INDIA: Criminal Justice Reform Duty Of State, Not Court
INDIA: Criminal Justice Reform Duty Of State, Not Court
The Asian Human Rights Commission (AHRC) appreciates the observations made by the Supreme Court of India that the Indian criminal justice process will immensely benefit from crime investigating agencies adopting scientific investigation methods. The apex court has said that the old style of conducting investigations, relying on confession statements and oral evidence in criminal trials, often results in gross miscarriage of justice. Miscarriage of justice can be corrected to a large extent if the investigation process adopts, and adapts itself to, utilizing new developments in science and technology, said the court.
The court made its opinion while deciding Criminal Appeal 369 / 2006 [in Dharan Deo Yadav, Appellant against the State of Uttar Pradesh, Respondent]. The case was decided against the appellant who appealed against a sentence and conviction by the High Court of Uttar Pradesh, which the Supreme Court modified and reduced to rigorous imprisonment instead of capital punishment. The judgment was delivered on 11 April 2014.
One could spend time wondering why it has taken the Supreme Court of India so long to make such a basic observation. It is trite to argue that the criminal justice process in India has had, and continues to suffer from, serious defects. These defects are of such nature and magnitude that they often lead to acquittal of the accused. Investigation of crime depends upon oral testimonies of the accused and the witnesses that often fail to stand the test of cross-examination in trials. The over dependence on oral testimonies is due to minimal resources and training being provided to crime investigation agencies for them to conduct investigation through any other means.
In this regard, the court has failed to adequately understand and appreciate the fact that the responsibility of equipping crime investigation agencies so they may undertake scientific investigation lies with the government. At the moment, the government's policy is to maintain astatus quo, i.e. to keep investigating agencies of the state inept.
While it is important for the Supreme Court to urge state investigating agencies to adopt scientific investigation methods, it would be more relevant for the court to point out whose responsibility it is to equip them. It is equally significant for the court, and the people of India, to pose some questions: why is it that in a country like India, one that has financial resources aplenty, crime investigation agents are expected to operate in a state of paucity and resultant ineptitude? And, who benefits from this?
In an earlier judgment, the court had taken the lead to declare that legislators in lawful custody and those convicted of crimes stand disqualified from contesting elections. The spirit of this judgment is to push through some reform, to begin the end of the era of criminal politicians in India. Not surprisingly, the Union government, and Indian politicians — of all colours and kinds — opposed a move that has the potential to precipitate the end of the 'criminal raj'. The Indian state failed to breathe life into this critical exercise embarked upon by the court. What remained news headlines for about a month has now lost prominence. As a result, the Indian polity remains under the grip of criminals. It is this self-same syndicate of criminal politicians, along with theirbusiness cronies who benefit from the status quo of ineptitude that persists in the place of scientific criminal investigation in India.
Criminal justice institutional reforms fundamentally depend upon: (i) understanding the problems that adversely affects the performance of the criminal justice apparatus; (ii) the state having a policy to address these problems in a time-bound manner.
Unfortunately the fate of the criminal justice process in India is such that, right from the registration of a complaint, the processes and procedures followed are flawed. And, these flawed procedures are undertaken by the state police, which is infamous for its criminality, and where efficiency is unknown.
And, unfortunately, to date, investigation of crimes depends exclusively on confession statements extracted by investigators, often by the use of brute forms of torture. Torture, is not outlawed in India despite it being considered a crime against humanity globally. Moreover, even the Indian judiciary abounds with judges who believe that by torturing the true culprit an investigator commits no crime.
This must change.
Crime investigation, drawing upon advancement in technology and science, calls for the constitution of a resourceful, trained, and equipped division of forensic investigators. However, this is the lowest priority for the Indian government. Samples collected from crime scenes, and other material objects that need to be sent for forensic examinations, are often wrapped in newspapers. Contamination of scientific evidence begins at the point where such evidence is first collected. It is the responsibility of the Indian state to provide all necessary training and infrastructure to law enforcement agencies so the prevailing unscientific ineptitude can be replaced with quality investigative work.
The reason such change, essential for health of Indian society, has not been ushered in is that agencies undertaking crime investigations are used for social control rather than solving crime. It follows that arbitrary arrests, disappearances, and extrajudicial executions are common in India. Social control is achieved by misusing uniformed state agencies to gear them to use brute force – and torture, with impunity – in order to instill fear and subservience in the population. Prolonged periods of abuse of investigation agencies for social control has demoralised these agencies to such an extent that they engage in horrendous crimes committed with impunity against ordinary citizens. The Indian polity encourages and nurtures this criminal character of investigation agencies.
It is also important for the Indian judiciary to introspect, particularly when addressing the question of delay. Just as it is not within the absolute realm of the investigation agencies to find resources for equipping themselves with scientific tools in order to do their job, it is not the judiciary's responsibility to find adequate resources to run its office. It is, once again, the Indian state that has to provide for this.
Unfortunately, other than complaining about the inordinate delay in adjudication, the Indian judiciary has failed to force the state to provide adequately for the judiciary to undertake its work. It is again trite to state that the single largest impediment for witnesses to freely testify in court is the delay the cases undergo, with decades going by before trials are completed. If one knows that one would have to visit the courts for ten years or more, forget about the reality of the lack of witness protection in India, how many witnesses to a crime would be willing to testify?
A change from the prevailing circumstances is neither the responsibility of the court nor that of the Indian police. This responsibility rests exclusively with the Indian State. It is a constitutional obligation for the government to establish a civilian policing system that is equipped and trained to undertake policing in a civilized manner. Equally, it is the responsibility of the civil society in India, which includes the media, to ensure that the unacceptable status quo concerning the Indian crime investigation agencies is changed.
The Supreme Court has rightly said that the criminal justice process in India is at a crossroad. The path towards absolute demoralization based on servitude, inefficiency, corruption and criminality lies wide open, whereas the path towards reform, efficiency, and a torture free policing system is yet to be even discussed, yet to be marked. It is upon the people of India to realize what has been denied to them for so long, and to set about creating this path, failing which the internally wilted criminal justice process in the country will collapse, facade and all.