Crisis in India’s criminal justice system

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    Recently ,a division bench of the Supreme Court of India in Satender Kumar Antil vs CBI laid down fresh guidelines on arrests in order to have strict compliance with the provisions of Section 41 and 41A of the Code of Criminal Procedure, 1973. 

    • These guidelines are in addition to the earlier ones which the apex court had already laid down in the case of Arnesh Kumar vs State of Bihar (2014). 

    What are Sections 41 and 41A of the Code of Criminal Procedure?

    • Section 41 of the Code provides for the circumstances in which arrest can be made by the police without a warrant and mandates for reasons to be recorded in writing for every arrest and non-arrest. 
    • Section 41A of the Code provides for the requirement of a notice to be sent by the investigating agencies before making an arrest in certain conditions prescribed by the Code. 

    How is a person arrested?

    • Arrest in its simplest form is defined as, “when one is taken and restrained from his liberty”. 
    • The police have wide powers to arrest under the Code of Criminal Procedure, 1973. 

    Scale of the crisis in India’s criminal justice system.

    • Over 75% of India’s prison population are undertrials while overcrowding in Indian prisons stands at 118%. 
      • These stark realities are often cited to represent the scale of the crisis in India’s criminal justice system. 
    • Challenges in bail compliance
      • A large number of undertrials continue to remain in prison despite being granted bail due to challenges in complying with bail conditions.
        •  Lack of means to arrange for money/property and local sureties are the most significant reasons accounting for an undertrial’s inability to comply with bail conditions, realities borne out by our experience in the FTP. 
    • Flawed assumptions
      • The bail system, as it currently operates, has flawed assumptions that every arrested person will be propertied or have access to propertied social connections. 
        • It presumes that the risk of financial loss is necessary to ensure the presence of the accused in court. 
    • Disposal of pending cases
      • There are more than 4.4 crore cases pending before the judiciary. It is unlikely that this problem will go away any time soon. 
    • Accessibility 
      • Justice mechanisms will remain inaccessible to marginalised classes of citizens. 
    • Abuse of power 
      • Another problem is abuse of power by the police. 
        • The colonial mindset with which the institution was created is persistent. 
        • It determines and governs the manner in which the police discharge their functions. Our stress on crime control values too promotes such abuse of power. 
    • There is a dearth of reliable state-sponsored data collection, maintenance and analysis mechanisms. 

    Observations of Supreme Court

    • The Supreme Court of India recently acknowledged, in Satender Kumar Antil vs CBI, the ineffectiveness of India’s bail system and its contribution to this crisis.
      • The Court said that the investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A and the directions issued in the Arnesh Kumar case.
      • The Court stated that any dereliction on the part of the agencies has to be brought to the notice of the higher authorities by the court followed by appropriate action. 
      • The Court provided comprehensive guidelines on laws related to bail, such as mandating timelines for the disposal of bail applications and laying emphasis on the need to enact a separate legislation
    • In the case of Arnesh Kumar, the apex Court had rightly observed that “arrest brings humiliation, curtails freedom and casts scars forever”.
    • In the Joginder Kumar (1994) verdict, the Court had stated that “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person”. 

    Other Efforts 

    • In its 146 th report, the Parliamentary Standing Committee on Home Affairs had recommended that there was a need for a comprehensive review of the criminal justice system of the country.
    • The Court said that “there needs to be a strict compliance of the mandate laid down in the judgement of this court in Siddharth” ( Siddharth vs State of U.P., 2021).
    • In 2003, the Justice V.S. The Malimath Committee on reforms in the criminal justice system had come up with some far-reaching suggestions, some of which became part of changes in criminal law.
    •  The Justice Verma panel came up with a comprehensive and progressive report on reforms needed in laws concerning crimes against women in 2013 in barely one month, but its speed was probably due to the limited mandate it had.

    Conclusion and Way Forward 

    • Understanding nature of Problem 
      • Any reimagination of the law on bail needs to first understand the exact nature of the problem that results in large-scale undertrial incarceration. 
        • This assessment needs to be based on multiple parameters .
    • Effective bail law 
      • An effective bail law must be based on the correlation with variables such as the demographics of undertrials, category of offences and timelines for bail, and also address socio-economic and structural barriers. 
    • There is an urgent need for bail reform but it would be counterproductive to undertake a reform exercise without first developing the empirical basis to understand and diagnose the problem at hand.
    • Uniform curriculum
      • We need to strive for a uniform curriculum of the highest standard across police academies. The Central Government had initiated the process to set up a Central Police University (CPU) in Noida. 
        • The CPU could offer the course structure, training manuals and material, which would form the base for the police training at the academies .
    • provide an advocate 
      • The State should provide an advocate of the victim’s choice to plead on his/her behalf and the cost has to be borne by the State if the victim can’t afford it.
    • Clear guidelines 
      • The National Judicial Commission must have clear guidelines on precise qualifications, experience, qualities and attributes that are needed in a good judge and also the prescription of objective criteria to apply to the overall background of the candidate. 
    • Separate criminal division 
      • The higher courts, including the Supreme Court, should have a separate criminal division consisting of judges who have specialised in criminal law
    • Filling post 
      • Reducing the pendency of cases by filling sanctioned judicial positions is also the need of the hour .
    • Comprehensive steps
      • The criminal justice system is an integral part of the democratic setup. Therefore, it is imperative that comprehensive steps are taken to make the system more effective. 
      • Therefore, It is an imperative to evolve an effective jurisprudence of “complete justice” by focusing on personal liberty. 

    Mains Practice Question 

    [Q] Criminal justice system  in India has not proved to be an effective instrument of governance”.Critically examine the statement and give your views to improve the situation.