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Criminal Justice System: The Triturator Of Poor

It is common sayings that "if you want to know any country's prospect of development, look at its crime rate". The Criminal Justice System of a country helps in keeping the crime rate under control. By helping enforce the law, the Criminal Justice System enables the society as a collective in ensuring acceptable behaviour from all its participants i.e. victims, criminals, witnesses and the society at large[i].

But the hopes of a country's bright future are vanished if the country's Criminal Justice System is tainted. The same seems to have happened with India as well. The whole Criminal Justice System seems to have become anti poor. Be it the police, investigators, advocates, media, even the judiciary- people below the poverty line always find the system stacked against them.

For a man who does not have a decent economic background Filing an FIR is struggle, his evidence is always tempered by the police, advocates do not cooperate with him, access to quality legal service is in dire and even bearing the daily costs of criminal proceedings is a daunting task. Though many laws are incorporated to provide free legal aid to poor, the reality seems otherwise.

Recently, the report of the Death Penalty Clinic at the NLU in Delhi[ii] analysed people who have been sentenced to death. The analysis showed that inevitably these are the people who have not been represented or been represented poorly; people with little or no means of defending themselves and therefore they become victims of the system.

Not only the death penalty awardees, if we talk about under trial prisoners also, around 55% 67.2% of them are below poverty line[iii]. Also, as per a report a large chunk of people are not able to get released even after getting bail due to non payment of security amount. At every stage of a criminal proceeding the poor are always discriminated.

What is Criminal Justice System?
A Criminal Justice System is a set of legal and social institutions for enforcing the criminal law in accordance with a defined set of procedural rules and limitations. It includes several major subsystems, composed of one or more public institutions and their staffs, police and other law enforcements agencies, trial and appellate courts prosecution and public defender offices, probation and parole agencies, custodial agencies and the most important investigation agencies. In addition various administrative agencies whose work includes criminal law enforcement are also part of Criminal Justice System.

Components of Criminal Law System
Though, it's very difficult to list down all the institutions which form part of criminal law system, broadly speaking the following are said to form the basic components of Criminal Justice System in any country:
  1. The Law Givers:
    They define a crime according to the exceptions and needs of society, prescribe the procedure for verification of deviance, investigation, procedures for defining the guilt, nature and quantum of punishment. To delineate the parameters of behaviour in society.
     
  2. The Law Enforcers:
    They are the one responsible for enforcing the laws in the country. Police personnel, various investigation agencies like CBI, ITBP, CISF, bureaucrats, etc form part of this. Their main job is to prevent and detect the occurrence of crime, collect and present material evidence n proof of violation before judicial adjudicators and to assist in the administration of justice [iv].
     
  3. Judiciary:
    It is the venue where disputes are settled and justice is administered. All the offenders which violate law are punished by Judiciary on the basis of evidence adduced and witnesses. Also, it is responsible for determining the quantum of punishment both which is suited for the offender and serves the purpose of reforming them.
     
  4. Correctional Administration:
    It is responsible for carrying out the punishment awarded by the judiciary to the offender after they are found guilty. Prison officers, execution personnel, etc are part of it.

Is India's Criminal Justice System Anti Poor?
Though there are no specific laws or prescribed procedure in India which makes its Criminal Justice System Anti Poor, the truth is that it jeopardizes your interest if you are poor. Indian government since independence has taken various initiatives to make the system bias free. To tackle the inequality and inequity of formal legal system, we have institutionalised the delivery of legal services through LSAA.

We have a four tier mechanism with NALSA, State Legal Service Authorities, District Legal Service Authorities and the Taluka Committees. We also have a Legal Service Committee in every High Court. We have attempted providing not just legal representation but legal services as well. Laws are made in such a way that prefers giving bail instead of detaining a person. No security amount is prescribed in Criminal Procedure Code, 1973 so that judges can decide the amount keeping in mind the economic capacity of a person and a person doesn't have to suffer because of shortage of funds.

Similarly, laws made it compulsory for police personnel to register FIR no matter whether the grievance is from rich or poor. Investigation agencies like CBI, IFTP, etc also works diligently no matter who the victim. Judiciary also pays no heed to the economic capacity of an individual while adjudicating him.

Though all the points mentioned above indicates that the poor faces no discrimination in Criminal Justice System in India, the reality seems otherwise. There are many barriers to accessing justice that a poor man faces. The laws, rules and processes are mystifying and befuddling even for an educated, literate person. Legal Service Authorities Act could have been a game changer on equal access to justice.

However, like many other welfare based laws LSAA too suffers from serious implementation issues including governmental apathy, procedural barriers, corruption and above all shortage of funds[v]. Judges do not take into consideration the economic capacity of an individual while giving bail and often sets the amount quite high. According to the recent Law Commission report around 67.1% of prisoners in India are under trials which means that 2 out of 3 prisoner has not been adjudged guilty yet still they are in prison.

For a poor to even file an FIR is a daunting task if he refuse to bribe police personnel, his investigation is tainted, evidence is tampered and he even face prejudice in terms of getting quick dates, appeal preference and at various other stages of criminal proceedings. Even the SC has admitted on multiple occasions that the Indian judiciary has been ignoring the common man while giving priority to rich, powerful and influential people in hearing cases, "Sometimes, I wonder at my system. Here is an appeal of the year 2013 which gets a quick hearing. In how many cases are we doing so?

That's why poor man feels that the system cares only for known persons and the unknown gets ignored" said Justice HL Dattu while hearing a case. "We can say on oath that only 5% of the time is being used for common citizens, whose appeals are waiting for20 or 30 years. This court has become safe haven for big criminals." Said Justice BS Chauhan

To determine whether India's Criminal Justice System is Anti Poor or not, we have to assess various factors. These are as follows:
  1. Access of Justice i.e. whether poor people are able to approach court regardless of the complicated nature of the legal procedures and sky rocketing fees.
  2. Bail granted i.e. whether those below the poverty line are able to get bail by paying surety amount or not
  3. Investigation aspect i.e. whether poor people are jeopardized by th police and other investigation agencies while registering the complaint or carrying out the investigation of the case
  4. Legislative aspect i.e. whether the laws made by the Parliament are in favour of poor people or not
  5. Post Conviction Difficulties i.e. whether poor people exclusively face any difficulties in prison after being convicted

Access to Justice
Right from filing of a case to applying for protection from arrest, seeking bail or requesting expeditious hearing to probability of getting a favourable verdict, ability to getting the appeal accepted by the higher courts and getting relief there, the assistance of a counsel is required at every stage of criminal proceedings[vi].

Prior to independence, poor people were often jeopardized in Criminal Justice System as they were not able to afford a counsel for fighting their case due to their economic insufficiency. After independence, the law makers wanted to solve this problem and thus incorporated various provisions for the same.

Some of them are as follows:
  1. Article 39 A of Constitution Of India:
    It states that the state shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
     
  2. Section 304 of Criminal Procedure Code, 1973:
    It provides that "where in a trial if the accused is not represented by a pleader due to insufficient means the Court shall assign pleader for his defence at the state expenses".

Further, in 1995, Legal Service Authorities Act was enacted to enable free legal aid for socially and economically vulnerable people. All these provisions should have solved the problem of access to justice to poor but the reality is different. Like many other welfare based laws LSAA too suffers from serious implementation issues including governmental apathy, procedural barriers, corruption and above all shortage of funds.

Justice UU Lalit, Executive Chairman of NALSAA noted recently, "Only 1% of the total criminal cases heard in the courts of law get legal aid from the offices of Legal Services Authorities across the country[vii]". There are various reasons for it. First, the quality. As reported in an article, for lawyers at lower courts the amount awarded per case varies between Rs 1500 and Rs 5000[viii].

Such a paltry sum obviously does not help in attracting talented and experienced lawyers thus impacting the quality of legal representation for the poor and failing to address the very objective of free legal aid. Moreover, lawyers which are employed by Legal Service Authorities do not focus much on the cases of poor (as they are getting such a meagre sum for it) and instead focuses more on the cases of their private clients who pay them much more.

In addition to it, nowadays it has become a common practice among LSAA lawyers to demand additional money from their clients (though they are supposed to provide free legal aid) and if they failed to do so, the consequences can be seen in the outcome of case.

Moreover, Legal aid can be provided to a needy litigant to cover one or more expenses like payment of court and other processes fees; charges for preparing, drafting and filing of any legal proceedings; charges for a legal practitioner; costs of obtaining orders judgements and other documents in legal proceedings, cost of paper work, etc[ix]. However, in a legal suit many other costs are also involved which are not compensated under Legal Aid.

While the legal aid programme may pay for court fees, cost of legal representation, obtaining certified copies and the like, it usually does not account for the bribes paid to the court staff, the extra fees to the legal aid lawyers, the cost of transport to the court, the bribes paid to the policemen for obtaining documents, copies of depositions and the like or to prison officials for small favours.

The ability to meet these cost is directly proportional to the probability of getting justice that too sooner than later and the inability to meet this cost on the other hand diminishes the possibility of getting justice, for the luckiest ones it may come eventually but still far too late[x].

Also, it is a universal fact that a major influence on how courts respond to litigants has been attributed to the status of the senior advocates or defence councils who enjoy a celebrity status in the legal fraternity. Senior advocates who appear before the court gets special attention. The top 10 Advocates of India charges between Rs 5,00,000- Rs 25,00,000 per case. A man who earns Rs 10,000 per month can't even think of paying that much. As a result he is denied of quality legal aid for his case and therefore is jeopardized when hearing their case.

After analysing the above points, we can conclude that though the government had taken some initiatives and incorporated various laws for ensuring free legal aid to poor people but in real world they are nothing but a dead note which do not have any relevancy in real world.

Bail granted
Bail, in the law means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority [xi]. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company.

Whenever the accused person is granted bail, he/she has to give a surety amount for the same. The problem in this provision is The Criminal Procedure Code, 1973 does not mention the amount of security that is to be paid by the accused to secure his release. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society.

The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor. One can see those ranges from Rs 10,000 - Rs 1,00,000 and even higher in some cases. Although it's easy for a rich man to pay this amount, it is a very daunting task for a poor.

In a country where more than 50% of the population is below the poverty line and earns less than Rs 10,000 per year, it is absurd that such amount are asked to be submitted in court in lieu of the bail. As expected most people who are below the poverty line are not able to pay the surety amount and end up in prison even after being granted bail for a long period of time.

According to the report of the Law Commission as on April 1, 2015, of a total prison population around 67.1% were under trials which means 2 out of 3 prisoners has not been held guilty yet he is still in jail [xii]. One of the reasons for this is the large scale poverty amongst the majority of the population in our country.

Fragmentation of land holdings is a common phenomenon in rural India. A family consisting of around 8-10 members depends on a small piece of land for their subsistence, which also is a reason for disguised unemployment. When one of the members of such a family gets charged with an offence, the only way they can secure his release and paying the bail is by either selling off the land or giving it on mortgage. This would further push them more into the jaws of poverty. This is the precise reason why most of the under trials languish in jail instead of being out on bail.

Not only in non bailable offence but also in bailable offence where the bail is granted as a matter of right, the plight of the poor continues. People who, lives in the thrall of poverty and destitution, and who don't even have the money to earn one square meal a day are expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.

Investigation Aspect
Though investigation agencies along with police personnel in India are quite diligent, a difference of attitude can be seen when they attend a case of poor instead of a rich man. Consider the Ryan International School Murder case where the Haryana police wasted no time in arresting and claiming a 'confession' from the school bus conductor[xiii]. While for a poor getting an FIR registered itself is a daunting task.

They are asked to pay hefty sum for registering FIR, for investigation, for inquiring the accused and for various other things which is the duty of police personnel to assist the citizen with. Not only this, they are also asked to pay for their food and drinks whenever the police personnel visits their house and if they fail to do so, the consequences can be seen in the investigation report prepared by the police.

In the 2005 Diwali blast case, Mohammed Rafiq Shah, a college student from Jammu and Kashmir was taken into custody on the allegation that he had physically implanted a bomb in a bus near Sarojini Nagar. At the time he was taken into custody, he contended that he was in class at that time, but the police did not bother to look into the same.

Later, a letter was sent to Kashmir University to verify this and was presented before court. But more than 12 years years have passed by then and a precious life has already been wasted. This is what happens if you refuse to fulfil the illegitimate demands of police personnel and fails to satisfy their appetite of money- your all case along with your life can be ruined.

Same goes for other investigation agencies as well. Investigation agencies when collecting evidence related to a case of poor are often seen lethargic in the way they prosecute. Ultimately, there is nothing in the case and the accused are let off[xiv]. Even people who are arrested and prosecuted on valid grounds get acquitted due to sloppy investigation. On the other hand while investigating a case of rich man, for instance Aryan Khan, they can't afford of becoming lethargic. In a rich man's case investigation is completed within 10 days while in a poor man's case a charge sheet could not be filed even after 3 months.

Legislative Aspect
Though it is completely biased to say whether the laws are biased in favour of poor or not, at first impression they seem to be structured to discriminate against poor. Whether we talk about anti beggary laws that criminalises poverty, the Immoral Traffic Prevention Act that criminalises sex work, the juvenile justice law that delivers the street child into the arms of law or even the municipal laws that criminalise acts of encroachment of public spaces by street dwelling homeless persons and hawkers they all seem to jeopardize the interest of poor[xv].

In addition to the harsh bail laws discussed earlier according to which the poor people are expected to pay hefty sum demanded by judges for getting bail, another problem which a -poor man faces is of fine. Fine is forfeiture of money by way of penalty. Though in some offences, the quantum of fine is pre determined, but in other offences like Section 123, 124, 126-134, 380, 444 and 475 of IPC, the law has given absolute discretion to the judges to decide the quantum of fine which jeopardize the interest of poor. Judges usually fail to take into consideration the economic capacity of an individual and impose high fines. In Association of Victims of Uphaar Tragedy V Sushnil Ansul, a fine of 30 crore was imposed which was completely unrealistic. For a man who earns Rs 10,000 per month, it's impossible for him to pay that much.

What adds to the plight of poor people is additional imprisonment the poor as to face in default of payment of fine. Section 64 of IPC confers a general power on the courts to award the sentence of imprisonment in default of payment of fine. For instance, in Ram Das V State of Uttar Pradesh[xvi], the accused was awarded imprisonment for two years because he failed to pay the fine of Rs 3000. No one wants to go behind the bars especially for non payment of such a meagre amount. But the accused's financial position did not allow him pay the fine. The Judge failed to notice it and he ended up wasting two precious years of his life behind the bars. Thus, at first instance the laws seems to jeopardized the interest of poor

Post Conviction Aspect
Though after holding guilty all persons are sent to prison whether rich or poor, discrimination is faced by poor in terms of treatment in jail. If you are wealthy enough to bribe the jailor, you will get all the facilities in jail-fan, cooler, your favourite food, cigarette, beer,etc. Moreover, you don't have to do any work in prison. While if you belong to a poor family you will see a living hell on Earth. Just one meal per day that too which is not suitable even for animals. You have to sleep in front of toilets, have to do double work and will not get any blanket in winter or any fan in scorching summer.

Not only this prejudice is faced by poor if he has to visit his family member in prison. For visiting someone in the prison you have to first register the visit request. You are not allowed to bring any phone or other device which can be used as a threat to jail security. Even for bringing homemade food special permission is required and one often have to wait in long queue for his turn.

However, a recent reality check by A famous newspaper revealed that the staff offers three packages Rs 300 for a regular meeting, Rs 100 to send home food to an inmate, Rs 1200 for a direct meeting (without a grilled window in between). One can pay additional Rs 200 to jump a long queue [xvii]. You are even allowed to bring phone and other devices as well. On the other hand, if you refuse to bribe them you will find that when your turn for getting in had come the visiting hours would have been over.

Reforms Needed
  1. The payment of Legal Service Authorities lawyers shall be increased. This will attract more capable lawyers for serving the society. Also it should be made compulsory for all the senior advocates to serve as Legal Service Authority's Lawyer for one month every year.
     
  2. New Punishments keeping in line with changing socio economic framework shall be introduced. Instead of imprisoning a poor in default of payment of fine, a new type of punishments like community service orders, servicing in old age home, orphanage shall be given.
     
  3. Provision should be incorporated in LSAA to include indirect costs like cost copies of depositions, photocopy, print outs, judgements and other costs within the ambit of free legal aid.
     
  4. CCTV cameras shall be installed in all the police stations and if any policeman is found asking money for registering FIR or for doing favour during investigations, he/she shall be suspended.
     
  5. Legal Service Authority's Lawyers shall be kept under strict supervision. A monthly report of all the cases attended by LSA lawyer containing all the details of the proceeding which took place in the month shall be sought from him. Also, if any complaint is received from a person regarding LSA's lawyers asking to pay him separately, strict auctions shall be taken against him immediately.

Conclusion

Indian government no doubt had taken some good initiatives to ensure that poor people don't suffer the backlashes of their economic condition when facing criminal proceedings but all these initiatives have proved to be fatal. Money is required at all the stage of criminal proceeding whether registration of FIR, filing suit, paying bail bond, or filing appeal. Realistically speaking there is no such thing called "free legal aid".

Whether we like it or not the quantum of money you have plays a major role in winning or losing a suit. You have to pay money for registering an FIR, have to pay for the meals of policemen when they come for investigation, have to pay for getting bail, filing appeal and so on. Even the Legal Service Authorities' lawyers who are supposed to provide free legal aid does not work unless you pay them separately for their service or else you would suffer in your case.

Recently while appearing on behalf of the petitioner who was sentence to death for rape and murder for review petition, a NALSAR professor came to know of a shocking fact. The petitioner was an insane from birth. He was sent to an Ashram for treatment but after reaching there, his condition worsened.

One day he ran from the Ashram and on his way of escaping committed the brutal act of rape and murder. None of this fact was presented to the judge by the lawyer (appointed by LSAA) during the trial just because the petitioner's family was poor and they refused to pay him money.

Also, free legal aid covers only direct costs. It does not account for various indirect costs like, the cost of transport to the court, cost for obtaining documents, getting photocopies and print outs, copies of depositions, etc. Also, absence of any bar on the security money for bail jeopardizes the interest of poor people.

In a country where more than 50% of the population is below the poverty line and earns less than Rs 10,000 per year, it is absurd that such amount are asked to be submitted in court in lieu of the bail. As expected most people who are below the poverty line are not able to pay the surety amount and end up in prison even after being granted bail for a long period of time.

Also, the laws in the country are not made keeping in the mind the economic conditions of majority of population. In many offences there is no bar on the quantum of fine and it all depends on the discretion of judges but they hardly give any reference to economic condition of the accused and impose hefty fines. If the poor fails to pay, he/she ends up behind bars jeopardizing not only his but also his entire family.

Thus, we can conclude that the Criminal Justice System in India is anti poor which jeopardizes the interest of poor.

End Notes:
  1. India's Criminal Justice System: Reforming Institutions for Delivering Justice available at: https://a1181-indias-criminal-justice-system-reforming-institutions-for-delivering-justice.pdf
  2. Criminal Justice System in India skewed against the poor; judiciary losing credibility due to repeated legal oversights available at https://www.firstpost.com/india/criminal-justice-system-in-india-skewed-against-the-poor-judiciary-losing-credibility-due-to-repeated-legal-oversights-4402129.html/amp (Visited on April 2,2022)
  3. Vrinda Bhandari, "India's Criminal Justice System: An example of justice delayed, justice denied" available at: https://www.dropbox.com (Visited on April 2, 2022)
  4. Crime and Criminal Justice System available at: https://www.dropbox.com/ (Visited on April 2, 2022)
  5. Legal Aid under various statutes in India available at: https://www.dropbox.com/ (Visited on April 2, 2022)
  6. Inequality in Access to Justice is No Less than Injustice available at; https://www.abgaindia.org/blog/4186/ (Visited on April 2, 2022)
  7. The Laws are Structured to Discriminate Against the Poor available at: https://www.livelaw.in/topstories/appearing-in-court-challenges-in-representing-the-marginalised-196753 (Visited on April 2, 2022)
  8. Supra note 3
  9. Supra note 6
  10. Supra note 7
  11. Legal Service India-Indian System of Bail-Anti Poor available at: https://www.dropbox.com
  12. Reformation of the Indian Criminal Justice System available at: https://www.dropbox.com
  13. Supra note 2
  14. Criminal Justice System in India skewed against the poor; judiciary losing credibility due to repeated legal oversights available at https://www.firstpost.com/india/criminal-justice-system-in-india-skewed-against-the-poor-judiciary-losing-credibility-due-to-repeated-legal-oversights-4402129.html/amp (Visited on April 2,2022)
  15. Supra note 7
  16. AIR 1974 SC 1811
  17. In Jail, Sasikala prefers to be left alone available at: https://m.economictimes.com/news/politics-and-nation/in-jail-sasikala-prefers-to-be-left-alone/amp_articleshow/58490126.cms (Visited on April 2, 2022)

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