Disentangling the threads of a broken criminal justice system

Every actor – the police, the accused, lawyers, judges, prosecutors – wants to go to trial. Change the incentives

After not publishing the annual Crime in India Reports for almost two years, the National Crime Records Bureau (NCRB) recently cleared its backlog, by sharing reports for both 2017 and 2018 in the past month. Considering how voluminous and complex these documents are, it is encouraging to find newspapers — including this publication — take the effort of presenting the information in a digestible manner, spurring debate and discussion.

To a large extent, these efforts end up spurring criticisms and laments about one thing — that the Indian criminal justice system is being crushed under its own weight, with delays now plaguing all the units that make up this system.

The conversations following this output of data have been largely predictable — get more judges, more courts, and stricter timelines in place, and things will get better. These investments in the system’s infrastructure will surely help. However, it is foolhardy to think that a pendency level of almost 25 million cases at the trial court level is being caused only because of poor infrastructure.

In a new paper (written and published before the NCRB released its data for 2017 and 2018), I argue that a fair share of the blame for India’s long-standing crisis of pendency in the criminal justice system lies in how our system is being operated. Or, put another way, we have millions of cases pending in trial courts not because we have a perfect system which is broken, but because the system itself is being worked in ways that are bound to cause delays.

As it stands, the Criminal Procedure Code 1973 has many funnels in place. These kick-in from the investigation stage itself, to test whether a given case really deserves to go to trial or not. The funnels vest discretion in the individual officers, be it police officers or the magistrates, who decide whether or not there is sufficient basis to proceed further with a case at each stage.

This makes sense. Trials are long-drawn procedures, which come at significant costs for taxpayers, and also cause great hardship to persons who are accused without credible material.

Under this mindset, it does not make sense to send every case for trial, and it is accepted as a bitter truth that some guilty people are bound to escape the law, for there is no perfect system.

A close look at the NCRB data suggests that the manner in which the criminal justice system is being run is almost entirely contrary to the manner in which the statute is designed. The funnels have been rendered redundant, with the police filing chargesheets in almost every case, and the judges treating trials as the default procedure.

Consider the latest NCRB numbers. For Indian Penal Code (IPC) offences, police file chargesheets in almost 70% of cases, and judges take up trials in a staggering 89% of the total cases that they disposed off. It is hardly a surprise, then, that almost 50% of these trials end up in acquittals (and, since this is an average figure, it masks what are wildly varying rates of acquittal for specific offences).

My preliminary research in this area, based on experiences in Delhi, suggests that the answers for “why trials?” are complex. At the level of police investigations, one factor appears to be the distrust of police discretion, leading them to recommend most cases for trial. The situation in courts is different.

Here, a long-drawn trial ends up being the rational choice for all actors in the system, where these actors are guided by different connected considerations.

For instance, an accused person knows the conviction rate is low and is happy drawing a matter out; in the case of an indigent defendant, legal aid lawyers may be driven to opt for trial, since in many States they are paid on an appearance basis. At the same time, when parties are interested in settling a dispute, they are often barred from doing this at the level of the trial court itself and have to go before the high court.

Judges and prosecutors may be driven to opt for trials because of more bureaucratic tendencies. Judges are hard-pressed to “manage” their caseload, and thus may simply avoid hard decisions to maximise the disposal of cases on a daily basis. Similarly, even though the prosecutors are given the discretion to, say, recommend withdrawal of what they think are bogus chargesheets, ultimately they are also part of a bureaucratic structure, where every step they take requires prior permissions and many explanations. Ultimately, the easier choice is to simply go with the flow.

To a certain degree, trials are supposed to be cumbersome, taxing, and time-consuming, for, at the end of the day, an individual’s liberty is at stake.

Thus, to argue that the law should “make trials faster” to reduce delays is, frankly, wrong. What that leads us to are farcical procedures, which end up being set aside in appeals and compounding injustice. Rather, we need to shift the conversation to ask why have the filtering processes been abandoned, and why are there so many trials happening in the first place?

FUNNELS, WHICH VEST POWERS IN POLICE OFFICERS OR MAGISTRATES TO DECIDE ON WHETHER THERE IS SUFFICIENT BASIS TO PROCEED WITH THE CASE, HAVE BECOME REDUNDANT. TRIALS HAVE BECOME THE NORM