To fix India’s criminal justice system, weed out the corrupt first
The highest proof of virtue is to possess boundless power without abusing it.” So said Thomas Babington Macaulay, the famous English writer and historian remembered for drafting, almost wholly by himself, two of our legal codes; namely, the Indian Penal Code (IPC) of 1860 and the Criminal Procedure Code (CrPC) of 1872.The two statutes have stood the test of time and form the core of the criminal justice system. They come down heavily on those who break the law without seeming to be too harsh. Both have undergone changes to meet the needs of a modern society. For instance, the CrPC was replaced with a brand new text in 1972, a vast improvement over certain anachronistic features of the earlier enactment.
Several committees have explored how best to fine tune our criminal law so that the guilty are punished swiftly and adequately. The most important of these is the Malimath Committee (2003), which submitted a report carrying 158 recommendations, and which rightly highlighted the fact that our criminal justice system is weighted in favour of the offender rather than the victim.
For instance, even when a trial judge is convinced of the guilt of the person(s) arraigned, he is inclined to let him off on trivial and technical grounds, such as a delay in filing a First Information Report, a lack of corroboration of evidence adduced by an insignificant witness and a failure to obtain sanction for prosecution (in cases involving a public servant). The search for 100% proof of criminality, an unimaginatively strict adherence to procedure and rejection of a somewhat inaccurate recall by a witness of facts buried in the sands of time characterise major shortcomings of our judiciary.
Almost everyone, therefore, knows what the malady is, but we have not found a cure to help punish the offender and bring down the criminality. We are no doubt impressed with the anxiety of governments to mend the law so that justice is rendered to victims of crime in quick time. Last week the government referred in Parliament to a committee set up in late-2020 to go into reforms in the system. We are told the process of consultation with citizens is in progress. This is good, as far as it goes. We should not, however, expect miracles because the system is so complicated, requiring several players to be enthusiastic and honest, two rare commodities in current society.
We are concerned here with the sinking levels of competence and integrity of the three principal actors involved. A lot has been done to raise the emoluments of police personnel and improving their living conditions. If some are still corrupt, we need to come down with a heavy hand, The same is true of prosecutors, many of whom are not only incompetent but who indulge in questionable practices. I remember the Central Bureau of Investigation (CBI) coming down heavily on them on a few occasions. This is welcome if only to deter prospective delinquents in a highly sensitive organisation. I wonder whether criminal law changes can specially target dishonest police investigators and unethical prosecutors. If need be, we can have a special enactment to handle this category of offenders.
The third player in court proceedings is the magistrate. The prevalent view is that blatant dishonesty has crept into this cadre. This is unfortunate, but is understandable because of the appalling conditions of service in the lower judiciary and the equally miserable infrastructure imposed on them. To understand the gravity of the situation, one will have to merely walk into one or two courts in the district towns. Overcrowded and unhygienic are the first two adjectives that come to my mind. Successive chief justices of India have spoken on this and pleaded with governments, but only with a marginal impact.
Amendments to criminal law will be a joke if corruption at all levels in the system is not brought down and courts are better staffed and housed. In sum, the somewhat pathetic state of our criminal justice system is not because we have defective laws, but key people who constitute the system are either incompetent or dishonest, or sometimes both.