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The Madras High Court has directed the constitution of a Committee to recommend measures for reforming the criminal justice system. Justice N Anand Venkatesh passed an order to this effect on Wednesday, after evaluating district-wise data concerning criminal cases, convictions and acquittals submitted on the Court’s direction.
Inter alia, the Court took critical note of certain patterns followed by the State police in handling criminal cases. This included the filing of FIRs to boost statistical count and the proclivity to invoke preventive detention powers under the Tamil Nadu Goondas Act (formally titled the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyberlaw offenders, Drug-offenders, Goondas, Immoral Traffic Offenders, Forest-offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982).
With particular reference to preventive detention, the Court pointed out that Tamil Nadu has recorded the highest number of detention for five years as per National Crimes Records Bureau data. The judge observed,
“These statistics tellingly point to the callous and often indifferent manner in which the authorities have gone about resorting to the provisions of Act 14 of 1982 [Tamil Nadu Goondas Act]. Preventive Detention law has become a shield for shabby and defective policing. The very fact that Tamil Nadu has retained its unenviable first place in the number of detenues in all States would clearly show that law and order in this State is clearly resting on rickety foundations.”
The abuse of preventive detention powers was all the more evident from the fact that a majority of preventive detention orders were inevitably struck down by the High Court. As noted in the order,
“As a matter of fact, an examination of the orders passed by the Madras High Court in April 2017 alone … reveals that 313 out of 358 petitions were allowed and detention orders were quashed. In the residual 45 cases, most of them had become infructuous either due to the period of detention having lapsed or on account of the order being revoked by the Government.”
Calling out the sorry state of affairs prevailing in the State, Justice Venkatesh observed,
“The situation calls for a thorough revamping of the Criminal Justice system in this State. It looks like the police are caught into this Vicious cycle. That shows on the poor record of convictions in serious crimes. Instead of finding a complete cure for the disease, police seem to be looking for temporary solutions without curing the disease. Unless we agree that there is a serious problem, there is no scope for change/improvement.”
Therefore, the Court directed the constitution of a five-member heterogenous committee to make recommendations to enhance the quality of criminal investigation. The committee is to comprise of the following members:
The Committee has been tasked to examine the following aspects, i.e.
The Court has requested that a report on the same be submitted within eight weeks. Further, while passing the order, Justice Venkatesh also made certain interesting observations concerning goals of criminal justice as well as the need to view criminals in more empathetic terms.
No one is born a Criminal
Justice Venkatesh devoted a fair part of his order to examining whether criminals deserve to be viewed in black-and-white terms, especially given that “free will is an illusion”.
In his order, he opines that criminals are essentially moulded by factors beyond one’s control.
“Our wills are simply not of our own making,” remarks Justice Venkatesh.
The observation was made in juxtaposition to the basic premise that people have complete control over behaviour. As noted in the order,
“The criminal justice system starts with the premise that we have complete free will on our behaviours, Criminal or otherwise. The only exception being that of an act of a person of unsound mind and that to at the time when the offence is committed.“
However, in his ensuing observations, Justice Venkatesh indicates that such a simplistic view is flawed.
“The artificial intelligence pioneer Marvin Minsk’s once defined free will as ‘internal forces I do not understand’. People intuitively believe in free will, not just because we have this terrible human need for agency but also because most people know next to nothing about those internal forces…
Extensive studies in Neuroscience has conclusively proved that Free will is an illusion. Our wills are simply not of our own making. Thoughts and intentions emerge from background causes of which we are unaware and over which we exert no conscious control. We do not have the freedom we think we have.”
He goes on to point out,
“You did not pick your parents or the time and place of your birth. You didn’t choose your gender or most of your life experiences. You had no control whatsoever over your genome or the development of your brain. And now your brain is making choices on the basis of preferences and beliefs that have been hammered into it over a lifetime—by your genes, your physical development since the moment you were conceived, and the interactions you have had with other people, events, and ideas.
Where is the freedom in this? Yes, you are free to do what you want even now. But where did your desires come from?“
In this backdrop, he highlights that no person is born a criminal and calls for a more empathetic understanding of those who become criminals.
“No one is born as a criminal. The men and women on death row have some combination of bad genes, bad parents, bad environments, and bad ideas (and the innocent, of course, have supremely bad luck).
Which of these quantities, exactly, were they responsible for? No human being is responsible for his genes or his upbringing, yet we have every reason to believe that these factors determine his character. Our system of justice should reflect an understanding that any of us could have been dealt a very different hand in life.
In fact, it seems immoral not to recognize just how much luck is involved in morality itself.“
Acknowledging our natural limits
“Viewing human beings as natural phenomena need not damage our system of criminal justice,” Justice Venkatesh emphasises. He goes on to explain,
“If we could incarcerate earthquakes and hurricanes for their crimes, we would build prisons for them as well. We fight emerging epidemics—and even the occasional wild animal—without attributing free will to them. Clearly, we can respond intelligently to the threat posed by dangerous people without lying to ourselves about the ultimate origins of human behavior.”
While this is the case, the need for a criminal justice system has practical connotations in the interest of larger society. As noted in the order,
“We will still need a criminal justice system that attempts to accurately assess guilt and innocence along with the future risks that the guilty pose to society. Certain criminals must be incarcerated to prevent them from harming other people.
The moral justification for this is entirely straightforward: Everyone else will be better off this way.
But the logic of punishing people will come undone—unless we find that punishment is an essential component of deterrence or rehabilitation.”
The Court goes on to add,
“The above prelude becomes necessary in order to change our mindset in dealing with criminals who in majority of the cases require Reformation, Rehabilitation and Re-integration into the mainstream of the society.
Criminal Justice System in a Welfare State
“A true barometer to assess a welfare state is to watch how it deals with its Criminals”, states the order.
While indicating that there is a need to change mindsets when dealing with criminals, the Court pointed out that most cases require Reformation, Rehabilitation and Re-integration of the criminal. It went on to observe,
“‘Once a Criminal Always a Criminal’ [mindset] is the result of the present system prevailing in this state. We have forgotten the fundamental purpose of Criminal Justice system which is reformation, rehabilitation and re-integration of the convict into society.
If an accused is pushed to the extremes by this system where he finds that even if he wants to turn a new leaf in his life, this system will not allow him, he will rather surrender to his fate and turn out to be a hardened criminal. A welfare state can never stoop down to such a level.”