India’s need for criminal justice reforms

Author - Baijayant 'Jay' Panda

Posted on - 25 October 2017

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How to tackle runaway crime: Talwars’ trial paints grim picture of a broken criminal justice system in desperate need of reform


India’s broken criminal justice system was exemplified by the long running trial of a dentist couple, the Talwars, whom the Allahabad high court recently acquitted of murdering their teenage daughter nearly a decade ago. From investigations with contradictory conclusions, to incompetence in preserving basic evidence, to crucial documents not being filed in court, and staggering delays, this case had it all.

Add to that the high court’s scathing observation that the lower court judge who had earlier found the Talwars guilty was “unmindful of the basic tenets of law”, and a grim picture emerges of the state of affairs. It is even grimmer for the millions of other cases that do not dominate the news.

Occasionally, when horrific cases like the Nirbhaya gang rape and murder straddle the news cycle for more than the customary day or two, public outrage compels governments to fast track the investigation and prosecution. But there is a long overdue, and now desperate, need for systemic reforms.

Statistics corroborate the widespread belief that our fight against crime is inadequate. Even after adjusting for increasing population, India’s crime rate has been rising over the years. The decade from 2005 to 2015 saw a 28% increase in complaints of cognisable offences, from 450 per lakh population to 580.

Using similar measures for the resources needed, the vast shortage of police, judges, etc is stark. Against a UN norm of 222 police personnel per lakh of population, India’s officially sanctioned strength is a paltry 181, and the actual strength is an abysmal 137. Similarly, all the judges in the country now add up to just 18 per million population, despite a three-decades old Law Commission recommendation to increase it to 50, which itself is at the low end of the ratio in developed countries.

There are also enormous shortfalls in the number of police chowkis, weapons, forensic science laboratories (FSLs) and the like. Consider just forensics. Nearly a million items sent for forensic examination in India, representing a shocking 38% of all such cases, remain unattended for a year or more. The effect of that on investigations of lakhs of crimes is nothing short of cruel.

But the problem is not just of numbers, it is equally about processes and structures. Three crucial areas for reform are interminable court delays, ineffective prosecutions, and outdated police service rules.

Many chief justices of India have pleaded for courts to enforce a maximum of three adjournments per case, but in vain. Delays have become hardwired in the culture of our judiciary. The Vajpayee government tried a go-around by launching fast track courts with expedited procedures. Those succeeded, with a resolution rate far higher than existing courts.

But when the Union government discontinued funding in 2011, few states picked up the tab to keep them going. Thankfully, following the 14th Finance Commission’s recommendations, Delhi has now again allocated more than Rs 4,100 crore to set up 1,800 new fast track courts. These funds are available till 2020, but the onus remains on state governments to avail of them.

Similarly, though the Supreme Court’s recent decision to make public the deliberations of its secretive “collegium” system of appointing judges is welcome, it nevertheless disappointingly remains the world’s only self-appointing judiciary.

The SC’s 2015 judgment overruling the National Judicial Appointments Commission (NJAC), passed unanimously by Parliament, was a huge setback to the process of streamlining and introducing checks and balances in judicial appointments. Though modelled on the UK’s excellent Judicial Appointments Commission, where judges have a lesser say in appointing judges, the Indian version provided far more powers to the judiciary.

In fact, the NJAC composition had effectively given a veto to the SC in appointing judges, while making the process more transparent and broad-based. (For more on the NJAC, please see an earlier edition of this column: ‘Collegium has run its course’.)

Regarding prosecutions, India’s conviction rate of 47% – compared to more than 85% in developed democracies like France, Japan and the US – exposes the gross inadequacies of our system. I have advocated, in a private members bill in the Lok Sabha, for an independent directorate of prosecutions in every state. These would report directly to the state home department, with stipulated objective criteria on caseloads and pendency. Furthermore, to reward capability rather than political connections, appointments of prosecutors from district level upwards should have checks and balances, with concurrence by the judiciary.

Finally, much has been written about insulating the police from political interference, with recommendations such as fixed tenures to prevent frequent transfers. Many of those ideas are excellent and must be implemented, but beyond a point they will be contrary to the spirit of democracy if the police are not accountable to the elected polity. Equal emphasis must be put, as in other modern democracies, on devolving some routine police functions to district and even panchayat level. States like Assam and Kerala have launched community policing initiatives that bear watching.

The first requirement of a republic must be to maintain law and order and provide relatively swift justice to its citizenry. Our polity has often put off important reforms because they do not pay off in time for the next election cycle. But the need to overhaul our criminal justice system has reached a volatile tipping point that must no longer be ignored.