India's Crying Need for a Robust Criminal Justice System

(This is edited version of a piece written for Asian Affairs, UK)

A deficient criminal justice system not only hinders rule of law but also impedes internal security and social harmony, which are critical for economic development and national security

Supreme Court's decision on November 26 to dismiss a minority government in the India's commercially powerful state of Maharashtra underlined the significance of an independent judiciary for the health of the world's biggest democracy. Raising hopes of a smooth governance, at least for sometime, it brought to an end weeks of uncertainty and political squabbles, involving multiple machinations and counter-machinations, that had followed the fractured mandate in the state.

However, all is still not well with the India's criminal justice system. It was a high-stake political dispute that drew immediate response from the top court. And the court acted swiftly and decisively, living up to its reputation of impartiality and integrity, to reassert its credibility. But a large number of matters that profoundly impact the course of democracy, and lives of the citizens, fail to even reach the courts. Even this verdict, with all its virtues, only pronounces who will rule. It is no guarantee that such a rule shall be free of corruption and in accordance with the rule of law to uphold larger interests of the people and the country.

Not too long ago, early this month on November 02, streets of national capital witnessed an ugly fracas between members of two crucial wings of criminal justice system of the country. Policemen in uniform were assaulted and chased by groups of lawyers around various court complexes in the city.

The provocation was an illegal arrest and custodial beating of a young lawyer over a petty dispute in a district court complex. A spokesman for the lawyers alleged that the police opened fire, injuring scores of them. The police, however, denied any firing from their side.

Over 20 policemen were injured and dozens of their vehicles torched by the protesting lawyers. Clashes continued even on the subsequent day and similar number of lawyers too were reported injured. In an unprecedented protest, members of the junior ranks of Delhi Police staged a massive demonstration in front of their HQ on November 5, booing their Chief, who sought to pacify them.  Lawyers too boycotted work for nearly a week, dislocating the judicial process in the city. However, sustained efforts by senior lawyers and police officers eventually restored peace and both sides resumed their respective duties.

The episode may pass off as an aberration in India’s sustained pursuit of a credible criminal justice mechanism. Nevertheless, it was a shocking spectacle in the national capital of the world's biggest democracy, where members of neither the police force nor the legal profession showed any respect for the due processes of law, something that they are expected to uphold and protect for the entire citizenry. The incident, no doubt, exposed a deeper underlying ailment afflicting the entire criminal justice system of the country.

By any global standard, the Indian police has produced some first-rate professionals and leaders. Almost every year, a significant number of men and women from police agencies lay down their lives in the call of duty. But India’s police forces, especially the lower rungs, have a longstanding record of notoriety.

Last year, the National Human Rights Commission (NHRC) of India recalled an observation, made half a century ago by Justice A N Mullah of Allahabad High Court, describing the police force of India’s biggest state, Uttar Pradesh, as ‘an organized gang of criminals’. Dealing with complaints of extra-judicial killings, wrongful detentions, custodial murders, sexual assaults, false implication of innocents and cover-ups, the apex human rights body of the country observed: ‘There is not a single lawless group in the whole of country whose record of crime comes anywhere near… that of the single organised unit which is known as the Indian police force…’

The Indian police has retained many of its colonial features, even after seven decades of independence. It continues to be governed largely by an archaic 1860 Act, with only minor modifications, and remains more a tool in the hands of the executive, lacking the autonomy and accountability necessary to serve as an instrument of the rule of law to protect citizens. A large number of retired police officers with strong professional credentials have beseeched successive governments for comprehensive police reforms to align the country’s police forces with the requirements of a modern representative democracy.

Flawed induction, deficient training, seniority- and loyalty-based promotions, which often disregard professional and leadership attributes, have crippled the capacity of Indian states to administer laws efficiently and impartially. Malevolent sections of police agencies are suspected of patronising, abetting and colluding in virtually all shades of crime. Similar sections in the political and corporate worlds, the legal profession and media have emerged as their partners to create a powerful nexus. In recent years, even the top officers of the country’s most credible investigative agency, the Central Bureau of Investigation (CBI), have come under the scanner on charges varying from graft to collusion with high-profile law-breakers.

There is conflicting data on the total number of complaints registered against police personnel in India; they vary anywhere between 50,000 to half a million or more. The National Crime Record Bureau placed the figure at 54,916 for the year 2015, while one media report quotes that in 2018 alone there were 1.1 lakh complaints against Delhi police personnel. Yet only one out of every 400 was investigated. Most state police agencies lack an effective independent police complaint commission, which one finds in developed democracies, to rein in erring police personnel. A protracted judicial process ensures that most crimes committed by men and women in police uniform go unreported.

Such a scenario must be demoralising for the large number of police men and women who do their duty diligently. Recent years have witnessed a spurt in assaults on working police personnel. Several entities, including Human Rights Watch (HRW), have recorded inhuman working conditions among lower rung police forces. These utterly desensitise them, often inducing brutal responses in their dealings with the public. Indeed, multiple videos doing the rounds on social media show policemen abusing and assaulting unarmed people, including one involving a blind student on the streets of New Delhi.

A cop in uniform is the most direct symbol of the state. Any assault on such a person is an assault on the sovereignty of that state. In a democratic state, the police is expected to protect citizens and command their trust through exemplary conduct and integrity. India needs to build a larger ecosystem that fosters such a relationship between the police and the public.

As for India’s legal community, although it too boasts some of the most brilliant minds observing the highest levels of scruples, in practice, the entire profession lacks well-defined yardsticks, including transparent fee structures, hourly working mechanisms or professional specialisations. High quality legal services are virtually unaffordable, not only for the masses but even for most of the middle classes, with competent lawyers on an average charging fees in the range of $5000 to $50,000 per appearance in cases that involve multiple hearings.

Perjury by lawyers or even state functionaries is rampant as there exists no effective deterrent in this direction. Many who have earned a degree from some of the law colleges in hinterland, lack even a passing familiarity with the basics of law. Many legal practitioners, especially in the lower courts, are known for their own criminal records, which was amply manifest during their clashes with the police.

Nevertheless, there are still some good lawyers– though too few – who remain committed to the pursuit of justice even under the most adverse circumstances. They take on a significant number of pro-bono cases to help the poor and needy in a system that lacks effective legal aid by the state.  Such sections certainly need support and encouragement from both the state and the society.

The Indian judiciary, especially the apex court, has traditionally been known for consistently delivering exemplary judgements on some of the most complex issues in the public domain. Even now, the top court comes out with judicious interpretations of the most vexed issues of law that are part of public discourse. But judges and lawyers are overworked in virtually all Indian courts.

India’s Law Minister recently disclosed on the floor of the parliament that as on June 1 this year, 43.55 lakh cases were pending in various High Courts, including 8.35 lakhs that were older than a decade. Such pendency in the Supreme Court was nearly 60,000, while in the lower courts it could be much higher. Very often judges hear 60 to 70 or even 100 or more matters in the course of a single day spanning a duration of five to six hours. It is not humanly possible to comprehend complex issues in two to five minutes and then pronounce a fair verdict. Hence, miscarriages of justice are quite common unless a matter is too high-profile.

Such deficiencies within the criminal-justice system not only deny citizens fair and consistent access to rights guaranteed by the constitution, but also retard national security by breeding avoidable internal conflicts. These nullify Indian democracy’s promise of the rule of law and discourage economic enterprise and industry, crippling the collective output of India as a nation. A weak criminal justice system also cedes a bigger space to subversive forces, which thrive at the cost of the country.

India’s quest for stronger national security warrants greater professionalism, innovation and integrity in the entire criminal justice system. It must prevent, preempt and deter internal conflicts to build an ambience that fosters healthy competition and collaboration among citizens.