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Introduction
Criminal Justice refers to the agencies of government charged with enforcing
law, adjudicating crime, and correcting criminal conduct. The criminal justice
system is essentially an instrument of social control: society considers some
behaviours so dangerous and destructive that it either strictly controls their
occurrence or outlaws them outright. It is the job of the agencies of justice to
prevent these behaviours by apprehending and punishing transgressors or
deterring their future occurrence. Although society maintains other forms of
social control, such as the family, school, and church, they are designed to
deal with moral, not legal, misbehaviour. Only the criminal justice system has
the power to control crime and punish criminals.
So, the main objectives of the criminal justice system can be categorized as
follows:
# To prevent the occurrence of crime.
# To punish the transgressors and the criminals.
# To rehabilitate the transgressors and the criminals.
# To compensate the victims as far as possible.
# To maintain law and order in the society.
# To deter the offenders from committing any criminal act in the future.
Of late, the relevance of our criminal justice system- both substantive and
procedural- a replica of the British colonial jurisprudence, is being seriously
questioned. Perhaps the criminal judicial system is based on the laws that are
arbitrary and operate to the disadvantages of the poor. They have always come
across as law for the poor rather than law of the poor. It operates on the
weaker sections of the community, notwithstanding constitutional guarantee to
the contrary.
There are hardly any people to advocate for the new laws to help the poor, there
are practically none to pressurize the government and the legislature to amend
the laws to protect the week and the poor. Even after five decades of
independence, no serious efforts have been made to redraft penal norms,
radicalize punitive processes, humanize prison houses and make anti-social and
anti-national criminals etc. incapable of escaping the legal coils.
The criminal justice system is cumbersome, expensive and cumulatively
disastrous. The poor can never reach the temple of justice because of heavy
costs involved in gaining access and the mystique of legal ethos. The hierarchy
of courts, with appeals after appeals, puts legal justice beyond the reach of
the poor. Making the legal process costlier is an indirect denial of justice to
the people and this hits hard on the lowest of the low in society. In fact, the
legal system has lost its credibility for the weaker section of the community.
Of course, the judiciary in recent years has taken a lead and has come forward
with a helping hand to give some relief to the victims of criminal justice in a
limited way.
Some of the recent developments that have taken place during the last few years
in our judicial delivery system to seek redress and accord justice to the poor
are worth mentioning. The importance of these developments to the delivery
system of justice can’t be ignored. They have revolutionized our judicial
jurisprudence and will go a long way in giving relief to the large masses and
the common man.
In view of the importance of the subject matter, it is proposed to explain in
brief some of the important areas of the criminal justice system that have
attracted the attention of the courts in recent years. These are:
1. Public interest litigation.
2. Bail justice jurisprudence.
3. Prison justice.
4. Compensation to the victims.
5. Legal aid and legal services.
Public Interest Litigation
Public interest has its origin in the United States. It was during the 1960s
that public interest litigation emerges as a part of the legal aid movement
primarily aimed at protecting the rights of the weaker sections of the
community, such as the women, children, physically and mentally handicapped and
the like.
In India during the last few years, a new wave of public interest litigation has
struck the courts. It is being argued I some quarters that public interest
litigation has opened a floodgate of litigation and by such action, the Indian
judiciary seems to be projecting itself as the upholder of the freedom of
people.
This over act of the judiciary is regarded as nothing but interference in the
action of the executive, which is making a good and effective government
impossible. It is pointed out that the judiciary might collide head on with the
other organs of the State-the executive and the legislature- in which event,
being the weakest, it would collapse.
Bail Justice System
Bail is a generic term used to mean judicial release from custodia legis. The
right to bail- the right to be released from jail in a criminal case, after
furnishing sufficient security and bond- has been recognized in every civilized
society as a fundamental aspect of human rights. This is based on the principle
that the object of a criminal proceeding is to secure the presence of the
accused charged of a crime at the time of the inquiry, trial and investigation
before the court, and to ensure the availability of the accused to serve the
sentence, if convicted. It would be unjust and unfair to deprive a person of his
freedom and liberty and keep him in confinement, if his presence in the court,
whenever required for trial, is assured.
Prison Justice
Justice delayed is justice denied. This is more so in criminal cases where the
liberty of an individual is at stake and in jeopardy. The irony of fate is that
in all such cases, it is the poor and the week who are the victims of the
criminal justice system, and not the rich who are able to get away.
The plight of undertrial prisoners for the first time came to the notice of the
Supreme Court of India in the landmark case of Hussainara Khatoon v. State of
Bihar in 1979, wherein it was disclosed that thousands of undertrial prisoners
were languishing in various jails in the State of Bihar for periods longer than
the maximum term for which they could have been sentenced, if convicted. While
granting a character of freedom for undertrials who had virtually spent their
period of sentences, the court said their detention was clearly illegal and was
in violation of their fundamental rights guaranteed under Art.21 of the
Constitution of India. The court further said that speedy trial is a
constitutional mandate and the State can’t avoid its constitutional mandate and
its constitutional obligation by pleading financial or administrative inability.
In
Sanjay Suri , a trainee newspaper reporter initiated a public interest
litigation by moving a writ petition in the Supreme Court of India to gather
information about seven juvenile prisoners locked up in Tihar Jail, Delhi, whose
conditions were reported miserable. The Court, after getting a thorough
investigation conducted of the matter, came to know that the prisoners were
living in pathetic conditions in prison and there was overcrowding in jail. The
court accordingly issued a number of directions to the jail administration under
the provisions of the Indian Prison Act, 1884 to undertake corrective measures,
so that the prisoner could be provided with facilities available under the law
and were not put to harassment and inhuman torture.
There is however, hardly any change in the condition of the jails and the
attitude of the jail administration, and in spite of constitutional mandate for
speedy trial, there are over two lakh prisoners, convicts and undertrials who
are endlessly awaiting an early hearing of their cases.
It may be noted that the liberal remissions and grant of frequent paroles to the
prisoners to spend time with their families would help to inculcate self
confidence in prisoners and reduce the intensity of some of the prison vices.
As Kuldeep Singh and B.L. Hansaria, JJ said:
Unless there is introspection the part of all concerned with the criminal
justice system, issues relating to jail reforms, improvement in the prisoner’s
condition, and better administration of justice will continue to remain on
paper. It is possible to reduce the backlog of criminal cases if the judiciary
and lawyers together resolve to refrain from unnecessary and repeated
adjournment.
Compensation to Victims of Crime
Criminal law, which reflects the social ambitions and norms of the society, is
designed to punish as well as to reform the criminals, but it hardly takes any
notice of by product of crime- i.e. its victim.
The poor victims of crime are entirely overlooked in misplaced sympathy for the
criminal. The guilty man is lodged, fed, clothed, warmed, lighted, and
entertained in a model cell at the expense of the state, from the taxes that the
victim pays to the treasury. And, the victim, instead of being looked after, is
contributing towards the care of prisoners during his stay in the prison. In
fact, it is a weakness of our criminal jurisprudence that the victims of crime
don’t attract due attention.
The
code of criminal procedure, 1973, sec.357 and
Probation of Offenders Act,
1958, sec.5; empowers the court to provide compensation to the victims of crime.
However it is noted with regret that the courts seldom resort to exercising
their powers liberally. Perhaps taking note of the indifferent attitude of the
subordinate courts, the apex court in Hari Krishan , directed the attention of
all courts to exercise the provisions under sec.357 of the Cr.P.C. liberally and
award adequate compensation to the victim, particularly when an accused is
released on admonition, probation or when the parties enter into a compromise.
No doubt in recent years, the Supreme Court and High Courts by invoking
Art.21
of the Constitution have tried to give some compensatory relief to the poor
victims of illegal detention at the hands of the executive. Such cases are,
however, numbered and are not going to solve the malady.
Suggestions
Criminal Justice System in India requires a strong second look.
The criminal investigation system needs higher standards of professionalism and
it should be provided adequate logistic and technological support. Serious
offences should be classified for purpose of specialized investigation by
specially selected, trained and experienced investigators. They should not be
burdened with other duties like security, maintenance of law and order etc., and
should be entrusted exclusively with investigation of serious offences.
The number of Forensic Science Institutions with modern technologies such as DNA
fingerprinting technology should be enhanced.
The system of plea-bargaining (as recommended by the Law Commission of India in
its Report) should be introduced as part of the process of decriminalization.
The greatest asset of the police in investigation of crimes and maintenance of
law and order is the confidence of the people. Today, such public confidence is
at the lowest ebb. The police are increasingly losing the benefit of this asset
of public confidence. Hard intelligence in investigations comes from public
cooperation. If police are seen as violators of law themselves or if they abuse
their powers for intimidation and extortion, public develop an attitude of
revulsion and the onerous duties and responsibilities that the police shoulder
become more onerous and difficult.
In order that citizen’s confidence in the police administration is enhanced, the
police administration in the districts should periodically review the statistics
of all the arrests made by the police in the district and see as to in how many
of the cases in which arrests were made culminated in the filing of
charge-sheets in the court and how many of the arrests were ultimately turned
out to be unnecessary. This review will check the tendency of unnecessary
arrests. Some statistics indicate that in some districts in the country, nearly
80% of the arrests were made in respect of bailable offences.
The legal services authorities in the States should set up committees with the
participation of civil society for bringing the accused and the victims together
to work out compounding of offences.
#
Criminal laws: laws
related to Indian penal code, evidence act etc is discussed
here
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The author can be reached at :
rks_nlu@legalserviceindia.com
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