A Matter of Humanity

India needs a new criminal justice system

Yashovardhan Azad

A new criminal justice system (CJS) is on the anvil amidst wide speculations about whether it will fulfill the long-standing needs of a restive nation, hungry for reforms in key sectors. After all, new laws, rules and regimes in a democracy are meant to serve the needs of the common man.

Criminal justice systems all over the world are under constant scrutiny to ascertain whether they dispense justice according to the rule of law. The World Justice Report 2022 (WJP) Rule of Index opined that rule of law declined globally for the fifth year in a row. WJP assessment of laws and regimes is based on satisfying universal principles of accountability, fairness of the laws, access to justice and impartial and timely justice delivery.

Justice dispensation is done through an established set of institutions namely the police, prosecution, judiciary and the prisons, with a greater onus on such institutions in a democracy like India. The agencies are expected to uphold the highest principles of accountability to law and fundamental rights while apprehending the accused, bringing them to trial and awarding them punishment. Even prisons are meant to serve as correctional centres rather than as dungeons for suffering. The quality of a CJS is thus tested by the level of tranquility in a society. It is often said that Nordic countries offer the best quality of life in terms of freedom, transparency and dispensation of justice.

NewsClick editor and author Prabir Purkayastha has been booked under UAPA
NewsClick editor and author Prabir Purkayastha has been booked under UAPA

In ancient India, kings ruled with the principle of dharma which laid down rules for right conduct. These rules were derived from the Vedic texts. Justice was based on texts, accepted customs or edicts by kings. The CJS evolved over the years from the Maurya period to the Guptas and to the Mughal times when crimes were listed out with their punishments. The British introduced their brand of CJS in colonial India in the second half of the 19th century. The Criminal Procedure Code (CrPC) was amended in 1973 but it was only in 2000 that the Government of India set up a committee to suggest reforms in the CJS. The Justice Malimath Committee came up with 158 recommendations three years later, but they were not implemented. Nothing was heard until now, when the three bills were introduced in the Parliament to replace the CrPC, Indian Penal Code (IPC) and the Indian Evidence Act.

The bills are presently under examination by the parliamentary standing committee and are being hotly debated in the entire country. Considering the huge impact of the new laws on the polity, it has been rightly suggested that the committee should not be in a hurry to submit its report and allow wide consultations with various stakeholders before arriving at a consensus.

What does a man on the street expect from the CJS? That the police should be accountable to the law of the land, the prosecution argues convincingly in court to secure a conviction, the courts deliver justice in time and the prisons steer free from nefarious influence and outside elements.

Such great expectations are however belied by quite a few instances of arrests under the Unlawful Activities (Prevention) Act (UAPA) and other tough laws. For a democracy like India, the figure of 3,998 pending cases under UAPA at  the end of 2021 appears an anachronism. Do we really have so many persons threatening the security and integrity of India, especially when among them are journalists and dissenters? The Supreme Court has even gone to the extent of averring that mere possession of terrorist literature does not make the possessor guilty of terrorism. According to the National Crime Records Bureau, 6,900 cases were registered between 2014 and 2020 at the rate of 985 cases per year. 49 special courts have been set up for trials and the conviction rates are very low.

The Act needs safeguards — the pre-charge detention of 180 days is too long and the bail conditions are too stringent. The core issue is that if used against a hard-core terrorist, it can pass, but arresting someone like Stan Swamy, an 84-year-old priest, under UAPA and sending him to jail without bail, cannot be justified. Four former Supreme Court judges feel that UAPA should not remain in the statute book in its present form. A reformed CJS also needs to look at these special acts and bring them in line with the latest principles of law and justice.

Arrests of journalists from NewsClick under UAPA have raised concerns over the outreach of the law. If foreign investment is allowed in journalism, then even if the writing is critical of the government or for furthering Chinese propaganda, it may be proceeded against for Foreign Contribution (Regulation) Act (FCRA) violations. If the writing engages in a smear campaign against the government and the news is shorn of facts, it is unethical and should be reported to the Editors’ Guild of India, and exposed through media outlets. But the use of UAPA is an overkill. The arrest of staff and search of entire premises with the seizure of mobile phones are extremely harsh measures resorted to in this case.

The outdated Sedition Act has mercifully been put in abeyance by the Supreme Court. Its application in a fair number of cases generated concerns in many quarters. The courts have time and again mentioned that a criticism of a government is not an indictment of the State.

Another act whose expiry date passed much earlier is the Official Secrets Act (OSA). It has no purpose after the promulgation of the Right to Information (RTI) Act way back in 2005. The RTI Act also stipulates that beyond 20 years, no information can be withheld unless it infringes on the sovereignty and integrity of the country. One wonders what damage can the release of the Henderson papers even cause to the foundations of our democracy.

UAPA needs to be applied strictly against militants in the Northeast, Maoists, Jammu and Kashmir terrorists and their funders and promoters in the hinterland. In a strong, robust democracy like India where the militancy figures presented in Parliament show a consistent decline year after year, the number of UAPA cases remains inordinately high. There is also a tendency to register UAPA cases more liberally with the expectation that higher figures are adjudged as indicators of better performance under tough conditions. Even flaunting of threat inputs from various terrorist groups in newspapers has become common to garner appreciation from various sections ofsociety. The overall resulthowever is negative, because the conclusion derived from so many threat inputs from various quarters and an increasing number of UAPA cases is that of a state struggling against the threat of terrorism.

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