Refoms In Criminal Justice And Police Reform

REFORMS IN CRIMINAL JUSTICE SYSTEM

Om Prakash Yadav

Reforms in Criminal Justice system in India is long due reform. Till date only cosmetic surgery has been made which is not going to solve or address to the core issues. We have inherited the British legacy and continued till date, the time has come when we should strive to make in accommodative to the changing socio-economic and political milieu and ensure that it delivers to the expectation of the public at large. INTRODUCTION-

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riminal Justice System in India is a British legacy and had been established by the British Govt. The Indian Penal Code, 1860, Indian Evidence Act, 1871 and Criminal procedure Code of 1898 laid down the foundation stone of Criminal Justice System in India. The police force was created to execute and implement the verdict and bring the culprits to book. Police Act was enacted in 1849 last amended in 1861 to make the police force institutionalised. These above mentioned laws marked the beginning of evolution of Criminal Justice System in Modern India. India became independent and we continued the British legacy. The voice of concerns against police apathy and atrocities gaining strength and it became gradually lauder. With the passage of time the system of governance and priorities of government underwent changes. The welfare state concept, human rights ethos as declared in Universal Declaration of Human rights by the UN on 10th December, 1948 etc necessitated drastic changes in the prevailing and exiting monolith structure of Criminal Justice System in our country. The Criminal Justice System includes two aspect of Justice1. Police. 2. Judiciary POLICE- Police being the most important and most visible part of Criminal Justice System, it was required to be revamped. The vestiges of British legacies were sought to be done away with by making it more people’s friendly, more responsive and more responsible. To achieve this desired goal and reform the structure one National Police Commission was constituted in 1977 by Ministry of Home affairs which gave recommendation on Police reforms. NATIONAL POLICE COMMISSION-(1977-81) This commission was set up on 15 November, 1977 headed by Dharam Vira ICS, The commission gave as many as 8(eight) recommendation, last was submitted in 1981. Unfortunately none of the recommendations were implemented by any state. Important recommendation of this commission are•

Police complaint Board as state level

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Posting of DGP from panel prepared by a committee comprising of UPSC chairman, CS and officers of MOH State security commission Gram Nyayalaya ( village courts) DGP would chose SPs and SPs would choose SHOs. APP& Additional PP on regular basis. Cadre of investigating officers should be increased. Directorate of Prosecution at state level and Deputy Director at regional level. Police stations as whole and compact unit (catering to all needs like traffic, Law and Order, Crime etc. Urban areas should have exclusive police stations. 150 sq KM should have one PS in rural areas Unfortunately none except Sikkim implemented all such recommendation. Due to apathy of most of the state governments as well as the Union government, Prakash Singh retired IPS and ex DGP Uttar Pradesh, filed a petition in the Apex court (Writ Petition 310/1996). He pleaded in his petition that in spite clear cut and exhaustive recommendation of National Police Commission, governments are taking them seriously and reforms in the Police department is sitting idle in the back seat. After so many years of arguments and counter-arguments of governments, NGOs, organisations of civil society and media houses, the Supreme Court passed order on 11 January 2007.The Apex court directed both Union and the State governments to implement recommendations of the Commission. The Court also gave some valuable guidelines and suggestions. This judgement has now become the guiding principles of police reforms in India. The main points of judgement passed in the above Writ Petition 310/1996 are as follows1. Establishment of a National Security Commission- this was for the Union Govt to implement. It was envisaged that this Commission would be comprised of PM and other functionaries of the govt. It would also have CMs of all federating states as members. Apart from this Commission would also invite experts from different walks of life. 2. Establishment of a State Security Commission- this direction was for the State governments to implement. The idea was similar as above and it was aimed providing inputs to the state governments on various related issues. 3. Selection of DGP from a panel and its fixation of tenure. The crux of the matter was to ensure that DGP should not be frequently removed and transferred. The top police functionary should be given minimum amount of functional freedom to perform and deliver. The selection of DGP from the proposed panel was to be done by UPSC and officers of MHA, govt of India. 4. Minimum tenure of IGP to other field level officers. 2

5. Separation of Law and Order from investigation. In fact this was one of the most important recommendations of the commission. With changing pace to time, the nature, pattern, modus-operandi, magnitude and intensity of crimes have also undergone metamorphosis. To tackle it we do require dedicated team of officers to investigate and prosecute. The separation of Law and Order from Crime is one such step in this direction. 6. Police establishment board. This board was to make the transfer and posting of subordinate police officers more institutionalise and immune from political interference. 7. Constitution of Complaint Authority. The Supreme Court asked the State governments to constitute police complaint authority headed by Sitting or retired judge to look into complaints against the erring police officers so that complaints against them are looked into by an authority other than the police itself. Over a period of time serious complaints against police like murder, dacoity, rape, loot, fake encounter etc have frequently been levelled, but many of them are thrown into dust bins and the complaints are wrapped in carpets. In pursuance of the above direction Government of Bihar enacted Bihar Police Act, 2007 in the year 2007 and repealed the relevant part of provisions of Police Act, 1861. State of Bihar took lead in this direction and incorporated some of the directions given by the Supreme Court. In section 59 of the act, the police department at district level has been made answerableto district complaint authority. Keeping in view of the spirit of judgment delivered by the apex court in Prakash Singh v/s Union of India, a civil officer, the district magistrate has been made chairman of this complaint authority. The Act has yet not been fully enforced in the sense that till date Rules to this effect has not been framed. Section 94 of the Act empowers the Govt to frame Rules; non framing thereto has hampered the enforcement of this Act. REFORMS IN CRIMINAL JUSTICE SYSTEM (JUDICIAL SIDE) The first serious attempt was made in 2000 when Ministry of Home affairs constituted a committee on 24 November, 2000 under the chairmanship of Justice V.S. Mallimath, retired Chief Justice of Karnataka High Court and Kerala High Courts. Eminent legal luminaries like Chairman CAT, Member of NHRC were made members of this committee which is popularly known as MALLIMATH COMMITTEE. TERMS OF REFERENCES• Suggest fundamental principle of Criminal Jurisprudence. • Need to rewrite Criminal Procedure Code, Indian Penal Code, IEA etc 3

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Simplifying procedure for dispensation of speedy justice and simplifying complications in Criminal jurisprudence. Suggest ways and means developing synergy among Police, Judiciary, and Prosecution. Concept of federal crime in List I of seventh schedule so that heinous crimes can be removed from state list and bought to Union list I( article 246 of Indian Constitution) Recommendations of Malimath committee-

1- Striking a balance between adversarial and inquisitorial system of investigation. The latter being supervised by a judicial magistrate. 2- Restriction to right to silence. This fundamental right is enshrined in Article 22 (3) of constitution which confers the accused the right to keep mum in eliciting information to a prosecution during examination. 3- Justice to victims. Present day criminal jurisprudence is based on the concept of awarding punishment to a accused to other than providing relief and succourto the victims. Committee recommended for awarding adequate compensation to the victims apart from awarding punishments only. 4- Separation of investigation and law and order wing of the police on line of NPC. 5- Special legislations to be enacted for organized crime, economic offences, Terrorism and low intensity war. 6- Concept of Federal Crime to be inserted Criminal jurisprudence and should be brought in list I of schedule VII in Article 246 on Indian Constitution on lines of America. FATE OF MALIMATH COMMITTE’S RECOMENDATION – Like many other recommendations of numerous committee and commission, 158 recommendationsof this committee also mat the same fade. Majority of the recommendations have been thrown into the dust bins. Bihar is one such state which has partially acted on lines of these recommendations and has in acted Bihar Police Act 2007 repealing some of the out dated, vestigial and obsolete provisions of Police Act 1861. MAJOR CHALLANGES FACING INDIAN JUDICIAL SYSTEM – 1. Huge pendency of cases (3, 63, 36,000) in different courts. 2. Inordinate delay in disposal of cases. 4

3. Ill –prioritisation of cases. The listing of cases are still done, despite computerisation , in most unscientific and non transparent manner 4. The quality and quantity of judgement are affected not by quality of judgement rather than personalities of the lawyers. Jungle of rulings has swallowed the bare Acts Codes. 5. Appointment procedures of High Court and Supreme Court Judges are not institutionalised (Advocate on record versus Union of India case in 1994 Supreme Court of India) 6. The impeachment procedure of High Court and Supreme Court Judges is arduous and complicated. This has led to development of an idea that judges can never be sacked. (The case of Justice Soumitra Sen, the judge of Calcutta High Court is still to be taken up in the Parliament. In the above mentioned circumstances, the new government at centre cannot afford recalcitrant attitude towards reforms in Criminal Justice System. The law ministry under the new guard must take up the issue with utmost seriousness to ensure that equality before the law and speedy dispensation of justice are translated from principle to reality.

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