs to engage in introspection. The law schools should have more sensitisation programmes for students to be more socially responsible.