response to questionnaire by the Committee on Reforms of Criminal Justice
[The Committee on Reforms
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
The comments that follow may be understood in the light of the light of
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
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.
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
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
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