रेफोर्म्स इन क्रिमिनल जस्टिस सिस्टम

TIME TO OPEN EYES

Criminal Justice System in India is a British legacy and had been established by the British Govt. The Indian Penal Code, 1860, Indian Evidence Act, 1871 and Criminal procedure Code of 1898 laid down the foundation stone of Criminal Justice System in India. The police force was created to execute and implement the verdict and bring the culprits to book. Police Act was enacted in 1849 last amended in 1861 to make the police force institutionalised. These above mentioned laws marked the beginning of evolution of Criminal Justice System in Modern India.
India became independent and we continued the British legacy. The voice of concerns against police apathy and atrocities gaining strength and it became gradually lauder. With the passage of time the system of governance and priorities of government underwent changes. The welfare state concept, human rights ethos as declared in Universal Declaration of Human rights by the UN on 10th December, 1948 etc necessitated drastic changes in the prevailing and exiting monolith structure of Criminal Justice System in our country.
The Criminal Justice System includes two aspect of Justice-
1. Police. 2. Judiciary
POLICE- Police being the most important and most visible part of Criminal Justice System, it was required to be revamped. The vestiges of British legacies were sought to be done away with by making it more people’s friendly, more responsive and more responsible. To achieve this desired goal and reform the structure one National Police Commission was constituted in 1977 by Ministry of Home affairs which gave recommendation on Police reforms.
NATIONAL POLICE COMMISSION-(1977-81) This commission was set up on 15 November, 1977 headed by Dharam Vira ICS, The commission gave as many as 8(eight) recommendation, last was submitted in 1981. Unfortunately none of the recommendations were implemented by any state. Important recommendation of this commission are-
· Police complaint Board as state level
· Posting of DGP from panel prepared by a committee comprising of UPSC chairman, CS and officers of MOH
· State security commission
· Gram Nyayalaya ( village courts)
· DGP would chose SPs and SPs would choose SHOs.
· APP& Additional PP on regular basis.
· Cadre of investigating officers should be increased.
· Directorate of Prosecution at state level and Deputy Director at regional level.
· Police stations as whole and compact unit (catering to all needs like traffic, Law and Order, Crime etc.
· Urban areas should have exclusive police stations.
· 150 sq KM should have one PS in rural areas
Unfortunately none except Sikkim implemented all such recommendation.
Prakash Singh retired IPS filed a petition in the Apex court and Supreme Court in its judgement (Writ Petition 310/1996) passed order on 11 January 2007. It has now become the guiding principle of police reforms in India.
The main points of judgement is as follows-
1. Establishment of a National Security Commission- this was for the Union Govt.
2. Establishment of a State Security Commission- this direction was for the State govt.
3. Selection of DGP from a panel and its fixation of tenure.
4. Minimum tenure of IGP to other field level officers.
5. Separation of Law and Order from investigation.
6. Police establishment board.
7. Constitution of Complaint Authority.
In pursuance of the above direction Government of Bihar enacted Bihar Police Act, 2007 in the year 2007 and repealed the relevant part of provisions of Police Act, 1861. State of Bihar took lead in this direction and incorporated some of the directions given by the Supreme Court. In section 59 of the act, the police department at district level has been made answerable to district complaint authority. Keeping in view of the spirit of judgment delivered by the apex court in Prakash Singh v/s Union of India, a civil officer, the district magistrate has been made chairman of this complaint authority.
The Act has yet not been fully enforced in the sense that till date Rules to this effect has not been framed. Section 94 of the Act empowers the Govt to frame Rules; non framing thereto has hampered the enforcement of this Act.

REFORMS IN CRIMINAL JUSTICE SYSTEM (JUDICIAL SIDE)
The first serious attempt was made in 2000 when Ministry of Home affairs constituted a committee on 24 November, 2000 under the chairmanship of Justice V.S. Mallimath, retired Chief Justice of Karnataka High Court and Kerala High Courts. Eminent legal luminaries like Chairman CAT, Member of NHRC were made members of this committee which is popularly known as MALLIMATH COMMITTEE.
TERMS OF REFERENCES-
· Suggest fundamental principle of Criminal Jurisprudence.
· Need to rewrite Criminal Procedure Code, Indian Penal Code, IEA etc
· Simplifying procedure for dispensation of speedy justice and simplifying complications in Criminal jurisprudence.
· Suggest ways and means developing synergy among Police, Judiciary, and Prosecution.
· Concept of federal crime in List I of seventh schedule so that heinous crimes can be removed from state list and bought to Union list I( article 246 of Indian Constitution)
Recommendations of Malimath committee-

1- Striking a balance between adversarial and inquisitorial system of investigation. The latter being supervised by a judicial magistrate.
2- Restriction to right to silence. This fundamental right is enshrined in Article 22 (3) of constitution which confers the accused the right to keep mum in eliciting information to a prosecution during examination.
3- Justice to victims. Present day criminal jurisprudence is based on the concept of awarding punishment to a accused to other than providing relief and succour to the victims. Committee recommended for awarding adequate compensation to the victims apart from awarding punishments only.
4- Separation of investigation and law and order wing of the police on line of NPC.
5- Special legislations to be enacted for organized crime, economic offences, Terrorism and low intensity war.
6- Concept of Federal Crime to be inserted Criminal jurisprudence and should be brought in list I of schedule VII in Article 246 on Indian Constitution on lines of America.
FADE OF MALIMATH COMMITTE’S RECOMENDATION –
Like many other recommendations of numerous committee and commission, 158 recommendations of this committee also mat the same fade। Majority of the recommendations have been thrown into the dust bins. Bihar is one such state which has partially acted on lines of these recommendations and has in acted Bihar Police Act 2007 repealing some of the out dated, vestigial and obsolete provisions of Police Act 1861.

MAJOR CHALLANGES FACING INDIAN JUDICIAL SYSTEM –
1। Huge pendency of cases (3, 63, 36,000) in different courts.

2। Inordinate delay in disposal of cases.

3। Ill –prioritisation of cases. The listing of cases are still done, despite computerisation , in most unscientific and non transparent manner

4। The quality and quantity of judgement are affected not by quality of judgement rather than personalities of the lawyers. Jungle of rulings has swallowed the bare Acts Codes.

5। Appointment procedures of High Court and Supreme Court Judges are not institutionalised (Advocate on record versus Union of India case in 1994 Supreme Court of India)

6. The impeachment procedure of High Court and Supreme Court Judges is arduous and complicated. This has led to development of an idea that judges can never be sacked. (The case of Justice Soumitra Sen, the judge of Calcutta High Court is still to be taken up in the Parliament.

National Food Security; challenges before the New Government.

MEN AT WORK; A SILENT REVOLUTION TAKING PLACE

Among many other challenges posed before the new UPA government, providing food security to all undernourished and mal nourished population is the most challenging and herculean one. Why is this challenge so huge? Why can this problem not be deferred? These are the questions which will meet answers in the report released by UNICEF only a couple days ago.
The latest report of UNICEF on hunger in South Asia is shame on humanity not because we have not been able to eradicate poverty and hunger from this region; but due to glaring paradoxes in which prosperity, growth, buoyancy in financial markets, increase in number of HNIs and other indices of growth on the one hand and poverty, hunger, malnutrition and child deaths exist side by side. It is disdainful and no civilised country can give political and economic sophistry whatsoever to downplay or decouple it from progress and development. How can a Nation move in which billions of population is in thrall of abject poverty and abhorrable hunger?
The report says that hunger in South Asia has reached to highest level in 40 years due to global financial crisis (GFC) leading to rise in prices of fuel, food and fodder. India did not fall incidentally in the trap of hunger and poverty; but it has been under this labyrinth for many years despite spectacular robust economic performance in almost all sectors of economy including agriculture. It is ironical that in spite of bumper food grains production in successive years, the food security situation has not improved significantly. We had reports when people die for want of food in Kalahndi, Balangir and Koraput areas (KBK) in state of Orissa despite food grains in FCI go-downs and warehouses were decomposing and decaying. What a travesty!
The report says the region would witness 100 million people going to bed without food; worst among the countries are Nepal, Bangladesh, and Pakistan. India is not an exception, the report laments.
Only a few months ago, a comprehensive report was prepared by M.S. Swaminathan Research Foundation (MSSRF) and World Food Programme (WFP) on hunger and food security in India. This report has said that about 40 billion population i.e. 1/3rd of the population suffer from energy deficiency due to mal or under nutrition in India. This report made startling revelation that about 40% of the children below 5 years of age are under nourished and about 27% of the world’s undernourished population live in India which stands at 94th rank on Global Hunger Index in 2001.
Even according to the FAO, number of hungry people in India has increased by 19 million between1991 to 2001. Nearly half the children are chronically malnourished. According to NSSO about 1/3rd or 200 million rural Indian populations spend only 12 rupees/ a day and consume only 12 kilograms of cereals per month. Situation of Urban poor is also not better.
Under the above mentioned grim scenario, the proposed National Food Security Act is a commendable initiative of government। This law would hopefully realise dreams of Mahatma Gandhi to provide food to every human, a goal that was inserted and enshrined in Constitution of India as Right to life (Article-21) sixty years ago. The proposed legislation seeks to provide access to sufficient food to the deprived section of society by making provision therein to provide 25 Kilo Grams of wheat or rice per month at a subsidised rate of Rs/-3 rupees/ Kg to the families living below poverty line (BPL). This legislation is perhaps the first of its kind after NREGA. After nearly huge success of NREGA, both in terms of providing employments and public spending, hopes of successful execution of this proposed legislation are also running high. According to reports and figures of Ministry of RD, about 460 crore man days employment have been created with Rs/-35,000 Crore expenditure under NREGS across the states in India. It is a consolable figure even if sporadic instances of corruption and pilferages are taken into account. Mechanism of social audit needs to be strengthened and people’s participation into these schemes can further be encouraged. This programme is all set to bring a social and economic revolution in rural India; a concept which has gained appreciation in countries like USA, UK and host of others.

WHAT SHOULD BE DONE TO MAKE NATIONAL FOOD SECURITY ACT, A HUGE SUCCESS- when NREGA was enacted, many Neocons were pessimist about its implementation। But when it was implemented in February 2005 in as many as 200 districts in Phase-I (one) across Nation, it started giving encouraging results and some states did exceeding well. Within years of its execution, rural population in some states socked desired level of benefits. The benefits have started percolating down slowly but steadily. Nonetheless a lot more is required to be done to make in more result oriented and successful.

१. The payment mode of wage component in the scheme needs to be made less complicated and time consuming. At the same time wage should be hiked and should not be linked with minimum wages Act or any other such law which regulate wage size.
·२.The assets which are sought to be created in due course of work done in this scheme should be reoriented and reshaped. Many a times such types of schemes are selected which are of little or no use at all. More expertise are required to be involved at gram Panchayat level to select more useful schemes which will both create employment and assets.
३.Social audit of NREGS are required to be institutionalise and made effective. The use of Right To Information Act (RTI), 2005 can be of immense use.
४.The proposed National Food Security Act should be synergised with NREGS so that a composite and comprehensive programme is evolved which in turn help fight hunger and poverty.
५.NREGS is a rural employment and job guarantee scheme and is confined to rural areas only, but the hunger and unemployment in urban areas are also grim and gloomy. It is therefore desirable on part of the government to enact similar law for urban areas also. The National Food Security Act should be made applicable in urban areas also. If this law is implemented effectively can be a land mark in the economic, constitutional and social-political history of India.
Hopefully the government would undertake this challenge in positive and unflinching resolve and implement this law to eradicate the blot of hunger and poverty for ever from this country once for all. The flagship schemes of government of India have paid dividends in the period of crisis. It seems that Keynesian theory has worked here; of course Indianised version of Keynesian theory. Hopefully India would perhaps pioneer the world by giving an alternate model of economy.

RACIST ATTACKS; WHY INDIANS ONLY?

IS THIS A SIGN OF CULTURAL AND SOCIOLOGICAL SUPERIORITY?
The recent attacks on Indian students studying in Australia have attracted global attention. This rabid cultural and racial menace has attracted worldwide condemnation. One Sravan Kumar Theerthala was hit with Petrol bottles by some unidentified teens while he was reading book in his house at Melbourne. Balbjinder Singh another student from India studying in Melbourne was robbed and stabbed in his abdomen. Both are struggling for life in hospitals. Sravan’s condition is reported to be very critical, he is still in coma. In a separate incident, four students were attacked and burgled by racist elements in Australia. One Suketu Modi, a businessman from Surat was attacked in train by a group of students when he had gone there for IT business. According to student’s organisations, these racist attacks have been taking place in Australia for quite some time; most of them went unreported. According to one report about 20 racial attacks on Indian have taken place in Sydney alone previous month.
Australia interestingly is not the sole country where rabid faces of racism have been raising heads. Such dastardly incidents have been taking place in countries like UK, Germany, France and some African and Gulf countries also.
This incident has raised very perturbing question which every one of us would like to ponder about and like to find consolable if not acceptable answers.
REASONS OF SUCH ATTACKS-It is too a simplistic proposition to categorically brand them as acts of criminal or opportunistic activities as uttered by Australian High Commissioner and DCP Melbourne, John McCarthy, HC has however not denied that some racist elements might have been involved in what he called Shameful criminal acts.
If not the Global society, Indian civil society must quest reasons behind it; after all why Indians are being attacked everywhere? It seems that the existence of these vestigial racial elements even in cultural plural societies does have other hidden reasons apart from ostensible causes. Chagrin does not prevail in Australia; and even Australian media lamented only after vociferous diplomatic and societal protests at home.
• ECONOMIC- India has written stories of astounding success in economic fields; thanks to flooded brilliant young brains in fields of science and technology, management and other frontier areas. Our IITs, IIMs, and plethora of Business and other schools have produced best brains in the world. The campus selections by MNCs and TNCs over a couple of decades have caused many concerns to the students of those countries which have destinations of our ‘smart English speaking IT-BPO guys’ for obvious reasons. If is felt by many of them that their job opportunities are being eaten up by Indians. Many guys working in MNCs and TNCs in countries like USA, UK, Australia, Germany and a host of other such developed countries have faced similar acts of discrimination. Many of such incidents go unreported for simple reason; as to the victims have to run from pillar to post once FIR is registered. Student community particularly do not like to be involved in legal wrangles, because they think that they have come here not to fight legal battle but to complete their studies and make careers. They are also tormented by the lackesaidial, callous and sometimes, nocent attitude of Police. For instance in Australia, Police did not act till the matter was blown out of their capacity to hold. According to Forbes; about 13 billion USD is spent by Indian students abroad annually. Australia alone has a 15.5 billion dollar business with foreign students and as many as 1 lakh Indian students study in Australian at present. According to one estimate about 8.3 lakh Indian students are studying in countries like USA, UK, USSR, France, Australia etc. Needless to say that those going abroad for higher studies belong to affluent class of society. The number of HNI in India has swelled for some years. Like many other areas, the lopsided development in the field of education has created a dangerous in-equilibrium. The affluence of these students studying abroad or working guys who earns handsome salaries in MNCs betrays in their life styles and attracts opportunistic activities by teens who have been already suffering from a sense of inferiority complexes. These complexes find expression in such opportunistic acts blended with racism.
• SOCIOLOGICAL AND EDUCATIONAL- With the passage of time, the colonies have gained independence from colonial powers. The European Countries are finding their erstwhile colonies rubbing shoulders in gatherings at International forums. The sense of hatred which had these centuries been harbouring unconsciously precipitates in their mind and find expression in such abhorrable acts of racial attacks. History has tought us to be proud of our past. Their past had been excellent but future is full of intense competition which extra-individualism . In the present global financial regime, every one, may it be individual or Nation has to find a place for itself not on the basis of its past but on the basis of its present. The economic hegemony of USA is all set to nosedive. The American Tsardom in financial market is likely to over. The Global Financial Crisis (GFC) has bashed US, the pain of which is still emanating. Asian giant China has purchased 1.3 trillion USD worth US treasury bills, a sense of chagrin prevails in USA, what a travesty; once lender has become borrower. The Chinese export juggernaut into USA has changed the entire economic power structure. Protectionist measures taken by USA and host of developed nations have these social and psychological dimensions also. The sense of frustration is obvious in younger minds because their economic future is not as secure as it had been decades ago.
There is no denying the fact that economic development in India has changed our life styles and cultural traits to a great extent, still then our social, family, and religious ethos which have deep roots, have not eroded to the extent of disappearance. Religious tolerance and non-violence are still way of our lives. When our boys go abroad we preach them to be adherent to these ethos. In spite of state of attacks, Students in Australia have decided to take out a Peace March rather than taking to streets. Normally such incidents meet violent backlashes. But the kind of restraint which has been showed by Indians in Australia and abroad is suggestive of the fact that ethos of Non-Violence and Satyagraha are still alive in our soul and these preaching of Mahatma Gandhi are inculcated in our way of life.
These characteristics of ours have been taken by many a Nations as timidity and cowardice. After all what explains when two teen attacked four students and went un-retaliated, physically they could have not only been overpowered but thrashed also.
Progress and affluence of students studying abroad do manifest in their lifestyles which tempt these racist elements to attack which serve twin purpose; on the one hand these snatch something from them and on the other it satiates their hidden desire of inferiority complex.

• ROLE OF EMBASSIES- the role of embassies in this regard have particularly been callous. According to reports available in public domain, hundreds of such attacks have taken place on Indian students in different parts of world. When the students approach to authorities in embassies, they are treated with callous and cool attitude. This has emboldened the morale of such lumpen elements who are indulged in acts of such vandalism and at the same time, it leaves students at the mercy of their fate. In this case also, Indian Embassy could take up the issue only after matter was reported in Indian media and PM and MEA Minister talked to Kelvin Rudd and Julia Gillard in strongest possible diplomatic over tune and conveyed their frowning over the issue. This approach of our diplomatic babus needs to be changed.
To sum up, we can say that these incidents are rooted in sociological, economic, historical and ethical soil of developed cultural plural societies. The lasting and amicable solution therefore can only be found in the roots and not in stems.