From Fear of Law Grows Respect for Law

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

India is gradually turning into a country where not only there is no respect for law, there is not even a fear of law. Laws are what bind a democratic society together because they create a social contract within a framework of laws which determine interpersonal relations and prescribe the bounds within which the fundamental rights, especially under Article 19 of the Constitution, may be exercised to maximise freedom while ensuring that the exercise of rights by one individual does not impinge upon the rights of another. Thomas Hobbes viewed the social contract not so much as a society of laws but rather as a discipline which ensured that the state of nature did not degenerate into the law of the jungle. To him John Locke’s state of nature was abhorrent because in it “ …dissolute condition of master less men, without subjection to laws and a coercive Power to tie their hands from raping and revenge… would create conditions in which there would be … no place for industry, … no culture of the earth; no navigation… no Arts; no Letters; and which is worst of all, continual fear and danger of violent death; And the life of man solitary, poor, nasty, brutish and short”. Such a social contract has a place only in a dictatorship, but the fact remains that unless there is a society of laws in which democratically framed laws provide the framework within which society will function, public order and tranquility cannot be maintained. For civilised society to exist, for democracy to flourish, we need a system of laws and for all citizens to work within the framework of law, respect the law and obey it.

Is India a society of laws? It claims that it is a democracy because every five years the people at large, through the ballot, have the right to vote a government out of power and to determine who will form the next government. But democracy demands that society will function according to laws and that there will be no arbitrariness, no violence and certainly no tyranny of an individual, a group or a set of interests which may try and impose their own views on the rest of society. In such a society, no one is allowed to decide which laws he or she will obey and which laws will be ignored, nor can anyone decide to take the law in his own hands because he is dissatisfied with certain events or with certain things of which he disapproves. The Indian Constitution guarantees the fundamental right of freedom of speech and expression, peaceable assembly and the formation of association or unions. However, these rights are subject to reasonable restrictions, to be determined by law, so that by exercising their rights no citizen or group jeopardises the security of the State, leads to incitement of an offence, disturbs public order, decency or morality or brings courts into contempt. It is for this reason that the Code of Criminal Procedure creates an Executive Magistracy, a judicial system and empowers the Magistracy and the Police to prevent offences, take preventive action in this behalf, issue prohibitory orders, order unlawful assemblies to disperse and to use necessary force to enforce the order and to take all such measures as many be necessary to ensure that public order, peace and tranquility are not disturbed. If an offence does occur, then the law empowers the police to register an offence, investigate it and produce the person against whom a prima facie case is made out before a judicial court. The courts are empowered to take cognisance of offences, charge-sheet and try offenders and, on conviction, award a suitable sentence as prescribed by law.

Such a system totally and absolutely precludes lynch law in which extra judicial punishment is inflicted by persons or mobs who not only are not empowered to punish but who themselves commit an offence by inflicting extra judicial punishment. However heinous the offence, the right to investigate, prosecute and punish vests in officers and courts mandated by law to perform this duty. Street agitations and trial by media are no substitutes for legal process. The worst form of extra judicial punishment is a riot in which a mob not only takes the law into its hands but indulges in acts of violence, including causing death, arson, molestation of women, loot and worse. A riotous mob represents the ultimate breakdown of law and order and the absence of government.

Recently in Muzaffarnagar District of Western U.P, an altercation took place between a Muslim boy and two Jat boys on an allegation that the Muslim boy had tried to molest a Jat girl. This matter could have been sorted out by the village elders or the police. Instead the situation took a violent turn, the three boys were killed and Jats and Muslims, who normally lived in close harmony, were at each other’s throats. Almost fifty people were killed and about fifty thousand people rendered homeless. It is only when the Army was called in that the situation limped back, not to normal but at least to a stage where the public peace was being maintained. The district administration of Muzaffarnagar, which should have intervened in the very first hour, seemed to be paralysed and there is some evidence that ruling party leaders directly intervened in order to make the police inconsequential and some opposition party leaders actually instigated violence. The cause of violence may be a small quarrel but the reason why riots continue over a long period of time is that the district administration and the police hesitate to act and, therefore, are paralysed and this encourages law breakers to take matters into their own hands. In the eighties of the last century, we have seen this happen in Meerut and in every case where rioting has been prolonged it is the failure of the district administration to intervene forcefully which had led to continuing violence.

Of course there is a political dimension to the problem. This is that political parties of all hues have started interfering in day-to-day administration with an effort being made to make the Magistracy and the Police so subservient that instead of enforcing the law, officers pander to the whims of the politician. In Articles 77 and 166, the Rules of Business clearly prescribes the functions of the political executive and the permanent executive. The Police Act gives the powers, responsibility and accountability of the police and the Code of Criminal Procedure gives the powers and duties of the Executive Magistracy and the Police. The scheme of rule of law in India is that whosoever the legislature empowers under law to perform a particular function or duty is required to perform such duty strictly in accordance with the legal mandate given to him and not at the behest of anyone else. Not even the Chief Minister of a State can direct or compel a Magistrate or a police officer to function in a partisan manner or seek the orders of politicians and others on how to deal with a law and order situation. In fact, apart from the Executive Magistracy and the Police, the law mentions no one else as having any powers whatsoever to deal with such a situation.

A police officer of the lowest rank is duty bound to prevent the commission of an offence (rioting is an offence), apprehend law breakers and take necessary steps to ensure that public order is maintained. He requires no one’s direction in this behalf and in fact if he hesitates he himself becomes a partner in law breaking. It is the job of the political executive to create an environment in which the magistracy and the police are enabled to function according to law so that the mandate of the legislature is fulfilled by them. Law and order breaks down only when the district administration fails to take timely action.

Incidentally, the worst communal riots in the history of that State occurred in 1969 when Hitendra Desai was Chief Minister. The Commissioner of Police of Ahmedabad had an understanding that the police should not use force and, therefore, the Ahmedabad Police was not only unprepared, it was actually disarmed. This understanding arose out of the officers’ thinking about what the Chief Minister, a Gandhian, wanted. The Chief Minister never tried to disillusion him in this behalf or to remind the Police Commissioner that it was his job to maintain public order. The district administration twiddled its thumbs whilst Ahmedabad burnt and it is only when my batch mate, H.K. Khan and a group of young IAS and IPS officers were brought in to control the situation that matters improved.

In Uttar Pradesh, the Samajwadi Party is not pro Hindu—in fact it leans over backwards to woo the Muslims whom it consider its own vote bank. Despite this, communal riots took place in Western U.P. and the government failed to anticipate the situation and subsequently to control it. In UP, the district administration has been interfered with and distorted by the politicians to an extent where the Magistracy and the Police no longer function independently. This is a certified recipe for disaster.

What has emerged in India is that law enforcement at all levels has declined. When I was a young District Magistrate it was expected that every police officer not only knew his duty but would intervene at the earliest juncture if he saw a situation developing which could lead to a breach of the peace. This, in turn, engendered both fear of the law and respect for it. Once a law breaker knows that he will be caught and punished he would be deterred from breaking the law. But, however, if people collectively feel that they can take the law into their own hands, there will neither be fear or law nor respect for law. People who claim to have a grievance no longer hesitate to blockade public streets and to disrupt traffic for hours on end. Railway lines are blocked because local people demand the stoppage of a train at their little station, thus throwing life out of gear throughout the railway system. Communities agitating for recognition as a backward class block off whole sections of the railway track and prevent the movement of goods and people over large sections of railways. What right do they have to stop the free movement of people in an India where Article 19 of the Constitution guarantees freedom of movement? People barge into hospitals and beat up doctors, hooligans wreck restaurants on St. Valentine’s Day, people jump traffic lights, encroach on public streets, defy lawful orders and resort to violence on trivial issues. There is no element of Gandhian Satyagraha in this. Such acts are the tyranny of a small minority which feels that violence is justified to put forward its point of view. Our administration tolerates all this and more and this has created an environment in India where there is no respect for law.

Pre modern India had its own code in which elders were respected, the Mohalla collectively decided what was permissible and what was not. Aberrant behaviour towards women resulted in a social outcry and a boycott of the errant person and society as a whole felt responsible for the safety and dignity of women. All this is a matter of the past and Khap Panchayats are only a reflection of traditional society trying to rediscover and enforce the old constraints. When traditional remedies no longer work, the law must step in. And for it to be able to do so, every transgression of law should be treated as an offence which must be punished. When people begin to fear that violation of law will lead to unpleasant consequences for themselves they will automatically begin to fear law because they know that there will be zero tolerance law enforcement. A stage then comes when obedience of law becomes an automatic reflex and from this is born a respect for law as something which must be obeyed because it is in the interest of the society to do so. When that happens, the authorities charged with law enforcement will begin to enforce the law without fear or favour and India will be a much more peaceful country.

There are certain minimum requirements which precede strict enforcement of law. The most important of these is that law enforcement agencies, mainly the police, should be provided a blueprint of what is expected of them and for this purpose government, in whom superintendence vests, must lay down the rules, the regulations in the police manual, the scheme of policing and the broad guidelines within which the police is required to function. The police, under its own hierarchical command structure, must then be told that it will function within the law and the framework of rules, regulations and guidelines and in doing so neither would anyone be allowed to interfere with its working, nor would officers be required take orders from anyone except from their own superiors while performing their lawful functions. The law, especially the Code of Criminal Procedure in the matter of investigation of offences, already provides for such autonomy of functioning, but this needs to be backed up by rules, regulations and a policy framework within which the police is immunised from undue interference and the officers are ensured stability of posting. In this behalf, I commend the words of the Soli Sorabjee Committee on Police Reforms in the model Police Bill drafted by it. The committee states in the section relating to superintendence of the police, “ (1) It shall be the responsibility of the State Government to ensure efficient, effective, responsive and accountable Police Service for the entire State. For this purpose the power of superintendence of the Police Service shall vest in and be exercised by the State Government in accordance with the provisions of this Act. (2) The State Government shall exercise its superintendence over the police in such manner and to such an extent as to promote the professional efficiency of the police and ensure that its performance is at all times in accordance with the law. This shall be achieved through laying down policies and guidelines, setting standards for quality policing, facilitating their implementation and ensuring that the police performs its task in a professional manner with functional autonomy”. This is the real ideal of the relationship between government and the police in which government guides and the police performs. To this may be added what the committee has recommended about coordination within the district administration in which the District Magistrate will coordinate the functioning of the police with other agencies, especially in matters of public peace, tranquility, removal of persistent public grievances and interdepartmental coordination. If the Magistracy and the Police function according to law, if there is zero tolerance policing so far as crime is concerned, we can build both fear of law and respect for law.

Use and Misuse of Public Funds: Some Questions Which Must be Asked

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Recently Rahul Gandhi visited Bhopal for a day on purely Congress Party work. He did not come by a normal commercial flight, the fare of which he could have reimbursed as a Member of Parliament. He came by a special aircraft and for his personal protection a bullet proof armoured vehicle had been sent in advance from Delhi by train. Naturally he was accompanied by his SPG escort and more than one thousand policemen were deployed for his protection and general bandobast. He travelled in a convoy of several cars, piloted and escorted by the police and barricades were erected for crowd control. I cannot think of the Chairman of the Labour Party in Britain travelling in that country in such style and at such a great expense. In Delhi the Sonia Gandhi family maintains a life style which undoubtedly must cost a great deal of money, certainly more than can be afforded by the emoluments earned by her and Rahul Gandhi as Members of Parliament. The question which the people of India must ask is, “Where is all this money coming from?”

I am not targeting Rahul Gandhi or the Congress Party because every party and every leader does exactly the same thing. The BJP President Rajnath Singh travels by special aircraft and helicopters as do Mulayam Singh Yadav, Lalu Prasad Yadav and leaders of the parties in the Southern States. The Congress Party is supposed to be the richest political party in India, followed by BJP and CPI (M). If we take the population of India as being 120 crores, including adults and minors, if a party were to collect five rupees per head that would still come to only Rs. 600 crores. Considering the life style of our leaders, the cost of their travel, the huge amounts spent during elections, it is obvious that parties and party leaders are accepting money from business houses, whereas their followers are extorting money from smaller businessmen. Why should a business house give any money to any politician unless he is convinced that this is a form of investment which can be encashed at huge profit, to the advantage of the politicians also for overlooking the malpractices of the business house? One is told that the House of Tata refuses to pay bribes and I am prepared to accept that the family of Jamnalal Bajaj, mainly Rahul Bajaj, would also be principled in this behalf. But that is not true of most of our business houses and, therefore, party funds are very largely dependent on contributions from black marketeers, people indulging in illegal business and business houses, some on the make but most who know that if they are to survive they have to please the politicians. This is the root cause of corruption and surely the question must be asked, “Why are parties and politicians sourcing funds from businessmen and why are businessmen doling out such huge amounts?’

In my family we three brothers were in the IAS (the middle one died when he was just 52 years) and my wife was also an IAS officer. She, my youngest brother and I are pensioners and no doubt after the Sixth Pay Commission the pension is enough for us to live reasonably comfortably. It is not enough to afford luxury, which is why my wife is unable to replace her eleven-year old car. In some ways we are fortunate because there is a huge escalation in land value and the house which I built in 1975-76 cost me just about rupees three lakhs, including the cost of land, which is now worth crores of rupees. However, I cannot think of acquiring more property at today’s prices. On the other hand most of our politicians have acquired assets for which there is no logical explanation in terms of what they earn. For example, a Chief Minister of Arunachal Pradesh once told me that his Industries and Excise Minister, who belonged to a particular tribe, came from a poverty stricken household but he now owns a hotel in Itanagar, properties in Guwahati, Delhi and Bombay and is an extremely wealthy man. I can give any number of examples from Madhya Pradesh of politicians who could not afford a bicycle now owning several cars, others who could not afford a one room tenement having luxurious bungalows and commercial properties, with their wives being loaded with jewels. Where does all this money come from? Elections cost huge sums of money and it is obvious that political parties cannot afford to give every candidate crores of rupees for an assembly or parliamentary election. A person who has spent rupees five to ten crores to win a parliamentary seat has obviously to collect money by illegal means in order to recoup what he has spent. He becomes corrupt, he corrupts the system by forcing his civil servants to assist in collecting money, the civil servants in turn find that it is lucrative to be corrupt on their own, unscrupulous contractors and businessmen take advantage of the corruption of the bureaucrats and the politicians and, therefore, spurious drugs and liquor are sold and kill innocent people, the roof of a hospital collapses with patients occupying the premises, a Dawood Ibrahim flourishes and scams occur on a national scale.

Let us carry the analysis further. There are two phenomena which one does not find in most developed economies which are also democracies. Newspapers such as Le Figaro, Washington Post, The Times do not carry several one-page advertisements celebrating the birthday of some leaders, highlighting by way of an advertisement the speeches of a Chief Minister or lauding appointment of some political leader to a post in government or in a government corporation. There are no hoardings and ceremonial gates put up all over the city because an office bearer of a political party is paying it a visit. There are no bill boards or hoardings at street corners and along public roads containing the portraits of politicians and celebrating something relating to them. That is the way of dictatorships. The Nazi Party rallies at Nueremburg, the portraits of the Great Leader adorning the streets of Pyongyang, the statues of Stalin and Lenin in the Soviet cities are all hallmarks of Fascist and authoritarian Communist societies. The situation in India far exceeds anything that was found in Nazi Berlin, Mussolini’s Rome, Franco’s Madrid or Kim Il Sung’s Pyongyang. It goes even further than Mao’s Beijing. The sycophancy and the prostration before the leaders is so sickening that one is sometimes ashamed to be an Indian. In a democracy the citizen is supreme, the system of politics is multi-party, the voter decides who governs us and the Constitution prescribes how we shall be governed. Party leaders individually count for nothing and even so powerful a person as Margaret Thatcher would have been laughed out of court if, for example, she were to visit Liverpool at the height of her power and her party tried to plaster the city with her portraits. Why, then, does India, which calls itself the world’s largest democracy, have a culture of what is nothing short of idolatry with regard to its political leaders? The media, the party workers, the bureaucrats, the political parties themselves and, sad to say, citizens at large are guilty of this miasma which has overtaken our society and our politics. We must ask the question why this has happened and we must root out this toadyism lock, stock and barrel.

Advertisements in the newspapers in favour of our politicians cost a great deal of money, may be about rupees two crores for a full page advertisement in a national newspaper. Where is the money coming from? Who pays for the banners, posters, ceremonial gates, the tonnes of flowers when a person like Advani, Rahul Gandhi, etc. visits a city? Quite apart from the waste there is also the case of the corruption which accompanies such expenditure, all of which is ultimately paid for by the common man. Why are we not asking for an immediate end to this practice? As a young District Magistrate I have had visits of Jawaharlal Nehru, Indira Gandhi, Morarji Desai, Jaiprakash Narain and others to my district headquarters. What we see today did not exist then and certainly politicians were much simpler in those days and more austere. We have to return to the days of sane politics and people must insist on this.

We can no longer hide behind the ‘purdah’ of democracy when dealing with corruption. I, as a citizen, would like know why the cases of disproportionate assets against Mulayam Singh Yadav and Mayawati, both in Uttar Pradesh, have been pending for so long. The allegations do not relate to some obscure tale of illegal funds passing through a confusing maze of transactions in Mauritius, a West Indian island, anonymous banks in Switzerland or Luxembourg. They relate to tangible immoveable assets in India, to cash payments, bank balances and jewelry. The allegations are false, in which the case should be closed, or they are correct, a prima facie case exists and the matter should be challaned before a court of competent jurisdiction. Instead the Delhi Police Special Establishment (popularly known as CBI) digs up or buries the cases from time to time according to the need for the support of the Samajwadi Party or Bahujana Samaj Party when things become dicey in Parliament. That CBI is professionally incompetent, its officers are not above corruption and its is extremely selective, depending on what government wants, in prosecuting offences, is well known. The Supreme Court bravely states that it will free CBI from political control. Why does the Supreme Court not ask the Inspector General of the Delhi Special Police Establishment, who is a legal entity, also known as the Director of the Central Bureau of Investigation, which is only a non statutory executive agency, to read Chapter XII of the Code of Criminal Procedure, 1973? In the matter of recording of FIR, investigating an offence, apprehending accused persons, collecting evidence, arriving at a conclusion whether a prima facie case does or does not exist against the accused person or persons and then deciding to either challan the accused in court or to submit a final report seeking permission to close the case, the police has complete and absolute legal autonomy. Only a superior police officer has the power to supervise a case under section 36 Cr.P.C. and section 158 Cr.P.C. However, even a superior police officer cannot direct that the investigating officer excludes from his investigation a person against whom there is a prima facie case, or include in the charge-sheet a person against whom there is no evidence of a prima facie case, challan a case in which there is no evidence that an offence is made out or submit a final report for closure in a case where there is enough evidence for a charge-sheet. No one, minister, civil servant or superior police officer can make an investigating officer delay an investigation or make a false investigation. That provision already exists under the present law. Even if the law does not specifically state that a Law Minister or an officer of government is debarred from interfering in an investigation, there are any number of decisions of the Privy Council, our High Courts and the Supreme Court which makes this amply clear. What other autonomy does the Supreme Court intend to confer on CBI? Will the greatest respect to our courts my submission to them is to use their judicial power to make officers, including police officers, function according to law instead of making statements about how they intend to liberate officers or organisations from the control of government.

I think a question must also be asked of the Executive as to why it has abandoned its executive functions. Despite what some police officers like to believe, the police is part of the executive arm of government, whose existence is determined by laws enacted by the Legislature, whose authority and functions are prescribed by such laws and whose accountability and subordination are both determined by law. Let me give one example. The Supreme Court is insisting that the police should not function under the control of government. Superintendence over the police vests in government and must continue to do so. The power of superintendence does not mean micro management of the police, but it does mean that the framework of policing, the objectives of policing and the broad policy relating to the methods of policing will be laid down and prescribed by government through rules, regulations, manuals and standing orders. In the ultimate analysis the Minister in charge of Home is accountable to the Legislature for the manner in which the police functions and neither the Supreme Court nor any other authority can dilute this accountability of the Ministers. Suppose the police exceeds its powers, misuse its authority, harasses citizens, indulges in excessive force in dealing with a law and order situation, fails to deal with crime because it is corrupt or incompetent and questions are raised about this in the Legislature. Can the Home Minister turn around and say, “I have no control over the police, I cannot shift an officer, I cannot punish him until some prescribed authority permits me to do so?” The legislators will then demand a change in the law and if this demand is supported by the majority, the law will be changed.

What we need is a balance between the authority of the Executive, the role of the Judiciary in ensuring that all executive arms, including the police, function according to law and for the police to be operationally autonomous so that it can fulfill its task of maintaining order, preventing crime and quickly detecting and prosecuting offenders. This calls for restraint, rational thinking, proper legislation, competent executive functioning and vigilance on the part of the Judiciary which, in the present surcharged environment, is no where visible. The question which people must ask is “Why is this so?”

Good government is a function of a proper balance between the Executive, Legislature and the Judiciary. It is equally a function of integrity, honesty in the matter of working and efficiency and competence on the part of the constituents of the State. I consider the role of the Legislature and the legislators pivotal because it is this body and these persons who, because they are constituted by the freely cast vote of the citizens, are the key components of a representative democracy. Legislators have a constitutionally defined role and that consists of enactment of laws which are in the public interests, approval of the annual budget and individual items of expenditure and grants to meet such expenditure and then maintaining a watch over government to ensure that it functions in a manner such that the funds allotted to it by popular will, expressed through the representatives of the people, are properly utilised. This is done through questions, resolutions, debates, call attention motions, adjournment motions and through functioning of the Public Accounts Committee, the Estimates Committee and the various standing committees for different departments, which all call government to account. At every step the Executive is accountable to the Legislature and if legislators were to do their duty the end result would be good government. But the fact is that the legislators do not do their duty, most sessions of parliament are heavily interrupted by agitations, there is very little meaningful debate in State Legislatures or in Parliament and most legislators are more interested in getting executive posts or in interfering in the day-to-day working of the Executive by demanding postings and transfers, insisting on work being done according to their whims and fancies and using the bureaucracy as a means of making money rather than in attending to legislative business. Should not a question be asked why the legislators do not perform their legitimate function and instead make it impossible for the bureaucracy to function? Should we also not ask why the bureaucracy has become so used to this situation that it has now become a willing partner in what ultimately leads to wholesale corruption?

We have been silent too long and an Anna Hazare fasting to end corruption, an Arvind Kejriwal jumping around and agitating, a Prashant Bhushan filing public interest writ petitions do not even scratch at the problem. We need a massive upsurge of public anger which would tear down the posters of our leaders, dog their footsteps when they talk nonsense in public and insist on an austere style of living and functioning of the politicians and the civil servants. That will bring us back to the early days of independence, when India looked to the future with hope, the politicians still imbued with a sense of Gandhian morality and the civil servants enthused by and proud of their role in building a new and prosperous nation.

The Trial Procedure, Its Strengthening and Expeditious Justice

Dr M N Buch, 
Dean, Centre for Governance and Political Studies, VIF

The procedure for investigation of offences, taking a decision to prosecute, presenting a challan to a court, cognisance by a court and the subsequent process of trial are all given in the Code of Criminal Procedure. So far as evidence is concerned, it would be governed by the Indian Evidence Act. From the point of view of the Police as the agency for investigating and subsequently prosecuting offences, Chapter XII Cr.P.C. is of utmost importance. The Police acquires the right to investigate an offence only after it records information about the alleged commission of a cognisable offence. Under section 154 Cr.P.C. such information is called the First Information Report, the information is reduced to writing and entered in the FIR book, a copy of the FIR is required to be made available to the informant and under section 157 Cr.P.C., if the officer incharge of a police station has reason to believe that in fact a cognisable offence has been committed, then a copy of the FIR and a report thereon has to be submitted to the Magistrate having jurisdiction. Every police officer acquires the authority to investigate an offence under section 156 Cr.P.C. after the FIR and though under section 157 (1) (b) the Station Officer may, for reasons to be recorded in writing, decide not to investigate the offence, in every other case he is required to proceed with the investigation.

For the purpose of investigation the Police can summon witnesses to appear before the investigating officer under section 160 Cr.P.C, under section 161 he may examine witnesses who, by law, are required to answer all questions correctly and truthfully and the statement may be reduced to writing or recorded by audio video electronic means, with the rider that under section 162 Cr. P.C. such statements may not be signed. The only use to which the statements can be put is to contradict a witness in court. However, section 164 Cr.P.C. may be used for the recording of a statement of a witness or confession of an accused, made voluntarily, before a Judicial Magistrate. Section 162 Cr. P.C. severely restricts the credibility of any statement made before the Police by witnesses under section 161 Cr. P.C. and, therefore, they are almost worthless. Section 165 Cr. P.C. permits a police officer to conduct searches relevant to the investigation in hand. As the investigation proceeds, under section 169 Cr. P.C. if the investigating officer finds that there is insufficient evidence to justify the forwarding of an accused person to a Magistrate he may release him. If, however, there is sufficient evidence the case would be sent to a Magistrate having jurisdiction. Under section 173 when the case is presented to the Magistrate by way of a challan all the details of the evidence, the investigation and its findings will be forwarded. Where cognisance is required the challan shall state so. If on the other hand, no prima facie case can be made out against the accused, then the report under section 173 would be by way of a request to the court to permit closure of investigation, such report being called a Final Report. It would then be upto the Magistrate to decide whether he will take cognisance of the case and proceed with the trial, order further investigation or allow closure. From now on the case would be transferred to the prosecution branch and the Judiciary.

This is not a beginner’s lesson in police or judicial procedures because the objective of this paper is to find ways to expedite justice. There is a general expectation that where serious crime occurs the investigation, trial and judgment will be swift, perhaps even instantaneous. If that does not happen questions are raised about police inefficiency or collusion, judicial neglect and undue delay. This often leads to public protest. Delay can be on account of laziness, incompetence, or lack of diligence, it can occur because clues are not readily available, in depth investigation takes time. There is also the possibility of collusion between the investigator and the investigated. Delays can also occur because judicial process itself is governed by law and High Court Rules and Orders (Criminal). Whereas a court is expected to ensure that the trial proceeds with due dispatch (this is what section 309 Cr.P.C. directs) there are many reasons why the court proceedings do get postponed or become lengthy. At no stage of the trial should the accused be made to feel that he is being denied a fair opportunity to present his case and, therefore, where necessary the court has to give a suitable adjournment. What is not permissible is the use of delaying tactics by the defence and the failure of the prosecution to pursue its own case vigorously. Trial courts must ensure that every such an attempt is dealt with firmly and the trial proceeds without undue interruption.

One major cause of protracted trials is that there is failure on the part of the courts and the Police to serve process on accused persons and witnesses alike. Where the defence case is weak every attempt is made by the accused and his legal team to ensure that process is not served and, therefore, in the absence of witnesses or, as often happens, of the accused himself on the grounds that he was unaware of court proceedings, the case is indefinitely prolonged. It is a well known fact that greater the delay the more likely are the witnesses to forget the sequence of events to which they were witness and, therefore, their statements under cross examination may become contradictory or at variance with each other. If this creates a reasonable doubt about the culpability of the accused the benefit of such doubt will go to the accused and he will be acquitted despite the fact that he may well have been guilty of the offence. One of the main reasons for the very low conviction rate in Indian courts is that because of delayed recording of evidence the prosecution witnesses lose credibility and, therefore, the case of the prosecution is not proved beyond reasonable doubt. When this becomes a frequent phenomenon the public becomes disillusioned with the legal system, either takes things into its own hands by acts resembling lynch law, or forces the Police into taking short-cuts, resulting in fake encounters. Neither has a place in a society of laws, but if society wants to eliminate them it must address the fundamental question of ensuring expeditious justice without compromising on the basic principle of law that an accused is deemed to be innocent until proved guilty.

How does one achieve such a happy state of affairs? Let us begin with start of the legal process, the FIR and the investigation of an offence. The Police in India is very short handed. For example, in Madhya Pradesh there is one policeman for approximately 834 citizens, whereas the international average in developed countries is one policeman to about 165 citizens. In order to achieve a ratio of one policeman for 250 citizens the Madhya Pradesh Police would have to triple its strength. In a greater or lesser degree this is true of almost all the states in India. Lack of adequate manpower means that we cannot move towards separation of law and order and other police functions from investigation functions and an overworked, over strained police is hard put to finding the manpower and the time for consistent investigation of crime. Therefore, investigation itself is not from day-to-day because the same officer may have to rush for VIP duty on one day, law and order duty on another day, with investigation of an offence being fitted in to what spare time is available. It is a fact of which we may take due notice without further evidence that where investigation is relentless and accused persons are under constant pursuit, clues come to light more easily and the Police is able to gather information about who has committed an offence and evidence of his culpability. An investigator does not have to be brilliant, but he has to be diligent, systematic and persistent. Under the present system it is only high profile crimes which receive such attention, whereas all other offences are dealt with on the basis of as and when an investigating officer is available.

If we want justice to be swift we must attend to the investigating wing of the Police and ensure that it has adequate and properly trained manpower. To this must be added the need to develop our forensic capabilities so that investigation of crime becomes more and more scientific. The Soli Sorabji Committee on police reforms has suggested that the investigation in every heinous offence must be accompanied by a proper forensic report from a forensic science laboratory. At present forensic science is neglected in the matter of police priority. The laboratories are few and far between and in the majority of cases either the forensic report is so delayed that it becomes meaningless, or it is perfunctory, or it is downright misleading. If every police station had a scene of crime team and adequate forensic backing many crimes would quickly be solved on the basis of forensic indications or forensic evidence.

Even with all the scientific backing, solving a crime requires what can best be called plodding police work. A team searching the neighourhood of an offence, talking to people to collect impressions, recording statements and then following up clues is the backbone of investigation. Local knowledge of the modus operandi of criminals and the identity of people who might be involved in a particular type of crime, rapport between the police station staff and the citizens so that anything unusual is noticed and the information conveyed to the Police, are very important in the prevention and investigation of offences. This is where the Crimes Records Bureau would be of great help because accessing its files could narrow down the search for a criminal. This is where the training and orientation of every single policeman down to beat constable has to be upgraded so that IT and other modern tools of communications are universally used by the Police. This would include radio communication, hand held beat to police station communicators, personal mobility and use of internet to access information, all of which have to become tools as important to the Police as the rifle or the baton. This is an area where much needs to be done because if IT becomes an important tool of investigation the speed of investigation is substantially increased. This should be extensively used by superior police officers to monitor and guide investigation under sections 36 and 158 Cr.P.C. This would encourage honest and quick investigation of offences.

In order that there should be successful prosecution there has to be constant interaction between the investigating team and the prosecution branch. Formerly the prosecution branch in the magisterial courts was under the Superintendent of Police, whereas in the Court of Session a government appointed public prosecutor conducted cases. The panel from which the public prosecutor and additional public prosecutors would be appointed is prepared by the District Magistrate in consultation with the District and Sessions Judge. Under section 251 A Cr.P.C. the State Government is now permitted to appoint a Director of Prosecution under the Home Department. This post is independent of the Police and generally the Director of Prosecution is a judicial officer on deputation from the High Court. A major complaint of the Police is that now the prosecutors no longer coordinate with the Police and this is adversely affecting the successful pursuit of court cases. I do not think that this is a matter which cannot be sorted out and a system of constant mutual consultation cannot be established in which the investigator, the Police and the prosecutor and the Public Prosecutor for the district cannot coordinate with each other. District Attorneys in the United States and the Crown Prosecuting Service in the United Kingdom do not seem to face a similar problem and we should be able to evolve our own system. I am not saying that the complaint of the Police is necessarily correct, but the issue should be addressed and amicably settled.

Let us come to the issue and service of process, which is done largely by the court mohrrairs, or policemen attached to the Reader of the Magistrate or Judge to assist him in this task. In the present day world of rapid communications surely the High Courts can develop a system whereby courts can issue summons, etc., by SMS, through internet or by various other processes of electronic communications. If a record of such communication is kept, again electronically and if the messages are shown to have been received that should be legally deemed to be service of process, with coercive means becoming permissible for default. Courts may also be allowed to use courier services, with payment being made only on every process which is duly served. That would be a powerful incentive to ensure service of process. In any case it is disgraceful that cases should be delayed on account of failure of service.

There are two other extremely important reforms which must be put in place in order to expedite justice. The Police should be allowed to have the statements of key witnesses recorded under section 161 Cr.P.C validated by a prosecutor, including a Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor. Such statements should be signed by the witness and the prohibition under section 162 Cr.P.C. should not apply. Similarly under section 164 Cr.P.C. the statement of a prosecution witness may be recorded by the Public Prosecutor of the district or an Additional Public Prosecutor duly empowered by him in writing. This should be deemed to be the equivalent of an affidavit and should be read into evidence as part of the examination-in-chief. Of course there can be further examination and certainly there would be cross examination during the course of trial, but the witness would be bound by the evidence recorded by the Public Prosecutor under oath and this means that whereas delay in trial will not affect his evidence because he does not remember what actually occurred long ago, he would also be liable to a charge of perjury if he resiled from his earlier statement. My submission is that this simple reform will help the prosecution in bringing on record the evidence of prosecution witnesses examined soon after the incident. Now deliberate delay would be of no help to the accused because the examination-in-chief would also at least partially be on record in the case.

The accused is deemed to be innocent till proved guilty. He also has the right to present his case. However, I do not know if the law permits him to go on delaying the case indefinitely because that goes beyond the right to defend himself. Unless bail is denied normally an accused person would be enlarged on bail. The dictionary meaning of bail as given in the New Oxford Dictionary of English is, “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court”. Under section 436 Cr.P.C. a person arrested in a bailable offence is entitled to bail in the police station. Under section 437 Cr.P.C. a Magistrate may give bail, except in cases where the offence is punishable with death or imprisonment for life. Under section 438 the High Court or the Court of Session may grant bail to a person apprehending arrest. Under section 439 Cr.P.C. the High Court or the Court of Session has special powers to grant bail even in a case punishable with imprisonment for life. In any case bail is neither discharge of an accused or his acquittal. It is a substitution of physical custody by a legal undertaking that the accused will present himself before a court or an authority which the court directs, as and when he is called upon to do so. If the accused deliberately violates the conditions of bail, does not appear when required to do so or otherwise tries to delay court proceedings, then under section 446 A Cr.P.C bail may be cancelled, the bail bond forfeited and the accused taken into custody. My submission is that if the court is satisfied that an accused person is deliberately delaying the trial of a case then it should substitute bail by physical custody and hold the accused in judicial custody while proceeding to try the case from day-to-day so that it is expeditiously concluded. This would be a strong deterrent to the practice of using non-appearance by the accused as a means of delaying trial.

Most judges have a complaint that defence counsel do not appear or seek adjournment on the ground that they have an overloaded cause list and on the date fixed for hearing they were busy in another court. Generally speaking, courts do seek the convenience of learned counsel when fixed the next date of hearing and it is the duty of every advocate to help the court in its proceedings by adhering to the fixed schedule. If this calls for advocates having a smaller cause list or making adjustments so that advocates appear on the due date, let this be done because after all the court itself is bound by the provisions of section 309 Cr.P.C. which discourages adjournments and encourages courts to hold day-to-day hearing. Many judges are hesitant in refusing an adjournment because they are afraid that members of the Bar will complain against them to the High Court and generally High Courts tend to be excessively lenient to the Bar. It is for the High Courts to correct this impression and support judges who adhere to the principle of expediting justice. The members of the Bar must also realise that they are officers of the court whose job it is to ensure a speedy and just trial and, therefore, they should be appreciative of judges who insist on the trial being conducted with due dispatch. If unnecessary adjournments are avoided the courts could move much faster and this is in the interest of all of us.

Two or three things more before I conclude. The first is that the High Courts and government must lay down norms of the number of Magistrates and Judges necessary to deal with cases and once a proper ratio of judge to number of cases is established, the creation of posts should be virtually automatic. If there is a sufficiency of judges, if service of process is expeditious, then cases will move forward much faster, the guilty will be punished and the innocent will be acquitted. To help in the process there must be much wider adoption of recording of evidence through audio visual means, such as video conferencing, skype and other modern means of communications in which both the prosecution and the defence examine a witness without his physical presence in court. The Supreme Court and the High Courts must totally computerise old cases which can or should be quoted as precedents so that reference to judicial decisions which have the force of law is made available to every judge through his computer. This would help prosecution and defence counsels to give suitable references to their own arguments without having to search through huge volumes of past cases. In other words, let the courts modernise and let e-governance be extended to courts also.

There is no place for lynch law in India. Speedy trial, credible recording of evidence and judgments in cases without delay would go a long way in restoring our faith in the judicial system.

The Justice System

Dr M N Buch, Dean, 

Centre for Governance and Political Studies

The justice system in India is passing through an extremely difficult period, for which there are a number of reasons. Let us start with the basics, that is, the separation of powers. In this a very special position is given to the Judiciary which makes it totally independent of the Executive. This is most praiseworthy, but it would be futile to deny that the system is under stress. As the Executive fails to perform its functions of governing, as people develop a feeling that they cannot expect fairness, impartiality and efficiency from the Executive, recourse to the courts has increased substantially and in matters in which the Executive should have taken a decision the Judiciary is being forced to intervene so that people receive their due, especially in terms of delivery of services. Because it is impossible to maintain an absolutely fine-tuned balance when one constituent of the State is forced to order another, equal constituent to act in a particular way or desist from acting in another way, there are bound to be complaints that the Judiciary is intervening in executive matters. Looked at from the citizens’ point of view this is just fine because he is interested in his legitimate work being done. That, however, is not how the Executive views it. There have also been instances of clashes between the Judiciary and the Legislature, but fortunately the stand-off has never reached the point of irreversible crisis. However, the Executive must begin to govern and its lowliest functionary must being to do his duty as mandated by law, rules or executive order. If that happens people will find it unnecessary go to the Judiciary for remedy and courts can then go back to their main function of deciding issues between adversaries.

One of the areas of conflict is in the appointment of judges of the Supreme Court and the High Courts. Article 124 of the Constitution states how a judge of the Supreme Court may be appointed. Article 217 provides for the appointment of High Court judges. The operative part of Article 124 (2) reads, “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five : Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Under Article 217 for the appointment of a judge of a High Court the President is the appointing authority and he is required to decide on such appointment in consultation with the Chief Justice of India, Governor of the State and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned”. The Supreme Court has ruled that consultation with the Chief Justice of India establishes the primacy of the Chief Justice in determining who shall or shall not be appointed a judge of the Supreme Court or a High Court. The Supreme Court has further ordered that it is a collegium of judges, to be selected by the Chief Justice which will help the Chief Justice to determine what advice should be rendered to the President regarding the appointment of a judge.

I have serious objection to the concept of a collegium of judges which limits the power of the President to consult such judges of the Supreme Court and the High Courts as he deems necessary, which is what Article 124 (2) states. I do not think that the Supreme Court can thus limit the authority of the President regarding consultation which vests in him through the Constitution, though the Chief Justice of India would be free to set up a collegium to advise him on the recommendations to be made on consultation. The question still remains about how a conflict will be resolved where the collegium advises the Chief Justice in a particular way and the judges whom the President consults give some other advice. The third player would be the Council of Ministers, whom the President is bound to consult before taking a decision because under the Constitution he is bound by the advice of the Council. This would apply to the Governor of a State also who, when consulted by the President about appointment of a High Court judge, would naturally have to abide by the advice given to him by his Council. In other words, the present provisions of the Constitution and their interpretation by the Supreme Court do leave open the gates of disagreement and even conflict because whereas the President may not appoint a judge whom the Chief Justice of India and the collegium have found unfit, he need not appoint a person recommended by the Chief Justice. In fact many vacancies in the High Courts and the Supreme Court have not been filled on account of such conflict.

Government has been trying to set up a National Judicial Commission, to be headed by the Chief Justice of India and with adequate representation of the Supreme Court and High Courts. The Commission, as envisaged, would have the Law Minister, the Leader of the Opposition of one of the two Houses of Parliament and an eminent jurist nominated by the President as members. Justice J.S. Verma, Justice V.N. Khare, Justice V.R. Krishna Iyer and Justice M.N. Venkatachalliah are all opposed to the collegium system. Perhaps the issue could be resolved if the proposed National Judicial Commission could have a majority of judicial members, with the Chief Justice having a veto power and if the eminent jurist is nominated by the Chief Justice of India rather than the President. Suitable constitutional and legal arrangement could be made for the advice of the National Judicial Commission being final, with neither the President nor the Prime Minister being authorised to overrule it. Without bringing the Executive into the process for the appointment of judges of the Supreme Court and High Courts, such an arrangement would widen the scope of the required consultation with the Chief Justice and by bringing the government, the opposition and the Bar on board through an eminent jurist, the system of appointment of judges could be made more broad based and more credible.

An independent judiciary is a sine qua non of a true democracy. However, the only system of governance in which authority does not go hand in hand with accountability is a dictatorship of the type established by Hitler or Stalin. This means that the more independent the judiciary the more should it be accountable. Accountability which does not lead to penalty for failure to discharge accountability satisfactorily is no accountability. Under Article 227 courts and tribunals located within the jurisdiction of a High Court work under the superintendence of the High Court and in exercise of the power of superintendence the High Court can call the court or tribunal to account. Under Chapter 6 of Part VI of the Constitution the District and Sessions Courts and the Courts of Magistrates and Civil Judges are termed as subordinate courts and under Article 235 control over subordinate courts vests fully in the High Courts. The Constitution, therefore, provides for High Courts to decide how subordinate courts will function, to prescribe measures to ensure accountability and to punish for failure to render account, in terms of finance, efficiency, judicial competence, etc. But what about the High Courts and the Supreme Court? Their judicial pronouncements are open to appeal, revision and review, but administrative and personal conduct are not subject to the superintendence, supervision or control of any judicial authority. If a judge does little or no work, is not regular in attendance, delays judicial pronouncements, does not promote efficient judicial process in his own court or in subordinate courts the maximum that can happen is that under Article 222, on the advice of the Chief Justice of India, the President may transfer a judge from one High Court to another. If there is serious misconduct the procedure laid down in Article 124 (4), it would be applicable. For High Court judges Article 218 would apply, which means that a Supreme Court or High Court judge can only be removed through impeachment proceedings. There is no other penalty prescribed, but as the Justice Ramaswamy case has proved, if equations in Parliament are such that the necessary majority cannot be mustered, a judge found guilty of misconduct by a tribunal constituted under Article 124 (4 and (5) the judge may still escape removal. Carried one step further, if a judge is found guilty in a criminal trial, convicted and given a jail sentence, the impeachment proceedings can still fail and the convict would continue to be a judge of a High Court or the Supreme Court. This may happen in the case of a lady judge of the Punjab and Haryana High Court who has been accused of taking a bribe. Government, Parliament and the Supreme Court must realise that what could never be dreamt of when the Constitution was drafted, that is, a judge of a High Court or Supreme Court committing a criminal misdemeanor, can no longer be ignored and, therefore, we must have a constitutional provision whereby in such cases, while taking great care to ensure that the independence of the judiciary is not thereby compromised, such a judge can be made to demit office.

The major problem with our subordinate courts from District and Sessions Courts down to a Magistrate First Class cum Civil Judge Class Two is that cases drag on for years. Formerly civil litigations were considered to be very lengthy and time consuming, but now unfortunately even the criminal justice system has become subject to inordinate delay. I have perhaps quoted this case else where, but it bears repetition. In Mach 1983 shortly before I left the Service we trapped a lady who was trying to bribe a Deputy Secretary. He had already reported that such an attempt was being made and we arranged a trap, catching the lady red handed. My evidence was proforma, but necessary because the bribe was being offered for expeditious processing of a case in which the accused person’s application to me had been forwarded by me to the Deputy Secretary for examination. It took eleven years for my evidence to be recorded because every time I went for a hearing the accused, by absence, by subterfuge, by downright lies was able to obtain adjournments. The case was finally decided fifteen years after the event. What is the deterrent effect of such proceedings? How can witnesses be expected to remember an event which happened several years earlier and give testimony which could withstand cross examination, the purpose of which is to discredit the witness? This was a simple case with only three or four witnesses, but imagine what happens in a serious case in which a heinous offence has been committed and there are a large number of witnesses. No wonder we have such a miserable record of convictions.

I have been trying to understand why cases are delayed. I am not even attempting to look at civil cases because that will require several volumes. In a criminal trial the first delay occurs at the stage of investigation. The available clues may be either so few as to be almost nonexistent, witnesses may not be available, the forensic tests may be inconclusive, the investigating officer may be overburdened and can give only limited time to a particular offence, the accused and the witnesses or even the complainant may come to some compromise or there could be sheer inefficiency. This is where superior police officers have a major role to play to ensure that investigation is consistent, sustained and done with intelligence. Forensic and other support must be made available freely to the investigating team. The legal niceties of investigation must also be taken care of. The submission of the challan must be accompanied by full documentation so that the charge-sheet is complete in itself. This has to be followed up by proper representation of the prosecution in court, with the public prosecutor and his assistants applying due diligence to the case. If the public prosecutor is wide awake and proactive many of the delays in court can be avoided.

One reason for delay is in the serving of process. The court moharrir, who would generally be from the police, or the reader of the magistrate or judge, would be responsible for issue of process which, in criminal cases, would generally be served by the police. The arrangement is not satisfactory and most courts report that service of process is tardy and very often summons and warrants are just not served in collusion with the accused or the witnesses. Surely, with modern means of communications, with speed post, courier service, SMS texting and the internet the High Courts can work out a system whereby service of process becomes efficient and cannot be used as an excuse for delay in court proceedings. Our courts cannot function in the eighteenth century when the twenty-first century gives such exciting and innovative means of communication, or are they waiting for that happy day when science evolves a means of apparatus-less communication of thought process whereby what the judge thinks is communicated to the witness or accused by a para-psychic process? Coming to the trial proper, defence counsels are prone to pleading for adjournments, especially in those cases where the defence case is weak. Adjournments must be avoided because whereas an adjournment which is unavoidable is given, in most cases adjournment is denied. It is for learned counsel to adjust their cause list in such a way that appearance in one court cannot be offered as an excuse for nonappearance in another court. There is no reason for a judge to give an adjournment only for the sake of convenience of counsel. Every defence counsel is an officer of the court and it is his duty to assist the court in speedy disposal of a case. A counsel who acts otherwise fails in his duty and should be treated as such.

I have talked to a number of judges and magistrates about why they are not strict in the matter of adjournment. Under Article 21 of the Constitution every person, including one accused of a heinous offence, is still entitled to be tried by due process before being deprived of his life or personal liberty. Under Article 22 a person who is arrested and detained in custody has the right to be informed of the grounds for arrest, he has the right to consult and be defended by a legal practitioner and he cannot be detained in police custody beyond twenty-four hours of arrest without the orders of a magistrate. Under Article 39 (A) every citizen is entitled to equal justice. This is enforceable by the provisions of Articles 139 and 226 which confer writ jurisdiction on the Supreme Court and the High Courts. The Code of Criminal Procedure prescribes the process of trial in criminal cases. Chapters XVI and XIX of Cr.P.C. state how proceedings shall be conducted before a Magistrate and Chapter XVIII does the same for trial before a court of session. Under sections 231 and 233 Cr.P.C. an accused person has the right to cross examine the prosecution witnesses and to enter upon his own defence and adduce evidence in this behalf. Suppose an accused person deliberately delays the taking of evidence for the prosecution and indefinitely defers his own defence. Should the court indulge him and go on giving adjournments indefinitely, as happened in the bribery case to which I have earlier referred? Under Indian law a person is deemed to be innocent till proved guilty but there is no provision of law which says that an accused and his counsel can go on creating obstruction so that the trial is indefinitely delayed. In other words, an opportunity, a manifestly fair opportunity, must be given to the accused on trial to present his case, but when the accused tries to indefinitely delay the matter the court need not succumb. Under section 309 Cr.P.C. the provision is, “In every enquiry or trial the proceedings shall be held as expeditiously as possible and, in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded”. The proviso to this section states that any trial relating to an offence under section 376 and 376(D) of IPC (sexual offence amounting to rape) must be completed within a period of two months from the date of commencement of the examination of witnesses. The scheme of Cr.P.C. is very clear, the accused is entitled to a fair trial, but he is not thereby entitled to indefinite delay.

I have spoken to some judges about why they so readily give adjournments. Even the most conscientious of them state that if they do not give an adjournment there are many defence lawyers who indulge in making complaints against the judge and, by and large, the High Courts tend to be more sympathetic to defence counsel than to their own judges. Rather than face such complaints many judges take the easy way out and adjourn the case. One of the things which many judges have forgotten is that bail is also a form of custody in which instead of physically holding the accused the court permits enlargement on bail, whereby surety of appearance is substituted for physical custody. If the accused person deliberately delays proceedings by non appearance or such other tactics it would be legitimate for the court to hold the person in physical custody and to proceed with the case on a day-to-day basis. The Supreme Court and the High Courts must try and move the courts in this direction. Greater adoption of evidence through video conferencing and other means of electronic recording of evidence would also help in expediting cases.

There are some recent developments which are causing me worry. The first is that recent rape cases have certainly shaken the nation, with the Chief Justice of India going as far as to say that he would have personally liked to participate in the public protest. Perhaps he was ill advised to make this statement because in a way he thus pre judges even the specific case under mention, which means that no trial court in India would hereafter readily acquit a person in such matters unless no case at all is made out and this could lead to mistrial of rape cases and denial of justice to the accused persons. We have seen a whole spate of very speedy trials, some lasting only for ten days, in which the accused has been sentenced to death. Murder, whether or not accompanied by rape, is the ultimate crime because it irreversibly deprives a person of his life. The accused also faces possible judicial termination of his life at the end of the trial and, therefore, courts have to be extra careful to ensure that the accused has full and fair opportunity to represent his or her case and that there is no miscarriage of justice through haste. The Supreme Court and the High Courts for years have ruled that there should be extreme caution in awarding the death penalty and that, too, only in the rarest of rare cases. In sharp contrast in at least half a dozen cases in the last two or three months rapists have been awarded the death penalty after trials which smack of the summary. The judiciary cannot swing between two extremes because our politicians, civil servants and the so-called civil society are already doing this. Certainly the judiciary should enforce the law with great strictness and there should be no misplaced and pseudo philanthropic attitude towards crime. At the time same justice has to be done because two principles of Anglo Saxon Jurisprudence that we follow are :- (1) An accused is presumed to be innocent till proved guilty, with the burden of proof of guilt resting on the prosecution. (2) It is better that a hundred guilty people go free rather than that one innocent person be punished. It is for the judiciary to ensure that the balance is maintained, the innocent are protected and at the same time the guilty are brought to justice in the shortest possible time.

The Politicisation of Criminal Justice

Dr M N Buch 

(Visiting Fellow, VIF)

Afzal Guru masterminded the attack on Parliament in 2001, which left nine security and parliament staff dead, with five attackers also being killed. He was arrested and tried for his crimes, sentenced to death by the Sessions Court and his conviction and sentence were upheld by the Delhi High Court and the Supreme Court. For several years after sentencing Afzal Guru’s fate hung in the balance because his mercy petition to the President remained pending. Government obviously hesitated to take a decision lest it trigger a violent reaction in the Kashmir Valley. All sorts of excuses were trotted out for the delay, including examination of the case by the NCT of Delhi Government, Home Ministry, Law Ministry, the President and so on. In 2009, the then Home Minister, P. Chidambaram, said publicly that there were a number of such petitions in the queue and Afzal Guru would have to await his turn. Even at a railway booking office a queue moves on as tickets are issued. In the MHA booking office obviously no tickets were being issued as the clerks either slept or dithered and the queue remained static.

In India all systems are selective in operation. At Tirumala-Tirupati there is a queue of devotees, but VIPs jump the queue. In crime, too, there seems to be a similar procedure, because suddenly Ajmal Kasab came on the scene and though he was at the bottom of the queue he was made to jump it and was hung before any one else. May be because he was a foreigner, a Pakistani, a different queue was formed for him as there is for foreigners at immigration counters. But surprise of surprises, the next was Afzal Guru, who happens to be Indian despite separatist efforts by the Hurriyat and its Indian quisling supporters to change the status of Kashmir. How has this happened and how does this reconcile with Chidambaram’s averment in 2009? The Congress spokesman, Abhishek Manu Singhvi, fields all questions on this by blaming BJP (NDA) for not hanging Afzal Guru when it was in power. Perhaps he has forgotten that by the time NDA demitted power in mid-2004 the entire legal process in the Afzal Guru case had not been exhausted. In any case BJP has been consistent in its demand that the sentence be carried out, not because Afzal Guru was Muslim but because the attack on Parliament was a vile crime. In Indian law, murder is the worst offence that can be committed because it deprives a person of his life and this is irreversible. Therefore, under section 302 IPC a person who commits a murder faces only one of two sentences, death or imprisonment for life. Under section 109 IPC if a person abets an offence he would be liable to the same penalty as is provided in the main office. If the offence is of murder then the abettor is liable to the same penalty of death or imprisonment for life as the person actually commits the offence. Under section 120B IPC if a person is part of a criminal conspiracy to commit an offence and that offence is punishable with death or imprisonment for life, then the conspirator is liable to the same penalty as the main offender. Under section 34 IPC if there is a common intention to commit an offence, then every person who does a criminal act in furtherance of the common intention is liable to the same penalty as if the act was done by him alone. Afzal Guru was part of a conspiracy to attack Parliament, which amounts to an offence under sections 121 and 121A IPC. Afzal Guru was part of a conspiracy, both to commit murder and to wage war against the Government of India and joined with others in the common intention of attacking parliamentarians and murdering them. Once the offence had been proved in a fair trial there is no sentence which could be awarded to him other than death because this case went beyond the rarest of rare cases and jeopardised the governance itself. Suppose the conspiracy had been successful and several hundreds of parliamentarians had been killed would the President have had any other option but to declare a state of Emergency under Article 352 of the Constitution, thus temporarily establishing authoritarian rule in the country in order to tide over the crisis?

The seriousness of the offence is such that for BJP to demand that the sentence of death be carried out without any delay is fully justified. If anything, it is the UPA government headed by the Congress Party, which could be accused of playing politics by delaying the decision on the mercy petition of Afzal Guru. Chapters XXVII and XXVIII, Cr.P.C. give trial courts the exclusive right to deliver judgment in a criminal trial and to the High Court to confirm a death sentence There is provision of appeal, remission and review, but that is all within the judicial system. Sections 432 and 435, Cr.P.C. give the State Governments and Central Government the power to suspend, remit or commute the sentence of a person convicted of an offence. In this, however, the opinion of the presiding judge of the court which convicted the offender should be sought, which means that the right of suspension, remission or commutation of sentence given to the appropriate government by Chapter. XXXII, Part E has to be exercised judiciously. Government cannot be capricious in this behalf. In addition to the provisions of the Code of Criminal Procedure we have Article 72 of the Constitution in which the President has the power to grant pardon and to suspend, remit or commute a sentence in certain cases. These relate to punishment awarded by a court martial, by a court in a case under a law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is death. Under Article 161 the Governor of a State has similar powers in a matter to which the executive power of the State extends. Let it be clearly understood that this power, whether under the Code of Criminal Procedure or under the Constitution, would be in exercise of an executive function and not a judicial function, despite the fact that the power has to be exercised judiciously.

The scheme of the Indian Constitution clearly divides the State into three separate but equal constituents, the Executive, the Legislature and the Judiciary. Undoubtedly the Constitution also provides for the points of contact between the three organs of the State, but essentially the investigation of criminal offences is an executive function performed by the Police. The trial, conviction or acquittal which follows investigation are purely judicial functions. Chapter II, Cr.P.C. constitutes criminal courts in which under the High Court there are the courts of session and the courts of Judicial Magistrates. In addition there are the courts of Executive Magistrates. Under Chapter III, Cr. P.C. a court of session can try any class of cases and pass any sentence, including death, subject to confirmation of a death sentence by the High Court. A Judicial Magistrate, First Class can try a case and award a sentence of upto three years of imprisonment, with a Chief Judicial Magistrate or a Chief Metropolitan Magistrate having the power to pass a sentence upto seven years of imprisonment. No executive authority has the power to try cases which fall within the jurisdiction of the Judiciary. Functions exercisable by an Executive Magistrate are generally confined to administrative or executive matters, except in certain States and Union Territories in which the Act makes a special provision.

In the normal course of things it is for a judge or magistrate to decide whether the prosecution has succeeded in proving its case beyond any reasonable doubt that the accused has not been able to counter this and that on the basis of evidence the accused should be convicted and sentenced. In this the executive has no role to play and certainly the provisions of Cr.P.C. and the Constitution about remission, etc., of sentences have to be read in the context of the role of the judiciary in determining the guilt or otherwise of a person accused of a crime. I am prepared to concede, though reluctantly, that there may be some rare circumstances which could not be taken into consideration in a judicial trial but which may, at some later stage, merit an executive decision about holding a person prisoner or not, but that has to be truly rare, exceptional and based on arguments and evidence which both are irrefutable. A person convicted of a heinous offence and given the death penalty may have a commutation of sentence if, for example, government is contemplating legislation on the abolition of death penalty itself. Sometimes the relations between two sovereign States may call for reconsideration of a sentence awarded to a convicted person. Such instances, however, would be extraordinary and certainly the exercise of executive power in this behalf cannot be done in order to negate or reverse a judicial decision. Normally the decisions of the courts have to be considered as final and the executive should have nothing whatsoever to do with the quantum of punishment awarded by a court.

Neither the Code of Criminal Procedure nor the Constitution lay down any time limit for processing of a mercy petition. In fact under Chapter XXXII of Cr.P.C. the execution of a sentence is, in the case of sentence of death, the responsibility of the Court of Session which will issue a warrant of execution after all due process of law has been exhausted by the accused and the sentence is confirmed by the High Court and, if there is an appeal, by the Supreme Court. If there is levy of fine the court may issue a warrant to the Collector of the district, who will then be authorised to recover the fine as an arrear of land revenue. Under section 425 Cr.P.C. for every other sentence the warrant of execution will be issued by the judge or magistrate who passed the sentence. A convicted person may make an application under section 432 Cr.P.C. to the appropriate government for suspension or remission of sentence and the government will then by general rules or special orders deal with the matter. One presumes that a similar procedure would apply in the case of exercise the power by the President under Article 72 of the Constitution and by the Governor under Article 161.

Unfortunately at present there is no legal provision about the time limit within which any application made in this behalf may be disposed of, which is why government takes its own sweet time in deciding such matters. In the absence of general or special orders, or rules framed in this behalf, government can and does act arbitrarily in deciding such matters. This has been evidenced in the case of all those persons who face the death penalty, which has not been executed as yet. The entire process of trial is judicial and is prescribed by law. Should not a post trial power also be governed by law? Can a judicial process be reversed or adversely affected by executive action or lack thereof? These are very important questions of law and must be answered, perhaps by the Supreme Court.

The Eight Amendment of the Constitution of the United States reads as follows:- “ Excessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted”. This means that the medieval punishments of being sawn in half, impalement, being hung, drawn and quartered or being crushed beneath the foot of an elephant cannot be given in the United States. In India Article 21 of the Constitution which guarantees life and liberty except through due process of law can also be read as the equivalent of the Eighth Amendment of the American Constitution. The Preamble of the Constitution which calls upon our republic to secure for all citizen fraternity assuring the dignity of the individual also rules out all cruel or unusual punishment. But cruelty need not be only physical, because mental cruelty can sometimes be more harsh than the purely physical. Imagine how a person sentenced to death must feel when he is awaiting execution of sentence. Every day when he wakes up he must wonder whether he will see another day and in such conditions he must die a little every day. It is unfair to keep a person hanging under the sword of execution. Let the judicial process be totally fair, as it is in India, let the courts be extremely conservative in awarding the death penalty, but once it is awarded let the process of appeal be fast and if an executive decision is for commutation or pardon, let that come within the shortest time possible after the judicial process if completed. There is no reason why it should take more than three months for the President or Governor to receive the advice of the Council of Ministers and to take a decision in the matter. If a man is to die let him die quickly, if he is to live let this be communicated quickly. It is my submission that any delay in this matter is tantamount to cruelty. If a convicted criminal has the right to dignity as an individual he should not be mentally tortured when awaiting execution.

It is alleged and widely believed that Afzal Guru’s execution was delayed partly because there was fear of reaction in the Kashmir Valley, but partly because the ruling party was playing politics on whether Afzal Guru should live or die and what should be the appropriate time for taking a decision in this behalf. There is a school of thought that till the Congress Party saw the emerging and looming shadow of a revitalised BJP, which was demanding swift justice, it did not act. Perhaps the unfortunate remarks of the Home Minister about saffron terror caused some tremors in the Congress because it feared that this could have an electoral backlash because Hindus would be annoyed at such a tactless remark. Perhaps the ruling party thought that its anti terrorism credentials were under threat and that it should show itself as a strong party by executing Ajmal Kasab and Afzal Guru. This has only raised further questions about why the assassins of Rajiv Gandhi and of Beant Singh have not been executed. My unhappiness abut this whole episode is that Afzal Guru was a living human being and entitled to the dignity which the Preamble predicates. He did a criminal act of which he was found guilty and for which he has paid the ultimate price. The tragedy is that people feel that he was made a pawn on the chess board of politics as played by the Congress Party. No one, not even the worst of convicted criminals, can have his life depending upon what suits a party in power at a particular time. His conviction was justified, as was his death. What is not justified was the manner in which the execution was decided on, not because of his guilt but because it suited government to take action. This has left a dirty taste in one’s mouth.