ELS DISCOURSE Episode 5: Indian Criminal Justice System: An Introspection


Author, researcher and administrator, Prof G S Bajpai serves as Professor of Criminology & Criminal Justice; Chair Professor at K.L Arora Chair in Criminal Law at National Law University, Delhi and also as the Chairperson at the Centre for Criminology & Victimology. Besides having a master’s in Criminology & Criminal justice, he holds a doctorate in criminology & victimology and a post-doctorate in criminology ( Lecisecter University, UK). He is also the Registrar, National Law University, Delhi. Before this, he was serving (2007-2011) as Professor (Law & Development) & Chairperson at the Centre for Criminal Justice Administration, National Law Institute University, Bhopal (MP). He also had positions at the Indian Institute of Public Administration, (1989) Bureau of Police Research & Development, (1989- 1995) Punjab Police Academy, Punjab and Department of Criminology & Forensic Science, University of Saugar, M.P. He did his post-doctorate study (2004) as Commonwealth Fellow at the Department of Criminology, Leicester University, U.K


Yashaswi Pande: As of September, 2020, 70% of the prisoners in India are under trials. In your opinion, what are the necessary changes that are required to be brought about with respect to bail laws in the country to safeguard the liberty of the accused?

Prof. G.S.Bajpai: Thank you, first of all, for having me here today. As far as this issue of under trial prisoners is concerned, as we gather that the prisons are overcrowded to the extent of some 120% – that is the occupancy rate. And you will also note that in majority of the cases, these under trial prisoners belong to a very humble background. In many cases, they are illiterate, they are semi-literate. And we also find that these under trials are lodged in prison, mostly for want of either cases delayed badly or primarily they are unable to restore or manage the bail that they require to furnish to the court as a matter of legal requirement.

The bail jurisprudence in India, you know, plays out in a very typical manner. As we understand, the law is provided in the CrPC under Section 436-450 and you will find that on the one hand we have a black letter law, which looks quite impressive but when it is played out, you’ll find that the context in which it works, it gives us very critical signals. The first and foremost problem which is identified in this connection is that the overall bail regime seems to be biased against the poor.

That is that is the whole issue which comes up. And as I have said, that who are these under trial prisoners in terms of their profile, you will find that the whole idea of detaining them is to make sure that they are present at the time of trial. This is the sole requirement, but it comes with a very heavy price for the prisoners, the undertrial prisoners.

Therefore, let me tell you some reality of this thing. You’ll find that in a particular year say two thousand accused persons are released on bail, a rough estimate I am giving, and you’ll also find that less than one percent of them would fail to appear before the court. That is the idea. But you will find the chances of getting bail are nearly 28 percent. So this means that a large number of people would be behind the bar for some reason or the other. Why it happens where law fails, there are lots of issues. But without bringing much legality into our discussion to make it very simple, we have two types of bails.

One is the default bail and the other is bail in non-bailable cases. Bail in non-bailable cases requires a large degree of judicial discretion. Now, how the judicial discretion is played out, that is something of curious fact for us to know, because what happens, what are the factors which are identified or examined and what are the factors which are completely overlooked. So for the courts, which are already overburdened in India, they do not have time to really apply to the merit of the case.

Therefore, bail has become a mechanical process which would result in complete denial of the bail in many cases, or it will come with such conditions where the amount of bail or bond will be fixed at a very higher pedestal and which would be difficult for the people to manage in terms of furnishing the bail. But I find a very interesting thing here to be discussed that is what are the factors which are completely away from the judicial sight, those factors which become crucial, like, for instance, if we say the condition relating to accused – his identity, his responsibility, his reputation, his character, his connection with the community, his family ties, his means, his standards in the society, his roots in the community.

Now judiciary doesn’t have any way to underscore these factors, which will become very, very crucial in deciding the bail in favor of the accused. So that is once. There is no reason, however, that the some respite that we find in our laws or laws are pretty fine. But the problem is, like we find that in one of the section, especially 436A was added. 436A brought a lot of hope.

And that came actually as a consequence of a large number of people getting detained inside the prison as under trial. So a special mechanism was brought out where the section was inserted and this section now provides for releasing an accused on his personal bond and in case one who has undergone up to one-half of the maximum period of imprisonment specified for that offence during the period of investigation, enquiry or trial. But this provision is not applicable in those offences like death penalty and all that.

And the court has to hear the public prosecutor also before deciding upon the release of the accused under this section. So there are lots of things where the reform is necessary, like I find even under Section 439 special powers had been given to High Courts and Session Courts where they can really come out to see that whether a case is fit for the bail or they can make a review of the matter to be able to decide.

But what I find very briefly speaking on this issue is that some important provisions are not being invoked and one important reason, which I again gather is that, like, if you look at the State of Punjab vs Mehar Singh, in this case, the court observed that in the absence of a special order of the magistrate, the non completion of an investigation can become a sole reason for detaining the offender for remand. So remand has become a kind of rule and remand in many cases.

So if investigation remains incomplete for some reason, it will result into the detention of the person. Similarly, Section 309(2) deals with the remand of the accused after cognizance of the offence has been taken by the court. So where the trial is adjourned or constantly delayed the court may remand the accused if he or she is in custody. So these provisions nowhere mentioned that the magistrate may release the person from custody.

So this creates a problem and the suggestion here can be whether the remand under the provision is a mandatory and not so an exclusive outcome. So these technicalities would result into the further detention. So in all these areas, the bail law reform requires revisiting. And lastly, very quickly our classification of bailable and non bailable offenses can also be revisited more in favor of granting liberal bail to the people and the bail has immediate connection with the manner in which arrest is made.

Now, Section 41 of CrPC has been amended, but the problem continues. The police is arrest friendly – arrest hungry I would say. They will prefer more and more arrest rather than thinking of applying the provisions of notice under Section 41A. So in the absence of the quick compliance of these some mandatory reasons, the population of under trial is rising and observance of bail law is decreasing.

Yashaswi Pande: Thank you, sir. Moving to the next question. Given the low conviction rate in the country with respect to IPC offenses, what changes do you think can be made in the investigation stage or otherwise to ensure that there is sufficient evidence at the stage of crime to convict the accused?

Prof. G.S.Bajpai: See investigation and conviction – these are the two very crucial things with the conviction rate invariably remains less than 33 or 35 percent. I think there is a huge scope of reforming the entire regime of investigation to be able to, you know, provide a fairness in investigation number one and to bring more scientificity in the process of investigation. So the first part remains, which I gather very quickly I can say – See the police officers who are in charge of investigation they are not necessarily the law experts. And I find that because of this particular reason, the police officers continue to make several mistakes, which are then taken advantage of by the defence lawyer in terms of picking holes with the entire process, which may be resulting into either undue acquittals or for that matter, in some other undesirable outcome. So idea of appointing a legal officer with the police station can be the first thing which would empower the strength and the capacity of the police. And this is happening. Delhi, recently is carrying out this. They are taking young graduates to be appointed as legal counsel to the police station.

Second is the prosecution and police functions. Now, the prosecution remains a different department. So the guidance of prosecution is not available to the police to be able to prepare the case and therefore, you’ll find even the acquittal in very heinous crimes may take place. I would also suggest some kind of technical requirements can enhance the investigation regime. Like, for instance, the idea of networking will police stations with criminal court. So a lot of records can be shared, it can be retrieved by these offices interchangeably for the immediate transmission of documents and removing the any possibility of manipulating or changing the documents, which would drastically reduce the weaknesses in the investigation process.

Similarly, the verification of FIR. There are a lot of frivolous FIR, but the idea of the preliminary inquiry. And also, I find that IOs to record the reasons for delay. So lot of investigations are botched up or sometimes delay deliberately. If the law is amended to make it compulsory for the police officer to regard reasons in such cases. You said about the scientific investigation, I find that especially in rural areas for this station, the protection of crime scene is the last priority for the police.

So I think some education, some training about protecting the crime scene from filing of chargesheet, due maintenance of case diary and all these things, and taking forensic science help like mobile unit and all those things can definitely increase the efficiency towards the investigation.

But one thing which I always feel that given the practical problems with the police in India as the India Justice Report in 2019 says that long back the National Police Commission recommended that separation of law and order and police investigation means that the police station are going to be two distinct departments. If that thing can happen, probably there would be sufficient time for the IOs to the investigation. At the moment, we believe that hardly less than 30 percent of time is left with the police officers to be devoted to the police investigation. The rest of the time goes to the miscellaneous duties, but majorly to the law and order maintenance duties kinds of things.

So investigation is one very important area, which becomes a very decisive factor in the success of trial and successful prosecution. But huge reforms are needed. And as a matter of fact, since I am on the Criminal Law Reform Committee, I am the convenor of the committee. We are drastically reviewing the entire investigation regime to make it fair, transparent and effective. Which would require certain suggestions and Supreme Court has given a number of directions relating to investigation, arrest, bail. Now, these directions should now become the part of the law. That is very important. So all of these things taken together would definitely enhance the quality of investigation.

Yashaswi Pande: the criminal justice system protects the rights of the accused at every stage of the court proceedings and in turn sometimes neglects the victim’s interests. So in most cases, the rights of the victims are reduced to being a witness if and when they are summoned by the courts and more often than not this reduces the role of the victim to a mute spectator in their own case. What changes, in your opinion, are required to safeguard the rights of the victims in a criminal trial?

Prof. G.S.Bajpai: Again, I would say that in the Criminal Law Reform Committee our huge emphasis is on victim justice. Victim justice, we are propagating in order to bring much needed balance in the criminal justice system, in the criminal jurisprudence. But as I have realized that without bringing substantial changes in the laws, the status of victim cannot be improved. Because the victim is a marginalized person in the trial process or in the entire criminal justice process, and that is because of the fact that the victim itself came as late as 2008 in the criminal procedure under Section 2(w)(a) where the victim has been defined, but you’d be surprised to note that on the one hand, the victim was defined, but you will not find any concurrent mention of the term victim in the context of various provisions where it could have been mentioned. So victim remains unrecognized, unacknowledged and therefore underrated. Now issue is the global understanding and the Global Movement for Victims of Crime in the wake of 1985 UN declaration, which facilitated a range of reforms in favor of crime victim could not reach India in fact.

So I propose three or four things to be included. First of all, we have to move from charity or welfare to make it more right based approach for the victims of crime. So we are thinking of recognizing as many as eight rights, which would be legally available, like they available to the accused right from the beginning. So it may be right to information, right to participation, right to legal assistance, right to privacy, right to safety and protection, right to speedy justice, right to restitution, compensation and assistance and right to services, different medical, other kinds of.

So we are contemplating three stages at which the reform will take place. We are contemplating first the statutory recognition. Second, what are the pre-trial stages and trial and post-trial. So you’ll find that especially in pre-trial, before the commencement of the trial, there can be a lot of things like informing the progress of the investigation, bail proceedings, information regarding the arrest of the accused. All these information generally, do not reach the victim because strangely, no organs of the state is accountable to the victims of crime in terms of providing these information to the victim and therefore a victim does not have such information as to what happened to the report that he has filed to the police station. Now, at the time of charge sheeting for instance, victim is not a party. So even the proceedings resulting to discharge, major stakes are with the victim. Victim is nowhere present. However, prosecutor is present, but individual presence of the victim is something very important.

Should I say something? Victim at no stage is hard as a victim of crime in the criminal justice process. Victim is merely considered to be a witness during a trial. So our job and effort at the moment is to bring the victim as victim before the court and during the trial we want the victim to have certain participatory rights where it may be cross-examination, it may be other stages where the evidences are being put. Victim should have a right to address the court. Which doesn’t happen and right to appeal, we have to expand this right, which is available at the moment, but somehow it is very limited in nature. So that is also a great possibility. And also I find that the sentencing stage basically then victim is omitted at the sentencing stage. So if the court is mandatory hearing the accused, the offender now the after finding him guilty on the question of sentence, why can’t you hear the victim of crime?

So we are propagating the victim impact statement to be included. The compensation system in regime to be made more and more victim friendly. At the moment in 357 we have an arrangement of what I call restitution; there is no guidelines for that. But 357 is a state compensation for which certain guidelines are available. But for 357, there’s absolutely nothing. So there is need to work out the victims need assessment. So there is a huge possibility of centralizing the victim’s interest in the criminal justice system so that the victim gets protection and finally assistance and rehabilitation.

Yashaswi Pande: Another important question with surrounds how we treat the contempt in the criminal justice system and it has been a long contested issue is that of the death penalty and Project 39A has been conducting pioneering research on this and the reports make for an unshakable case for its abolition. So what impact do you hope the project will have on the position in Indian criminal law?

Prof. G.S. Bajpai: See that the adjudication of death penalty has always been a very problematic area in the criminal justice system in India and for that matter elsewhere as well, because it is irrevocable. But in the case of India I find there are, definitely it looks that there are two schools of thought to retentionists and abolitionists.

But I find in India the concern is not just because the death penalty is brutal, so it should be removed. Concern has largely been that the death penalty could not be executed and adjudicated fairly and in a transparent manner because the entire framework of law relating to death penalty provides a lot of judicial discretion and we have noted a range of problematic practices in terms of adjudicating death penalty, like, for instance Bacchan Singh framework is very known to us, which has basically talked about the considering of aggravating and mitigating circumstances for both crime and the criminal. Unfortunately, in all subsequent judgments, you would find that courts appear to be more inclined to understand and highlight the aggravating factors more and more, thereby avoiding death penalty. But somehow the mechanism of understanding mitigating circumstances has not been given due importance.

Probably the reason being that the court does not have at the time of sentencing any mechanism to collect the data relating to socio economic condition and the past life related variables of the offender, which could be relied upon in the process of sentencing. And. I do not find any Cogent evidence where the courts were in the position to appreciate the potential to reform. Potential to reform became only a phrase which was mentioned and Bacchan Singh framework. In none of the subsequent judgments we find much of it to be present.

So I think if you want to assess the possibility of reform, how you will assess it? Because Project 39A in their report on death penalty, especially in the district courts, convincingly they have brought out the cases where they found that the sentencing and conviction is taking place on the same day. If it is happening on the same day, obviously judge did not apply his judicial mind to the question of ascertaining of aggravating and mitigating factors, which requires time.

So now and this is not happening, so these things are becoming more and more problematic and many cases now find invoking collective conscience of the society as one of the reason why the death penalty should be awarded. Now, it is a really very abstract expression how you will assess the collective conscience of the society in favor of death penalty.

So to my mind, several researchers have consistently brought it out that the Indian death penalty adjudication regime is very uncertain, very precarious and I would say they are not up to the mark for various reason. So huge reforms are necessary. Evolution is definitely now the Law Commission has recommended. So probably now, we are not awarding the cases in death penalty now more and more. But at the same time, we find the contradiction is happening. You have brought death penalty in POCSO cases. So probably I think a lot is required to be done in terms of removing these imbalances in this particular form of punishment.

Yashaswi Pande: According to the data by the National Human Rights Commission, torture in police custody is a routine in India with more than 17000 deaths being reported in judicial and police custody in the last decade. In light of this, how effective do you think is the domestic legal framework for prohibiting and penalizing torture and do you think there is a need to have an anti torture legislation in India?

Prof. G.S. Bajpai: Actually, this debate is again quite old for India because the law commission has taken a view on custodial torture. But the debate in the recent past revolved around the India’s position vis-a-vis the UN convention, because we have not ratified that convention till now, though, though, the Indian state tried to bring out a bill in 2006 (I guess). So idea was that some reform in certain areas where the custodial torture is more likely would be undertaken, but somehow I find that it is, again, the byproduct of certain strange mix of factors. First of all, we have arrangements within the criminal procedure which provide for certain protection to the accused because the legal framework is already there. So, for instance, section 49 says that the person arrested shall not be subjected to more restraint than necessary to prevent his escape.

Section 57, for instance, and Section 163 also. In these sections, we provide certain protections to the accused, but somehow custodial torture continues because we have, I think, long back probably the National Police Commissioner has pointed out that some 60 percent arrests are informal. Informal arrests always come with the likelihood of torture to the arrested person because then they extract confession extract statements. However, the law of evidence doesn’t gives any weight to the statements recorded before the police as a matter of evidence. But still the police try to make headway with the investigation and they need certain things to be extracted from the accused and I don’t know, Section 330 of IPC and 331 IPC has therefore brought in to provide certain punishment, who I would say is quite severe punishment, in cases where someone, a public servant, indulges into the causing of any simple or grievous injury. These things are punishable. Similarly, we have Section 340 and 348 where any wrongful restraint or wrongful confinement is punishable. This is the legal side.

On the contextual side, I find that in our police stations, the police officers have several opportunities to indulge in this kind of misconduct because opportunities are there and they can get away with they know that they can get away with it. Probably, you know, putting CCTV, bringing that DK Basu’s, now DK Basu is a part of law, creating control. Sudden check, all those things now should become much more pronounced otherwise the way the Indian police work, I do not see even in the near future these instances of torture are going to be reduced.

I may be sounding a little pessimistic, but I think a lot of things to be repaired seriously in order to curb this, because the way the investigation is conducted, so police is driven to do these kinds of things, irrespective of the fact that we have legal provisions. But then you know how to short circuit the legal provision, then make it bypass and then indulge into these kinds of things. So probably a lot of multi prosed approach, police training, supervision, control, monitoring, technology, all of these things have to converge into making of an effective system against this particular menace.

Thank you on behalf of the entire team of ELS Review for joining us today and for this really insightful discussion. It was an honor to have this discussion with you today. Thank you so much.

I thank you for having me here today. It was a pleasure talking to you and I wish you all the best for your ELS platform for extending this kind of discourse and organizing some interesting debates on this platform. All the best to your entire team. Thank you.

Host – Yashaswi Pande
Technical Editor and Trascript – Aarzoo Gang

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