Wednesday, May 12, 2010

Has The Criminal Justice System of The Country Collapsed? - Halsbury's Law Monthly

Halsbury's Law Monthly : Has The Criminal Justice System of The Country Collapsed?

Afair and effective administration of justice is the cornerstone of a free society and an essential component in public confidence in the institutions of a government. In the Indian context, fairness in administration of justice is envisaged inter alia in Article 21 of the Constitution that mandates that the trial of a citizen be in accordance with the procedure established by law. It is imperative that this procedure be accountable, transparent in its performance and capable of achieving fairness to the individual.

Many times, an analysis of the functioning of the criminal justice system tends to focus on the subordinate criminal courts. While these are no doubt crucial, they are not the only actor involved. A comprehensive analysis of the system must start from the Parliament and the State Legislatures, which through statutes create offences: there is hardly a statute that does not a have a part dealing with “offences and penalties”. Then we have the Executive-primarily the police-which has a dual responsibility: to prevent crime, and to investigate crime. Then come the lawyers, i.e. prosecution and defence counsel. Thereafter, come the trial courts, followed by the appellate courts (the High Courts and the Supreme Court of India). Finally we have prisons and prison authorities, parole boards, and so on. Each of these has an important role to play in the criminal justice administration system.
It would be worthwhile to take a look at the present day crime statistics. Between 1999-2007, on an average, about 51 lac cognisable crimes were registered each year in the States and Union Territories. One-third of these were Indian Penal Code (IPC) crimes and the rest were offences under special and local laws.

Under the Code of Criminal Procedure, as it exists today, the investigation of all criminal offences is by the police. The strength of the police force over the years (from 1995 onwards) has remained at between 12,00,000-14,00,000, the almost stagnant figures of the strength of police force and the continuing increase in the number of crimes is a disturbing trend.

The pendency of criminal cases in the subordinate courts is in the region of 1,13,16,599 cases and the effective strength of judges in subordinate courts is only 12,524. Courts are able to dispose of, on an average, only 27 percent of the pending criminal cases each year.

Around 2,50,000 undertrials are in prison. The state of prisons and lockups is a known cause for grave concern; overcrowding in prisons being the rule rather than exception. Around 70 percent of the prison population comprises undertrials: in 2006, of the 3,61,919 prisoners in jail, 2,45,244 were undertrials, and 1,16,675 were convicted persons. Around 69,00,000 people are arrested every year.

In India, not even 45 percent of people charged with serious IPC offences are ultimately convicted (42.3 percent in 2007). In other countries, like the United Kingdom, France, the United States of America and Japan, the conviction rate for similar offences is over 90 percent.

In actual practice, the problem of crime is much more serious than the official figures show. It has been estimated that one-third to one-half of all serious crimes are not reported due to a variety of reasons, including intimidation and harassment of the victims.

Of course, figures and statistics of convictions or acquittals or disposal of cases or pendency do not reflect the efficacy of the system. It is necessary to recreate the very crime, the investigation, the trial, the lawyering, the judgment and the appellate process to know what happened through the system.
Analytical models
The criminal justice system has been viewed by jurists mainly as the justice-oriented model (or the due process model) and the crime control model. In the crime control model, the criminal process is seen as a screening process in which each successive stage-investigation, arrest, post-arrest investigation, enquiry pending investigation, trial, trial or entry of plea, conviction, and punishment-involves a series of operations whose success is gauged primarily by their ability to pass the case along to a successful conclusion. Its ideal would be a crimeless society.

The value system that underlies the crime control model is based on the proposition that repression of criminal conduct is by far the most important function to be performed by the criminal process. Failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced, which is to say, if it is perceived that there is a high percentage of failure to apprehend, convict and punish in the criminal process, a general disregard for legal controls tends to develop. The law-abiding citizen then becomes the victim of all sorts of unjustifiable invasions of his interests. His security of person and property is sharply diminished. The claim ultimately is that the criminal process is a positive guarantor of social freedom.

In order to achieve this high purpose, the crime control code requires that primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of crime. To ensure that these demands are met most effectively, strict legal and procedural requirements must be done away with or significantly reduced.

It is important to note that the control model operates on the premise that quantitative results are sufficient, in themselves, to prove that the criminal justice system is functioning efficiently. Essentially, the crime control model rests upon the assumption that more the criminals are convicted, ‘safer’ the society is.

The core values underlying the due process model are liberty of individuals and presumption of innocence of the accused. Since liberty and freedom are the underlying principles of any democratic society and the criminal justice system seeks to take away from accused/individuals this very same freedom, this model seeks to impose adequate and suitable checks and balances, in order to preserve the guaranteed freedom. The due process model argues that since the criminal justice system rests ultimately upon the decisions and predilections of human beings, errors will abound.

Mistakes are made by witnesses, police, judges, prosecutors, and all other participants in the criminal justice system. Perceptions can be skewed, prejudice and bias can infect the process and evidence can be manufactured or ignored. What may seem a ‘watertight’ case at first sight, slowly dissolves when exposed to scrutiny. It is this process of scrutiny which the due process model holds most precious. Errors and abuses can be remedied only by formal adversarial hearings accompanied by robust procedural safeguards.

The Malimath Committee sought to introduce a new preamble into the Criminal Procedure Code, ‘the search for truth’, assuming that a criminal trial must advance the “search for truth”. It must also at the same time satisfy the society that it is a “just and fair” trial, otherwise the principles enshrined in the Constitution stand annulled by a blind drive towards an Orwellian order.

India is composite of the due process model and the crime control model. The endeavour should be to achieve a balanced level of functioning, where the police respects human rights, adheres to law, and takes confidence-building measures, and at the same time, firmly deals with organised crime, terrorism, white collar crime, deteriorating law and order situation, etc.

There has been a consistent effort by the courts in India to make the two approaches correspond with each other, an act of maintaining equilibrium between justice and crime control. Right from the stage of arrest, courts have kept a vigil and issued detailed guidelines to deal with issues relating to arrest and investigation.

It is difficult without adequate dialogical exercise to know what has transpired in the criminal justice system. Factual data/material gathered in an objective fashion alone can tell us what has gone wrong with the system.

Present day issues with the criminal justice system

Inquisitorial and adversarial systems
There has been a great deal of debate on the relative merits of the inquisitorial system and the adversarial system of justice. It must be made clear at the outset that under Indian law, inquisitorial system would be unconstitutional. It would completely militate against the principle of separation of powers, which is a part of the Indian democracy and constitutional framework. It would be impossible for a judge to distance himself from an investigation. It is only because of that separation that there can often be an acquittal of the innocent.
Right to silence
Right to silence of the accused as an inviolable rule has been the subject matter of much controversy. The accused is a good source of information, perhaps the best source of the commissioning of the offence, but this source is not tapped for fear of infringing the right to silence guaranteed by Article 20(3). The Article does not prohibit admissions on confessions made without inducement, threat or promise. It does not bar the accused from voluntarily offering himself to be examined as a witness.

It is arguable that in at least some categories of cases, the accused must be required to tell the court what he knows. A presumption to be drawn from his failure to give evidence may not be enough; it might well conflict with the presumption of innocence, hence there should be a positive obligation imposed by law on such a person to assist the investigation, and if so required, by court to give evidence. This would not transgress but further the purposes of law. For instance, it would not be a disproportionate response to the serious problem of terrorism.
Presumption of innocence
The presumption of innocence is a fundamental principle of our criminal justice system. The system of burden of proof is in fact relevant to support the presumption of innocence. A person is presumed to be innocent, until proved to be guilty. Protection of the innocent is as much the duty of the society. The protection of the innocent is the very basis of the Constitutional Articles 20 and 21; that is why the innocent is entitled to the highest normative consideration. The moment normative standards of proof are substituted by preponderance of probabilities, there would be a violation of the basic human rights that have been embraced by our Constitution.

Under the Scottish law, for instance, the concept of a fair trial is not solely a question for the accused. Lord Wheatley had said, “While the law of Scotland has always very properly regarded fairness to the accused persons as being an integral part in the administration of justice, fairness is not a unilateral consideration; fairness to the public is also a legitimate consideration.” The judge went on to say, “It is the function of the court to seek a proper balance to secure that the rights of individuals are properly preserved.”

That the crafty know how to manipulate investigation and manage evidence is another aspect which inspires a re-look at the justice model. Criminals have become so adept that they often outsmart the system. They know how to manipulate the investigation, how to manage the evidence, so that criminal cases come unstuck with the mysterious disappearance of witnesses, retraction of statements previously given and the like.
Hostile witnesses
The Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha in August, 2003 to implement measures designed to prevent the evil of witnesses turning hostile by inserting new sections, to ensure that evidence of material witnesses was to be recorded by the magistrate in certain cases, where investigation is of an offence punishable with death or imprisonment for seven years or more. Also, under consideration was summary procedure for the trial of witnesses deposing contrary to the statements recorded by the magistrates. But this provision has not been passed by the Parliament: they were omitted from the final Act, since the Select Committee decided to drop these provisions.
Witness protection
A witness in a criminal trial plays a very important role in determining the fate of the case. The problem of hostile witnesses leads us to the question, as to whether it is time to have a law like the Witness Protection Act, 1998, in South Africa, which established a central office for witness protection to function under the control of the Minister of Justice and the Constitutional Department. The International Criminal Tribunal for Rwanda has formulated rules for the protection of victims and witnesses. A similar provision exists in the creation for International Criminal Court. In fact, such a provision was introduced in POTA (since repealed). Such a provision may actually solve, to a large extent, the problem relating to witnesses turning hostile.
A successful criminal justice system is one which is able to function effectively as a watchdog of the people. This can be achieved by effective participation of the people. Because of the lack of awareness of the role which a citizen has to play in the fulfilment of the law, he does not step forward to become an accessory to the system. If every citizen were to take upon himself the duty to be a part of the law, help its administration in the capacity of a group or a movement, the criminal justice system would be far more effective. There is no substitute for public consciousness. This is only a counter check against misuse or abuse of power and the failure of the law in the stages of initiation as well as investigation, and in the trial of cases. It is not meant to subvert the judicial process, but it can certainly make the judicial process accountable.

No law can guarantee against dishonesty or ensure honesty. To subserve, law requires a moral motivation that calls for an exercise to be undertaken of truth/fact finding and reconciling the intrinsic anomalies and finding solutions. Given dynamism and goodwill, it is not an impossibility, but very arduous work.

Gopal Subramanium, Additional Solicitor General of India, has been practising law for twenty-eight years. A former Standing Counsel for the Union of India in the Supreme Court, he has appeared in a large number of landmark cases, among them Counsel for the Justice Varma Commission on the Rajiv Gandhi assassination, Counsel for the Justice Wadhwa Commission on the Graham Staines murder, and Counsel for the Justice Venkataswami Commission on the Tehelka tapes. He was appointed ASG in August 2005 and in the past three years has appeared for the Union Government in a string of important matters. He is also a member of the Advisory Panel on “Effectuation of Directive Principles” for the National Commission to Review the Working of the Constitution. He is an Adviser to the National Human Rights Commission, Member of the Governing Council of the Indian Law Institute, in 2007 he was also appointed a Member of the Committee for the Revision of Supreme Court Rules.

1 comment:

Dinah said...

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