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.

RIGHT TO INFORMATION;INDIA AND USA

RIGHT TO INFORMATION A COMPARISON BETWEEN INDIA AND USA

Chief Justice of India’s reluctance to disclose the details of assets to the petitioner under RTI Act, 2005 has incited a debate on transparency versus privacy and confidentiality in Indian Public domain. 

The Central Information Commission (CIC) passed an order on the petition of one Subhash Agarwal filed u/s 6 of the Act, and asked all the Judges including CJI of the Supreme Court to make available the required information relating to their assets and properties to the petitioner. The order was taken aback by the Judiciary, because hitherto it is only they who used to get their dictates obeyed. This time the matter was reverse.

Immediately after getting the order from the CIC, the Supreme Court filed an appeal before the Delhi High Court through its Registrar against the order of the CIC. It is worth mentioning here that the order of Information Commission is final and binding as provided in section 19 (7) of the RTI Act, 2005. The aggrieved persons or the parties may however approach the High courts or the Supreme Court under Article 226 and 32 of Indian Constitution respectively in form of Writs, if they feel that their fundamental rights as enshrined in the Constitution are violated. 

In this case, it is beyond the imagination of a common man as how this said order of CIC was infringing upon the fundamental rights of the Judges, which forced CJI to go to the Delhi High Court against the said order.

This is not the first instance when Judiciary has retaliated against imposition of law on them or tried to resist any move towards greater amount of transparency being brought into the judiciary. It is rightly said that it is easy preaching than done.

Few months back, while speaking in a seminar in Delhi, the CJI said that the provisions of RTI do not apply on them because they are the Constitutional Authorities. Did he mean that the provisions of RTI Act do not apply on PM, Ministers, CEC, Speakers of Legislatures and MPs and MLAs because they are also constitutional authorities? 

This statement was also rebuked in the media; he thereafter tried to pacify the people by giving effete arguments. The CJI said that since there is no provision of disclosure of properties by the Judges of Higher Judiciary in any law or conduct rules for them, the Judges are not obliged to disclose the same. It is true, that such provisions are laid down in Government servants conduct Rules which are not applicable on the Judges of the higher judiciary.

Nonetheless, it should be borne in mind that the provisions of the RTI are overriding in effect, meaning thereby that all other laws if contrary to the provisions of RTI would be overridden (Section 22 of RTI Act). It is true that there are no service conduct rules for the Judges in higher judiciary, but at the same time there is no law also which provides immunity to the judges against disclosing their properties, after all what and why to hide?

In the mean time similar attempts to thwart the People centric ethos of the Act are being made in none other than the PMO itself. The same Subhash Agarwal has filed petition before the Public Information Officer (PIO) of the Cabinet Secretariat seeking information about the assets of the Union Ministers. The petition was thereafter sent to the PIO of PMO as per Section 6(3) of the Act. Initially, the PMO was willing to make available the required information to the information seeker, but subsequently, it sought to withhold the information on the pretext of the provisions of exemptions enshrined in Section 8(1)(e) and (j). 

It sounds funny to learn that the aforesaid provisions are invoked to deny the petitioner disclosure of the sought information. The Section 8(1) (e) says ‘the information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information’. Undoubtedly the disclosure of the assets of the ministers does not fall in this category.

Similarly, the section 8(1) (j) says that if the sought information is not related to public activity or public interest or which would cause unwarranted invasion of the privacy of the individual, the information can be denied.

The pertinent question here obviously rises that what kind of privacy is involved in the disclosure of the assets of Ministers? How can the property acquired by a Minister while serving the ministry be not related to public activity or public interest? Moreover, the Supreme Court has ruled in 1997 and made it mandatory on part of the MPs to disclose their assets. The Election Commission of India subsequently issued circulars and made it obligatory for the contesting candidates to file an affidavit declaring all the moveable and immoveable properties along with the nomination papers. Thus if the said information relating to the ministers are disclosed, it would be of great help to the India citizen because one could then easily find out by calculating the amount of wealth the minister has amassed during the tenure by just deducting the wealth declared by them at the time of filing nominations. 

It appears that higher Judiciary as well as higher executive both want to withhold the free flow of information and are against the transparency. They talk very tall from public platform but when it comes to their turn, they provide justification of exemptions thoroughly unpalatable to the public. People as higher echelon must set examples of high standard of public life and morality. They are the role models of the society and the democracy. The kind of public outcry which was witnessed after Mumbai attack was just a trailer, it was suggestive of the fact that what kind of public perception is there in the mind of the pubic at larger for the politicians. 

One can draw a distinction between India and USA with respect to transparency in public life. In America one Freedom of Information Act, 1966 is enacted and is in vogue since 1967. George Bush had issued an executive order enabling the Ex. Presidents and Vice Presidents to sit indefinitely on potentially embarrassing records that belong to public domain. Barrack Obama showing his uncompromising commitment to transparency and openness undid the order and issued a fresh executive order making it mandatory on the part of the US administration to make available to people at large, all the documents related to any decision taken by the administration which belong to public domain.

Obama’s decision to undo the executive order of his predecessor is an important decision because under Section 4(F) (1) gives the president such power to issue an executive order to be kept secret in the interest of the national defense or foreign policy etc. It means that had the President wanted to hide any document; he would have taken the help of this provision and denied the emanation of information in the name of national defense. He did not wish to withhold the free flow of information in the garb of law, rather preferred to undo it and set an example, conspicuously absent in Indian politicians. This is what is called transparency, openness and democracy. But here in our case, provisions of laws and rules are interpreted in one’s own interests and not in the wider interest of the public at large

BIHAR GETS GOLD IN E-GOVERNANCE ON ' JANKARI' CALL CENTRE

Bihar govt gets e-governance award for its noble initiative of setting up call centre on Right to Information ‘Jankari’

Bihar govt’s initiative for giving free access to citizens, the information through call centre ‘ jankari’ has started bearing fruits as it has been selected for being awarded as ‘National award’ in e-governance for the year 2008-09 by Union govt (DoPT). This award would be conferred on it in a function scheduled to be held in Goa on 12-13 February, 2009.

Giving this information in Patna, IT secretary, C.K.Misra said that the establishment of ‘Jankari’, the call centre for giving information to the information seeker under the provisions of RTI Act,2005 has been widely appreciated across the Nation. Giving details, he said that any Indian National can receive information just by dialling a toll free number in the call centre and after a brief formality, the information seeker would get the information just by paying Rs/-10 as the cost. In 2008, about 16,000 calls were received by this call centre Misra added.

But so far as computerisation of other departments is concerned, it is not moving at desired pace. The target of making Finance department a paperless one by the end of 31 March, 2008 could not be achieved. The introduction of Sec-LAN in the state’ secretariat is yet to come in practise and babus still rely on tiring hard copy file work.

It is pertinent to mention here that Sonia Gandhi, the chairperson of UPA had praised this move and had advised all the CMs of cong ruled states to take similar steps so that the ideals and ethos enshrined in the noble RTI Act,2005 are achieved.

TASKS AHEAD- The commission has miles to go before it could achieve the noble and lofty ideals enshrined in this people centric Act. The State Information Commission has to be debureaucratised, because it has become a post retirement placement bureau. The funcioning of this commission has to be made more people friendly, because if visits this commission, he gets a vestige of Courts room discipline, total undesirable and uncongenial. 

INFORMATION COMMISSION VS COURTS- One can draw a comparison between America and India. On the one hand Obama voluntarily signed an executive order making it mandatory for the US administration to make accessible all the documents pertaining policy decisons and any other decison to the public domain. Whereas in India, the Supreme court itself makes an appeal before its subordinate Delhi High court against the order of the CIC, what a paradox. It is easy preach than done. CJI says that the provisions of the RTI are not applicable to the Judges because they, what he said, are constitutional authority. The people sitting at the higher echelon should set examples in the public life. They should have the audacity to abide voluntarily to the provisions of the law of land.