Preventing the slide in criminal justice system : The Tribune India

KK Paul

Former Governor.

Afew years ago, the Supreme Court of England, in an important constitutional matter, had ruled that the suspension of Parliament by Prime Minister Johnson was unlawful. This unanimous ruling from 11 judges of the highest court of England was delivered after just three days of hearing. Contrast this with a situation in our country where the constitution of the Bench itself might have taken more time. That apart, it is the pendency of about four crore cases at various stages of trial in our courts which is more worrying as it has a direct bearing on rule of law. This is also a true manifestation of the ground realities, besides being reflective of the state of the criminal justice system.

Even after 75 years of Independence, this is one area of governance which remains untouched by any meaningful reforms, and today, the process itself appears to have become the punishment. Beset by endless delays, uncertainties and mounting expenses in seeking justice, people are losing faith in the system.

The rule of law is the foundation on which a modern state rests. The onus to ensure this is on the law enforcement agencies and criminal justice system. The words criminal justice system as a single entity do not exist in any of the three Lists mentioned in the Seventh Schedule of the Constitution, but taken together, the system integrates the police, police procedures, criminal procedure as well as judicial proceedings.

Pendency of criminal cases has a serious collateral damage as a number of cases which might have ended in conviction end in acquittal because of the time factor leading to witness apathy. As such, reforming the system to make it more responsive, efficient and less expensive would require the issue to be addressed comprehensively so as to restore the confidence of the public.

The core of the criminal justice system revolves around the Indian Penal Code 1861, Evidence Act 1872, Code of Criminal Procedure 1898 and the Police Act 1861. As may be observed, all these laws are of 19th century vintage. Except for some minor changes here and there, they have by and large retained their original character.

The problem was studied by the Law Commission vide its 239th report, but instead of focusing on expeditious trials and reduction of arrears, the report merely dealt with the negligence of police departments. The existing police procedures were meant for the public when the literacy levels were very low. These procedures continue to remain so, despite the significant modernisation of infrastructure and forensic technologies. For instance, it is time the statements made to the police during investigation are read over and got signed, with a copy handed over to the maker. Section 162 of the CrPC which bars this must be amended as such. At the time of trial, this could be used for corroboration or contradiction. It is also quite a paradox that a confession recorded by a district SP or even a DGP remains inadmissible whereas the law recognises confessions recorded by even non-gazetted ranks from other investigative agencies. Section 25 of the Evidence Act needs to be amended accordingly.

In view of the recent pronouncements from the Supreme Court on matters of arrest and bail, instead of the present cognisable and non-cognisable, a reclassification of offences should be done into three categories: cases with no arrest, arrestable only with warrant and arrestable without warrant. Similarly, considering the ambiguities, the guidelines for the courts in matters of bail need to be made very clear. Both these changes are of a fundamental nature and will help turn a new leaf in law enforcement as well as prison reforms.

A major factor for delayed trials is the repeated adjournments by the courts on trivial grounds. These need to be limited, with the court exercising greater control over the proceedings. In fact, the provision of sessions trials being held on a day-to-day basis is more or less being ignored by the courts, as if it did not exist. Also, despite the pith and substance of the argument being fully covered, advocates continue to speak for long durations of time. Courts can fix time limits in consultation with the advocates so that the arguments are concise. Written submissions can also be taken. For the completion of investigations by the police in certain heinous cases, a limit of 90 days is fixed in law, failing which the accused becomes entitled to statutory bail. But the trial even in such cases continues for years. The time stipulated for the completion of trials in such cases needs to be specified.

Inadequacies in the number of judges and courts need to be made up in proportion to the quantum of work. Cases where punishment is three years or less should be tried summarily. Consequently, the maximum punishment for summary trial cases can be raised to three years. For the higher judiciary, an increase in the working hours and a reduction in the days of vacation need to be given a serious thought.

It is understood that more than 40 per cent of all pending cases in courts have either the State or the Central government as a party. Their number is increasing as reportedly the officers appear to be shy of taking decisions. A meaningful review of all such cases would at least show some reduction in pendency.

The recent SC judgment in the PMLA case of Vijay Madanlal Choudhary has opened new vistas. If these principles could be applied to cases under the PMLA, they should also be applied for some specific offences under the IPC. The burden of proof under Section 24 of the PMLA lies with the accused, i.e., he has to prove his innocence rather than the prosecution proving him guilty. A peculiarly inconsistent situation could be where an accused has committed a murder for money. A murder has a death sentence or life imprisonment as maximum punishment with all the constitutional safeguards for the accused. But the maximum punishment prescribed under the PMLA is only 10 years, but the same accused would not have any constitutional protection available to him for the possession of proceeds of committing that very murder.

Justice Malimath had suggested in 2003 to the MHA that in criminal trials, instead of the current adversarial system, we should go in for an inquisitorial system, as in Europe. This would have improved the rate of conviction and at the same time speeded up the delivery of justice. The suggestion was not accepted at that time.

Now, in light of the SC’s pronouncement in Vijay Madanlal case, perhaps, time has come to have a fresh look at the criminal justice system and extend the analogy to some of the more heinous IPC crimes. Strong measures need to be taken; the fast-eroding credibility of the system has to be brought back to restore the faith of the common man seeking speedy and affordable justice.