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Criminal Justice Policy Under Indian Constitution

Wherever law ends, tyranny begins.- John Locke

Criminal justice system refers to the structure, functions, and decision or processes of agencies that deal with the crime prevention, investigation, prosecution, punishment and correction. Some believe that it is not totally accurate to speak of a criminal justice system. A system, they argue, is an interactive, interrelated, interdependent group of elements performing related functions that make up a complex whole.

The criminal justice system is a loose confederation of agencies that perform different functions and are independently funded, managed and operated. However, despite their independence, these agencies of criminal justice system are interrelated because what one agency does affects all others. That is why they are called a 'system'.

The present criminal justice system of India is the product of a continuous effort on the part of rulers who controlled the affairs of the country from time to time. In every phase of Indian history the rulers contributed to the development of the criminal justice system.

However, most of them treated the criminal justice system more as an instrument to subjugate the masses rather than to protect their rights. The British rulers who made well-thought-out efforts for the establishment of a sound and well defined criminal justice system in India were also not free from this weakness.

They too looked at the criminal justice system more as an instrument to uphold the colonial rule in India and less for the administration of fair criminal justice to the people. The main objective of the criminal justice system is to create social harmony and maintain order by enforcing the laws and curbing their violation.

For attainment of this objective, a network consisting of the police, bar, judiciary and correctional services constitute the criminal justice system. Since the criminal law provides the basic framework for the whole criminal justice system, it is also considered as a component of the whole system.

The Constitution of India

Constitutions are intended to preserve practical and substantial rights, not to maintain theories.- Oliver Wendell Holmes

In a democratic country the Constitution guarantees certain basic rights and liberties to the people while criminal justice administration protects them by enforcing laws and punishing the offenders. If the Constitution is a chariot then the four components of the criminal justice system, viz. the police, bar, judiciary and correctional services are its horses. Harmonious efforts of all these four agencies are essential for moving the Constitution towards its goal of establishing a just society in India.

The Constitution of India was framed by the Constituent Assembly which comprised members elected through Provincial Legislative Assemblies and representatives of Indian Princely States and Chief Commissioner's provinces. The framers of the Constitution were committed to bringing about a social change by removing social disabilities and providing every citizen opportunities for his all round development.

The core of this commitment lies in Part III and Part IV of the Constitution which deal with the Fundamental Rights of the people and Directive Principles of State Policy. In the Directive Principles of State Policy, the Constitution envisions profound social and economic change to be ushered into through state intervention. Most of the Fundamental Rights are protection against arbitrary and prejudicial State action while some aim at protecting the individual against the actions of private citizens. Constitutional rights without a remedy for their enforcement do not serve the intended purpose.

Therefore, the framers decided to provide the remedy in the Constitution itself. The remedy for enforcement of Fundamental Rights or, to put in other words, against violation of Fundamental Rights, may be divided into two parts, namely:
  1. approaching the Supreme Court and High Courts under articles 32 and 226 respectively; and
  2. approaching the police or subordinate courts.
Since the Constitution declares violation of some of the Fundamental Rights offence under articles 17 and 23 punishable under law, the criminal justice administration has a direct responsibility to enforce these rights and curb their violation. Contravention of some other Fundamental Rights such as right to life and personal liberty is offence under existing criminal laws the enforcement of which is the responsibility of the criminal justice administration.

While granting rights and liberties to the people, the framers also envisaged adequate provisions for maintaining public order, morality, decency, security of the State, etc. They empowered the State, which includes the authorities of the criminal justice administration as defined under Article 12, to impose reasonable restrictions on some of the Fundamental Rights for ensuring protection of these national interests.

During freedom movement, repressive laws and high-handed attitude of the functionaries of the criminal justice system were at the top in the agenda to oppose the British rule in India. Having suffered injustice at the hands of the foreign rulers the people of India, after independence, expected a qualitative improvement in the existing criminal justice system.

The framers of the Constitution rose up to the occasion to cater to those expectations. They not only put the justice at the top among the aims and objectives of the Constitution and made elaborate arrangement in the Constitution itself to secure it to the people.

All laws in India, criminal as well as others, are made by Parliament or the State Legislatures in accordance with the provisions of the Constitution of India. To put the Constitution in the category of criminal laws may not sound well, but, it being the source of all criminal laws of the country, may be reckoned as the supreme criminal law. The Constitution under Articles 17 and 23 declares certain acts as offences punishable in accordance with law.

It deals with many matters which have a direct bearing on the criminal justice administration, e.g. protection in respect of conviction for offences (article 20), protection of life and personal liberty (article 21), protection against arrest and detention (article 22), appeal to Supreme Court in criminal matters (article 134), and powers of President and Governor to pardon, suspend, remit sentences (articles 72 and 161).

The Constitution provides for a federal polity where Parliament as well as the State Legislatures share the powers to frame laws. Articles 245 to 255 and Seventh Schedule of the Constitution deal with the distribution of Legislative powers. The subjects have been divided into three categories, viz. (1) Union List, (2) State List, and (3) Concurrent List.

Parliament and the State Legislatures have exclusive powers to make laws on the subjects under the Union List and the State List respectively. As regards the Concurrent List, both Parliament as well as the State Legislatures have concurrent jurisdiction to make laws.

However, in case of conflict between the laws made by Parliament and the State Legislature on any subject under the Concurrent List, the law made by Parliament shall prevail upon the other.

The Constitution also empowers the President under Article 123, and the Governor under Article 213 to promulgate ordinances in urgent situations, when Parliament or the State Legislative Assembly, as the case may be, is not in session. However, the ordinance shall have the effect of law for a limited period of six months only.

The subjects relating to the criminal justice system as included in the Seventh Schedule of the Constitution of India are given below:

List I—Union List

  • Central Bureau of Intelligence and Investigation.
  • Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.
  • Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court) and fees taken therein; persons entitled to practice before the Supreme Court.
  • Constitution and organization including vacations of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.
  • Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union Territory.
  • Extension of the powers and jurisdiction of members of a police force belonging to any state to any area outside that state, but not so as to enable the police of one state to exercise powers and jurisdiction in any area outside that state without the consent of the government of the state in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any state to railway areas outside that state.
  • Offences against laws with respect to any of the matters in this List.
  • Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list; admiralty jurisdiction.

List II—State List

  • Public order but not including the use of any naval, military or air force or any other armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in aid of the civil power.
  • Police including railway and village police subject to the provisions of entry 2A of List-I
  • Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.
  • Prisons, reformatories, Borstal institutions and institutions of a like nature and persons detained therein; arrangements with other states for the use of prisons and other institutions.
  • Offences against laws with respect to any of the matters in this List.
  • Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.

List III—Concurrent List:

  • Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
  • Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.
  • Preventive detention for reasons connected with the security of a state, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.
  • Removal from one state to another state of prisoners, accused persons and persons subjected to preventive detention for reasons specified in entry 3 of this List.
  • Administration of justice; constitution and organization of all courts, except the Supreme Court and the High Courts.
  • Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.
  • Legal, medical and other professions.
  • Jurisdiction and powers of all courts, except the Supreme Court with respect to any of the matters in this List.

Conclusion
From the foregoing analysis of the constitutional provisions, it is observed that the ideals of equality, liberty and dignity of the individual were kept constantly in view while framing the Constitution. The framers gave top priority to justice. They made several provisions for criminal justice and its administration in the Constitution itself. While recognizing rights of the people, the imperatives of security, unity and integrity of the State were also kept in view constantly. The Constitution allows the State, which includes the police and magistracy, to impose reasonable restrictions on some of the Fundamental Rights of the people in certain circumstances to maintain order, decency, morality, etc.

Thus, the Constitution contains adequate provisions for fair administration of criminal justice. However, for achieving desired results, the provisions need to be implemented meticulously obeying the spirit behind them and not just the letter. It may be proper to recall the following remarks of Dr. Rajendra Prasad, the first President of India. While speaking in the Constituent Assembly on

26th November 1949, he said:
If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country.

Written By: Prakriti Bhagat, High court of Rajasthan (Jaipur Bench)
Phone no:+9352793557

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