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April-2016
SUBMISSION FOR INTERNAL EVALUATION BALLB 6TH SEMESTER
Submitted by:
Raghav Malhotra(09416503813)
Section B
It cannot be emphasized too often that crime and punishment are functionally
related to the society in which they occur, and Indian conditions and stages of
progress must dominate the exercise of judicial discretion in this case. In India the
1EdigaAnamma v. State of Andhra Pradesh. AIR 1974 SC 799 (804)
Guilt once established, the punitive dilemma begins. The choice between death
penalty and life term has to be made in a situation which is not altogether
satisfactory. Modern penology regards crime and criminal as equally material when
the right sentence has to be picked out, although in our processual system there is
neither comprehensive provision nor adequate machinery for collection and
presentation of the social and personal data of the culprit to the extent required in
the verdict on sentence.
(i) The extreme penalty of death need not be inflicted except in gravest cases of
extreme culpability.
(ii) Before opting for the death penalty the circumstances of the offender also
require to be taken into consideration along with the circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence is an exception. Death
sentence must be imposed only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant circumstances of the crime,
and provided, and only provided the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn
up and in doing so the mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised. (emphasis supplied)
In the exercise of its discretion in the above cases, the court shall take into account
the following circumstances:
(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced
to death.
(3) The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy Conditions (3)
and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he
was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and
that the said defect impaired his capacity to appreciate the criminality of his
conduct.4
Determination of Sentence:
On the question of standardization of sentence, the Supreme Court ruled as follows:
Regarding the question of laying down standards and norms restricting the area of
imposition of death penalty, if by "laying down standards", it is meant that 'murder'
should be categorised beforehand according to the degrees of its culpability and all
the aggravating and mitigating circumstances should be exhaustively and rigidly
enumerated so as to exclude all free play of discretion, the argument merits
rejection. Such standardisation is well-nigh impossible. Firstly, degree of culpability
cannot be measured in each case; secondly, criminal cases cannot be categorised,
there being infinite, unpredictable and unforseeable variations; thirdly, on such
categorization, the sentencing process will cease to be judicial; and fourthly, such
standardisation or sentencing discretion is a policy- matter belonging to the
legislature beyond the court's function.5
The imposition of sentence without considering its effect on the social order in many
cases is in reality a futile exercise.6
The saddest and the most disturbing part of the case is that the appellant never
showed any remorse for the terrible things he did. As seen earlier, in the initial
weeks after his arrest he continued to regard himself as a watanparast, a patriotic
Pakistani who considered himself to be at war with this country, who had no use for
an Indian lawyer but needed a Pakistani lawyer to defend him in the court. He made
the confessional statement before the magistrate on February 17, 2009, not out of
any sense of guilt or sorrow or grief but to present himself as a hero. He told the
magistrate that he had absolutely no regret for whatever he had done and he
wanted to make the confession to set an example for others to become Fidayeen
like him and follow him in his deeds. Even in the course of the trial he was never
repentant and did not show any sign of contrition. The judge trying him had
occasion to watch him closely and has repeatedly observed about the lack of any
remorse on the part of the appellant. The High Court, too, has noticed that the
appellant never showed any remorse for the large-scale murder committed by him.
This, to our mind, forecloses the possibility of any reform or rehabilitation of the
4Machhi Singh And Others vs. State Of Punjab1983 SCR (3) 413
5Mohd.Chaman vs State (N.C.T. of Delhi), (2001) Cr LJ 725
6 State through PS Lodhi Colony, New Delhi vs. Sanjeeva Nanda, AIR (2012) SC 3104
accused person has been charged and the expression "victim" includes his or her
guardian or legal heir.
Defi nition of Victimology:The study of the ways in which the behavior of
crime victims may have led to or contributed to their victimization.The claim that
the problems of a person or group are the result of victimization.
Abstract:
Compensatory Justice Jurisprudence took birth in the case of RudalSahv. State of
Bihar8when the Hon'ble Supreme Court broke one more link in the shackles of
restrictive interpretation and added another feather in the cap of Article- 21 to
crown the personal life and liberty of people. Post Rudal, there are a series of
judgments discussed in the present paper which strengthened the power of
Supreme Court and High Courts to compensate the victims or their dependents for
the excesses done by the State machinery or on failure of State to take care when
there was a duty imposed upon them to exercise reasonable care. There are cases
ranging from 'birth after vasectomy' to 'death due to open manholes' to 'custodial
death' wherein Supreme Court has ventured out to grant compensation.
Over a period of time, the Hon'ble Supreme Court has given a dynamic
interpretation to the constitutional remedies provision under the Constitution so as
to enhance the fundamental rights of an individual. The cases in which the Courts
have awarded compensation for the excesses committed by the state or for
negligence of the State as well as examine the self-imposed restrictions of Supreme
Court in not awarding compensation in certain cases. However, the question always
remains as to what is the rationale for providing such compensation and if granted
how much is to be granted. Further what is the criterion for providing the
compensation or it is ad hoc. What about the erring officials in discharging their
public duty and finally whether judicial activism has led to judicial adventurism?
Concept of Victimology
The word Victimology is a new coinage and has gained considerable importance due
to the untiring work of Miss Margaret Fry of the John Howard Association of England,
Benjamin Mendelsohn, who in 1937 developed a scientific method for the study of
the criminal act which utilized biopsycho- social data on the criminal, on the victim
and on the witnesses bystanders, and the World Society of Victimology having been
himself the victim of discrimination, Mendelsohn became interested in the victim
and in his/hers relationship with the criminal." Schafer defines Victimology as "the
study of criminal victim relationship". Drapin and Viano define it as "that branch of
criminology which primarily studies the victim of crime and everything that is
concerned with such a victim". In the words of Fattah: "While studying biological,
sociological, psychological, and criminological details about the victim -victimology
brings into focus the victim-offender relationship and role played by victim.
The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders
came out with a declaration of basic principles of Justice of Victims of crime and
8RudalSahv. State of Bihar, 1983 AIR 1086, 1983 SCR (3) 508
abuse of power, which was later adopted by the U.N. General Assembly. In the
declaration, the U.N. defined the "Victims of Crime" as follows:
1. "Victims" means persons who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions that
are in violation of criminal laws operative within Member States, including those
laws prescribing criminal abuse of power.
2. A person may be considered a victim, under this Declaration, regardless of
whether the perpetrator is identified, apprehended, prosecuted or convicted and
regardless of the familial relationship between the perpetrator and the victim. The
term "victim" also includes, where appropriate, the immediate family or dependents
of the direct victim and persons who have suffered harm in intervening to assist
victims in distress or to prevent victimization. Victims are several time suffering
emotionally the most.
courts. The Apex Court in the case RudalSah v. State of Bihar 9 for the first time laid
down the principle that compensation can be given in the cases where any
fundamental right of an individual has been injured and that the upper courts have
the authority to do so through the exercise of writ jurisdiction and evolved the
principle of compensatory justice in the annals of human rights jurisprudence.
We can clearly see that monetary compensation had been made in cases where an
individuals legal rights have been damaged. Even though there isnt a statute
defining such a claim, the courts have exercised this power wherever they deemed
fit. If a persons fundamental right is violated or where a writ petition is not
generated by the court itself, the said persons right to compensation comes into
effect and he should be compensated adequately in such cases.
In Sebastain v. Union of India10, on account of failure of Government to produce
in habeas corpus petition filed by wives, apex court awarded cost of Rs. 1 lakh to be
given to wife of each of detenne.
or asked to pay fine, the judgment does not favour the victim as her position is not
restored. Hence it becomes extremely important to compensate such a victim.
A womens right to compensation originates from Article 21 of the
Indian Constitution which talks about right to life and personal liberty. The Supreme
Court held that a woman can be compensated even in the middle stages of the trial
as well as at the end of the trial. The Supreme Court even suggested the
establishment of criminal injuries compensation Board under Article 38(1) of
theConstitution of India whose function would have been to compensate such
victims and provide them relief. However, no such board has been formed. [xx]
In the landmark case of DK Basu v. State of West Bengal,11 the Supreme Court
held that a victim of custodial right has every right to be compensated as her Right
to life has been breached by the officer of the State.
In another case, the Supreme Court held that the sessions court too has the power
to award compensation to the victim even if the trial has not been completed. In
fact, in the case State of Maharashtra v. Madhukar N. Mardikar12, Supreme
court held that even a prostitute has a right to privacy and no person can rape her
just because she is a woman of easy virtue.
Part III of the Constitution providing remedies for enforcement of such rights.
Article 32(1) provides for the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights. The Supreme Court
under Article 32(2) is free to devise any procedure for the enforcement of
fundamental right and it has the power to issue any process necessary in a given
case. In view of this constitutional provision, the Supreme Court may even give
remedial assistance, which may include compensation in "appropriate cases".
A question regarding the awarding of monetary compensation through writ
jurisdiction was first raised before the Supreme Court in Khatri (II) v. State of Bihar
13
In this case, Bhagwati, J. observed:
"Why should the court not be prepared to forge new tools and devise new remedies
for the purpose of vindicating the most precious of the precious fundamental right
to life and personal liberty.
In SantBir v. State of Bihar14the question of compensating the victim of the
lawlessness of the State was left open.
In VeenaSethi v. State of Bihar15 also the Court observed that the question would
still remain to be considered whether the petitioners are entitled to compensation
from the State Government for the contravention of the right guaranteed
under Article 21 of the Constitution.
In the light of the views expressed by the Court in the above cases it can be said
that the Court had shown its concern for the protection of right to life and liberty
against the lawlessness of the State but did not actually grant any compensation to
the victims.
The seed of compensation for the infraction of the rights implicit in Article 21 was
first sowed in Khatri, SantBir and VeenaSethi, which sprouted with such a vigorous
growth that it finally enabled the Court to hold that the State is liable to pay
compensation. This dynamic move of the Supreme Court resulted in the emergence
of compensatory jurisprudence for the violation of right to personal liberty through
RudulSah The Supreme Court of India in RudulSah v. State of Bihar16 brought
about a revolutionary breakthrough in human rights jurisprudence by granting
monetary compensation to an unfortunate victim of State lawlessness on the part of
13 Khatri (II) v. State of Bihar, 1981 SCR (2) 408
14Sant Bir v. State of Bihar, AIR 1982 SC 1470
15VeenaSethi v. State of Biha,AIR 1983 SC 339
16RudalSah v. State of Bihar, 1983 AIR 1086, 1983 SCR (3) 508
the Bihar Government for keeping him in illegal detention for over 14 years after his
acquittal of a murder charge.
and that prima facie they would be offences of murder. The Supreme Court directed
the respondents to pay Rs. 1, 00, 000/- to each of the wives of the missing persons.
Conclusion
We come to the conclusion that compensation is not only required but is in fact a
very important aspect of even criminal law and the courts should not use this
sparingly but a little liberally. Of course they should be careful of not awarding too
high a compensation and hence should be careful.
The government should take into consideration the suggestions of the Supreme
Court and set up Compensation Boards to help the victims with financial issues.
Prior to CrPC(Amendment) 2008, India lacked an all-inclusive legislation for
compensation of victims. Compassionate treatment of victims under the criminal
justice system itself leads to the belief in the system which is enhanced by way of
compensation programmes, independent of conviction of offenders
It is need less to point out that the whole legislative paradigm coupled with lack of
judicial determination has exposed numerous flaws of the present legal system
about the compensation therefore there is need for revamping the whole legal
system once. The mandatory changes that are needed are as follows:
The suggestion given by the law commission of India in its 42nd report on Indian
Penal Code must be taken in to consideration and it would be better if the
legislature also take in to account the separate note of Justice R.L. Narsimha, a
member of the commission.
are responsible for peace keeping, criminal law enforcement and a general
community service function.
The judiciary is independent of any criminal investigation process undertaken by
Police. The role of the judiciary is one of the exercising by the Courts of their
jurisdiction to enforce, adjust or declare the rights and liabilities of persons, subject
to the law, in accordance with the law and the actual circumstances of the case.
Judiciary promotes systemic reform so that police act as upholders of the rule of law
rather than as instruments of the current regime. It aims at mobilising public
support for police reform.
Prakash Singh v/s Union of India21: the Supreme Court Directives 20062007
The judgment broadly deals with three aspects of police organisation- autonomy,
accountability and efficiency.
The Supreme Court gave detailed directions which are to be followed by the Centre
and State Governments until legislations in this regard are enacted.
The directions include :
Hon'ble the Apex Court in the case of Vijay Singh Vs. State of Uttar Pradesh and
others, while considering the Uttar Pradesh Police officers of the Subordinate Ranks
(Punishment and Appeal) Rules, 1991, held as under:"Undoubtedly, in a civilized society governed by rule of law, the punishment not
prescribed under the statutory rules cannot be imposed. Principle enshrined in
Criminal Jurisprudence to this effect is prescribed in legal maxim nulla poena sine
lege which means that a person should not be made to suffer penalty except for a
clear breach of existing law." Needless to mention that in a civilized society
governed by rule of law, the punishment not prescribed under the statutory rules
cannot be imposed. Principle enshrined in Criminal Jurisprudence to this effect is
prescribed in legal maxim nulla poena sine lege which means that a person should
not be made to suffer penalty except for a clear breach of existing law.
People's Union for Civil Liberties vs. Union of India (2003) 4 SCC 399 23
The Supreme Court cracked down on the rise in fake encounter killings by the
police, ruling in a writ petition filed by the Peoples Union for Civil Liberties (PUCL).
PUCL had questioned the genuineness of 99 encounters by the Mumbai police
resulting in the death of about 135 persons between 1995 and 1997.
The Supreme Court bench of Chief Justice of India (CJI) RM Lodha and Justice
Rohinton Nariman, issued a 16-point guideline to be followed in the matters of
investigating police encounters in the cases of death as the standard procedure for
thorough, effective and independent investigation.
Notably, the court said that investigations into any police killings with guns must be
undertaken by experienced state CID or another police station, and magistrate and
state Human Rights Commission or the National Human Rights Commission must be
alerted in any such case.
The guidelines are as follows:
1. Tip-offs about criminal activities must be recorded either in writing or electronic
form
2. If pursuant to a tip-off the police uses firearms and this results in death of a
person, then an FIR initiating proper criminal investigation must be registered
3. Investigation into such death will be done by an independent CID team which has
to fulfil eight minimum investigation requirements
4. Mandatory magisterial inquiry into all cases of encounter deaths
22 Vijay Singh Vs. State of Uttar Pradesh and others, 2012 (5) SCC 242
23 People's Union for Civil Liberties vs. Union of India (2003) 4 SCC 399
The rights of the accused recognized by the Supreme Court may subject to the
clarification in Chapter 4 and the manner of their protection be made statutory,
incorporating the same in a schedule to the Criminal Procedure Code.
7. Police Investigation
The machinery of Criminal Justice System is put into gear when an offence is registered and
then investigated. A prompt and quality investigation is therefore the foundation of the
effective Criminal Justice System. Police are employed to perform multifarious duties and
quite often the important work of expeditious investigations gets relegated in priority. A
separate wing of investigation with clear mandate that it is accountable only to Rule of Law
is the need of the day.
Most of the Laws, both substantive as well as procedural were enacted more than 100 years
back. Criminality has undergone a tremendous change qualitatively as well as quantitatively.
Therefore the apparatus designed for investigation has to be equipped with laws and
procedures to make it functional in the present context. If the existing challenges of crime
are to be met effectively, not on the mindset of investigators needs a change but they have
to be trained in advanced technology, knowledge of changing economy, new dynamics of
social engineering, efficacy and use of modern forensics etc. Investigation Agency is
understaffed, ill equipped and therefore the gross inadequacies in basic facilities and
infrastructure also need attention on priority.
There is need for the Law and the society to trust the police and the police leadership to
ensure improvement in their credibility.
8. Public Prosecution
Prosecutors are the Officers of the Court whose duty is to assist the court in the search of
truth which is the objective of the Criminal Justice System. Any amount of good investigation
would not result in success unless the institution of prosecution has persons who are of merit
and who are committed with foundation of a well structure professional training.
This important institution of the Criminal Justice System has been weak and somewhat
neglected. Its recruitment, training and professionalism need special attention so as to make
it synergetic with other institutions and effective in delivering good results.
This procedure is simple and convenient to the accused, as he need not engage a lawyer nor
appear before the court if he is not interested in contesting the case. However, the definition
of the expression 'petty offences' restricts it to those offences punishable only with fine not
exceeding Rs. 1000/-. In order to give benefit of this provision to large number of accused,
the Committee has favoured suitable modification of the expression 'petty offences.'
house arrest. This the Committee feels is not a charity but the legitimate right of the unborn
and young children.
The Committee feels that the law should lean in favour of settlement of cases without trial,
where the interest of society is not involved.
The Committee is not in favour of imposing death penalty for the offence of rape for in its
opinion the rapists may kill the victim. Instead, the Committee recommends sentence of
imprisonment for life without commutation or remission.
The Committee however feels that investigation and trial of rape cases should be done with
most expedition and with a high degree of sensitivity.
That the Government may come out with a policy statement on criminal justice and
against crimes, such as terrorism, communal violence and organized crime, which
impinge on security of state. This calls for a joint sector organization of Central and
State Governments to deal with select crimes threatening the security of the nation
or having inter-state ramifications, which require ability to deploy all the resources
needed. The National Policy should identify all such crimes affecting the unity and
integrity of the country and create a united national agency to undertake
prevention, investigation and prosecution of such crimes with the support and cooperation of the State machinery concerned. Increased Punishment Choices and
Alternatives: There has to be a substantial increase in the range and variety of
punishments to provide for more choices in sentencing. The quantums of
punishment, particularly of fine, require revision given the contemporary value of
money and the impact of inflation. Disparities in sentencing need to be reduced by
evolving appropriate statutory guidelines in respect of each type of punishment,
which should be periodically revised at the instance of the proposed Board of
Criminal Justice.
It is also desirable to have a Sentencing Board of three judges including the trial
judge, for determining punishments in select offences punishable with life
imprisonment or death, to ensure objectivity. The Sentencing Board will also help
the objective application of the rarest of rare doctrine in death sentence.The
policy of fixing mandatory minimum sentences is to be discontinued as it does not
serve any social purpose in actual practice. Probation is to be invoked more often,
particularly where short-term imprisonment is to be awarded. Corrective labour
under supervision and the open jail system are to become part of sentencing
alternatives. Remission of term of imprisonment and parole have to be regulated
strictly according to statutorily prescribed norms and procedures.
Criminal Trial to be a Search for Truth: Criminal proceedings have to be an
organized, systematic search for truth. Procedures should not be practiced or
interpreted in such a way as to interfere with the search for truth. Criminal courts at
the level of sessions judges should have inherent powers to give such orders for
securing the ends of justice as are available to High Courts under Section 482 of the
Criminal Procedure Code. Without diluting the constitutional rights of every person
accused of crime, the law should place positive obligations on accused persons to
assist the court in the discovery of truth. Every citizen including those suspected of
having committed crime have an obligation to assist administration of justice. This
can be done by more liberal use of rebuttable presumptions and shifting the burden
of proof in appropriate cases.
Evidence and Proof: The axiom of proof beyond reasonable doubt seems to
have got blunted with the passage of time and requires to be clarified by the
legislature to avoid different approaches in the hands of different judges. With the
adoption of different sets of Criminal Codes for offences of varying gravity, the
standard of proof naturally may vary and it is only appropriate that each code
restates the principles of evidence and proof applicable to the offences under that
code.
Police Reform and Criminal Investigation: Criminal justice system demands
greater professionalism and accountability from its actors. This would require
dedicated, well-trained staff for crime investigation with adequate infrastructural
support and functional freedom. On-line registration of FIR in every police station
should be the goal. Non registration of complaints should be considered a criminal
misconduct, to be severely dealt with.
The norms, standards and procedures relating to arrest decreed in D.K. Basu case
and now incorporated in the Criminal Law Amendment Act should be scrupulously
followed by every police officer. Superior officers should also be made severally and
jointly accountable if officers working under them violate the norms. The proposal to
invoke notice of appearance as a substitute to arrest is to become a normal
practice in police work.
Custodial violence should be looked upon with utmost severity and quick,
transparent remedies should be available for victims of such violence. Statements
made to the police should be audio/video recorded and made admissible in
evidence provided the accused has had the benefit of consulting his lawyer. Also,
the directions of the Supreme Court on police reform require immediate
implementation by all State Governments.
Prosecution Reform: Prosecution continues to be the weakest link of the criminal
justice system. Selection, training, service conditions and supervision of the
prosecutors demand urgent attention to enhance the quality of prosecution and to
achieve the synergy between investigation and prosecution essential for effective
criminal justice administration. An independent Directorate of Prosecution
accountable to the Courts need to be set up, under the control of the proposed
Board of Criminal Justice, with a well-trained, well-paid cadre of prosecutors for
delivery of quality justice.
Role of Defence Lawyers: Defence lawyers too have a responsibility for the
proper functioning of the system. There is need for drawing up a separate Code of
Ethics for lawyers, in this regard, to be jointly enforced by the Bar Councils and the
Criminal Courts.
Legal Aid in Criminal Proceeding: Criminal legal aid has to be modernized with
multiple services needed for the victim as well as the accused. Legal Aid is not to be
limited to merely providing a lawyer to indigent accused. The State has to organize
psychiatric, medical and rehabilitative services under Legal Aid. Victim
compensation should also be the responsibility of the Legal Services Authority.
Criminal Courts to Ensure Speedy and Human Rights-friendly Procedures:
Criminal Courts have the obligation to render speedy justice. For this, they have to
speed up the processes through more effective management of dockets and
proceedings. Day to day trial has also to be restored. Government should provide
better resources and infrastructure to criminal courts to help them speed up trial
procedures. Use of technology should be able to achieve the objects less
expensively.
A modern Criminal Court Complex with single window services has to come up
initially in at least the district headquarters. It will have a police station and
interrogation room on the ground floor; police lock-ups/sub-jail, and magistrates
courts on the first floor; prosecutors offices, legal aid services, witnesses rooms etc.
on the second floor; sessions court in the third floor and the administrative office on
the fourth floor. Special schemes should be drawn up for protection of
witnesses/victim in appropriate cases.
Prison and Correctional Services: Under-trial prisoners should be kept in
separate institutions. Prisons should not be overcrowded. By liberal use of bail and
probation and avoiding short-term imprisonment, the prison population can be kept
to reasonable limits. The living and service conditions of prison staff should be
improved and strict measures taken to stop corruption in custodial institutions.
Women and children accompanying them should have special facilities in prisons.
The policy on custodial justice for women recommended by the Expert Committee
India needs a national strategy to reduce crime. The national strategy should aim at
crime prevention through education, mobilization and involvement of different
sections of the community. A National Mission to Reduce Crime is the need of the
hour and it should be one of the main planks of the National Policy on Criminal
Justice. A full-fledged independent, professionally managed, Board of Criminal
Justice should be immediately set up as a statutory body, at the Centre and in each
State. The
Board should have three specialized divisions A Bureau of Criminal Justice
Statistics (BCJS), a Research and Monitoring Division (RMD) and a Law Enforcement
Assistance Division (LEAD). The BCJS should collect and collate all information
relating to crime on a regular basis. The RMD should gather and experiment ideas
through pilot projects in crime control and management, evaluate performance of
all segments and recommend changes to make the system people-friendly and
efficient. The LEAD should experiment with public participation models to make the
peoples involvement at every stage of criminal justice administration possible and
efficient.
Delay reduction should be a major focus of the national strategy. It can be achieved
by extensive use of modern technology, intensive training of personnel and better
systems of performance evaluation and accountability. The Central Government
should provide to the States, programme-based grants, distributed through the
Board of Criminal Justice, duly guided by objectively-assessed performance on
mutually agreed criteria. A management orientation is required in all segments of
criminal justice, especially the criminal courts. Criminal justice functionaries
especially the police and prisons officials should have insurance cover for
occupational risks. Service benefits of these personnel should be comparable to
those in the Defence Services to attract talented persons to police/prison services.
A National Commission on Criminal Justice on the lines of the National Human Rights
Commission, consisting of experts in crime and justice, should be put in place to
evolve policies on a continuing basis and advise the Government on reforms in
policies and structures. The Board of Criminal Justice can act as the Secretariat of
the Commission which will provide the information and logistical support for criminal
justice planning and evaluation, the twin functions of the Commission.
11. FUNDS FOR CRIMINAL JUSTICE DEVELOPMENT
Criminal Justice in all its dimensions shapes the quality of governance and
influences the perception of the people about the Government and the state.
Whichever party in power, every Government is obliged to control crime and
enhance the security perception of its citizens by effective management of criminal
justice. This would imply that criminal justice is made integral to planned
development of society, its economy and the well-being of the people. The Five
-Year Plans have to have at their core the maintenance of public order and rule of
law without which no development is possible.
Therefore, the Governments at the Centre and in the States should have strategic
long-term plans and annual targeted plans in respect of criminal justice
development covering the police, prosecution, judiciary and the correctional
systems. A Judicial Impact Assessment statement should accompany criminal
legislations in order to plan mobilization and disposition of resources.
Finally, pending the development of Strategic and Annual Plans by the Governments
concerned, the Planning Commission should allocate substantial funds for
infrastructural development of the Police and the Judiciary. This would include
specific grants for a Victim Compensation Fund at the national level and a
programme-based modernization grant for criminal courts throughout the country
on the lines of the Fast Track Courts.
Individual submission
Most of the Laws, both substantive as well as procedural were enacted more than
100 years back. Criminality has undergone a tremendous change qualitatively as
well as quantitatively. Today there exist a very serious problem of backlog of cases
and one can say that our code is incompetent to meet the expectations of the
judiciary.
Our judicial system faces certain problems, which show the weaknesses and defects
of the system, and which requires immediate reforms and accountability.
Corruption in judiciary: Like any other institution of the Government, the Indian
judicial system is equally corrupted. The various recent scams like the CWG scam,
2G scam, Adarsh Society scam, including rapes and other atrocities in the society
etc. have emphasised both the conduct of politicians and public dignitaries,
including the common man, and also on the drawbacks in the functioning of Indian
judiciary. There is no system of accountability. There is no provision for registering
an FIR against a judge taking bribes without taking the permission of the Chief
Justice of India.
Backlog of pending cases: Indias legal system has the largest backlog of
pending cases in the world as many as 30 million pending cases. Of them, over four
million are High Court cases, 65,000 Supreme Court cases. This number is
continuously increasing and this itself shows the inadequacy of the legal system. It
has always been discussed to increase the number of judges, creating more courts,
but implementation is always late or inadequate. The victims are the ordinary or
poor people, while the rich can afford expensive lawyers and change the course of
dispensation of the law in their favour. This also creates a big blockade for
international investors and corporations to do business in India. And also due to this
backlog, most of the prisoners in Indias prisons are detainees awaiting trial. It is
also reported that in Mumbai, Indias financial hub, the courts are burdened with
age-old land disputes, which act as a hurdle in the citys industrial development.
Lack of transparency: Another problem facing the Indian judicial system is the
lack of transparency. It is seen that the Right to Information (RTI) Act is totally out of
the ambit of the legal system. Thus, in the functioning of the judiciary, the
substantial issues like the quality of justice and accountability are not known
properly.
Hardships of the undertrials: In Indian jails, most of the prisoners are
undertrials, who are confined to the jails till their case comes to a definite
conclusion. In most of the cases, they end up spending more time in the jail than
the actual term that might have had been awarded to them had the case been
decided on time and, assuming, against them. Plus, the expenses and pain and
agony of defending themselves in courts is worse than serving the actual sentence.
Undertrials are not guilty till convicted. On the other hand, the rich and powerful
people can bring the police to their sides, and the police can harass or silence
inconvenient and poor persons, during the long ordeals in the courts.
Thus every other reform that aptly reduces these broad problems should be a part
of our judiciary, concepts like fast track courts; lok adalats, mediation and
compounding should be taken a bit seriously and shall be encouraged. Solution of
these problems is change thus we should look forward to bring change like
Conclusion
Therefore the apparatus designed for investigation has to be equipped with laws
and procedures to make it functional in the present context. If the existing
challenges of crime are to be met effectively, not on the mindset of investigators
needs a change but they have to be trained in advanced technology, knowledge of
changing economy, new dynamics of social engineering, efficacy and use of modern
forensics etc. Investigation Agency is understaffed, ill equipped and therefore the
gross inadequacies in basic facilities and infrastructure also need attention on
priority.