The criminal justice system reforms India actually needs [Part II]

This is the second part in a two-part series, where I seek to lay out a few criminal justice reforms we actually need (and deserve!) and on which the new laws say nothing at all.

I spoke about 10 major issues in the last column. Here are a few more.

11. Case management: Most cases are listed only to be adjourned. This leads to a massive loss of productivity and wastage of judicial time. We need to create a system of asynchronous filing where parties file their pleadings not on the designated date (in front of the court) but within strict time-limits and between dates (like we do in international arbitration). Not filing within time-limits should precipitate an immediate hearing and for judges to impose costs/close rights. Once these are completed and the matter is ripe for a hearing, the matter should be immediately listed for the court's intervention such as framing of issues and then evidence. We can’t have cases listed after four months for parties to file a reply, and on that date for reply not to be filed, and for the case to be adjourned for another four months. And in this endeavour, we must encourage blue-sky thinking from people beyond law; people with expertise in design, management, administration, data, and HR, to mention a few.

12. Overhaul of the entire bail system: Most people in prison today are undertrials (about 76%). As opposed to this, the figure elsewhere in the world is 33% (one in three) as per the United Nations report on drugs and crime. [United Nations Office on Drugs And Crime: First Global Research Data] This is a most damning indictment of our system. Despite this, day in and day out, bail hearings become hearings on merits and evidence is routinely and elaborately tested during hearings, and bail denied. Sometimes, law is the culprit. For instance, statutes such as the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA) make it incumbent on the accused to show prima facie innocence at the stage of bail. Sometimes, it is the relative conservatism of courts in matters of grant of bail. Many a time, bail is denied because the charge is serious and granting bail would send a wrong message. This is problematic and must change. The scope of a court’s scrutiny at the time of deciding a bail application needs to be laid down with precision and clarity.

For instance, it needs to be clarified that bail in a case cannot be denied solely on the ground of alleged ‘gravity’ of the case; this is for the simple reason that an accused is entitled to presumption of innocence, especially when the other factors are in favour of the accused and there is no chance of theaccused running away from law or otherwise tampering with evidence. I’d further stick my neck out and suggest that it needs to be clarified explicitly that inadmissible evidence cannot be relied upon in order to make a finding as to the seriousness of the case with a view to denying bail on that score.

13. Judicial safeguards before arrest : Given the rampant abuse of power to arrest and the total lack of accountability, arrests after issuance of warrants by a court should become the rule, and not the exception. Except in exceptional cases where permission of the court cannot practically be obtained, in all other cases, no arrest should be made without the court's permission. Arrest has grave consequences for the life of a person, and this decision cannot be taken casually. Once you check this arbitrary power of arrest, you'd see a huge fall in the number of false criminal cases because most of these cases are filed with a view to get the party arrested and to settle scores or strong-arm a financial settlement.

14. CCTV footage in police stations: This has been needed for long. CCTV in police stations and supervision by a magistrate is imperative to check chances of custodial torture. Further, the magistrate should be empowered (and encouraged) to visit and inspect police stations within his jurisdiction at any time. The looming fear of a “magistrate’s inspection” can keep a check on custodial torture and the rampant practice of off-the-record arrests.

15. Sentencing is broken: The way we sentence our people is deeply unscientific. There is a significant disparity in sentencing for similar crimes. Subjective factors like personal ideologies and different interpretations of law cause different judges to impose vastly different sentences for comparable offenses. There is a need for comprehensive, standardised sentencing guidelines for consistent and certain sentencing outcomes.

16. The system of plea bargaining needs a complete relook: In India, there’s absolutely no incentive for people to plea bargain or plead guilty in serious cases. Most accused are confident of their ability to delay and protract proceedings. The logical question they ask themselves is: why take up 3 years imprisonment (in a case punishable with 7 years) if one could delay the trial for a decade, during which witnesses would either forget (consciously or unconsciously) or not be there anymore. Currently, it is a particular category of cases and accused who opt for it. These are relatively small cases and accused without sophisticated legal teams. Once we expedite criminal trials and put the fear of foreseeable punishment in people, we’d see more people pleading guilty/doing plea bargaining and not just capturing the cost of a protracted criminal trial within the crime.    

17. Costs are never actual or real: Costs must compensate the wronged party and the system for the loss actually suffered. They have to be realistic and actual. Courts still routinely impose ₹500/1,000 as costs, which is hardly a proportionate estimate of losses actually suffered by the system and the opposite party in a wasted hearing.

18. Clarity on unrelied upon documents/prosecutorial duty of disclosure within CrPC: Section 173 and 207 of the Code of Criminal Procedure (CrPC) should be totally recast. There should be a duty on the investigating officer (IO) and the prosecution to collect and disclose all evidence that is material to the case, and not just incriminating evidence that the ‘prosecution seeks to place reliance on’. This would be in line with the prosecutorial duty of disclosure as outlined under the Bar Council Rules and various judgments such as Manu Sharma, V K Sasikala, Nitya Dharmananda, Ponnusamy, In Re: To Issue Certain Guidelines, Ashok Solomon etc. Further, if the IO has spoken to any witnesses who are not made prosecution witnesses for whatever reason, that also should be disclosed to the defence with a view to give them a fair opportunity to examine them in defence. This is in line with best global practices. These safeguards and disclosures are important because an accused does not have the benefit of the investigative apparatus of the State to dig out evidence and put up a good defence. Complete disclosure would help the accused make out a fair defence case. We need to help ease the information asymmetry between accused and the prosecution and provide a level playing field.

Parting words

This is by no means an exhaustive list and much of this has already been talked about. These are indeed suggestions both big and small. If you take care of the small things, the big things take care of themselves. And sometimes, you just need to reimagine the system as a whole, radically. I understand that many of these reforms would need money to be spent by the government. But as economists and public policy specialists have noted [Karthik Muralidharan, Accelerating India’s Development: A State-Led Roadmap For Effective Governance], the returns/gains on that investment/expense would far outweigh the costs.

Rule of Law is crucial to building a country’s economy, encouraging legitimate investment and credit circulation. This is the very beating heart of a modern economy. Prudence, therefore, demands we reprioritise and spend more money on the justice delivery system, not just for the sake of those unfortunates who find themselves embroiled in litigation (civil or criminal) but for us as a society.  

Easy solutions such as making new laws, increasing punishments and imposing timelines (without creating capacity), as I’ve demonstrated, are not going to lead to any real change. Unfortunately, there are no easy solutions to this problem. The above are the really difficult questions that governments have to confront and work on. And these have always been the ones most ignored. The reason? Well, justice delivery reforms have traditionally not been great vote-catchers.

Therefore, I’ll end this rather long monologue by appealing to the reader, as a fellow citizen, to first change that. We need to learn to prioritise systemic improvements in the justice delivery system and reward those who genuinely work on those, if we are to have any hope as a country in which justice is seen to be done and the Rule of Law is upheld.

Bharat Chugh is an advocate and a former judge.