News Update

Criminal Justice: New Bills - A case of Messenger forgetting the Message!

TIOL - COB( WEB) - 882
AUGUST 24, 2023

By Shailendra Kumar, Founder Editor

CIVILIZATIONS, across the continents, evolved on the plank of arduously-organised nature of socio-political and economic activities. So did the crime! To deal with offences, criminal justice system was constructed but by keeping in mind the elements subservient to political interests of the rulers! The British Raj in India was no exception. When India earned Independence, it adopted its own Constitution and welfarist objectives a la the Directive Principles but could not escape inheriting the bespoke systems of the British, including the criminal justice system. Over the years, realisation dawned that there were too many design flaws embedded in the system which was customised to perpetuate the colonial rule by the Englishman Thomas Babington Macaulay in mid-1830s. To deal with the fall-out of the 1857 mutiny, the British enacted the Indian Penal Code, 1860 and Indian Evidence Act, 1872.

Although the elected governments, post-Independence, persisted with the flawed systems but also set up various Expert Committees a la Justice Mulla Committee, Justice Krishna Iyer Committee, Justice Roy Committee and Justice Malimath Committee to look into the nucleus of the design. All the committees, including Justice Malimath one, euphemistically observed that the existing criminal justice system was not adequate to deliver justice to the victim of a crime and was in favour of the accused! Such a conclusion was almost fait accompli as accused in most cases during the British Raj were either the Englishmen or their henchmen or the boot-licking feudal honing the art of dystopian oppression! For decades, the system peppered with design-bias, continued to favour the ruling class or the financially-muscled people in our society. In response to drumbeats of protests, occasionally, the governments in power did tweak or mend provisions of Criminal Procedure Code, 1973 but only to quieten the din, not to do justice in toto! Unfortunately, the stubborn persistence with the flawed system predictably infected other parts of the system such as the police, the prosecution and also the judiciary! Over the decades, Voila, Justice ended up being commodified in India! Rigmarole of procedures, pathetic investigation by the corruption-imbued police system and, worse, extortionate lawyering, have petrifyingly transformed justice into a scarce commodity!

To overcome the flaws, closer to the poll months, the Ministry of Home recently tabled three Bills to substitute the IPC, IEA and CPC Acts. The Bill replacing IPC will have 356 Sections as against 511 of the IPC; 175 Sections being reconstructed; 22 Sections being scuppered and 8 new Sections being embedded. The Bills have been referred to the House Committee to submit its report in three months. Some jurists have hailed the changes, perhaps, as coup de maître but many are dismayed as it falls short of tour de force by miles! A few are of the opinion that rather than making a whole-sale replacement, amendments could have done the job without requiring a parallel industrial-scale overhaul of other components of the system. And they cite the examples of Singapore, Malaysia, Sri Lanka and Bhutan which are managing well with the colonial penal code. I am of the opinion that if the three deeply-entrenched laws are to be replaced in toto, let there be more nationwide dissection of each provision and better drafting of the bills before they are enacted. Based on the Parliamentary Committee Report, they should not be rushed into Acts during the Monsoon Session. Let the New Government with fresh mandate ride them in new avatar next year!

While tabling the Bills the Home Minister observed that the idea behind the change is to 'deliver justice, not mere punishment'! Such a goal is to be hailed by all! But, can speedy justice be dispensed only by putting new laws in place? Not at all! All the three vital components of the justice-delivering apparatus are to be overhauled - the Police System which often does shoddy job and sponsors miscarriage of justice and accounts for five custodial deaths every day as per the NHRC data; the Judiciary which badly needs more infrastructure and better staffing and the correctional system which remains a vale of tears for too long! If the motive is not to merely punish, the underpinning of the existing prison system becomes more critical. Ideally, the Centre should take into confidence the States to replace the antiquated Prison Act, 1894 and jaded prison manuals. Since law and order is a state subject as per the 7th Schedule of the Constitution, States are required to be brought on board to transform the prisons or mere confinement within four walls into a meaningful reformatory so that after completion of his prison term when even a murderer or a hardened criminal exits, there is scarce chance of recidivism! Let them be treated as human resource, gainfully engaged in economic activities. The global trend is to enable such criminals to acquire skills and when out, live lives as responsible citizens in the society. Although the success rates are dismal across the world but sincere efforts may be made if the concept of human rights are to be upheld as a normative global philosophy!

Let's parse some vital numbers to assess India's prison system! There are about 5.5 lakh inmates in over 1300 jails in India - 77% are undertrials - A case of delayed or distorted justice! Going by the existing capacity of 4.25 lakh prisoners, the occupancy rate is above 130%! Rajasthan has the highest number of jails - 144, followed by 142 in Tamil Nadu and 131 in MP. Although women account for merely 5% of total number of prisoners but only 15 States have '3D-printed' 32 women jails - downright perilous lapse which may spark violence against women in common prisons! Some of the States like Uttarakhand has reported 185% occupancy rates for women; followed by 182% in UP and 164% in MP. Such numbers reveal that the prisoners are being treated as less than 'humans' or Neanderthal, perhaps! Understaffing of prison staff and poor budgetary support - jaundice and hepatitis gave a tough run even to COVID-19 in 2020 and 2021! The total All-India budget by all the States and the UTs for prison administration is only about Rs 7500 Crore - Rs 2 lakh per inmate, which is abysmal and not enough for correctional efforts! Report of 2019 highlighted that only 1% of the budget was spent on education and vocational training and 1% on welfare activities, plus ca change! In terms of literacy rate, about 25% are utterly illiterate; 24% are Class X-pass; 40% below Class X and about 7.5% graduates. Such a profile is indicative of the challenge if new and contemporary skills are to be imparted to them so that when their prison-terms expire, they could seek jobs in the open markets.

Globally speaking, there are about 11.5 million inmates in jails. America sits on top of the tally with 18 lakhs - 629 per 100,000 population; followed by 17 lakh in China, 8.5 lakh in Brazil and 5.5 lakh in India. About 10% are female in the US and about 8.6% in China. The largest prison in the world is the Silivri Penitentiaries in Istanbul with 37 guard towers and 8 cell blocks. The most secure prison in the world is ADX Florence in Colorado. Here, it is said that inmates would be lucky if they get to see the sun! The prison population in Central and South America has surged by 77% and 200% respectively. Brazil has the third largest prison population which spends USD 4000 per inmate per year but it is only one-tenth of the USA. Latin American prisons are fraught with high fatality rate - over 400 Ecuadorians have been killed since 2020, in gang wars within the jails. Overcrowding necessarily leads to shemoozle, violence and poor hygiene! WHO says that a Salvadorean in prison is 99 times more prone to have TB.

To deal with overcrowding, the universal solution is to focus on alternate sentencing such as community service. The New Bill replacing IPC needs to expand the ambit of community sentencing in place of short-term sentencing for minor crimes. If punitive method is to be jettisoned and the aim is to rehabilitate them by giving due weightage to their human rights, the common solution worldwide is to impart tech-driven skills to at least educated inmates so that they do not relapse into violent crime vortex again. In some countries, the recidivism rate is above 60% as the society fails to assimilate them because of their criminal track-record. Secondly, States need to pay them at least minimum wage for the labour done within prison premises. Prisoners are poorly paid for their labour as the universal rationale is to recover the cost being incurred by the prison administration. Even in the USA, some states pay as low as 20 cents per hour. Indian States tend to emulate the American counterparts in many ways! Briefly, no matter how good is a legislation, unless other components of the criminal justice system are overhauled and adequately funded, ballyhooed justice would remain elusive for both the victims and the offenders! A glaring case of the messengers forgetting the message! So, the lesson to be learnt is - Half-baked reform is downright 'criminal'!

(With inputs from Aastha Prasad, Student of LLM, Jindal Global University)


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