The Present Scenario: The Urgency of Reforming
The failure to render speedy justice by the Indian courts on heinous gangrapes and murders of women have raised multiple questions and intense debates on the entire criminal justice system. Citizens of India seem to have been losing their faith from the country’s justice apparatus – which was eminent from their joyous reception of the ‘encounter’ of the four alleged rapists of a doctor from Hyderabad. Citizens have been so frustrated with the criminal justice system as it inordinately delays so much in delivering justices even on atrocious cruelties and heinous crimes that they showered rose petals on Telangana police officers for executing the rapists. This showering of the rose petals was actually an expression of relief over the quick police operation that citizens believes that justice was done, but we need to understand the inch-perfect ramification of the lure of ‘instant justice’.
The clamour for rapid action – ‘teaching a lesson’, ‘on the spot justice’ – results from the gospel that the country’s criminal justice system has been inefficient and a failure. And this cannot be totally denied if we consider the delay in trails. Our justice apparatus is so dismal that even after a criminal gets convicted, the appeals which follows up leads to an additional delay of around four to five years. Classic examples of such delays can be seen in the cases of Ajmal Kasab and painful Delhi gangrape case of 2012. It took six years to hang Ajmal Kasab after he monstrously killed innocents in Mumbai. Speaking of Delhi gangrape case, already seven years have been passed and they are yet to be hanged. Such inordinate delay wipes out the citizens’ faith from the law and they start hero-worshipping those officers who carry out “encounters” of criminals.
Moreover, due to delay, witnesses lose their interest or stop attending hearings. Sometimes even documents are lost, seized weapons misplaced, investigating officers transferred which creates further problems in trials. In such scenarios, a few shootouts by police like what we saw in Telangana, are applauded because otherwise not much seems to happen on the ground. However, such joyous reception of an “encounter” depicts that malady runs deep & recovery is so far that shortcuts become preferred mode of execution. Thus, instead of submitting to the band-aids, government should try to reform the broken criminal justice system. But, before bringing in changes and reforms, home ministry must identify the lacunas in the system, the provisions that are to be revised and also provide a justification for doing so. Amendments made so far were mainly focused on specific offences, provisions or classes of offences. Hence, emphasis needs to laid down on new types of offences, reclassification or removal of the already existing offences & most importantly changing the quantum of punishment.
Factors to be Considered
While the government thinks of bringing in reforms into criminal justice system, it should critically consider the fact that though criminal laws demands for a revision, but it does not require any unprincipled or unguided amendments. Therefore, the language of the IPC, the general principles of criminal law and the rules which would govern its interpretation must be considered first. A well-conceived reform within the existing laws will automatically translate into huge reforms in the criminal justice apparatus. The criminal law is regarded to be the most evident expression of the relationship between a state & its citizens. Hence, any revision of the Indian Penal Code must be done while considering several principles.
First, a major thrust ought to be given in victimological underpinnings while reforming the laws in order to identify the rights of the crime victims. Introducing victim & witness protection scheme, advent of victim advocacy, utilizing victim impact statement, increased participation of the victims in the criminal trials, increasing the scope for compensation & restitution of victims will help in increasing the victims’ participation in the criminal justice system.
Second, interpretation of new offences & revision of the prevailing classification of offences needs to be informed by the philosophy of criminal jurisprudence that has substantially changed in the past few decades. For example, question over liability in offences needs a fresh look. By critically scrutinizing criminal liability, new degrees of punishments could be assigned. New types of punishments such as restitution orders, community service orders and other facets of restorative & reformative justice could be a few alternative options.
Thirdly, the scheme of chapters & classification of offences needs a drastic revision. Offences such as sedition, criminal conspiracy, offences against coin & stamps etc. needs to be replaced or abolished. Several chapters of IPC are overloaded at different places. It is meaningless to have hundreds of sections under the head of property offences. Further, the chapters on contempt of authority, offences against public servants, public tranquillity and trespass can be redefined & narrowed down. New offences can be classified and introduced under a fresh scheme as per suggestions of the Malimath Committee on criminal justice reforms. Classification of offences needs to be done in a manner that is conducive to the management of crimes in future. (Click on the following link to find the 20 key recommendations suggested by the Malimath Committee: http://bit.ly/2NK05HG).
Unprincipled criminalisation needs to be avoided in order to save the state from dealing with the numerous entrants into the criminal justice system. Unprincipled criminalisation leads to creation of new offences on unscientific grounds as well as brings arbitrariness in the criminal justice system. Thus, before criminalising an act as a crime, guiding principles must be developed in order to avoid such issues.
On the procedural front, bringing in reforms on sentencing has become imperative. It is crucial to have principled sentencing dictum as otherwise judges presently gets the discretion of deciding the nature & quantum of sentence to be imposed. Moreover, often it is found that different convicts get different sentences for crimes of same gravity or nature.
It seems that the criminal justice system is suffering from a state of policy ambiguity. The government needs to draft a clear policy which would brief the changes to be envisaged in CrPC or IPC. Another systemic flaw is non-adherence to certain theory of punishments. Usually, depending on its convenience, the criminal justice system swings between the hypothesis of deterrence, retribution & reformation. Hence, bringing in reforms will not be of any consequence until there is a complete reform of the entire criminal justice system including police reforms, prosecution & judiciary, to restore the lost confidence of public in the criminal justice system of the country.
Besides having reforms government also needs to assess the gap created in human resources and fill up the vacancies; increasing and strengthening the availability of justice service in backward or isolated areas; ensuring representation of marginalised and diverse groups; proper allocation of budget to every section of the justice system; improving transparency; conducting periodical reviews; and having empirical research on policymaking. Additionally, a criminal reform justice committee should be formed with a mandate of evolving criminal justice policy. It should work in furtherance to the work already done by the Malimath Committee, the Menon Committee and the Law Commission of India on the Criminal Justice System. All these together can only help in reforming the broken criminal justice system of India.