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What ails the criminal justice system of India?

The Criminal Law Blog
By Professor  

For any liberal democracy, it is imperative that the justice system works well. It is one of the defining traits of any mature democracy and hallmark of a free country. We have much to celebrate. Being a relatively new country, our justice system is fairly refined, especially if we compare it to other countries our age or in our geographical vicinity. Nonetheless, the system is under tremendous pressure to maintain legitimacy. So, what are the biggest challenges?

The first and the most visible of the challenges is the sheer workload that the justice system has to deal with. The police, which is usually the chief investigating agency in India has a ratio of 138 police personnel per 100,000 citizens. This is much lower than the sanctioned strength of 182 officers per 100,000 citizens. If we compare this data with that of other nations, in the United States, it is at 229 per 100,000 and 505 in Spain. Similarly, courts are massively overworked. This means policing is carried out under a lot of strain.

Additionally, many of our institutions suffer from what can be described as a ‘colonial’ hangover. The institution of police, for example, was instituted to bring about fear and compliance in India under the British Raj. The idea was to have a force that would suppress any unwelcome voices and crackdown on any dissidents. Many remnants of that culture unfortunately still remain. Whilst things are improving, steady change needs to happen in order to make the police trusted and respected rather than feared.

Other investigative agencies are in need of reform as well. The much-respected Central Bureau of Investigation has been described as a ‘caged parrot’ by the Supreme Court. These issues of accountability, as well as transparency, cause a great dent in the system and the legitimacy that it enjoys.

With 3 crore plus cases pending before the courts, it will take many years for the backlog alone to be cleared. Practitioners, as well as academics and laypersons, have repeatedly mentioned the huge amount of pending cases. For instance, Arun Shourie, in his book titled Anita gets bail: What are our Courts doing? What should we do about them?, has documented and shared his frustration at how slowly the justice system works. Many litigants will die awaiting justice. Many prisoners are awaiting being charged and tried. Using technology, innovative methods and ensuring compliance with the rules, delays have to be minimized. Adjournments have to be reasonable and timing between hearings should be reduced. Case management should be strict- to ensure speedy justice.

Finally, as a society, we also need to work towards a system where the principles of criminal jurisprudence are adhered to. The right to a fair trial- for both the accused and the defendant must be respected. This is a right enshrined in the Constitution under Article 21, and any civilised society must afford the right to a fair trial, even in the most heinous of cases. We also need to ensure the doctrine of ‘innocent until proven guilty’ is followed. Trials by media need to stop immediately. We have seen the havoc that it can cause, for instance in the Arushi Talwar and Hemrajmurder case. Knee-jerk responses to problems that merit a lot more discussion need to be stopped. Extrajudicial killings, by both state and non-state actors, must be controlled and condemned strongly.

Community involvement in the justice system will go a long way in improving the justice system. Most other countries, by way of juries and community policing, bring in an influx of community presence and participation in the justice system. We need to think of ways to do this. Community presence has the benefit of giving a sense of belonging to the general population.

The Nobel Laureate, Amartya Sen, famously said that perhaps our focus should be on removing injustice rather than situating ‘justice.’As a society, we need to get rid of the inertia and employ modern methods to deal with modern problems. Policy makers, those involved in the justice system and citizens need to come together to sustain our justice system.