PUCL Bulletin, November 2002

PUCL response to questionnaire by the Committee on Reforms of Criminal Justice System
[The Committee on Reform
s of Criminal Justice System, setup by the Government of India, is headed by Dr. (Justice) VS Malimath.

Following is the response to the questionnaire it issued by the President of PUCL and Convenor of Human Rights Forum AP - Chief Editor]

Response to Questionnaire We are sorry to say - but we have to say this at the very outset - that the Committee's approach to the problem is more than a little lopsided.
Stressing the need for reform of the Criminal Justice system, the Questionnaire formulates the issue more or less evenly in the Preface: 'On the one hand, there is a steady increase in violent and organised crimes, and a pronounced rise in the nature and complexity of financial crimes, while on the other hand, there are innumerable complaints of misuse of powers by the police including arbitrary arrests and unnecessarily long detention in custody, not to mention the large-scale violation of human rights'.

We would complain that describing long detention as 'unnecessary' rather than unlawful puts the matter in the idiom that the police are accustomed to employing: that detention is a matter of what they perceive to be necessary for their job and not the Constitutionally guaranteed right to liberty that cannot be infringed except by just and fair procedures laid down by the law.

Notwithstanding this complaint, it must be said that the problem is here seen in a two- sided manner, as it needs to be seen. But this two-sided understanding does not survive the opining words of the Questionnaire. Part of the problem is that the Committee does not appear to fully appreciate that the two aspects of the problem do not operate in the same social realm, except for a few notable overlaps.
The 'innumerable complaints' of police misbehaviour are never heard of in the context of the rising financial crimes, as well as much of the politically well-protected organised crime. Police misbehaviour operates in a different sphere altogether. And in that sphere the crime is for the most part quite 'normal'. It is here that the most brutal behaviour of the police and the most callous face of the Criminal Justice System is exhibited. It would, in our opinion, be a fundamental mistake to make matters worse in this area by reshaping the system of policing and criminal adjudication along more harsh lines, in the name of rising financial crimes and rising organised crime, whose intractability owes less to any softness of the Criminal Justice System than to reasons of social and political power. We honestly believe that the framework adopted by the Committee suffers from the inability to make this distinction.

There is however one form of organised violence to which both aspects of the problem as posed by the Committee do apply. This is political militancy. This is on the one hand rising fast and uncontrollably and on the other hand it is subjected to considerable brutality in the name of policing, even as the Criminal Justice System finds itself incapable of tackling it. But making the Justice System harsher will not in any way solve this problem because it is political and ideological in nature, and will only succeed in driving more people into the hands of militancy by destroying the faith that justice is prized higher than the exigencies of Order. Since political militancy is based in communities/classes that are marginal to the mainstream of Indian society, and receives its support for right or wrong reasons from sections of such communities/classes, increased disaffection wrought among them by ill-conceived reforms of the Criminal Justice System can have disastrous consequences for not only the well-being of those alienated communities/classes, but also the very Order whose vulnerability and fragility is the concern from which the exercise of reforming the Criminal Justice System has been taken up.

The aim set by the Committee for the proposed reforms indicates the dilemma inherent in its framework. The aim is described as: revamping the entire Criminal Justice System in such a way that no guilty person escapes punishment nor does any innocent person suffer. The members of the Committee are too knowledgeable and experienced not to know that any Criminal Justice System, in fact, has to choose between these two aims at many points, and often has to sacrifice one of them for the other. The real problem in devising a Criminal Justice System is to lay down a criterion for choosing between the two, if and when a choice is to be made, which is quite frequently. No system can be devised which will attain both aims universally and uniformly. The System that we have has implicitly chosen to emphasise the latter aim. In the popular expression, it believes that it is better that a hundred guilty persons escape than that a single innocent person is punished. If it is felt that the priorities need to be reversed, and we believe that is what the Committee really intends to say, it is better that that is stated explicitly, so that it can be debited frankly, rather than delude ourselves into believing that there is no choice to be made here and that both of them can be uniformly realised. It is not our case that there is no need to take a second look at the choice of priority implicit in the Criminal Justice System as it exists today. In fact, the choice has in the past given rise to considerable discomfort in the face of two kinds of crime: crime against the weak and vulnerable sections of society, and crime that destroys the moral fabric of our social order.

A corrective in the form of shifting of the burden of proof under specific conditions, reducing the severity of the presumption of innocence by excluding the provision of anticipatory bail, or restricting the ease with which bail may be granted, etc. are devices by which the emphasis on the need to punish the guilty has been sought to be strengthened. This has happened in areas such as crimes against dalits, adivasis, and women, and crimes such as drug-trafficking, boot-legging, terrorism etc. This has been done selectively, with a clearly defined social objective in each case. Some of these provisions have not been uncontroversial, but what should suffice for the present is that such attempts at correcting the over-emphasis on protection of the innocent as against punishment of the guilty has been made in the past, but for clearly stated social reasons and within the compass of the stated reasons.

For the first time we see a blanket statement about increasing incidence of organised crime, followed by proposals for blanket change in the Criminal Justice System across the board, with the implicit aim of improving the conviction rate in the Criminal Courts at the cost of fairness in the dispensation of justice. We find this objectionable in principle.

Though we are called upon only to offer comments on the questions posed and the issues raised, we are constrained to point out that the Committee does not consist of a single person who is known for having championed the cause of civil rights, though it was not thought improper from the point of view of balancing of views to include a former Director General of Police.

The comments that follow may be understood in the light of the light of these observations.

Part A
Section I. 1.1: Transition from Adversarial system to any other is too big a change to answer in one sentence. Much would depend on what alternative is proposed. We need a more detailed knowledge of how the French system works, and what the problems would be if it is transplanted into Indian conditions.

1.3: Regarding the 'disclosure of the defence of the accused', it is not altogether the case that the pressure to do so is absent today in the system that we have. While the principle that it is for the prosecution to prove the case and not for the accused to disprove it is accepted, Courts do expect the accused to present an answer to the evidence led by the prosecution. This the accused is expected to do in the form of questions put in cross- examination, answers given by defence witnesses (if any), and the explanation given by the accused in Sec. 313 examination. This is especially true of cases dependent upon circumstantial evidence, where the burden is practically upon the defence to establish a credible alternative explanation to the chain of circumstances led in evidence by the prosecution.

What is now in the mind of the Committee appears to be some thing more: that the accused should explain his/her defence to the charges and to the circumstances led in evidence by the prosecution on oath, face cross-examination, and suffer an adverse inference in the event of remaining silent. What consequences this would have in a non- adversarial system one cannot say, but it can be very unfair in the adversarial system that we have now. We are all familiar with how a ruthless cross-examination can demolish evidence that is in fact truthful. The witness may not lose much excepting his/her self-respect in the process, but if the same thing is done to the accused, it could make all the difference between freedom and incarceration.

We may look at one witness/complainant who is practically a suspect in our Criminal Justice System to visualise the consequence of this suggestion. This is the prosecutrix in a rape case. A number of women who in fact have been subjected to sexual assault have left the witness box looking like liars and regretting having taken the matter to the law. Since she is only a virtual suspect, the sorry consequences end there. But the suggestion now made would put every criminal suspect in her position with the added disability of a possible prison sentence.

1.4: The suggestion that Art 20(3) too deserves to be tampered with is, we are sorry to say, nothing short of mischievous. The protection of Art 20(3) is not confined to examination in a Trial Court. Its most important consequence is that custodial pressure to extract confessions is unconstitutional. Given the established culture of policing in our country, it is a vital Constitutional right, even if its practical utility has been slight, thanks to weak enforcement mechanisms.

Section II. 2.1: Preponderance of probabilities is a somewhat vague notion. We are all familiar how unpredictable it has rendered adjudication of civil disputes. It may be alright if property rights hang by uncertain threads, but not the right to life and liberty. This is not answered by saying that when the one who has committed a crime has no concern for the life and liberty of the victim, how much concern can or should Society have for the rights of suspects against whom some credible evidence is there. Society cannot and should not ever put itself at the same level of the wrong doer. The moment it does so it loses the moral right to punish the wrong doer. Hence proof beyond reasonable doubt is the only appropriate criterion in criminal trials. In any case, even this is not without a certain vagueness, which has permitted judges worried about permissive criminal trial procedures to dilute the standard of proof without saying so. The gradual re-shaping of this principle at the hands of Justice K. T. Thomas of the Supreme Court is example that it is not as hopelessly criminal-friendly as the Committee seems to think. Whether all of Justice Thomas' forensic adventures are supportable or not, beyond the outer limit of the widest amplitude that can be given to the criterion of proof beyond reasonable doubt lies the unfair realm of proof by suspicion, by whatever name it is camouflaged.

2.2: The placing of burden of proof via rebuttable presumptions upon the accused should never become a general principle, because it is the surest prescription for arbitrariness. It should be confined to cases where (i) no independent evidence is possible; (ii) any other explanation is prima facie unrealistic; and (iii) the complainant/witness/prosecution has no reason for cooking up false evidence against the accused. (If not all three) then at least two of the three)

Section III. 3.1 & 3.2: If the purpose of the reforms being thought of is to increase deterrence for crime, Plea-bargaining is hardly conducive to it. It makes crime affordable. Its only merit is that it reduces the burden of the Courts. More particularly, in the context of the increasing financial crime that the preamble speaks of, introduction of Plea-bargaining can be a heaven-send to the white-collar criminal. The idea certainly does not go well with the proposed desire to curb white-collar crime that is increasing at an alarming rate.

Moreover, Pica-bargaining is undesirable in a society as corrupt as ours. The powerful, the rich and the influential who can grease the palms of the police can take advantage of it, but not the poor. That means that the rich will not see the insides of a. jail even to the slight extent that they do today. It will be a rich man's way of avoiding prison sentences. The highly discriminatory penal system will become even more so.

3.3: There should be no objection to making more offences compoundable, but to ensure that it does not degenerate into intimidation of the victim by the criminal, compounding should be permitted only with the permission of the Court in cases of a socially regressive nature such as offences against women, dalits etc. However, white collar offences against Public money or Public property should not be made compoundable because that will lead to an unholy nexus between such white collar offenders and minions of the State.

Section IV. 4.1: Death Penalty should be abolished in toto.
4.2: It would be absurd to insist that imprisonment for life must mean imprisonment till death. What would society gain by keeping people in their seventies and eighties behind bars?

4.3: Since punishment must have reformation as one important purpose, community service as a form of punishment is an attractive idea.

4.5: In general there should be no minimum punishment, since proof of offence in law is one thing, and determination of the moral share that the offender should be burdened with is another. Punishment follows from the former, but the quantum of punishment depends on the later. Prescribing a minimum punishment would mean prejudging a minimum moral burden that all offenders must necessarily carry. There is, in general, no warrant for assuming that there can be a universal minimal responsibility of that sort. It makes no difference whether the crime is an act of violence or a mere breach of faith.

Nevertheless, an exception can perhaps be made in the case of crimes against the socially weaker sections of society and crimes against public finances or against the public in general. Here, the punishment needs to be exemplary in addition to being proportionate to the moral guilt of the offender, and the former criterion would justify prescription of a minimum punishment.

4.6: It is but natural that it varies from Judge to Judge. What is needed is the evolution of a philosophical perspective on punishments, their raison d'etre and social necessity. This should not be based on horrific fears such as that 'the country is racing towards anarchy' (to quote from the Committee's Preface), but a social and human understanding of crime. Any statutory guidelines based on such fears as above can be very regressive.

4.7: We do not think that it is so.

4.8: This is really a proposal to do away with the distinction between simple and rigorous imprisonment, since not very 'hard' labour is got done by even those who are sentenced to rigorous imprisonment these days. As we understand it, the requirement of labour that accompanies imprisonment is intended not to add to its severity and its difference effect, but in the hope that productive labour will have a salutary effect on the prisoner's character. As such, there is no reason why all imprisonment should not be accompanied by the requirement of labour. However, such a change should be accompanied by a comprehensive change in the Prison system, including the philosophy of punishment.

4.9: Convicts must certainly be paid at least the minimum wage payable to the trade outside jails.

4.10: Like 4.8 above, this question seems to proceed on the assumption that labour is intended to add to the severity of punishment. That is not the proper way of seeing it. It is well known that productive work humanises, and the prison as a hopefully humanising institution employs it as such. Seen this way, there is no reason to regret that the period of remand is spent without performing any labour, even though in the event of conviction, the period of remand is set off. Like much of the Questionnaire this question too is animated by the quaint belief that harsh retribution is the better part of justice.

4.11: Yes, the Probation of Offenders Act should cover a wider field.

4.12: Yes, these provisions are badly misused, in particular the power of granting remissions under the Prison rules, which is the prerogative of Prison authorities who are the last surviving monarchs of India. Perhaps a way could be found of putting this prerogative in the hands of the local Munsif Magistrate. The power of pardon, which is the prerogative of the executive, is also exercised as arbitrarily as that. A prisoner well connected to the party in power at the Centre or State need spend no more than a few years of actual stay in prison, however heinous his offence. Whereas prisoners who have no godfathers find it impossible to get pardon. But instead of removing the power from the hands of the executive, it would be better if it is subjected to greater judicial scrutiny.

4.13: It is no longer true that blanket orders are being issued for release of prisoners on important occasions. Exceptions are now being written into the orders, to exclude perpetrators of heinous offences, extremists, etc. This classification, unfortunately, goes by the nature of the offence and not the character of the offender. Whereas, for premature release it is the offender and not the offence that must be the standard.

Section V. 5.1: It is absolutely that the victim be given an active role in conducting the prosecution. To lead evidence, and to cross-examine the defence witnesses (and hostile prosecution witnesses) should be the right of the victim. The present situa000tion, where the victim is merely a witness, is absurd and unjust. However, given the complexities of the task of prosecution the main burden of prosecution must continue to be borne by the State.

5.2: Such a right is essential. To the victim/de-facto complainant/any interested party. The provision of Appeal by the State is used most capriciously at present. Where the victim is the weak party and the offender is the strong party, the offender frequently manages to grease enough palms to ensure that Appeal is not filed. The victim is then relegated to the very weak alternative of a Revision under Sec 397 & 401 Cr.P.C., which is a most unsatisfactory state of affairs.

5.3: This may also be a useful suggestion. Victims rarely go to the Civil Court, fearing the cost and the delay and not wanting to go through the whole process of leading evidence once again.

5.4: A separate Victim Compensation Fund run by the Government may also be a good idea, since in many cases the offender may be in no position - or may successfully claim to be in no position - to pay the compensation awarded by the Court.

5.5 & 5.6: Only measures which are consistent with a just and fair trial for the suspect.

5.7: Subject to the paying capacity of the accused. The accused may have dependents who cannot be deprived of their livelihood, The idea of a Victim Compensation Fund is the better option.

5.8: In the case of corruption, and cheating involving public funds, yes. Intimidation and extortion are too widely defined expressions to merit such uniform measures.

Section VI. 6.2: The legal equipment apart, social training to sensitise the judiciary to social realities and especially the situation of the poor/depressed communities who are frequently found accused of/involved in crimes is desirable. What this requires is not some additional academic qualification but interaction with social organisations and activists.

6.6: Yes, and adequate number of Courts should be opened and presiding officers appointed to answer the need. Some kind of a statute as suggested in 6.9 may be necessary.

6.13 & 6.14: The answer to both questions is an emphatic NO. An open trial is an absolute requirement to ensure that the judiciary will do a fair job. As it is, with the proceedings being conducted in English/legalese, the accused often do not understand what is going on, even though it goes on in their presence. But their physical presence, and the presence of interested members of the public, does act as a check on arbitrariness, not to speak of collusion.

6.16: Any measures consistent with a fair trial to the accused. For instance, provisions Such as Sec. 14 of POTA which gives blanket power to the Court to take 'such measures as it deems fit to keep the identity and address secret' are undesirable.

6.18 & 6.19: It is difficult to see how pressure can be put upon witnesses to give evidence. There are already penal provisions in Chapter XI of the Indian Penal Code, but it is wisely recognised that it is impractical to use them against witnesses unwilling to give evidence.

6.20 & 6.21: The Judiciary, like all institutions of democracy, must be accountable/answerable to public opinion. An essential requisite in this regard is that all judicial proceedings must be open to the public. In camera trials, trials on closed circuit TV or video etc., in spite of their seeming attraction from the angle of expeditious disposal of cases, must be eschewed for this reason among others. The law of Criminal Contempt seriously affects transparency and accountability of the judicial process. It must be removed from the law and Constitution.

6.25 & 6.26: If pendency of cases is the problem, the solution is to have larger number of Courts. The experience with Fast Track Courts shows that the presiding officers are converting the trial of even serious charges into proceedings summary in spirit if not in procedure. Settled principles of Appreciation of Evidence are being subverted to hand over judgement of conviction on flimsy evidence. The experience therefore suggests that the innovation is one that we could have done without. Creating more posts of judges at the appropriate level is the only solution consistent with the right of speedy but just and fair trial

Section VII. 7.1 to 7.3: Incompetence, indifference and corruption in the police force are universally acknowledged to be important reasons. So also the pressure the police are subjected to by the socially and politically powerful. But mention must be made of the understanding the police have of the task of investigation. So long as investigation is seen by the police as a job of extracting evidence by the use of force, and then presenting it to the Court dressed up in legally admissible form, criminal trials will continue to fail. The State, too, does not see the investigation of offences as the main task of the police. It sees the job of the police as mainly providing security and maintaining order. In many States (such as A.P), there are exclusive investigative teams only for offences against property. Other offences do not merit the same concern. The solution to this problem therefore requires a complete attitudinal change in the State and the police force.

7.5 to 7.8: If it is true that forensic science techniques are inadequate and not up-to-date in our country, it is difficult to see how the prosecution can rely more upon them. But the probative value of new forensic techniques needs to be established clearly before their use can become widespread. Otherwise it can result in injustice. A good example is DNA testing. The law concerning DNA evidence has been developed fairly well in the U.S but in India it is already being used without developing the law.

7.13 - 7.16: In this sequence, Question 7.16 evidently comes first. The other questions derive their significance from the answer to this. Statements recorded by the police during investigation have been denied the status of positive evidence because the police of our country are notorious for using force to make witnesses say what their preferred line of investigation needs. If this was so when Section 162 of the Cr.P.C. was originally drafted, it continues to be so today too. It is nobody's case that methods of policing have improved one bit in their respect for the law and the rights of people. When that is the case, any reversal of the prohibition in Sec. 162 would be unwarranted, and quite harmful. This renders the other questions irrelevant.

7.17 & 7.18: The answer to these questions is the same as above.

7.20: The question is loaded. It is difficult to say that provisions of bail/anticipatory bail are often misused. If they are, the Cr.P.C. contains a remedy in Sec. 439(2), and nothing more is required.

Section VIII. 8.10-8.13: Withdrawal of prosecution is invariably done for political reasons. Some times, as when prosecution of the offences of a rebel force is withdrawn as part of a peace compromise, the decision may be wise. But more often than not, the reason is political pressure/partisanship. It should be made mandatory that the victim/de-facto complainant/any interested party is given notice and heard before prosecution is allowed to be withdrawn.

Part C

Part D

Section X. 10.4: It is high time that arbitrary, negligent and mala fide exercise of power in the administration of the country was made a penal offence. The possibility of departmental action has not been found sufficient to deter such behaviour because most government servants have godfathers in their departments to protect them.

10.5 to 10.7: These questions are no doubt very important but they cannot be answered within the framework of the present Questionnaire, namely reform or restructuring of the Criminal Justice System.

10.8: Such a classification would be good but the proper criterion may not be 'severity'. Possibility of correction by means other than incarceration, even if the offence is 'severe' from the point of view of the maximum punishment provided by the law, may have to be the criterion. This however requires a very elaborate and careful discussion.

10.9: The Criminal Justice System is far from satisfactory in its task of protecting the human rights of the citizens. Suggestions will have to be too wide-ranging to be stated in a brief space.

10.10: Existing laws in this regard are not without substance, but the real problem lies in the inability/unwillingness of the Criminal Justice System to give effect to them. As far as dalits are concerned, the S.C.&S.T.(POA) Act is a powerful piece of legislation, but its implementation leaves much to be desired. However, there is at least one amendment that needs to be made in that Act. Namely, that if an offence under the Act is committed by a non-SC/ST person against an SC/ST person, a rebuttable presumption arises that the offence was committed on the ground that the victim is SC/ST. In other words, mens rea to this extent should be presumed until rebutted. Such a presumption is there in Sec. 12 of the PCR Act, and is based on the fact that such attitudes are built into the prevailing culture. The amendment is necessary because a number of prosecutions are failing on the ground that this intention is not proved.

As regards women, Sec 304-B I PC should be de-linked from the issue of dowry. Women are subjected to cruelty in domestic life for a number of reasons, of which dowry in only one, and not necessarily the most important in all circumstances. Sec 498-A, which penalises domestic violence per se does not make dowry demands the exclusive ingredient of 'cruelty'. There is no reason why Sec 304-B, which makes death of a married woman soon after marriage a special category of offence carrying a strong presumption against the husband and in-laws, should be worded differently. However, the 'cruelty' required for attracting Sec. 498-A in cases other than dowry demands is too restrictive, The Courts, in their interpretation, have tended to give it a somewhat wider interpretation, but it is better that the statute itself defines 'cruelty' more broadly.

Sec. 306 IPC is a provision that is frequently applied in cases of suicide of a married woman under pressure of domestic harassment. However, prosecutions under Sec 306 IPC rarely succeed because the ingredients of that offence are very difficult to satisfy, and are not really appropriate to domestic harassment (a man who is cruel to his wife may not intend that she should kill herself; his intention may well be that she lives as a more obedient wife). Since Sec 364-B applies only to cases where the women dies within seven years of marriage, and moreover the cruelty is dowry-linked, it is necessary to broaden the ingredients of Sec 306 IPC to meet the kind of situations in which domestic harassment drives women to suicide.
The offence of Rape, too, should be redefined more broadly to include other forms of sexual molestation than only penile penetration. Marital rape, too, should be defined as an offence, by deleting the Exception in Sec 375 IPC. In appreciation of evidence in the trial of Rape cases, there is an ancient tradition of seeing the victim as an 'accomplice'. Though in recent judgements the Supreme Court has deprecated this obnoxious practice, it is necessary to make it a rule of evidence that the victim shall not be seen as an 'accomplice'.

But as in the case of laws concerning dalits, laws concerning women too fail more for want of honest and sincere implementation than any inherent defects in the laws. The Criminal Justice System is not motivated properly in the matter. A special drive for motivation must be undertaken because these laws go against the grain of our cultural practices.

10.1 1: There are already Special Courts for SC & ST (POA) Act. Unfortunately, the High Court of A.P has taken the view that that Court has no original jurisdiction, thereby defeating the object of speedy trial. Since the Supreme Court has concurred with the view of the A.P. High Court, the law needs to be amended to nullify the damage done. Moreover, though described as a Special Court, the Special jurisdiction in most States is merely an additional jurisdiction assigned to one of the Sessions Courts. For this reason, the object of speedy trial is being defeated. This needs to be set right so that the object of speedy trial is achieved.

10.12: Simplification of procedures must not be at the cost of fairness ands justice. It is better to increase the number of Courts/number of posts of judicial officers rather than simplify procedures to the detriment of fairness.

10.13: The panchayat system is too much implicated in political and social domination for any such conferment to be unproblematic.

10.14: Under no circumstances. As it is, a lot of unofficial private policing is prevalent in our country, and it is uniformly regressive in character.

10.15: As already stated above, these Codes, whatever other defects they may suffer from, do guarantee procedural fairness, and that is an absolute desideratum. 'Fair and speedy' trial may not be a unproblematic combination. Trials must necessarily be fair. It is also desirable that they are speedy, but that is subject to fairness. Special Courts for special categories of cases where expedition is specially desired are one way of ensuring speedy trial without sacrificing fairness. Otherwise the proper solution is to increase the number of ordinary Courts. Tampering with the Codes with the sole object of speedy disposal of cases is undesirable since it may well be at the expense of fairness.

10.16: The judgement in the D. K. Basu case laying down guidelines for arrest and interrogation must necessarily be made law. Similarly the law concerning investigation of 'encounter' killings, as explained by the National Human Rights Commission in its circular to all Stale Governments dated 29/3/1997 must also be given statutory force.

10.19: The single most important reason for increase in violent and organised crime is political failure/political collusion. Certain types of organised violence that are generally described as extremist/terrorist can be traced to political failure to tackle effectively the conditions leading to its growth; and other types of organised white collar crime is directly or indirectly born in the politics of the dominant classes. The remedy for this lies in strengthening democracy and democratic institutions.

10.22: This answer may be treated as an answer to not only this question, but to the motivating spirit behind the Questionnaire as a whole. The Questionnaire as a whole has mostly proceeded on the implicit assumption that the problem of Crime must find its full answer in the Criminal Justice System, and therefore the problem of increasing crime must find its full answer in adopting a more harsh and stern Criminal Justice System. This very approach is flawed. Crime does not have its origin in failures of the Criminal Justice System, and the answer to Crime does not lie in designing a fool-proof Criminal Justice System. Crime is social in origin, and Criminal Law is only a partial response of Society to it. Most of the response to

Crime has to come from social, political and administrative measures. This is what our Constitution, in addition to common sense, mandates. If this is ignored and Criminal Law is seen as the only or the main response to Crime, the answer to increased Crime can only be the recommendation of a harsh Criminal Law, as can be seen from the character of the questions posed in this Questionnaire. If we can think of devising comprehensive social, political and administrative measures to tackle the phenomenon of increased crime, we need not tinker with fairness and justice in Criminal Justice System. Much of the Questionnaire then becomes redundant.

-- K Balagopal, Human Rights Forum A.P. & KG Kannabiran, People's Union for Civil Liberties, 28-8-2000, Hyderabad

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