Contemporary problems in administration of justice in India: Answers to a questionnaire formulated by the Committee on Reforms of the Criminal Justice System

Basil Fernando

With a view to revamping its criminal justice system, which is on the verge of collapse, the Indian Ministry of Home Affairs has constituted the Committee on Reforms of the Criminal Justice System. The committee has prepared a questionnaire to elicit suggestions and recommendations from knowledgeable persons. On behalf of the Asian Human Rights Commission (AHRC) I submitted answers to the Committee, of which the following are a selection.

PART A: LAW AND JUSTICE

SECTION I: ADVERSARIAL SYSTEM & RIGHT OF SILENCE

1.1 Do you think that the adversarial system as followed in our Country has contributed to satisfactory dispensation of criminal justice? If not what changes do you suggest?

The unsatisfactory state of criminal justice in India has nothing to with the adversarial system. The reason for that unsatisfactory situation lies elsewhere. India’s social structure and attitudes are very much conditioned by entrenched habits of discrimination. There are various forms of discrimination, among which one may mention caste discrimination, discrimination of indigenous (tribal) people, and minorities. Discrimination weighs heavily on the justice system. This has created severe obstacles for development of India’s justice system in general and the criminal justice system in particular. The investigative machinery regarding crimes is terribly underdeveloped, both in terms of attitudes as well as facilities. Further, the justice that one may get is also associated with poverty. The level of poverty in India is so appalling that the result is that the poor cannot afford justice. Beside this, the management of the criminal justice system is backward, inefficient and obsolete. Poor human resources and technical resources affect every area of the system.

Under these circumstances it can be said that the adversarial system has never stood a real chance in India. To the extent it has been effective it has mitigated the operation of traditional prejudices, however India continues to subsist under the Law of Manu, instead of modern rules of justice. It is against the background of the real history of India that the legal norms established by the British must be judged. In that light we see two things: first, new rules helped bring down the rigour of repression in the old system; second, old habits and practices prevented wholesome developments under the new principles.

The effect of abandoning the adversarial system will be negative for the people who have been less powerful in society throughout Indian history. Under the pretext of abandoning the adversarial system what seems to be underway is an effort to in fact abandon the more progressive aspects of the law, for the purpose of getting more easy convictions.

Hong Kong has an adversarial system. There is no move to change it. Instead much has been done improve it, by creating better police and a system of control of corruption by means of an independent investigative body, leading to improvements in the quality of rule of law and justice.

1.2 Do you favour investigation of cases being done under the supervision of the Judge, as in the inquisitorial system as in France?

First it should be noted that many aspects of the inquisitorial system have come under heavy criticism in the European Court of Human Rights, and also from many French jurists. Now the tendency is to modify the inquisitorial system by incorporating many aspects of the adversarial system.

It is na?e to think that the civil law system merely involves having an inquiring judge. That system has had its own historical development and one of its major advantages is its mechanism to guide police investigators to act legally. That system requires a very highly developed police force. If India could develop such police, then there would be no need for any change because the adversarial system itself would function well with such an advanced policing system.

It must also be noted that a civil law system would be more expensive. In the place of one judge required for a court, there would have to be two—one inquiring judge and a trial judge—doubling the problem of finding good magistrates in India. It is already difficult to find one judge for every court: how much more difficult will it be to find two?

Above all it would take a long time to create the mental habits needed to operate this new system. Under all the best circumstances it might even take over half a century to get used to this new system. Given the slow Indian (South Asian) capacity to adjust to change, it may take even more time.

Instead it would be better to seriously address the defects of operation in the adversarial system in a comprehensive manner, and improve its real operation. This would mean improving the policing system, prosecution system and judicial system—particularly in the lower courts and those excising criminal jurisdiction.

1.3 In the system presently followed, the accused enjoys the “right of silence”, which often comes in the way of search for truth in criminal cases. Should this be changed requiring the accused to disclose his defense, once the prosecution case/charge levelled is made known to him?

The importance of the right of silence is that it ensures an efficient investigation into a crime before filing charges. That a person should be charged only if the prosecution has sufficient evidence to ensure a conviction is a very important principle. Otherwise there will be frivolous charges in the hope that perhaps the accused will incriminate himself or herself. As it stands now, when there is serious evidence against an accused the burden shifts to him to explain the matters in his disfavour. Thus, the principle is rich enough if the criminal investigations are done well, if the prosecutors are competent, and if the judges are well educated to deal with these principles. In contrast, if merely because a charge is filed the accused has to reveal his defense, the police and prosecutors will take more chances with their cases, instead of respecting the principle of the presumption of innocence.

It must also be noted that in the social circumstances of India, the opportunities for many accused to get good legal advice—or any legal advice at all—before making a defense are much less than in a developed country. Poverty and ignorance obstruct such opportunities. Through fear and other reasons an accused may put forward what he thinks is a better defense than the truth. Then the prosecutors can demolish the defense and expose the person as a liar. In my view, given the complex nature of human responses when faced with fear of punishment, it is very dangerous to demand that a person give a precise defence without he himself choosing to do so.

Demanding a defense beforehand will also reduce criminal trials to civil standards and blur the difference between the two. Given the fact that a person’s life and liberty is at risk, reducing criminal trials to the same level as civil ones is immoral. To me this suggestion implies a great departure from the principles and practices of criminal law, which have been developed with great effort.

SECTION II: BURDEN OF PROOF

2.1 Do you favour proof on the basis of preponderance of probabilities as in civil cases, instead of proof beyond reasonable doubt?

I am absolutely opposed to it. To effect such a change goes against the very fundamentals of criminal trial, which deal with the life and liberty of individuals. Civil disputes deal mainly with property matters and criminal trials deal with the life and liberty of people. If a person is to be sentenced to death on the preponderance of probabilities that is a mockery of justice. The same applies to imprisonment. Such a change to the standard of proof would trivialise criminal justice. A direct outcome would be the further degeneration of the police investigators and prosecutors. It would open the road for miscarriages of justice, which even now take place under a more strict burden of proof.

2.2 If no presumption of innocence or guilt of the accused is drawn, do you think that such neutrality would impact unfairly or lead to failure of justice?

Of course it would destroy the very fabric of the criminal justice system. As the presumption of innocence of the accused was developed after a long struggle against very barbaric practices, not long after the removal of this presumption the system would surely fall back into such black practices.

2.3 In some laws, the burden of proof is placed on the defence by raising certain rebuttable presumptions against the accused. Do you think that similar presumptions should be raised in respect of other offences? If yes, please indicate such offences.

The practice of placing rebuttable presumptions should be limited as much as possible, and in India (South Asia) in particular, where the police have yet to establish a reputation for acting in a fair manner.

SECTION III: PLEA-BARGAINING/SETTLEMENT WITHOUT TRAIL/ COMPOUNDING OF OFFENCES

3.1 Do you favour introduction of the concept of ‘plea-bargaining?as is practised in USA?

While the concept of plea bargaining itself need not be rejected, some preconditions should be set out, such as representation by competent counsel. Given the social context of India, where many poorer persons become accused, they can be pressurized into bargaining even when they have had nothing to with the offence. In such circumstances the threat is that, “You may lose the case and if you fight you’ll be punished severely—so why not bargain for lesser punishment?” Thus a legally weak position of an accused without competent counsel can be exploited, even when the prosecution is aware that its case is a weak one.

3.2 Do you favour the scheme of “Concessional treatment for offenders who on their own initiative choose to plead guilty without any bargaining” as recommended by the Law Commission of India in Chapter IX of its One Hundred and Forty Second report?

This statement merely restates a practice that has existed for a long time. It is also supported by such considerations as self-remorse and regret for wrongdoing. However, even in these instances it is the duty of the judge to ensure that the accused is in fact acting freely and is well advised legally. Again, in the Indian social context this must be a primary consideration.

3.3 Do you favour enlarging the number of offences compoundable with or without the permission of the court? If yes, indicate such offences.

This should not be allowed for serious crimes. Particularly, the compounding of offenses should not allowed for crimes where offenders are state officers: for example, acts of torture by police.

3.4 Do you favour incorporating a general provision in the Criminal Procedure Code (Cr. P. C.), to the effect that unless otherwise expressly provided, all offences under special enactments shall be compoundable?

No. The general principle should be that compounding of offences is not allowed unless specifically stated otherwise. Once again what is at stake is the very nature of criminal trial. Criminal trial will be trivialized if all criminal actions can be compounded. It will also encourage further corruption where police in particular will try to make greater profit. This will also adversely affect offenses against persons belonging to specially protected groups, such as women and “low castes”. Further, it will affect the judicial mentality, which for the purpose of easy disposal of cases will develop bargaining habits instead of judicial habits. The same will happen also to the quality of lawyers.

Easy compunding of cases will encourage crimes. Like the proverbial Roman who felt that he could hit people and then pay them a small sum, criminals too can easily benefit from such a situation.

3.5 Do you favour enlarging the scope of Sec. 206 of Cr. P. C., by making it applicable to all offences where penalty prescribed is fine with or without imprisonment?

This should become a general principle. Threat of imprisonment is necessary for prevention of crime. More serious crimes, if proved, must result in imprisonment. Payment of fines is not enough. Payment of fines as the only punishment will also benefit the rich and act to disadvantage the poor. Even now many people go to prison for non-payment of fines. Finally, the special offences for protection of weaker social groups will become meaningless without the threat of possible imprisonment.

SECTION IV: SENTENCES AND SENTENCING

4.1 The predominant global view, including international conventions, appears to favour the abolition of death penalty. The Supreme Court of India has ruled that death penalty is not unconstitutional, and may be imposed in rarest of rare cases. Do you favour the abolition of death penalty? If so please indicate the reasons.

Yes. Life imprisonment exists as an alternative and that is quite enough punishment. Further, more and more cases are coming to light that indicate miscarriage of justice in a significant number of cases ending in death sentences. Discovery of a miscarriage of justice after execution is futile for the person concerned and his or her family. And further, the people who end up with death sentences are mostly the poor.

4.2 In the absence of a statutory definition of “imprisonment for life” the said expression has “imprisonment for life” to mean imprisonment till death, as is in vogue in several countries?

The legal definition should leave much discretion to the judges in determining imprisonment till death, subject to an absolute fixed minimum term. However, it is also necessary that in cases of serious crimes the term of imprisonment not be subject to easy reductions. In the future, when offences such as crimes against humanity are likely to enter into criminal codes, it will be necessary that a difference in punishment be maintained depending on the nature and the gravity of crimes. A set of guidelines can be developed to this end.

4.3 The punishments provided under Sec. 53 of Indian Penal Code (IPC) are death, imprisonment for life, imprisonment—rigourous or simple, forfeiture of property and fine. In many countries, there are other types of punishments, including rendering community service. What new forms of punishment do you suggest for various offences?

For less serious crimes, offenders who are not hardened criminals with demonstrably bad records, and young offenders, community service is a better form of punishment. Working for voluntary organizations dealing with humanitarian issues is even better, and orders to follow compulsory courses on humanism conducted by approved groups can also be useful and may contribute to rehabilitation. The state can develop more creative rehabilitation programs, which can combine basic moral and ethical education plus skill training.

Where offences are against specially protected groups such as women and “low castes”, convicts can be ordered to go through special orientation courses, and where possible do community service related to the victims of this social group. This can help to reduce the prejudice levels and improve tolerance.

PART B: INSTITUTIONS

KINDLY NOTE that my comments on this section are subject to overall consideration that the improvement of the institutions of justice—courts, police and prosecutors—depend on weeding out corruption and ensuring that a system really works. Improvement of this or that part of a system in order to avoid existing problems will only lead to the reappearance of the problem under the new arrangement.

The matters you have in your questions under this part all speak to one overall concern: CONFIDENCE IN THE SYSTEM. All parties—judges, police, prosecutors and the public—need to have real confidence. For this it is necessary to break the demoralization that presently pervades all these segments of society, particularly among the public.

To illustrate how confidence can be built, I offer the example of Hong Kong, where the system has really being improved. In Hong Kong improvement was based on the development of an outside agency—outside the police in particular—which deals with corruption in a very comprehensive manner. If corruption is not decisively addressed, no other efforts will lead to any substantial change. Judicial institutions in particular need a decisive agency for dealing corruption

Below I include a brief history of Hong Kong’s Independent Commission Against Corruption (ICAC), taken from its website, at [http://www.icac.org.hk].

The Independent Commission Against Corruption was set up in 1974. Since its inception, the Commission adopts a three-pronged approach of investigation, prevention and education to fight corruption. With the support of the Government and the community, Hong Kong has now become one of the least corrupt places in the world.

But how serious was the problem of corruption in Hong Kong before the ICAC was established? What was the reason for setting up an independent body to fight graft? Let us now take a look at the history of the setting up of the ICAC.

Hong Kong was in a state of rapid change in the sixties and seventies. The massive growth in population and the fast expansion of the manufacturing industry accelerated the pace of social and economic development. The Government, while maintaining social order and delivering the bare essentials in housing and other services, was unable to satisfy the insatiable needs of the exploding population. This provided a fertile environment for the unscrupulous. In order to earn a living and secure the services which they needed the public was forced to adopt the “backdoor route”. “Tea money”, “black money”, “hell money” – whatever the phrase – became not only well-known to many Hong Kong people, but accepted with resignation as a necessary evil.

At that time, the problem of corruption was very serious in the public sector. Vivid examples included ambulance attendants demanding tea money before picking up a sick person and firemen soliciting water money before they would turn on the hoses to put out a fire. Even hospital amahs asked for “tips” before they gave patients a bedpan or a glass of water. Offering bribes to the right officials was also necessary for the application of public housing, schooling and other public services. Corruption was particularly serious in the Police Force. Corrupt police officers covered up vice, gambling and drug activities. Social law and order was under threat. Many in the community had fallen victims to corruption. And yet, they swallowed their anger.

Corruption had no doubt become a major social problem in Hong Kong. But the Government seemed powerless to deal with it. The community patience was running thin and more and more people began to express their anger at the Government’s lukewarm attitude towards tackling the problem. In the early seventies, a new and potent force of public opinion emerged. People pressed incessantly for the Government to take decisive action to fight graft. Public resentment escalated to new heights when a corrupt expatriate police officer under investigation succeeded in fleeing Hong Kong. The case provided the straw that broke the camel’s back…

The Independent Commission Against Corruption (ICAC) was established in February 1974. Since its inception, the Commission has been committed to fighting corruption with the three-pronged approach of investigation, prevention and education.

SECTION VI: TRIAL/COURTS/JUDGES

6.2 Do you think that the present level of equipment and experience of the Judges of the Criminal Courts is adequate and satisfactory? If not, suggest appropriate improvements.

Above all the change needed is one of mentality. Judges must be able to use modern communication and administration methods. However, for that they must feel that the system they are leading is really working. Above all they need higher morale. It is a common principle that every profession needs improvement. How you bring it about is another matter.

6.3 In the present system, Judicial Magistrates First Class are recruited from amongst Lawyers having about four years of practice at the Bar. Do you think that this experience is inadequate?

If proper managerial training can be provided, four years experience should be enough. However, how do you measure experience? There must be objective measurement by way of tests. Some serious tests can be developed to go into all areas of ability before recruitment.

6.16 Witnesses are often subject to serious threats to life/ property by the accused or their supporters. What measures do you suggest to protect the witnesses?

The causes of such threats can be removed only by strong anti-corruption measures, as suggested above. Systematic threats and intimidation take place due to the weaknesses of the system. The people who intimidate feel that law enforcement is weak and they can do what they like. Without improving the overall system it is not possible to change such a mentality.

6.20 Do you subscribe to the view that Judges should be accountable? If so, suggest measures?

Immunity of judges for their professional work is a fundamental principle. Their neglect or corruption must be dealt with under an efficient system of control as suggested above. To address such issues in ad hoc way will lead to more problems.

SECTION VII: INVESTIGATION

7.2 What measures do you suggest to improve the quality of investigation by the Police?

The quality of investigations will depend on accountability. Improving police is a very hard nut to crack. A strong anti-corruption strategy, completely outside police control, is essential. Besides that there should be education and training.

7.3 Should there be a cadre of Investigating Officers devoted exclusively to investigation of cases? If so, what should be their qualification, and rank?

There should be such a group. But this group must be under supervision of officers of higher rank. In the long run, without a strong anti–corruption agency such a group can turn out to be very dangerous. When crime is organized by the police themselves, it is this type of special group that becomes its hard core. The control of police must be through an outside source, such as the ICAC in Hong Kong.

7.5 It is becoming more and more difficult to obtain reliable oral evidence. The use of modern scientific evidence has therefore become indispensable for proof. But unfortunately, the forensic science techniques available in our country are neither adequate nor up-to-date. What measures do you think should be taken to improve the situation?

Introduction of forensic facilities of the highest quality is essential. Funds must be provided for this; in fact, they are a priority. Attempts to improve the system will fail if more adequate forensic facilities are not provided.

7.17 Do you favour the confessional statements made by the accused during investigation being video recorded I the presence of an officers not below the rank of Dy. S. P. [Deputy Superintendent]?

Till the whole system goes through thorough reform it would be dangerous to do this. Police act as a group. High-ranking officers will only be used to give credibility. The problem as it stands now is that many high-ranking people are not reliable. If they were reliable, the system would not be bad. Their subordinates would not do wrong things. If the subordinates are not reliable then the superiors too are not reliable. Higher rank often means higher craftiness and not higher morality.

SECTION VIII: PROSECUTION

8.1 Do you think that the level of prosecution is far from satisfactory? If so, what improvements do you suggest?

In AHRC’s understanding of criminal justice in Asian countries, the weakest link in the system is the prosecution. We have particularly studied Sri Lanka, where this weakness is very obvious. There we have been making recommendations for changes during the last few years. The major defect lies in not incorporating the changes that have taken place in common law countries during the 20th century and instead keeping the same practices that British introduced in the 19th Century, which the British have since changed in their own country. I believe this is also the case in India. In our view it is more appropriate to adopt these changes rather than trying to adopt aspects of the inquisitorial system. The adversarial system has improved its prosecution systems during the last century. The prosecutors?branch in the UK, US and Australia has developed more sophisticated prosecution strategies. One area of improvement is that investigators must keep prosecutors informed of cases from the very start, and be guided by their legal advice. To achieve that, the prosecutors?branch has spread competent prosecutors throughout all parts of the judicial system in these countries. The central body provides guidelines and supervises the work. This way the excesses of investigators can be prevented and negligence addressed. Thus, bringing criminals before courts becomes a joint responsibility of prosecutors as well as investigators. Hence the improvements of these common law jurisdictions must be studied and adopted.

8.2 Do you agree that Prosecutors are often appointed on political and other irrelevant considerations and not on merits? If yes, what measures do you suggest to ensure appointment on merit of competent Lawyers as Prosecutors?

The presence of political influence is a common perception. A real alternative to that is the ICAC-type of strategy suggested above. Without such an alternative there will be no change, as better people will find that they are not allowed to work professionally by others motivated by different factors. The recruitment of better persons must be accompanied by serious reforms to deal with corruption.

8.11 What in your opinion are good and proper grounds for withdrawal from prosecution?

A prosecution case should be filed only when there is a likelihood of a successful prosecution. Thus, in principle, there can be no grounds for withdrawal. However, a settlement arrived at in court or in a manner acceptable in law may be a ground for withdrawal. Withdrawal at will only shows that the prosecution should not have been undertaken at all. As putting an individual to trial is a very serious matter for that person the filing of prosecution must be considered thoroughly and carefully before it is done. The prosecutors owe serious explanations if they are to withdraw a prosecution.

8.13 Are you in favour of notifying the victim before granting permission to withdraw from the prosecution, and to give him an opportunity, to continue the prosecution, if he so desires?

Absolutely. At all stages the prosecution must keep the victims aware of all that is happening to their cases. Victims rights must not be taken away by the prosecutors. The last word on these issues must be left to the victim.

PART D: GENERAL

10.9 Protection of Human Rights of the Citizens is one of the important responsibilities of the Criminal Justice System. Do you think that the performance of the Criminal Justice System in protecting Human Rights is satisfactory? If not, suggest improvements.

It is not satisfactory at all. Systemic problems must be corrected by addressing them in a decisive way and introducing an ICAC-type institution. Meanwhile:

  • Legal redress must be provided to victims of human rights violations.
  • India must ratify the Convention Against Torture.
  • Torture must be made an offence with serious punishment provided to offenders.
  • Human rights claims must receive priority in courts.
  • More compensation must be granted to victims.
  • Violators should be debarred from the civil service.

    10.10 Do you think that the existing laws dealing with crimes against women, children, Dalits and the disadvantaged persons do not adequately safeguard their interests? If yes, suggest appropriate amendments.

    There need to more improvements. Details can be provided later. The most important aspect is the implementation of existing laws. For example, there are many laws relating to Dalits but they are hardly implemented. The reasons for non-implementation should be studied. One obvious reason is the attitudes of the law enforcement agencies. Radical change is needed in this area.

    10.24 What measures do you suggest to employ information technology for improving the functional efficiency of administration of the Criminal Justice System?

    ALL aspects of the criminal justice system must be revolutionized by the introduction of computers, data processing, web-sites and other communication systems. Advice of experts must be sought. A whole new section in the justice system must be established to this end.

    10.25 If there are any aspects not covered by the above questions, feel free to offer your suggestions.

    My feeling is that the questions must be reworked to provide greater emphasis on overall fundamental changes than small changes here and there. What is needed is an overarching strategy for improvement of the criminal justice system. In that I consider the following most important:

  • Address corruption.
  • Change the prosecution system.
  • Radically change the communication system.

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