We assembled jurists, lawyers and legal academics from throughout Asia gathered in Hong Kong on 17-21 November 2008 for the Fourth Regional Consultation on an Asian Charter for the Rule of Law express our grave concern at the systemic failure of .
From the discussions concerning the criminal justice system in India it was implicit that inefficient policing and delays in court are the root causes of lost public faith in the system, including in the work of the prosecution.
We note that the current state of affairs within the criminal justice system promotes grave offenses like custodial torture, offenses against women, disappearances and encounter killings. The dysfunctional criminal justice system also promotes widespread corruption.
The degeneration of the criminal justice process has resulted in citizens resorting to extrajudicial means for settlement of disputes. The confused state of affairs in the criminal justice system has provided opportunities for corruption that police, prosecutors, lawyers and even members of the judiciary exploit. As a result crime flourishes, the rule of law is negated and the societal fabric is irreparably rent apart.
Caste and religious-based discrimination, which are interwoven into the social life in India, also make change impossible, thus curtailing development and denying the fruits of development to an estimated 70 per cent of the population.
India being a regional player, the problems affecting justice delivery have an adverse impact upon other states in the region and also upon international human rights bodies like those of the United Nations.
Successful prosecution mostly depends upon effective investigation and efficient policing. While the police remain corrupt to the core, prosecutors can take few steps to ensure fairness to the victims of crime. Prosecutions launched after inherently defective investigations have little chance to succeed.
What follows is selective justice, contrary to the basic norms of equality. Politicians with control over law enforcement agencies, particularly local police, use state agencies for their exclusive benefit. Law enforcement agencies let the exploitation continue so that their corrupt ways can continue unabated.
It is widely acknowledged that the above factors are impediments to the state responsibility to protect, promote and fulfil human rights and thus the rule of law in India. No reforms to the criminal justice system are possible without addressing issues concerning the state of affairs of policing. State-sponsored commissions and civil society organizations have expressed similar concerns about the failure of rule of law in India. The Supreme Court has on several occasions expressed concern about the above issues, while the court has had occasions to deal with individual cases brought to its attention, particularly during the past three decades.
The latest was in deciding a case filed by a former police officer, Mr. Praksah Singh, seeking directives from the court to permanently sever the perpetual control of the privileged over the police. The court in 2006 has directed the state to implement the recommendations of the National Police Commission/Committees, like the Soli Sorabji Committee on Police Reforms.
We assembled jurists, lawyers and legal academics from throughout Asia gathered in Hong Kong on 17-21 November 2008 for the Fourth Regional Consultation on an Asian Charter for the Rule of Law hereby urge the Government of India to immediately implement the directives of the Supreme Court laid down in Mr. Prakash Singh and Others v. Union of India and Others.
We express anguish over the complete lack of action of the Government of India in implementing these directives and further urge the state/provincial governments in India NOT to dilute the spirit of the directives of the court while framing local laws to comply with the directives.
The undersigned
Justice Nasir Aslam Zahid (retd.), Supreme Court of Pakistan
Dr. Chandrasekharan Pillai, Dean, Kochi, University of Science & Technology, India
Mr. S. Ashiq Raza, High Court Advocate, Pakistan
Mr. Chung Mi Hwa, Lawyer, Former Vice President, Lawyers’ Association for a Democratic Society, Rep. of Korea
Mr. M. Shamsul Haque, Advocate, Supreme Court, Bangladesh
Ms. Phromlak Sakpichaimongkol, Lawyer, Lawyers Council of Thailand
Mr. Jijo Paul, High Court Advocate, India
Mr. Asep Rahmat Fajal, Director, Indonesian Legal Roundtable
Mr. Rishikesh Wagle, Lawyer, Nepal
Mr. Basil Fernando, Director, Asian Human Rights Commission, Hong Kong & Attorney-at-Law, Sri Lanka
Mr. Bijo Francis, Progamme Officer, South Asia Desk, Asian Human Rights Commission & Lawyer, India
Ms. Carla Ferstman, Director, Redress, UK
