INDIA: What is fundamentally wrong with the criminal justice system?
The ensuing debates after the rape in Delhi has thrown up several opinions, some poignantly valid and others ridiculous, about what changes are to be made to the criminal justice process to effectively address the scornful menace of rape and forms of sexual violence in India. An alarmingly large proportion of the population, if the media reports and surveys were to be believed, suggests prompt if not instant punishment, to the accused. An overwhelming number of people, including political parties have suggested nothing less than capital punishment for the offense. Organisations like the Amnesty International have opposed suggestions to bring about punishments like chemical castration. The country’s judiciary, expressing dismay over the particular incident that happened in Delhi, has said that the government should do everything possible to ensure safety of women. A large number of lawyers in the national capital on the other hand have said that none should defend the accused in such cases.
The Asian Human Rights Commission (AHRC) is of the view that most of these opinions fail to address the exact issue that needs attention, should violence against individuals, women, members of the minority communities and the most vulnerable in India in particular is to be addressed. What is ignored either due to ignorance or intentionally is one of the fundamentals of criminal jurisprudence - it is the certainty in punishment, not the severity of it that deters crime effectively.
Jurisdictions like China, where capital punishment is routine does not see reduction of crimes because of the prompt and severe punishments prescribed to crimes. In China capital punishment is prescribed for 55 crimes. This was 68, which the National People's Congress Standing Committee in 2011 recommended to be reduced. Neither do jurisdictions like Saudi Arabia nor most of its neighbouring middle-eastern princedoms see reduction in crimes, even though penal laws in these countries prescribe some of the grotesque forms of punishments for crimes.
It is the same argument that is relevant against punishments that cause permanent physical damage to convicts, in this context, chemical castration. These forms of punishments cause permanent physical damages to persons that are irreversible. The fundamental defect of such a punishment is that the advocates of such forms of punishment tend to blindly assume that the adjudication process, which convicts a person, is infallible. It would be patently wrong to make such an assumption within any jurisdiction. Given the circumstances in India, and the manner in which the country’s criminal justice machinery functions, one need not hesitate to conclude, that from the experiences so far, the country’s criminal justice process has some serious issues, that require to be corrected.
Any adjudication of guilt of a person begins with a complaint. Crimes registered for all offences, at the instance of a private citizen or of the state, are complaints nonetheless.
The fundamental thus, is that the complaint registering entity should entertain receiving complaints; be able to record it in a professionally and are equipped to deal with the complaint immediately. Contrast this to the single largest complaint receiving entity in India, the police.
Police, the very mentioning of it, does not infuse confidence in people, but on the contrary generates fear and repulsion. Police stations are notorious for their secretive, fear-generating environments and events, that none in the country would wish to get to a police station, as a complainant, witness or as an accused. To approach this agency, people scramble for extraneous support, often in the Indian context, by approaching a local politician. Before approaching the police, ordinary people ask around what amount of bribes are to be paid to the police - the station house officer, a constable, the driver of the police vehicle, a Sub Inspector of Police, the Circle Inspector, or a Superintendent of Police.
People make these inquiries irrespective of what the person would want to do at the police station. The fact is despite all this, there is no guarantee that the police will do what they are expected to do according to the law. Any person approaching the police runs the risk of being humiliated, tortured, raped, shouted at, and implicated in fabricated charges. Instances where people have lost lives at the hands of the police they have approached seeking help are not rare.
If women in India feel that they are not safe in the company of the police, perhaps it is time that they ask what is the government’s plan to change this. Mere increase in the number of women police officers is not a solution to this, since it is based on the wrong presumption that women could better protect women and women in distress talk better to women. It is incorrect to make such an assumption particularly in India, since what is wrong is with the institution, not just in its gender balance or in the nature of the crime.
The generic statement that women facing domestic abuse seldom approach the police to make a complaint since they are afraid of being raped in police stations is not a joke. This fear is real. Civil rights moment in India should question the government, what action has the government done to change this frightening perception?
Sexual offences like rape and sodomy are some of the most complex and cruel crimes that a person could commit upon another individual. Contrast this with the sophistication of the country’s police to investigate these crimes. More than 90 percent of police constables and low-ranking police officers do not receive any training in criminal investigation, other than what they get before joining the force at the cadet school,. In the male dominated Indian society, one cannot expect a police officer who abuses his wife at home to be sympathetic to a victim of sexual abuse. Neither do police have any advanced facilities like equipments to undertake scientific criminal investigation. It is not a priority so far for the government or for the police.
As long as the policy and practice in India is to treat confession, no matter how it is extracted, as the cornerstone upon which a criminal investigation is based, one cannot expect the criminal justice process in India to improve. The number of cases in which convictions are based upon confessions is far too low in India. In fact one of the reasons why the conviction rate in India is simmering around 4 percent is because the bedrock of most criminal investigations are confessions, a legal construct that would be the first to be thrown out of a court, for good reasons when the case comes up for trial.
If criminal investigation in India has serious issues to be addressed, the legal minds in the country also suffer from severe aberrations. The most recent example to this is the protest by the Delhi Bar, when the accused in the Delhi rape case was brought to trial. Those lawyers who argued and tried to physically manhandle the lawyers who were willing to appear on behalf of the accused, have clearly demonstrated their disagreement with the rule of law and due process. Such lawyers have no place in the profession and the Bar Council of India should consider disqualifying them from the profession. In any part of the world where acceptable standards of the profession is maintained, such conduct would not be taken lightly. In India, that too is an exception.
Anyone discussing punishment for crimes in India thus should discuss deep-rooted problems of the mechanisms available at the moment to deal with crimes, before thinking about punishments. Unfortunately, those who are willing to do this are a precious minority.
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For information and comments: Bijo Francis, AHRC. Telephone: + 852 - 26986 339, Email: firstname.lastname@example.org