Reformation of any law is welcome, since law is static, but human society is dynamic. Laws often become inefficient and unrealistic with the passage of time. As criminal law gets older, the culprits find more and more loopholes to escape punishment. Reformation often implies and even mandates the elimination or at least reduction in the existing shortcomings in the law.
In India, major part of criminal justice consists of the three laws --the Indian penal code of 1860, the Indian Evidence Act of 1872, and the Criminal Procedure Code (1882) amended in 1973. In addition there are many smaller legislations dealing with specific kinds of offenses and their punishment.
Any one even remotely acquainted with the criminal justice system in India, will be perturbed by the striking shortcomings. Huge delay and many procedural hurdles in the criminal case adjudication. Even a simple case of theft or assault would takes years for a final verdict of guilty or not guilty. The second is the very small percentage of conviction, despite use of huge manpower, long period of time, for investigation and adjudication, all at the cost of the tax payer’s money and the ultimate result is zero.
Thirdly, the marginalisation of the victim of a crime. Paradoxically, a victim remains a victim of the crime life long, with whatever deprivation or injury or loss he or she has suffered and continues to suffer. The victim is given least importance in the criminal justice system, which itself is a gross injustice. Finally, punishment, though the purposes of punishment in the criminal justice system are deterrence, rehabilitation, retribution, and restitution. None of these are achieved by the prescribed punishments.
Therefore, it is imperative that any reformation in the criminal justice system, should tackle these four cardinal problems of criminal justice system, if not irradiate at least minimise these deep and painful gaps in the system.
The first of this concern, the long delay in the termination of a criminal case. Many countries world over, have adopted innovative methods like, case management, use of information technology, plea bargaining opportunities , even ADR, etc and have ensured that no criminal case remains unsettled beyond six months of its commission, why couldn’t India adopt suitable methods to speed up the Trial, if its, lack of manpower, there is need to recruit more judicial officers, allow retired judges to function on a defined package and ensure courts are able to function in shifts, like, Day courts, evening courts & night courts . Indian administrative machinery should learn to move swiftly and promptly.
The minimum conviction rates, is a blot on the system. There is need to hold officials responsible. Most of the cases of acquittal are either due to failure to adduce required evidence, or the investigating officials not following the required mandatory procedures of investigation. Both of these are human errors, and the officials who are guilty of the same are left scot free. For every acquittal there should be an answerability on the erring official. In addition to service restrictions like demotion, suspension etc, there has to a monetary penalty because such officials often use government machinery to ensure the release of an accused person for monetary benefits from the accused for their lapses.
Thirdly the victim of the crime has to be centre stage of the criminal proceedings, for without a victim, there is no crime. Besides, the victim is the one who suffers the most as a result of the crime. Therefore, the criminal justice system should be oriented and focussed towards adequately compensating the victim of the crime. It becomes the responsibility of the state to put back the victim to his/her original position prior to the crime, as nearly as possible and as best as possible and as practical as possible. It’s not enough that the victim is merely treated as a witness to the crime. If victim restoration is the prime aim of the criminal justice system then the manner and types of punishment for various crimes will get duly transformed. For example, even after Nirbhaya’s case and the 2013 amendment to the Criminal Law making several changes in rape and sexual crimes and investigative procedures, rape and gang rapes does happen in India, one reason may be the inappropriateness and the inadequacy of punishment. If the punishment for rape is changed to that the perpetuator of the crime has to give 50% of all his assets and properties received and receivable, and in the event the perpetuator has no such assets he should provide 50% of income for the next 25 years to the victim and in case of death of the victim to her family, most of the rapes especially those instigated by caste/communal bias or revenge will all come to an end.
This leads to the larger question of how effective is the Indian system of punishment? If the system does not achieve any of the aims of punishment, why continue the same? Tax payers money is used to maintain these prisons, providing free boarding and lodging to the criminals, some even becoming seasoned criminals because of state sponsorship of their imprisonment. There is an increased rate of recidivism, among criminals. Some criminals even ensure that they get the best of medical treatment, all free of costs. Why the law-abiding tax payers should be burdened with this totally unwanted and undesirable expenditure. Shouldn’t India, invent a method wherein criminals are made to pay for their keep and care?
Reformation of the criminal justice should attempt to eliminate or at least reduce these glaring defects in the system. Remember, when the British made the criminal law they made it for Indians, their subjects. Now that, we Indians are making laws for Indians, it should be better in quality and higher in objective.
(The writer is a Professor of Law & an education consultant)