Challenging the Authoritarian Discourse on Criminal Justice Reform in India

With the collective conscience of the middle class in India being roused by the glaring failures of the police and the prosecution in the high profile Jessica Lall murder case, the debate on criminal justice reform in government is worryingly leaning towards authoritarianism. Given the continuing bad press of the inability of the system to secure higher conviction rates, key proponents of reform are toying with dangerous ideas. Such is the enthusiasm among certain sections of the police, the bureaucracy and indeed the judiciary, to boost the dismal conviction rates, that there is strong support for diluting well established citizen safeguards and constitutional fair trial guarantees. Some critical issues under debate, in the language of authoritarian discourse, are: whether “confessions” made to police officers should be made admissible as evidence in courts of law; should witnesses be compelled to sign statements made to the police in the course of an investigation; should the required standard of proof to convict a person be reduced; and should “previous bad character” of the accused be relevant in the trial. From a civil liberties perspective, the debate is putting forward support to erode the necessary safeguards and constitutional protections which currently underpin key legal procedures. This can seriously impact the guarantee of a fair trial.

Take for instance the issue of confessions. At present, confessions by the accused in India have to be recorded before a judicial magistrate. There are very good grounds to exclude confessions made to police officers from the ambit of the law – the use of torture by the police in the country is routine and widespread. As per the National Human Rights Commission’s records, in its 2002-2003 report there were 183 deaths in police custody during that period. The National and State Human Rights Commissions receive thousands of complaints of police torture every year, and these are just recorded statistics. In the Indian scenario, a police officer is a commanding figure and the possibility of being forced to record “confessions” to the police on the pain of torture is very real. Acceptance of the suggestion to make confessions made to police officers (of whatever rank) admissible as evidence may up the conviction rates for now, but can seriously harm justice delivery, leading to gross miscarriages of justice and grave human rights violations.

There is also great support – especially in police circles – to make it mandatory for witnesses and persons questioned to sign the statements made to police officers in the course of an investigation. Currently, these statements are not to be signed by anyone. The argument given is that once witnesses affix their signature, they will be forced to stand by the statement in court. However, this ignores the high possibility of witnesses being coerced to sign false statements – sometimes under torture – by the police, and then bearing the additional burden of sticking by them in court simply because their signatures have been affixed. A more appropriate way to tackle the problem of witnesses retracting their statements and thereby turning hostile would be to strictly invoke perjury and contempt of court provisions, which is rarely done by trial courts in India. Also the judiciary and the executive themselves must take responsibility to be more willing to make orders granting security to witnesses and to put in place a proper witness protection programme.

Additionally, there is talk of reducing the standard of proof for conviction by the court. The current standard, which requires a case to be proven ‘beyond reasonable doubt’ has a very strong basis as it minimises the possibility of subjectivity being exercised by a judge to convict an innocent accused. Reducing this standard would mean that judges would be empowered to hand out convictions if they are convinced the accused is guilty, irrespective of whether the prosecution has proven its case beyond reasonable doubt. This is a dangerous assumption and places a great amount of discretion in the hands of the judge, who after all, is human. The argument that an error of judgment by the trial court judge can be rectified at the appellate stage in the High Court or Supreme Court does not hold water, given the high backlog of cases and lengthy time taken to admit an appeal, let alone dispose it off.

The other provision being hotly debated is to make previous conduct of the accused admissible as evidence. At present, the law lays down that “previous bad character” is not relevant, except where the defence has brought evidence on record to show that the accused is of good character. On the face of it, acceptance of such a provision will vitiate the ‘presumption of innocence’ and reduce the scope for objectivity, which is integral to a fair trial. The argument being forwarded in support of this provision is that it will make it easier to convict known criminals. However, what is being discounted is the real possibility of vagabonds and petty thieves with criminal records being framed when the actual culprit cannot be traced and there is pressure on the police to crack the case. The likelihood of this is reinforced by the fact that vagabonds and petty thieves with criminal records are routinely picked up – often without reason – by the police and charged under preventive sections of the criminal procedure code to show that the police have been pro-active in preventing crime. This particularly happens in the aftermath of a sensational crime incident or before a significant event like Independence or Republic Day.

The official discourse in criminal justice reform needs to look inward and not outward. Shoddy investigation; poor record keeping; callous disregard of procedures and corruption within the police are the major contributors to the low conviction rate. The remedy is enhanced police accountability and not clothing police officers with more powers. Similarly, if cases are not being prosecuted properly, then the reasons why the best and the brightest in the legal fraternity are not attracted to becoming public prosecutors must be looked into. Rather than suggesting amalgamation of the police and prosecution in gross disregard of well established common law principles, proponents of reform should suggest a mechanism of checks and balances that makes prosecutors perform and function independently of extraneous considerations. The judiciary too needs to look inward, given the fact that judges with dubious integrity sometimes find themselves elevated to the higher courts in India. This coupled with the fact that judges in the country are overburdened and more need to be appointed by the government to reduce endemic delay (though it is equally true that the delay is caused by inefficient court processes and the excessive number of court holidays). The remedy therefore lies not in increasing discretion or in lowering the burden of proof, but in ensuring strict accountability and rigorous adherence to law and procedure by those who make up the criminal justice system.