Criminal Justice System In India only about 16 out of 100 people booked for criminal offences are finally convicted. Low rate of conviction points to the inefficiency of the Criminal Justice System of India – which includes the police, prosecutors, and the judiciary.

This results in a big problem of people losing faith in the Criminal Justice System of India – which is very dangerous.

The Government of India has been considering revisiting the Malimath Committee Report on reforms (2003) in the Criminal Justice System of India. In this context, the country’s Criminal Justice System is analysed the Malimath Committee recommendations and the need for reforming the system.

What is the Criminal Justice System (CJS)?

The Criminal Justice System (CJS) includes the institutions/agencies and processes established by a government to control crime in the country. This includes components like police and courts.

The aim of the Criminal Justice System (CJS) is to protect the rights and personal liberty of individuals and the society against its invasion by others.

The Criminal law in India is contained in a number of sources – The Indian Penal Code of 1860, the Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

CJS can impose penalties on those who violate the established laws.

The criminal law and criminal procedure are in the concurrent list of the seventh schedule of the constitution.

Background of the Criminal Justice System in India

The Criminal Justice System in India is an age-old system primarily based upon the Penal legal system that was established by the British Rule in India.

The system has still not undergone any substantial changes even after 70 years of Independence. The biggest example could be Section 124A of the Indian Penal Code (IPC) that defines sedition and provides for its punishment.

The entire Code of Criminal Procedure (Cr.P.C.) was amended in 1973.

The appointment of the Vohra Committee was the very first attempt towards reforming the Criminal Justice System in India. Vohra Committee report (1993) made an observation on the criminalisation of politics and of the nexus among criminals, politicians and bureaucrats in India.

In 2000, the government formed a panel headed by Justice V.S. Malimath, the former Chief Justice of Kerala and Karnataka, to suggest reform in the century-old criminal justice system.

The Malimath Committee submitted its report in 2003 with 158 recommendations but these were never implemented.

The Committee felt that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”

Why there is a need for reform in the Criminal Justice System in India?

In India only about 16 percent of people booked for criminal offences are finally convicted. Low rate of conviction points to the inefficiency of the Criminal Justice System of India – which includes the police, prosecutors, and the judiciary.

The system has become ineffective: The state has constituted the CJS to protect the rights of the innocent and punish the guilty but the system, based on century-old outdated laws, has led to harassment of people by the government agencies and also put pressure on the judiciary.

Inefficiency in justice delivery: The system takes years to bring justice and has ceased to deter criminals. There is a lack of synergy among the judiciary, the prosecution and the police. A large number of guilty go unpunished in a large number of cases. On the contrary, many innocent people remain as under trail prisoners as well. As per NCRB data, 67.2% of our total prison population comprises of undertrials prisoners.

Complex nature of the crime: Crime has increased rapidly and the nature of crimes are becoming more and more complex due to technological innovations.

Investigation incapability: It led to delay in or haphazard investigation of crimes which greatly contribute to the delay in dispensing prompt justice.

Inequality in the justice: The rich and the powerful hardly get convicted, even in cases of serious crimes. Also, the growing nexus between crime and politics has added a new dimension to the crime scenario.

The lowered confidence of common man: The judicial procedures have become complicated and expensive. There is a rise in cases of mob violence.

Recommendation of the Malimath Committee

Some of the important recommendations of the committee were:

Courts and Judges: There is a need for more judges in the country.

National Judicial Commission: The Constitution of a National Judicial Commission to deal with the appointment of judges to the higher courts and amending Article 124 to make impeachment of judges less difficult.

Separate criminal division in higher courts: The higher courts should have a separate criminal division consisting of judges who have specialised in criminal law.

The inquisitorial system of investigation: The Inquisitorial system is practised in countries such as Germany and France should be followed.

Power for court to summon any person: Court’s power to summon any person, whether or not listed as a witness if it felt necessary.

Right to silence: A modification to Article 20 (3) of the Constitution that protects the accused from being compelled to be a witness against himself/herself. The court should be given freedom to question the accused to elicit information and draw an adverse inference against the accused in case the latter refuses to answer.

The right of accused: A schedule to the Code be brought out in all regional languages to make accused aware of his/her rights, as well as how to enforce them.

Presumption of Innocence: The courts follow “proof beyond reasonable doubt” as the basis to convict an accused in criminal cases which is an unreasonable burden on the prosecution and hence a fact should be considered as proven “if the court is convinced that it is true” after evaluating the matters before it.

Justice to the victims: The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation. If the victim is dead, the legal representative shall have the right to implead himself or herself as a party, in case of serious offences. The State should provide an advocate of victim’s choice to plead on his/her behalf and the cost has to be borne by the state if the victim can’t afford it.

Victim Compensation Fund: A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated from organised crimes can be made part of the fund.

Police Investigation: Hiving off the investigation wing of Law and Order

National Security Commission and State Security Commissions: Setting up of a National Security Commission and State Security Commissions.

SP in each district: Appointment of an SP in each district to maintain crime data, an organisation of specialised squads to deal with organised crime.

Director of Prosecution: A new post, Director of Prosecution, should be created in every state to facilitate effective coordination between the investigating and prosecuting officers.

Witness protection: The dying declarations, confessions, and audio/video recorded statements of witnesses should be authorised by law. There should be a strong witness protection mechanism. Witnesses should be treated with dignity.

Arrears Eradication Scheme: To settle those cases which are pending for more than two years through Lok Adalat on a priority basis.

Offences classification: It should be changed to the social welfare code, correctional code, criminal code, and economic and other offences code instead of the current classification of cognisable and non-cognisable.

Substitution of death sentence: Substitute with imprisonment for life without commutation or remission.

Central law for organized crime and terrorism: Though crime is a state subject, a central law must be enacted to deal with organised crime, federal crimes, and terrorism.

Periodic review: A Presidential Commission was recommended for a periodical review of the functioning of the Criminal Justice System.

Key issues in the recommendations

Malimath Committee report recommends making confessions made to a senior police officer (SP rank or above) admissible as evidence. Confessions to police have repeatedly come under scrutiny because of allegations of custodial torture, instances of custodial deaths, fake encounters and tampering with evidence.

The report recommends diluting the standard of proof lower than the current ‘beyond reasonable doubt’ standard. It means that if a proof is enough to convince the court that something is true, then it can be considered as a standard proof. Such a measure would have adverse implications on suspects and requires considerable deliberation.

Reforms undertaken by the Government.

The government has implemented a number of recommendations like-

permitting videography of statements, the definition of rape has been expanded and new offences against women have been added. The victim compensation is now a part of the law.

The Government is in the process to draft a new Memorandum of Procedure (MoP) for the appointment of High Court and Supreme Court Judges.

The government has removed more than 1000 obsolete laws which came in the way of smooth administration.

The Government has given its approval for implementation of an umbrella scheme of ‘Modernisation of Police Forces’ with proper use of technology.

The Gram Nyayalayas and Lok Adalats were established to provide access to justice to the citizens at their doorsteps.

The Legal Service Authority Act was enacted by the Parliament with an object to provide free and competent legal service to the weaker section of society.

Problems of India’s criminal justice system :

1. India has many crimes but very few criminals, according to crime statistics. The criminal justice system in place is unable to apprehend them, put them on trial with proper evidence and get them convicted even after spending much time, money and human resources.

2. Personnel of the law (POLICE):

• Not sufficiently motivated and adequately trained for the job with accountability for performance.
• Political interference and infrastructural deficiencies.
• Police officers face excessive workload due to lack of manpower

3. PROSECUTORS:

• The appointment to these positions is often patronage to party  

           workers and sympathizers in the profession

• They are also paid much below the market rates for their services.

4. COURTS:

• Subjectivity pervades the system and judge’s professionalism.
• The trial courts grant frequent adjournments on flimsy grounds.
• System carries certain unwritten principles, which work in favor of criminals under the adversarial processes. These principles include “proof beyond reasonable doubt”, “the benefit of the doubt to the accused”, “burden of proof on the prosecution”.
• Low judge population ratio because of which the pendency of work increases.

Consequences :

1. Erosion of faith in the enforcement and legal mechanisms as also noted by 239th law commission report: This manifests itself in mob violence, khap panchayats and parallel illegal and unofficial justice mechanisms .
2. Thousands of under-trial prisoners are kept in overcrowded jails pending investigation and trial.

• Cases involving the security of the country and safety of women and children are getting delayed enabling evidence to disappear in the process.
• Many from weaker sections of society are unable to get bail or proper legal assistance Ex:  More than 50% of people in jails were dalits, muslims and tribal people in 2013 according to NCRB(National Crime Record Bureau) despite that their proportion in population is around 39%.
• Delayed justice also amount to justice denied.
• Weakness of system was brought to fore in the recent Arushi murder case where following the long trial , The Allahabad High court acquitted the parents on basis of shoddy investigations and contradictory conclusions

Concerns with the recommendations :

1. One of the controversial recommendation wants confessions to the police admissible in court as evidence if a senior police office of Superintendent of Police(SP) rank or above signs off on the statement.
2. Confessions to police have repeatedly come under scrutiny because of allegations of custodial torture, instances of custodial deaths, fake encounters and tampering with evidence.
3. Other recommendation suggests slightly lowering the criteria for appreciating evidence from the extant “proof beyond reasonable doubt” to improve the conviction rate.
4. Diluting the proof beyond reasonable doubt precept will prove to be counterproductive.

Other major reforms suggested by the committee are forward looking and aims to revamp the criminal justice system of india by making it more victim friendly and citizen oriented and calls for structural reforms in the judiciary, police and prosecution.

Right to remain silent

India

 The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.
The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Art. 14(3) (g): “Not to be compelled to testify against himself or to confess guilt.”

In US However, Adverse Inference does not apply in criminal actions where an individual asserts the Fifth Amendment right against self incrimination, but may be used in civil actions only

Article 20(3): Protection Against Self Incrimination And Right To Silence
The principle of protection against self-incrimination is a fundamental principle of the British system of criminal jurisprudence. From there the principle find its place in all civilized legal systems following common law jurisprudence. It has been adopted by the American system by the Fifth Amendment of the American Constitution, which provides that no person shall be compelled in any case to be a witness against himself. Thus the protection in American Constitution is available to all persons and in every proceeding, civil or criminal, and the Courts have given a very wide interpretation to the protection. Under Indian law the principle has been given Constitutional status by incorporating it under Article 20(3) of the Constitution. It says that-

“No person accused of any offence shall be compelled to be a witness against himself.”
In the Indian context, clause (3) of Art. 20 of the Constitution of India guarantees a fundamental right against self-incrimination. Art. 21 grants a further fundamental right to life and liberty and states that the liberty of a person cannot be taken away except by a procedure laid down by the law. The Constitution of India raises the rule against self-incrimination to the status of constitutional prohibition. The purpose of this protection is to prevent torture and inhuman treatment of the accused at the hands of investigating agencies to extort confessions.
What is stated in the Constitutions and Laws is quite evident. It is pleasing to note that the legal ideology resonates with the great minds which remain a guiding light even today. To quote a few
“It is better to remain silent at the risk of being thought a fool, than to talk and remove all doubt of it.” 

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