The home minister of Kerala recently admitted that the justice system in the southern Indian state is failing. His reason for this assertion was the low conviction rate, which he attributed to lazy and corrupt public prosecutors. The prime minister and Law Commission of India have in the recent past expressed similar concerns about the low number of convictions nationally, although blaming it on weak laws rather than feeble prosecutors. As a consequence, the Law Commission has made certain recommendations to do away with liberties enjoyed by the accused during a trial, through which more convictions are likely to follow.
These reactions to the low rate of prosecutions are based on two false notions: first, that the success of a criminal justice dispensation system is measured in numbers of convicted persons; and second, that there is some particular cause–be it lazy and corrupt prosecutors or weak laws–which if rectified will solve everything. Neither of these is valid.
The successful conviction of guilty persons–rather than everyone who comes before a court– depends upon proper investigation, proper prosecution and proper trial. In India, all three of these elements are lacking, and it is for this reason that criminals escape punishment; while at the same time, innocent persons spend their lives in the country’s jails.
Throughout India the police are known to ordinary people as criminals in uniform. They arrest and torture innocent persons, obtain confessions through force, and falsify records. For instance, they may gather up random addresses of persons in a locality where a crime was committed and record statements as if narrated by them. Most police lack basic training; those who have training lack an appropriate environment in which to put theory into practice.
Scientific investigation facilities are all but non-existent in most of India. For example, post mortem examinations in West Bengal are conducted by members of a scheduled caste community, the Doms, who are appointed as cleaners. Doctors sign reports of autopsies that they have never conducted. Similar practices exist in other states.
Prosecutors lack authority to monitor investigation of crimes; taking cases to courts whether or not any evidence exists with which to fasten a conviction. Most lack the interest, skills and equipment with which to do their jobs with minimum efficiency. Even telephones and paper are in short supply in their offices. When a bail application is filed by an accused, a prosecutor may lack the means even to communicate with the investigating officer. He may come to court not knowing the history of a case, and receive the files just before a hearing. He may concede or oppose bail solely on the basis of who is appearing for the accused, the apparent attitude of the presiding officer, and whether or not the trial has media interest. He may call a witness to come before the court without having any idea of what the witness will say; if the witness turns hostile, which can happen for any of a multitude of reasons, the prosecutor may not have the slightest clue as to how to proceed.
The numbers of courts and judges in India fall far short of what is required of the country today. There are hundreds of unfilled vacancies for judges. Courts are too few in number and under-resourced. Although the government expects the judiciary to raise revenue through issuing fines and collecting court fees, it denies even the most basic facilities: photocopy machines, rooms, chairs, and electricity. As a consequence, witnesses may be called repeatedly before being heard, and cases drag on for years and even decades.
The central government has lamented about trial delays and low conviction rates without making serious efforts to address any of these shortcomings. Instead, it has sought to amend laws to make statements recorded by police officers binding on witnesses in court. This odious attempt at denying both fundamental rights and the basic principles of the courtroom recalls the recommendations of the discredited Malimath Committee, which had recommended such changes to the criminal law of India that would have defied the most basic norms of criminal justice. The committee’s report was shelved after outcry from eminent jurists and civil society groups. The current government now appears intent upon carrying through the committee’s recommendations piece by piece.
The government of India has already amended the criminal law to bring in plea bargaining. The enormous problem that it has ignored is that many persons who are charged with offences by the police are picked up at random and accused of offences without any justification. Most are poor and underprivileged. It is these persons who are now being given the so-called freedom of plea bargaining. In the absence of the institutions and regulations needed to ensure the functioning of a proper justice dispensation system the consequences of this amendment will be to reduce the courts to arbitration tribunals, handing out criminal records without any reference to the principles upon which they were founded.
A high rate of convictions does not equal justice. Nor are either inept public prosecutors or weak laws alone to blame for the lack of successful cases. Criminal justice means working police, prosecutors and courts. All of these institutions need attention if the India’s decrepit criminal judicial system is to be saved.
An essential early step towards this end must be to criminalise custodial torture and provide the means for perpetrators to be investigated, prosecuted and punished. Without this, there is no possibility of public confidence in the system. To this end, the Asian Human Rights Commission calls on the government of India to acknowledge that the problem exists, that it is serious, and that it has an obligation to do something about it. In this, it can follow the lead shown by the government of Kerala, which has at least gone this far, opening the way for serious discussions about remedies.
The Asian Human Rights Commission further calls on the government of India to criminalise torture in accordance with the standards set down in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and to ratify the treaty without delay.
Finally, it calls on the government to look at the serious issues affecting the management and performance of the prosecution, laws and courts and the reasons for their failure to convict criminals, rather than reduce the problems to simple equations involving more numbers and blame-laying.
