The dust on the new criminal laws has not settled yet. And it won’t, if you ask me, for a very long time. Some of the amendments raise far more questions than they answer. Let alone the substantive provisions, even the ‘savings clauses’ (ironically, a clause that should - as the name suggests - save and not cause trouble) would lead to very complex litigation.
Some of these battles have already begun in courts across the country and are likely to benefit no one apart from counsel arguing these technical points, in favour of, or against, retrospectivity. These amendments, as someone wise said, would make the legal philosopher weep, and certain masters of technicalities laugh - all the way to the bank. For instance, High Courts have already taken conflicting positions on applicability of BNSS (the new-fangled Code of Criminal Procedure or CrPC) to offences that have taken place before July 1, 2024, and where investigation commences after July 1.
Though, in fairness, there are indeed some important additions such as: mandatory videography of searches/seizures, recording of testimony through VC etc. But having said that, many important areas of much needed reforms have been totally overlooked.
We all know that much ink has already been spilled over what can be termed as the: The Good, Bad and Ugly of the new criminal Laws, and I don’t intend to add to it. Instead, what this column attempts to do is put before you, briefly, some criminal justice reforms which we actually need (and deserve!) and on which the new laws say nothing at all.
But before I get into those, we must, at the very outset, confront a few things about our system's capacity:
There are over 4.5 crore cases pending in Indian courts, (When I started my career as a young magistrate, I had about 100 cases on my cause list - every day, on an average) with about 2.7 crore new cases coming in every year.
Roughly 87% of cases pending in India are pending before trial courts, which are, the first and last resort for most people in the country.
About 74% of these cases are criminal cases.
India has about 20 judges per 10 lakh people as opposed to 51 in the UK and about 107 in the US.
About 5,388 posts in the district judiciary are vacant.
About 26% of non-judicial court staff positions are vacant.
Roughly, US spends 10 times more (as a fraction of its GDP) than India does on the justice system. [From Karthik Muralidharan, Accelerating India’s Development: A State-Led Roadmap For Effective Governance (2024) & Data released at the National Conference of District Judiciary]
Even simple tests take years and years in forensic labs, which are utterly under-equipped.
And don’t even get me started on police reforms.
In this background, here’s what I propose:
1. Creating institutional capacity and increasing the number of trial court judges: So much has been said about this already that we’ve become desensitised to this phrase itself. But I must repeat this. As somebody who, as a baby-magistrate of 23 years, has had 100 cases listed before him on a single day, and who, despite decision-fatigue, struggled to do meaningful justice in all of those, I must say that the situation is more than dire. Passing laws is easy, creation of institutional capacity and competency is difficult. Merely adding a timeline to a task, in a top-down manner, and telling the trial court that you must now do 10 more things, and do them in a time-bound manner, is not going to solve the problem. We must have more judges. There’s simply no getting around this problem.
2. Empowering trial court judges through law clerks/legal researchers: There’s no system for this currently. We must equip our trial court judges with at least one legal researcher/law clerk to help them with legal research/notes, etc. Better trial court judgments would mean fewer appeals. This would allow constitutional courts to focus on the truly important legal, constitutional and interpretational questions of general importance, instead of day-to-day and purely private litigation which is best resolved before the trial courts (who've had the benefit of seeing the evidence play out themselves). This would also have the unseen benefit of exposing a lot of young lawyers to the life and role of a trial court judge and may help us attract even better talent at the district judiciary level. Further, this experience may increase the level and quality of trial lawyering in the country.
3. Amendments to criminal laws to make more offences compoundable: Currently, a huge number of offences are not compoundable but are being quashed by the High Courts in exercise of Section 482 of the CrPC, on an ad-hoc/case-to-case basis. This is hardly ideal. This is taking up valuable time of the constitutional courts and is encouraging ad-hocism in what offences can be quashed and what not, with different benches sometimes taking different views. For instance, in cases of Section 376 IPC and subsequent marriage between accused and victim, different benches have taken contrary views on whether such cases should be quashed on the basis of compromise or not. Making more offences compoundable (after proper deliberation) would introduce much-needed certainty in the law and unclog the dockets of criminal benches of the High Courts. These cases can then be compounded at the trial court or registrar court’s level. Saved time of High Courts can be used to decide bail applications, quashing petitions (which are currently pending for years and decades), and other matters involving personal liberty and constitutional interpretation (and there are quite a few!).
4. Accused’s right to counsel during investigation has to be recognised and put on a solid pedestal: There is absolutely no reason why this should not be done. We must recognise this immediately and require all arrests/interrogations to be compulsorily videographed. This would check instances of custodial torture and arbitrary arrests. BNSS mandates all searches/seizures to be mandatorily on-video. This is good, but there’s something else that the law needs to say. This provision should be tweaked to say explicitly that if a search/seizure is not videographed and there are no exceptional justifications for why not, then the evidence procured through such a search is rendered inadmissible and has to be thrown out. If this is not done, let me say this from experience - the police officers would continue to violate this safeguard with impunity (as happened in the case of the provision which, in 1973, made the presence of independent witnesses mandatory in all searches). A provision without a consequence becomes ‘directory’ and not ‘mandatory’ for all practical purposes. Further, the section should also be tweaked and recovery statements u/s 27 of the Indian Evidence Act should be included within its ambit. That is where we’ve seen a lot of false implications on the basis of planted items.
5. The concept of ‘co-operation’ in investigation has to be clarified, once and for all: Currently, merely because in the opinion of the police, a person is not ‘co-operating’ in the investigation (in other words, not saying what the investigating officer wants her to say), bails are routinely denied. The protection against self-incrimination has to be safeguarded and maintained. Law should be amended to define the contours of this expectation and making it subject to the constitutional right to silence.
6. All important and factual witness statements during investigation and statements before magistrates (u/s 164) to be mandatorily video-recorded, across the board.
7. All depositions at trial to be transcribed, or at least videographed: The current processes of recording of evidence where, on a good day, the judge and, on others, the staff/prosecutor translates what the witness says and records evidence, is hardly satisfactory. All depositions at trial should be videographed or at least transcribed. Data/cloud space is cheaper than ever, and the benefits of this would far outweigh the costs associated with the trial court (at the time of final hearing) trying to make sense of often inaccurately recorded/translated evidence. Also, this would allow the successor court (since trials don't happen day-to-day in courts and there are various changes in roster along the way) to also look at the demeanour better. We can start this off, first, in serious criminal cases and then extend to all cases across the board.
8. Mandatory perjury evaluation in all cases: Now, let’s admit it. Perjury is a way of life here in Indian courts. And it’s simply because one often gets away with it. Levelling of false charges, fabrication of forged wills/deeds is rampant. The law should be amended here. It should be the duty of the court (not just the power!) to initiate perjury proceedings wherever they acquit and find the testimony/document to be false and fabricated. Now that’s the way it should be, but that isn’t the case. Often, the already over-burdened court is only too happy disposing off the main matter and not opening, what they consider, a can of worms (collateral proceedings). It’s clear that the overburdened courts have no incentive to take up perjury matters. The process of Section 340 of the CrPC has completely failed. A part of it would be solved when we have more courts, but even within the existing system, there are things that can be done.
First, we need to mandate that judges have to undertake a compulsory ‘perjury evaluation’ in every case – at the end – and if it’s a case where false (and not just mistaken) evidence was led, then the judge, if perjury is not being initiated, would have to explicitly record reasons as to why not. Further, judges have a unit system (call them Key Performance Indicators for judges). We need to tweak the criteria to incentivise decisions on perjury more. Currently, there’s a huge emphasis on solving old cases, but not enough on this. The current point/unit system of assessing judges merits rewards disposal above all else. A serious rethink is needed on how we judge our judges and I have to lot to say on that, but that’s a discussion for another day. To summarise, in every case where false evidence comes up, there should be a mandate on the court to record reasons as to why perjury proceedings are not being initiated. Those reasons should be re-evaluated by a special committee. If perjury is of a material fact and prima facie proved, initiation of proceedings should be the rule and not the exception. This is the only way to check perjury which is rampant in Indian courts and for people to respect the value and meaning of an oath.
9. Strongest disincentives against misuse of criminal law in commercial, civil, matrimonial cases: About 74% of all cases at th district court level are criminal (especially when compared with only about 40% receipts of total cases in the UK). This is a very damning statistic and absolutely unheard of, across the world. Strongly punishing litigants and police involved in false cases would ensure civil cases remain civil. As an unintended upside, it may develop the law of torts, which is practically dead in India.
10. Make illegally obtained evidence (with a few exceptions) totally inadmissible: This has been recommended for decades now. Courts looking the other way on illegal evidence collection and procedural irregularities has ensured that the police has no incentive to improve its methods and has absolutely no accountability. Seen differently, there is no disincentive on cutting corners with the law. (Show me the incentive, and I'll show you the outcome, as someone wise said). Also, more police officers, separation of investigation from law and order and protection from executive influence is of extreme importance. (More on that, in another column!).
A few more suggestions in Part II.
Bharat Chugh is an advocate and a former judge.