The most important understanding of the judicial process requires us to think about more than formal law and procedure. The first question which often comes in one mind after analysing the topic is what do you exactly mean by critical analysis of judicial process? Is it merely a statement of criticism or something beyond the imagination of one’s thinking? However, if we closely analyse our present topic, then all the doubts become crystal clear because sixty two years after independence, the entire judicial system is on the verge of collapse. While the superior courts have earned praise from citizens for intervening in citizen’s concerns raised through public interest petitions, only those with resources or cunning can hope to get ordinary justice. Over three crore cases are presently pending in various courts. In most cases, citizens have little hope of getting justice in their lifetime. Corruption and abuse of court processes are rampant.
So, what exactly Judicial process is?
Everything done by judge in the process of delivery of justice is called Judicial Process .It basically confines itself to the study of “is” to “ought” of the law.
Judicial process is basically “whole complex phenomenon of court working” and what went wrong with this phenomenon is the issue in my current project.
1 The judiciary is one of the pillars on which the edifice of the constitution is built. It is the guiding pillar of democracy, what is happening inside it is a fascinating study. Its logbook shows that often the judgments of the Apex court degenerated into a dismal failure. There are many self inflicted wounds. This is the story of 59 years of the Supreme Court.
Speaking of the Supreme Court of United States of America, Jackson J., of the court said,
“ we are final, not because we are infallible, we are infallible because we are final.” The judgments of the Supreme Court are final but not infallible. They require constructive criticism, especially to take them out of the morass of alien concept and ideas foreign to the land and culture. The Supreme Court is virtually the proverbial ivory tower, with the judges sitting on the top. Disturbed by some of its judgments, Pt. Nehru once said in a diatribe, “judges of the Supreme Court sits on ivory towers, far removed from ordinary men and know nothing about them.” The Supreme Court is sometimes said to be beyond the reach of a common person.
Now, a question arises;
What is justice? Is an age long question since the beginning of civilization? It is an elusive term. What appears justice to one person and from one viewpoint may be injustice to another or in another prospective. We cannot have such elusive concept as a yardstick. There must always be some objectives test to form a foundation of just society. Jurisprudence formulates that test as “justice according to rules”. Therefore, W. Freidmann said, “justice is an irrational concept”. He concludes that justice as a generally valid concept is the goal to which every order aspires as a “purposeful enterprise”.
The question arises as to what actually went wrong to judicial process in India? Because the Supreme Court, instead of searching and basing its judgments on first principles or fundamentals of jurisprudence has sometimes has taken a shortcut by resorting to the supposed fiat of article 142. This article was employed as a tool to pass final decisions, apart from and without recourse to the law of the land. The concept of expanding universe is not confined to astronomy alone. There is fast expanding judicial firmament. The expansion of judicial world sometimes reads on fields occupied and reserved for others. It is very necessary that Supreme Court act with self restraint. Let us remember the adage, “power corrupts and absolute power corrupts absolutely”.
There are certain questions which are needed to be answered in the working of judicial process, like
1. What is the need of Court fees?
2. Why advocates are needed?
3. Why we are bound to pay advocate fees when they are called as officers of court?
4. Why we have chosen adversarial process of justice?
5. What is wrong with this system?
6. Is there any justification of having Limitation Act which is pro British legislation?
Critical analysis of the present system of Judicial Process
3.1 An introductory analysis of Indian judicial process:
A vision of equal, expeditious and inexpensive justice for India’s millions, a passion for effective delivery of social justice for the victimized masses and a mission of constitutional fulfilment through a dynamic rule of law geared to democratic values, operated by a fearless judicial personnel with a positive people oriented jurisprudence broad based an access to a sensitive, streamlined, functional jurisprudence- that is the command of the Preamble to the Constitution and the categorical imperative of Article 39-A. Our socialist Republic now hungers for human justice through human law and staggers towards nowhere since courts have lost their credibility and are writing their own obituary through retiring chief justices. Today judicial justice has come to a grinding halt, the judicature has caricatured itself and the Bench and the Bar, alas, have become a law into themselves, Indian humanity having alienated itself from the feudal forensic system and the cult of the robbed process. If all the judges and lawyers of India pull down the shutters of their law shops nationwide, injustice may not anymore escalate, if at all, litigative waste of human and material resources may be obviated.
Now, a situation arises that the entire Indian justice system is now under severe threat. With the police force that has been condemned by everyone as being incompetent and corrupt, with the prosecution system that is inept and selective and a judiciary that is corrupt where is the room for justice in the Indian context?
Indian Judicial system has collapsed totally. Be it the justice delivery system existent in criminal side or civil side, there is no hope for justice for common man. Entire fabric has been exploited and doomed. The condition of Indian judicial system worsened so much that Attorney General of India, Mr. Soli Sorabjee remarked, “Criminal Justice system in India is on the verge of collapse owing to inordinate delay in getting judicial verdict and many a potential litigant seem to take recourse to a parallel mafia dominated system of 'justice' that has sprung up in metros like Mumbai, Delhi etc”.
"Hamlet's lament about the laws delays still haunts us in India and the horrendous arrears of cases in courts is a disgraceful blot on our legal system, especially the criminal justice delivery system," Striking an alarm bell, Sorabjee said: "criminal justice system is on the verge of collapse. Because Justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts.
"This perception has caused many a potential litigant who has been wronged to settle out of court on terms which are unfair to him or to secure justice by taking the law into his own hands or by recourse to a parallel mafia dominated system of 'justice' that has sprung up in metropolitan centres like Mumbai.
"The gravity of this development cannot be underestimated. Justice delayed will not only be justice denied, it will be the rule of law destroyed," he said
The Attorney General said the time has come to ask, "Have the ideals of justice, liberty, equality and fraternity proclaimed in the preamble in grandiloquent language been realised in the working of the Constitution during the last 53 years? Have we redeemed our tryst with destiny? Have fundamental rights been merely in the realm of empty rhetoric or have become living realities for the people of India.”
Apart from that there are number of question which requires answer in the working of judicial process, like;
1. What is the need of Court fees?
2. Why advocates are needed?
3. Why we are bound to pay advocate fees when they are officers of court?
4. Why we have chosen adversarial process of justice?
5. What is wrong with this system?
6. What is the use of locus standi?
7. Why are we bound to pay process fee?
8. Are these provisions violative of Article 14 of the Constitution? If yes, then why there is nobody to take reformative steps?
Mutual appreciation of society of judges and advocates constitute extra constitutional power and this lead to imbalance of power spectrum in society. What we need is, whatever the SC said, don’t take it as gospel of God. We should be able to discover the truth; we should be able to analyze that whether the particular question is in conformity with Fundamental Rights. We should have the ability to identify what is wrong, where? Now, the analysis of governmental functioning is “the executive is failing, the legislature is failing and the judiciary has failed.”
Article 13(2) clearly provided “the state shall not make any law which take away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
Now, question arises, who is the custodian of this right? The answer is President of India under Article 60 and Governor under Article 159. President is not bound to sign the Bill which is unconstitutional, as an obligation is imposed under Article 60 that he shall preserve, protect and defend the constitution and the law. There has to be unity of command to direct state and we have President and Governor for that purpose. Article 14 compels every functionary including the judges to decide according to the provisions of the Constitution.
According to professor Burgess, the idea of complete constitution is like this:
1. Amending power of the Constitution given under Article 368 of the Constitution.
2. Liberty: consist in three modules:
i. Declaration of liberty
ii. Guarantee of liberty
iii. Suspension of liberty under Article 358 and 359
3. Organs of Governmental power: legislature, executive and judiciary.
Professor Bluntschli, added one more,
Presidential form of government has power to choose policy, what he required is only support from legislature.
If one analyze the recent opinion of CJI that judges are not bound to disclose their assests. What the CJI trying to do? He is just claiming unequal protection of law which is not guaranteed under Article 14 of the constitution as he is attempting to take more protection of law; therefore, the equality clause is violated by the judges.
Education and economic development are the only two methods mentioned of correctness under Article 46 of the Constitution. But in the recent decision of SC regarding reservation policy for weaker section of the society is totally a blunder created by it. Nobody has grievance that the weaker section of society should prosper, but it does not mean robbing upper strata of society of their opportunities and development. Forward section of society cannot be pulled down to promote weaker section of the society. The basic funda is “unless there is capacity building from primary level, reservation does not help.”
The answer of all the grievances are given under Article 14 of the Constitution but the judiciary lost the beauty of this particular Article through classification. By and large Courts failed to deliver complete justice. Article 14 talks of restitutive justice and restitutive justice has the touchstone of time count. Moreover, procedural complexities should not hamper the way to justice. As lay down by SC that if you move the High court under Article 226 then you can come to SC only under Article 136. What is this nonsense? Is it the denial to the people that by way of procedural complexities they cannot enforce their rights against the wrong doer? It is highly unconstitutional. Nobody can forfeit your right to move to SC under Article 32 if you exhaust your first remedy under Article 226, because it is violative to the protection given under Article 14. What is wrong here is the manner of working, system is good enough to lead to equality.
The following are some of the shortcomings of the present day Judicial system:
3.2 procedural hurdles in Access to Justice:
Procedural laws are not merely a body of rules meant for facilitating the dispensation of justice on substantive questions. It also represents the value choices of the makers of law. What are their priorities- facilitating access to justice or creating hurdles to access to justice? The answer better understood by everybody. From institution of a suit to the execution of a decree, it is the onus of private individuals, not the government. The lacuna is due to the adversarial process of justice system. Under the said model, there is no duty of the court to ascertain the truth. Adopting an adversarial system leads to number of hurdles in access to justice, especially procedural hurdles in access to justice.
As already mentioned, it does not reflect the fundamental policy choices made in the Constitution of India. Instead it reflects the values chosen by the colonial masters, the British, who were least interested in the plight of Indians and thus placed several hurdles in access to justice by prescribing several technicalities. Though the Supreme Court has said that “procedure is hand-maiden to the substantive rights of the parties”, the practical working of this hand-maiden leads to the perception that the handmaiden has had her revenge by overpowering the queen, i.e., the substantive laws. Procedural laws prescribe the procedure for enforcement of substantive laws however procedural laws have been used, time and again, to defeat substantive rights. 
· Cost of litigation:
(Order IX, R2, R5, Order XVI, R2 of CPC) the most disadvantageous feature of judicial process is its cost. The costly nature of litigation compels parties to abandon just claims and defences. The cost of litigation consist of court fees, process fees, advocate fees and the principle of the losing party paying the cost of litigation. This cost system is peculiar to British administration. It was British who imposed such fees for reducing filing of frivolous claims. The motive for this was delay and denial of access to the Courts and also to extract money from the people. In independent India, we followed the same legislation i.e. The Court Fees Act of 1870. Apart from that parties are required to pay process fees like for filing of plaints, written statements, issuing summons and issuing copy of judgment and decree.
Thus, the access to justice in India depends on the financial capabilities of the parties that is unconstitutional and encourages inequality between the parties. Here, ethical count is defeated.
· Court fees:
With the institution of the suit, a court fee has to be paid. As per Section 35 of CPC, the costs of and incidents of all suits shall be in discretion of the Court and the Court has the full authority to determine the extent of costs. As per Order IX R 2 of CPC, a suit can be dismissed if the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court fee or postal charges. Court Fee is a colonial baggage being carried by the Indian Courts till today. The policy of selling justice is against the constitutional scheme. When seen in the light of the power spectrum as elucidated by Prof. Julius Stone in his book, the aspects of power relations in charging a fee for rendering justice is all on negative side. Court fee is low on ethical spectrum as it is against the basic premises of the foundation of a welfare state as envisaged in the Constitution. Since a multitude of citizens are involved in civil litigation process, the head count component is quite high and so is the interest affected component as civil cases cover a broad ambit of interests. The Court fee, being a hurdle in access to justice, has a large degree of influence in discouraging honest litigants who do not have sufficient financial resources to pay the fee from approaching the courts. Since the non-payment of court fee can result in dismissal of the suit, it is very high on coercion band.
The judicial dicta on entry fee hurdle in access to justice are quite interesting. In Central Coal Fields Ltd. V. Jaiswal Coal Co., AIR 1980 SC 2125 observed that effective access to justice is one of the basic requirements of a system and high amount of court fee may amount to sale of justice. The Court observed that
“It is more deplorable that the culture of the magna carta notwithstanding, the Anglo-American forensic system and currently free India’s court process – shall insist on payment of court fee on such a profiteering scale without corrective expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic where equality before the law is a guaranteed constitutional fundamental and the legal system has been directed by Article 39A “to ensure that opportunities for securing justice are not denied to any citizen by reason of economic……….disabilities”.
It is submitted that sale of justice whether for a penny or for a pound is a sale. The basic premise for accessing the court for redressal of an injury is that the State is liable to protect to individual and having failed to do so, it should redress the injury. For this no fee can be charged. It is a settled principle of law that no one can profit from their own wrong. Thus State ought not and cannot profit from its own lapse in performance of duty.
Later in Secy. to Govt. of India v P.R. Sriramulu, 1996 (1) SCC 345, the Court pointed out that it could not be disputed that the administration of justice is a service which the State is under an obligation to render to its subjects. However, yet again, the Court failed to declare the Court Fee Act as unconstitutional.
· Advocate fees:
A question now arises, what is the need of advocate fees? Perhaps William Shakespeare is correct when he said, “the first thing we do, let’s kill all the lawyers.”
The money power and influence power comes into play, thus the principle of equality as envisaged under Article 14 stands violated. The adversarial system does not impose a positive duty on judges to discover the truth; he merely plays a passive role. However under Section 57(1) of the Indian Evidence Act, a judge is presumed to know every law, then he is the best person to discover the truth, then why at all, he needed the help of advocates?
Advocates are considered to be the officer of the Court under Advocates Act, they are regarded to assist the Court in the administration of justice. Then why parties are required to pay advocate fees? It is clear cut violative of Article 14, as the court is required to administer justice without the aid of advocates. Even if you want advocates then go for public advocates aided and supported by states. In the process of delivery of justice there is no parity of power. There is need for rethinking or revamping whole judicial system. Time count is very important to determine the scope of Article 14.
· The law of Limitation: (Order VII R6 CPC)
The Limitation Act of 1963 provides for the specific period for a person to effectuate his rights. This bars the remedy after certain period of time but the rights subsists. The Act was passed during British in the year 1793 and was amended and consolidated later. The same was adopted by Independent India, the effect of this is that it denies justice after a period of time, thus invalidating and defeating the time spectrum as a person is denied for his right after certain period of time, thereby denying interest spectrum as interests of such persons who cannot approach to Court thus, their interests get affected and influence of laws, on such aggrieved persons was unable to give remedy. Limitation act basically does not defeat right but basically the remedy is denied. Article 14 guarantees moment to moment protection because the idea of justice under article 14 is restitutive justice. Sanction for prosecution abridges away my right to file suit. If any aggrieved person failed to file suit within limitation time, then wasn’t it is the duty of the court to take judicial notice of this as clearly provided under Article 57(1) of Indian Evidence Act.
· Arrears of cases:
Because delay in legal proceedings, there is huge backlog of cases which are pending, and it take approximately 20 years for a case to be disposed off, this snail pace speed of dispensation of cases throughout the years is effecting the ethical count, as justice delayed is justice denied and also adversely affecting the time count spectrum and interest spectrum is affected when litigant suffer throughout the years.
· Selection of judges:
As far as selection of judges is concerned, according to the text of the Constitution, President has the power to appoint judges, he has discretion to choose and he can consult the Chief Justice of India as well as senior most judges of Supreme Court in matter of appointment. But the SC in SP Gupta and others V. Union Of India held that consultation by CJI means his consent. If consultation means consent then the power spectrum shifted from the President to CJI, and it is entirely wrong interpretation of the Constitution.
The judges are selected according to the political loyalties acceptable to the ruling party. Genetic engineering from the political angle is made secretly operational in the case of judges, and then at the performance level agrarian laws are struck down, welfare measures are whittled down and progressive projects meet thier judicial water loo.
There no system for disciplining corrupt judges. Impeachment is next to impossible. One cannot even register an FIR against a judge taking bribes openly without the prior permission of the Chief Justice of India.
Added to all these immunity to judiciary is the power of contempt of Court, which can be used by the judiciary to stifle public criticism, or even an honest evaluation of the judiciary. This threat of contempt has prevented a frank discussion or a healthy debate on the functioning of judiciary. The judiciary recommended that the Chief Justice should be the final word in deciding whether any information about the Court should be given out or not. Most High Courts have not even appointed a public information officer under the RTI Act. The Delhi High Court has framed rules which prohibit the release of non judicial information about the court, such as purchases and appointments. All this has ensured that the judiciary becomes a law unto itself, totally non transparent, and accountable to none.
What we need is the reformative method of selection of judges. Advocates should not be allowed to become judges nor should be the practise any criteria for the selection of judges.
When one has to analyze the law, analyze the constitutionality of law, because every judicial process is constitutional specific.
There are numerous instances of cases where SC wrongly interpret the provision of Constitution like Joshi V. Madhya Bharat where it was held that place of birth is relevant or in Balaji V. State of Mysore case where caste was given prominence. Here, court indirectly held that caste and religion is important which is wholly unconstitutional. By upholding pro government attitude, courts are cheating the citizens who belong to socially advantageous sections of society but are economically backward enough not to get an opportunity of education. Reservation in the matter practised today cannot lead to the fulfilment of Article 45. We should make the quest to achieve all this on the bedrock of Article 14. Judges have to act strictly in accordance with law, on the matter of Judicial process, the duty of the court is to ascertain the law and apply it and judge the fact in the light of that law, here court has no power to legislate. There is nothing like judges made law.
3.2 failure of Supreme Court to interpret the Constitution through erroneous decisions
The constitution has conferred a very wide jurisdiction on SC of India. It shows that the Constitution makers placed great confidence in the sagacity and the wisdom of those who were to exercise such enormous power. When any court is vested and is invested with wide jurisdiction, it necessary follows that the court must exercise that jurisdiction with utmost care and caution. When power is conferred on constitutional machinery, it is always to be understood by the functionary as a duty; others may view it as power. When the functionary is a judicial restraint, he must be extra careful, lest he may appear to be carried away by emotion or bias. Self imposed discipline and judicial restraint should be his armament; otherwise there is the fear that he may not be viewed as impartial. It is difficult to draw the line but one can say, without fear of contradiction that the power must be exercised with restraint and should not appear to be an immature impulse. In a democratic set up, when the Constitution confers wide powers and jurisdiction on any institution, the constitutional functionaries exercising those powers are in effect called upon to perform certain duties and functions and, therefore, they must carry out those obligations with great care and caution. The constraint and restraint of judicial office demand a self imposed discipline in the exercise of the power and jurisdiction conferred by the Constitution. There can, therefore, be no doubt that the jurisdiction must be exercised responsibly, and with restraint and circumspection.
Some of the heavily criticized judgments of SC are:
In, Chiranjeet Lal Chowdhary V. Union of India
The SC abdicated its power in the hands of the executive and laid down the Doctrine “constitutionality of Statute” in which the petitioner has to prove the unconstitutionality of the statute and court assumes its constitutionality. This judgment defeats all the bands of the power spectrum, as it is unethical on the part of the Court to presuppose the constitutionality of the statute without looking into its essence so it clearly violates the power principle. This approach affects the interest, influence, head count and time bands of the power spectrum, because the interests of the majority of people are affected by his approach and an individual is entrapped in dilatory legal battle for justice.
In, Mohini Jain V. State of Karnataka
The petitioner applied in a medical college in Karnataka but the college was charging an exorbitant amount as capitation fees. The petitioner filed a case in a court, it took the court five years to settle the case and the verdict of the case was that “the case of Mohini Jain may be considered for admission” it took the court 5 long year to decide the case. During these years, the petitioner would have successfully completed MBBS and even after the lapse of 5 years admission to her is not guaranteed.
Apathy of enforcement machinery and judicial process towards the seekers of justice can be viewed from the condition of the poor victims of Bhopal Gas Leak Disasterwhich took a toll of 15000 people. 25 years had passed to that ghastly incident, still now victims are fighting for compensation, which fails to measure up the damage caused to them. The decision of the court was passed in the year 1991 but the decision has not been enforced for such a long time. This delay in the execution of the judgment is affecting the time count of the power spectrum as justice has no importance if it is not time bound and justice by the court without being enforced remains incomplete.
In, AK Gopalan V. State of Madras
The SC attenuated the concept of “personal liberty” in Article 21, by narrowly interpreting it without reading it in conjunction with Article 19, and hence said “personal liberty” means nothing more than the liberty of the physical body- freedom from arrest and detention from false imprisonment. This interpretation has given a carte Blanche power in the hands of the executive to interfere with the fundamental rights of the citizens. This case defeats all the counts of the power spectrum as it lies at the higher end of the coercion band.
In, Maneka Gandhi V. Union Of India
Instead of dealing with fundamental question of law, the case was decided on the assurance given by Government of India that her passport will be returned back. No question of law was decided. So, can we cite this case as precedent? Which is merely decided on Government assurance? Now a question may arise, what went wrong with SC? Here, court failed to administer justice according to law as it failed to laid down any law. Court ought to say that public officer should be prosecuted under s.166 of the IPC for impounding justice, and then it will act as a deterrent to other officers. What was lost in this case is the opportunity to lay down any law. Policy control becomes duty of court under judicial process.
The answer is very simple yet SC failed to understand it. It is failing to respect Article 14. The SC must bear in mind that the power is given for the performance of duties and functions. They have been granted immunity only for the purpose of doing justice fearlessly, but SC failed to understand this notion of power. It exercises power arbitrarily.
3.3 Indian Judiciary: Tyranny or Activism............is it accountable to anyone?
What exactly is Indian judiciary? Is it accountable to anyone? These are certain questions which require immediate and remedial answers. Peeved at judiciary donning the role of Executive in several cases, Somnath Chatterjee warned of ‘serious implications’ if this trend continued, asserting no one should behave as a ‘super organ’ of the State. Chatterjee said ‘nowadays’ there have been ‘umpteen’ cases where judiciary had "intervened in the matters entirely within the domain of the executive, including policy decisions despite the Constitution according pre-eminent position to the Legislature. 
The judiciary, the principal system present in all the societies created, mainly to fight injustice, lawlessness and uphold what is just, right and fair. This system if personified as a human being tends to become corrupt and decay or like any normal human being is born with some imperfections.
These imperfections have off late become the setbacks of the judiciary. Some call the judiciary the temple of fairness and others call it the temple of loopholes. Judiciary is one pious system which has the inherent right to award capital punishment .It has the legal power to bring death to the law breakers; it can punish, isolate and take away the right to a pleasant social life.
The Setbacks in Indian judiciary can be broadly divided in the following ways:
2. Extent of corruption
4. Other areas of concern like shortage of judges and staffs, lack of infrastructure and funds, political interference, accessibility, misuse of power etc.
EXTENT OF CORRUPTION
Let us see the extent of corruption in judiciary:
· 13.37 percent of total households in the country had interacted at least once with the judicial department in the last one year. This means, nearly 2.73 crore households had interacted with the judiciary to get one or the other service
· Nearly 47.32 percent of those interacting with the judiciary had actually paid bribes. This works out to 6.32% of the total households, (approx. 129 lakhs)
· The average amount of bribe paid to the judiciary was estimated to be Rs. 2095/ - (Rs. 2181/- for Urban households, and Rs. 1942/- for Rural households). Therefore the total monetary value of the bribe paid in the last one year works out to Rs. 2630/- crores.
· There was a variation in the amount of bribe paid depending up on the nature of work. On an average bribe for a getting a favourable judgment was Rs. 2939/- while the average bribe paid for getting case listed was Rs. 799/-
There is always a conflict between judicial activism and judicial restraint, the latter jurisprudence adheres by and large, to a legal positivist approach while the former is basically having realist approach.
The word judicial activism, judicial overreached, judicial credibility sounds to be quite synonymous to judicial review and judicial creativity, until and unless the judiciary works with its full competency and honesty. The judges should not in any manner fail to police themselves. It was Hon’ble Speaker Mr. Somnath Chatterjee who had marked that the M.P.’s are working hard to destruct the democracy. But after the happening of several cases of corruption of the judges it’s hard to say the judiciary is working with its full credibility. A learned judge of today marks that when we had joined the judiciary there were less than 20% of corrupt judges and when the time comes towards his retirement after serving the nation for more than three decades he with tears in his marks that today we have more than 80% of corrupt judges in the system. It’s shameful for the nation when we see a sitting Supreme Court Judge involved in the Ghaziabad case, when we see a Chief Justice of a certain High Court as among one of the most corrupt judges in the system. It was the then Hon’ble President Mr. A.P.J.Abdul Kalam, who had refused to elevate such a judge but sooner or later he was there. The Indian Judiciary has become a den of corruption. The extortion of litigants has become a regular business of today’s judicial servants. The whole money extorted from the litigants is beings collected with the Reader of the court. From this booty, lunch is being served for the Judiciary; their monthly households are met. The remaining booty is being distributed among the staff of the judge. The litigants should be protected from this exploitation by the system. It should be the judges who should police themselves without any kind of discrimination on any basis. The real question lies in, whether such a judicial system goes towards a reign of tyranny or just activism. As far as the system is working towards nation building and in national interest it cannot be called as a tyranny but as judicial creativity. Judicial activism can be called as quite synonymous to judicial credibility or creativity. Where judiciary is known as the paterfamilias of the organs of the government and the nation, it should work for the welfare of the nation and its citizens, in order to protect the rights of the citizens. And such a system should not be obsolete in nature; changes, reformations are must for a better today and tomorrow, with a balanced amount of checks over each other.
3.4 Indian Judiciary On the verge of total collapse:
Indian judiciary has become a decaying institution that has no internal mechanisms or will or strength to adapt to the changing times. The judiciary has become almost a law unto itself, answerable to none and under no pressures to reform or change with time. Indian judiciary started as an extension of the colonial regime. British set up a poor copy of the British judicial system as Indian judicial system. The judges (generally British in pre-independence India) were the symbol of imperial power and all the systems and procedures of the court were intended to humiliate the natives. Even after Indians were appointed as judges, any contact between judges and the common people was discouraged. The concept of jury was anathema since it would have involved the local people in decision making process.
Procedures in Indian courts have not changed much during the post-independence period. The pre-independence practice of humiliation of the natives at the courts continues till today. The concept that an accused is innocent till proved guilty and must be treated with due respect and dignity finds no place in Indian courts where only the judge has honour and only the advocates are learned. The alienation of the common man in India with the judicial system leads to his feeling that the court-room is an alien-land almost like a war field where the common notions of morality and ethics have no place. It is not unusual to see in Indian courts persons who are otherwise respectable and God-fearing submit false affidavits and make statements that have no relation to facts. It is often said that 'All is fair in love and war.' In India this gets extended to the court-room where technicalities rather than truth and morality rule. This has led to the Indian courts becoming graveyards of justice instead of being temples of justice. The absence of any relationship between the judiciary and the academic community has weakened both institutions in India. Legal education is in a pathetic state in almost all states of India. For most students, getting admission to a course in law is the last option after they have lost all hopes of entering any other profession. It is not unusual to meet qualified practicing lawyers who cannot even draft an application. Such lawyers depend on the typists sitting in the court premises to draft all documents for them and keep accumulating years of 'experience' that enables them to rise to become senior advocates or even judges.
According to recent survey Indian judiciary is 466 behind schedule giving us a picture of completely collapsed system.
The whole system from lower court to Supreme Court is on the verge of total collapse. The whole judicial process or the judicial working of India is blinking. The condition of the subordinate courts where most litigants seek relief- especially the poor and the weak, is deplorable. There are confusion, pollution and corruption making proceedings insufferable and inaudible. To make matter worse in some courts, Delhi’s Tiz Hazari complex, two or three cases are simultaneously. One by the bench clerk on the left, the other by another clerk on the right and the third the real robbed person, each engaging two advocates in the adversarial system! Truly, litigation at the lower levels is often ‘a tale told by an idiot full of sound and fury signifying nothing’! Alas, the case goes on and at long last the verdict comes, (God knows when)?
The present day judiciary is a lawless law in action with no active social philosophy which is the functional essence of the Constitution. There is no criterion for selection, apart from success at the Bar and/or community factor and/or political connection and/or nexus with High Court judges. There is no manner of public accountability procedure, grievance reported by the public, no monitoring or periodic performance audit and its annual reportage and public discussion by concerned organs. On top of these, ant serious criticism of the cloistered judiciary is contempt of court which legitimates as inhibitive culture against exposure of ‘robbed’ misconduct. No systematic method of the public to report and no open means of proceeding by any authority against a judge whole culpable indiscipline deserve investigation, inquiry and action upon proof.
Another fruitful source of pollution of law and justice in the ordinary Courts is the insufficient facilities for the Bench to catch up with the march of law and the social dimensions of legal developments.
Long ago Lord Macaulay wrote:
“What is administered is not law but a kind of rule and capricious equity. I asked an able and excellent Judge lately returned from India how one of our zilla courts would decide several legal questions of great importance—questions not involving consideration of religion or caste—mere questions of commercial law. He told me that it was a mere lottery.”
“If Justice is a human right, and it is, then easy and inexpensive access to judicial justice is a fundamental precondition.”
Rigid procedural laws and price tag for crucial entry by way of court-fee are inhibitions which run counter to the concept of equal justice and lead to jurisprudence of obstructive technicalities. Simplification of laws of procedure is as easy as it is imperative. The Civil and Criminal Procedure Codes are complicated and arcane for common apprehension. They promote dilatory zigzagging and expensive paper logging. Processual sophistries and forensic casuistries are generated by the forms and formularies prescribed in these legislative mystiques and lacunose techniques.
There is an English jingle about legal drafting which applies a fortiori to Indian law making:
“I’m the parliamentary draftsman
I compose the country’s laws
And of half the litigation
I’m undoubtedly the cause.”
The judicial Church of India needs a powerful protestant movement with constructive intent. A planned process of development in necessitous and the planning commission must set up a Judicial Wing for reform which is the need of the hour.
The pathology of the higher judiciary must be frankly diagnosed and the displeasure of the souls on the High Bench should not detract from the identification of the disease. Experiments with untruth and playing hide and seek with the grave issues on the alibi that if judges are exposed institutional demoralization may weaken societal credibility are escapist and disingenuous. Should we conceal the shocking shortcomings of the court system from the sovereign people of the Republic merely to keep up false appearances of justice incorporated?
As Anatole France put it, that “justice is the means by which established injustices are sanctioned”.
Extreme critics including some jurists and social activists told that “for much too long the law persons—judges, lawyers and jurists- everywhere in the world successfully managed to convince the people of the truth of their lies concerning the nature of the judicial process.”
The court is dead; long live the court, is a slogan of despair. This shall not be. Many of the rulings of the court in a la Land Reform Cases, Privy Purse case, Bank Nationalization Case, Golaknath Case and cases for nocturnal bail for the noveau riche et al has shaken institutional credence, the Bhopal Gas Victim case sent shock wave adverse to the court vis a vis its social justice stance. The voices and noises raised then by the jurists, sceptics, critics, social scientists and investigative journalists shut down the myth of judicial justice and brought out the truth of its contrary slant.
In the words of Lore Hewart;
“It is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly undoubtedly be seen to be done.”
A judge is judged by high standards since the judiciary is people’s fiduciary, and what might be ignored in a politician is regarded as ignoble as a judge.
The whole structure of our judicial process is crumbling.
Special note was taken of the fact that in many cases the judiciary is playing a regressive role and implementing by judicial fiats the government’s economic agenda, together with other anti-democratic, anti-secular and anti-people measures. We have seen cases in which the government found it hard to implement its regressive measures, and the judiciary came to its rescue with pronouncements that are not open to challenge. Moreover, arbitrary references to contempt of court, and the Supreme Court’s ruling in Veeraswami’s case that corruption cases against a judge cannot be investigated without the chief justice of India’s permission, have given the judges immunity that is being widely abused.
Judicial reforms in India: need of the hour
Today nothing retards the Indian mind more than the paralysis of the Indian justice system. This paralysis obstructs all attempts for greater social mobility and change within Indian society. While public consciousness of rights has grown enormously, the justice system obstructs popular aspirations. The failed justice system keeps India fragmented and in a constant battle against anarchy. India's judicial system is today obsolete and grossly unfair to majority of the population.
What is lacking in the present working of the Judicial Process is the effective judicial reform programmes need to address institutional, organisational and individual dimensions in a comprehensive, systematic and holistic manner. Development and implementation of judicial reform initiatives for enhancing justice will require justice oriented approach based on the new understanding of the definition of justice. It should be defined as “standard of human conduct which includes, at the core, the following five norms:
· Equity and
The goal of the judiciary should therefore be defined as securing human conduct consistent with acceptable normative standards. To achieve this goal, the content (what) and methodology (how) of judicial reform programmes will also need a new approach that addresses not only “bits and pieces” of judicial systems, but rather the following six critical variables that determine the quality of a justice system. These critical variables, referred to here as the “judicial reform hexagon”, cover the institutional, organisational and human dimensions of judicial reform in a comprehensive, systematic and holistic manner. The judicial reform hexagon consists of:
· Role and responsibility of courts.
· Organisational efficacy of the judicial system.
· Knowledge of law of judges and counsel.
· Judicial method including skills and practise.
· Effective management of process and people.
· The demand side-access to justice.
What are the possible methods for reforming this collapsed structure of judicial process? What is required? Do we need whole restructuring of the working of judicial process or there is a need to adopt other mode of justice delivery system?
These are some of the measures which are recommended to answer the above questions:
The constitution only furnishes a framework in which different organs of the state, including the judiciary, have to function. Nevertheless, the law making power rests with the legislative wing of the state. When once a law has been validly made in exercise of legislative power that is binding on every citizen as well as the executive and the judiciary. The court cannot administer justice in accordance with their subjective perceptions. They are as much bound by law of the land as any other person. Although article 12 does not expressly refer to judiciary being an organ of the state, it is certainly bound by article 14 of the constitution. Article 142 cannot be resorted to circumvent the law by the Supreme Court.
However, the Supreme Court, instead of searching and basing its judgments on first principles or fundamentals of jurisprudence has sometimes has taken a shortcut by resorting to the supposed fiat of article 142. This article was employed as a tool to pass final decisions, apart from and without recourse to the law of the land.
The concept of expanding universe is not confined to astronomy alone. There is fast expanding judicial firmament. The expansion of judicial world sometimes reads on fields occupied and reserved for others. It is very necessary that Supreme Court act with self restraint. Let us remember the adage, “power corrupts and absolute power corrupts absolutely”.
Arrears Eradication Scheme
Govt. of India, Ministry of Law and Justice has created a fast track courts which is limited only to the Session Court Cases and also having practical problems which restrict it to work in all states. To overcome this problem the Committee is in favour of working out an Arrears Eradication Scheme for the purpose of tackling all the cases that are pending for more than 2 years on the appointed day.
Use of technology
1. A review of court record handling and introduction of modern tracking methods can help eliminate much of the petty corruption, existing in lower courts.
2. Technology can be used to help layman understand laws and information on citizens’ rights, spelling out in simple language how to start a business, protect land rights or get a divorce. (e.g. Vietnam, Your Lawyer CD ROMs)
3. Practical measures should be adopted, such as computerization of court files. Experience from Karnataka suggests that the computerization of case files helps in reducing immensely the workload of the single judge. It also speeds up the administration of justice.
4. A video recording of all the proceedings in the courts should be maintained.
Burden of Proof
In India, Adversarial System is followed so the standard of proof laid down by our courts following the English precedents is beyond reasonable doubt in criminal cases. It is suggested that it is difficult to prove for the prosecution that the accused person is guilty beyond reasonable doubt. In several other countries Inquisitorial System is followed where the standard of proof preponderance of probabilities is on the accused. It is suggested that now the time has come to change the Adversarial System into Inquisitorial System. It also recommended that the burden of proof should be of degree which lies in-between the beyond reasonable doubt.
Reducing the Gap
1. Judges need to be more responsive.
2. They must be subjected to a judicial review.
3. They are obliged by the law to give reasons for decisions, i.e., it must be speaking order which complied with the mandate of Article 14.
4. They must write judgment and not merely announce it. There have been instances when judgments were written after a long gap.
5. They must follow a code of conduct.
6. There must be regular inspections.
Associations to check Corruption
1. The law societies and bar associations must also be encouraged to take stern action against their members who indulge in corrupt activities.
2. Set up a public watch body, comprising of persons of unimpeachable integrity, to keep an eye on the judges and the judicial system.
3. Review and public hearing of certain type of cases which are pending for long.
1. High court judges are now drawn from either the Bar or subordinate judiciary. Firstly, an Indian Judicial Service (IJS) should be created. Judges may then be appointed through nation-wide competitive examination. These officials could form the backbone of the subordinate judiciary at the level of District Judges.
2. Most of the High Court Judges can then be drawn from this cadre of competent District Judges.
3. There should be periodic training programs for judicial officers by practitioners, lawyers and senior judicial officers. Secondly, the proposed National Judicial Commission (NJC) should have the powers not only to recommend appointments, but also to remove judges in higher courts.
Justice Delivery System In France or inquisitorial mode of justice:
The justice delivery system in France is the best. If imitation can be regarded as indication of approval, the popularity and acceptance of French Judicial System present such an approval in the higher degree.
Courts in France like any other Court which follows inquisitorial system moves on the presumption of “Guilty until proven innocent”. The presiding Judge actively, often vehemently and acidly, participate in the court room questioning of witnesses as well as the accused- who cannot invoke the Anglo Saxon privilege of refusing to take the stands on the grounds of possible self incrimination i.e. he does not have a right to maintain silence which is given in adversarial system. The judge of the court combines the power of the prosecutor and a magistrate but he is not a member of a prosecution per se. His function is to determine truth on behalf of the state, with aid of the police. The powers of the judge are very broad which helps him to reveal the truth. He may call witnesses and pester them. The whole process, from the starting of trial, investigation, examination of witnesses, thier testimony, judges play a very important role because they themselves assist in all the procedures.
Therefore, it can be said that criminal court in France is investigative rather than the battle between two opposing parties, which happens in adversarial system. According to one legal authority such battles denote a bitter adversary duel rather than a disinvested investigation.
Administrative Justice in France: in administrative Courts such as Conseil d’Etat at litigation, the proceedings are markedly more inquisitorial. Most of the procedure is conducted in writing, the plaintiff writes the court, which asks explanations from the concerned administration or public service, which answers; the court then may ask further details from the plaintiff. When the case is sufficiently complete, the law suits open in courts; however, parties are not required to attend the court in appearance.
French justice delivery system has become envy of the world. As the Sanskrit shloka goes “yukti uktam” which means “useful idea can come from anywhere”. Then a question arise, what’s wrong in taking idea from France?
4.1 judicial Process under the Indian Constitution
Judicial process is basically the path or the method of attaining “justice”. Justice is the approximation of the ‘is’ to ‘ought’. Judicial power is involved in the legal ordering of facts and is under the obligation to approximate ‘is’ with the ‘ought’. This ordering is nothing but the performance of administrative duties. Supremacy of law implies that it is equally applied and nobody is above the law. Everyone is equal in the eyes of law so that a level playing field is created in order to strengthen parity of power.
Indian Constitution adopted this principle in the form of Article 14 and the Preamble which provide equality of status and opportunity. Thus, Constitution ensues to establish parity of power which requires that every person must be on the same plane. The wording of Article 14 made it an ‘umbrella’ Article under which all other rights, both constitutional and statutory, find protection. This is so because all laws treat every individual with equality and the protection of laws is extended to all without any discrimination, then all others rights are automatically enforced. This duty to extend equality before the law and equal protection of the laws has been casts on the state.
Article 256 makes it obligatory upon the executive of every state to ensure compliance with the law made by Parliament and any existing law which applies in that state. The Union executive is empowered to give such directions to a state as may appear necessary to ensure the compliance of the laws by the state executive. Thus, according to Article 256, it is the duty of the executive to ensure compliance with the laws and that too in a manner that satisfies the mandate of Article 14.
Article 256, is in fact, the reflection of the true tradition of the Rajadharma Principles which regarded it the responsibility of the executive to deliver justice through affirmative executive action to ensure strict compliance with the applicable law. Article 256 states the whole mechanism to ensure the implementation of every law by the executive power. It thus, envisages the delivery of justice through administrative mode. The administrative mechanism of providing justice as promised under Article 14 is provided in Article 256. It is well established that the judiciary is the outcome of the dissatisfaction of the working of the administrative machinery. The need for a dispassionate judgment of the executive action has given rise to judiciary. Essentially, the judiciary while resolving disputes is ensuring implementation of laws. Thus, its functions are basically administrative in nature. Law is always based on the policy when the judiciary implements or reverse the action of the executive, thus, judiciary acts as a policy controller. This view has been endorsed by Karl Lowenstein who held that adjudication is basically execution.
But the present Indian judicial system is by all accounts unusual. The proceedings of the Courts are extra ordinary dilatory and comparatively expensive. A single issue is often fragmented into a multitude of court actions. Execution of the judgment is haphazard, the lawyer seem both incompetent and unethical; false evidence is often commonplace; and the probity of judges is habitually suspect. Above all, the courts often fail to bring the settlement of disputes that give rise to litigation. The basic reason for this state of affairs is that present mode of access to justice through courts operating in India is based on Adversarial legalism. This is where the power structure given in the Constitution has been distorted. As per Article 53(1) the executive of the power vested in the President, who has taken the oath to preserve, protect and defend the Constitution.
Therefore, we can say that effective justice dispensation through the Courts requires three elements: access to courts, effective decision making by judges, and the proper implementation of those decisions because the primary responsibility of judiciary is policy control and dispute resolution is only incidental to it.
Conclusion and Suggestions
How to reform our judicial process
In today’s era, it becomes crystal clear that our judicial process is on the verge of total collapse. The adversarial system which Indian legal system follows has failed to answer the test of Article 14 read with Article 256 as it is required party must do everything from paying court fees to execute the decree which actually is the task of the state.
Constitution is the supreme law of the land governing conduct of government and semi governmental institutions and thier affairs.
In ancient India king is the fountain head of justice. Sage Yajnavalkaya declared that “the king, divested of anger and avarice, and associated with the learned should investigate judicial proceedings conformably to the sacred code of laws”. In ancient India, legal procedure is governed by the principles of Rajadharma. All the Dharmas merged into the philosophy of ‘Rajadharma’ and it was paramount Dharma. It is a classic example of trans-personalized power system.
The adversarial system lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover the truth in the inquisitorial system. When the investigation are perfunctory and ineffective. Judges seldom take any initiative to remedy the situation. During the trial, the judges do not bother if relevant evidence is not produced and passive role as they don’t have any duty to search for the truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is therefore, necessary to strengthen the adversarial system by adopting with suitable modifications some of the good and useful features of the inquisitorial system.
How to reform judicial process?
An epiloguic thought repeating what has been said earlier may be needed to strength my submission that the court will commit blunder if it does not guard its reputation more seriously. A post script in this prospective, may drive home my point, treating the Bench and the Bar as a complex agency of public justice. A learned Judge mild in his words, who retired last year from the Supreme Court, wrote with restraint t o a former colleague of his still on the High Court, what makes poignant reading: “the judiciary is sinking. The destruction is from within; it is for judges like you to restore the fast disappearing credibility of the High Courts and the Apex court.”
Equal protection of the laws is the fundamental right of the citizen which has a forensic dimension and procedural projection. The obligation of every court from the summit to base is to afford the same facility for hearing of case to the rich and the poor, to the dubious billionaire to the bonded labourer. Now, there exists a mutual appreciation of society between judges and advocates which led to the failure of justice delivery system. The judiciary is the fiduciary of people’s justice and has accountability to the country for scrupulously equal judicial process.
The crisis is not resolved by some martyrs from the class of advocates courting displeasure by exposure of oblique events but by a people’s movement which will compel the judges and advocates against the privatisation of judicial process. Your monopoly obligates accountability and if there is culpability it cannot be gagged by contempt proceedings. In our system, both the robe and the gown must remember is that the court is what the court does. The new dimension of justice delivery and new vision of alternative justicing will have to be explored and executed if the first promise of the Constitution were to be actualised. Therefore, today, in adversarial system of justice, what we need to reform are:
· Court fees to be abolished:
The purpose of justice is delivering the promise of law and hence the role of state is not merely limited to establish the judicial institutions but also to fulfil the expectations of the people which they attached to the state while conferring role and seat of power. To charge fees for justice is like sealing the promise of law and flouting the constitutional duty of state to provide justice to the people at thier door step, merely laying down the foundations of judicial shops and washing thier hands of from the process of justice delivery is not warranted on the part of the state. To get revenue for the enforcement of rights and to charge it in rigorous ways, failure to pay would entail the justice not access able to because one cannot afford it in terms of money, is the misery and apathy, the courts in India are continuing with. The proper course would be abolition of court fee because it seriously undermines the parity of power principles as it places the richer one in advantageous position which offends the spirit of Constitutional goals.
· Advocate fees to be abolished:
As it is clearly provided under the provisions of Advocates Act that advocates are the officers of the Court, then why the clients are bound to pay hefty fees to lawyers for contesting thier cases. There should be provision for public advocates which are available to everyone and should be paid by state.
· Selection of Judges:
CJI committed blunder when in one of the most controversial case he held that consultation by CJI means his consent. Here, by this observation the power of President is reduced to zero and whole spectrum of power given under the constitution is disturbed. The judges should be appointed by President only with the consultation of CJI and not by his consent.
Moreover, the provision of advocates becoming judges after certain required years of practise should be abolished. Judges and advocates are different profession and they should not be intermingled. There should not be any mutual appreciation of society.
· Adversarial system to be abolished:
The present adversarial system should be abolished and replaced with inquisitorial system of justice. Judicial process is essentially deductive reasoning and it is to tell authoritatively what law is. The judge should take judicial notice of all the law. The judge is to investigate the case before him, by approximating ‘is’ to the ‘ought’, after the parties present thier case.
By virtue of Article 14 r/w 256, there should be an affirmative action by the policy implementing organ. It should protect the citizen with thier affirmative action, just like the ancient Indian system. The present Indian legal system is continuing the colonial legacy where the ends justify the means, but since now, we are living under the umbrella of a controlling Constitution, the means should justify the ends.
· The Limitation Act should be struck down:
The Limitation Act should be stuck down as unconstitutional since it is violative of Article 14. Under Article 14 there is no distinction between state action and private action. If any person fundamental rights are infringe, how can the state fix a time limit to curtail the right to move the court for justice. It cannot withstand the test of Article 14, or the six counts of the power spectrum. Hence, Limitation Act, doctrine of Delay and Laches and procedural hassles are undoubtedly unconstitutional.
· Judges should not have any immunity:
The judges should not have any immunity because the functions of a judge is twofold; the judicial function is only to state authoritatively what law is. All others are administrative functions. The fundamental law is the Constitution and it is the only supreme authority. If judges committed any negligence or there is dereliction of duty on thier part, then such judges should be punished under Section 166 of the IPC because they are the public officers and hence liable for punishment for negligence of duty.
According to Rajadharma principles, the king himself is liable to be punished for an offence, one thousand times more penalty than what would be inflicted on an ordinary citizen. Perhaps, it is high time that this principle is getting working especially as under the Constitution none is above the law and there is no immunity for crime. If judges of the Superior Court in China and Japan can be prosecuted and punished for violations of law, why not in India which has a basic structure command to ensure equal subjection of all to the law.
· Delays should be avoided:
The delays in our legal system are well known. There 30 million cases pending in various Courts. The average time span for dispute to be resolved through the court system is about 20 years. Litigation has become a convenient method for avoiding prompt retribution by many people on the wrong side of law. The Bible says that the path to hell is paved with good intention. The legal system is meant to punish the criminal and to protect the law abiding citizens. Many a time, the criminal exploits the legal process itself to escape punishment.
· Supreme Court to have Benches throughout the country:
Article 130 of the Constitution provides that the SC shall sit in Delhi or in such other place or places, as the CJI may with the approval of President. From time to time appoint. This provision of the constitution has not been applied so far. If the SC has a seat on other places, that is seat in every state then it will be relief to the aggrieved and justice will be assessable to them, which will result in reduction of cost of litigation and will cause less hardship to the litigant.
· No presumption should be raised in favour of anyone:
The presumption is always in the favour of constitutionality of statute, and it is a gross misapplication of a justice as it tends to presume the preponderance of power in favour of one party and tilts the balance unjustly. This totally upset the balance of parity of power, which is ensured through the guarantee of “equal protection of laws” under Article 14 as well as Article 13 (2) and (3) of the Constitution, respectively. The burden of justifying the constitutional validity of the law as well as the fact that the state action was in accordance with such law should be on the state, and not on the person who challenges its constitutional validity. Asking the injured party to prove the wrong or injury suffered destroyed the guarantee of equal protection of laws. Such an opinion of the part of court is extremely low on the ethical count of the power spectrum.
· Judges should play active and not passive role while deciding cases:
Article 14 of the Indian Constitution made it obligatory on the state to provide justice to all at the door step. Thus, the Indian Constitution necessarily envisages inquisitorial mode. So, the judges should go a mile extra in deciding cases as the judges supervising the cases are independent and are bound by law to direct thier inquiries either in favour or against the guilt of any suspect and play an active role while deciding cases.
· Accountability of Judges:
In India, the judiciary is separate and independent organ of the state. The legislature and the executive are not allowed by the constitution to interference in the functioning of the judiciary. The functioning of the judiciary is independent but it doesn’t mean that it is not accountable to anyone. In a democracy the power lies with the people. The judiciary must concern with this fact while functioning. The high courts have the power of control over the subordinate courts under article 235 of the constitution of India. The high courts have the power of control over the subordinate courts under Article 235 of the Constitution of India. The SC has no such power over High court. The CJ of High courts/ India have no power to control or make accountable other judges of the Court.
· Reluctant approach of Supreme Court to accept petition under Article 32:
The rule made by SC under article 145 laying down the procedure to be followed by the SC in performing its functions involves lot of technicalities. It is the duty of the SC to grant relief under Article 32 and it is mandatory as it is obvious from the word “the Supreme Court shall” in Article 32. But the SC is reluctant to perform its functions.
To conclude one can say that whatever may be the system the procedural laws must be minimum, simple and must be litigant friendly.
 Choudhary V.K.S., “The Ivory Tower: 51 years of Supreme Court of India”, Universal Law Publication Pvt. Ltd. 2002 Edition, P: 12.
 Krishna Iyer, V.R.; Justice At Cross Roads; Deep And Deep publications; Chapter: 8 Glasnost and Perestroika for Judicial India; p:128.
 Rao, H.S.; Indian Justice System on the Verge of Collapse; www.expressindia.com; Thursday, June 12, 2003.
 Lowenfeld is perhaps right when he points out that when we observe procedural laws, “we see not procedural solutions to substantive problems, but procedural obstacles that may or may not have been installed on purpose.” Lowenfeld, Andreas F, Elements of Procedure : Are they Separately Portable, American Journal of Comparative Law, Vol 45, 1997, pg 1.
 A plaintiff is supposed to pay the cost of serving summons. This is another lacuna and a procedural hurdle as it is the duty of the State to serve summons.
 As per Article 256 of the Constitution, the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament and any existing laws which apply in that State. Since it is the States which have the real contact with the citizens, ensuring compliance with every law is the responsibility of the State. It is pertinent to mention here that under the Indian Contracts Act a contract is also treated as law binding the parties entering the contract. Since it is the State’s duty to ensure compliance with law, any violation of law signifies lapse of duty on the part of the State. To rectify this lapse, the Courts are supposed to restore status quo ante. Charging entry fee to a rectification mechanism like Courts is incomprehensible as it is not in the interest of the private individuals only that law should be adhered to but also incumbent on the Government that laws should be properly complied with.
 Chapter 13, pg 598-99
 The Court in the given case further observed that
“The State, and failing it someday, the Court, may have to consider from the point of view of policy and constitutionality, whether such an inflated price for access to Court is just or legal.” The above observation is flawed on two premises:
(a) Courts are a part of the State under Article 12 of the Constitution;
(b) Access to justice should not be put up for sale, whether on inflated or deflated prices.
 AIR 1982 SC 149: (1981) 2 SCJ 85
 Landmark judgments, Universal Law Publishing Co. 2008, P:45.
 Krishna Iyer, V.R.; Justice At Cross Roads; Deep And Deep Publications; Chapter-8; “Glasnost And Perestrioka for Judicial India” P:135.
 AIR 1954 SC 41
 AIR 1992 SC1858
 AIR 1992 SC 248
 AIR 1950 SC 27
 Pandey, J.N.; Constitutional Law Of India; Central Law Agency;42ed,2005; PP:364.
 AIR 1978 SC 597
 Is Judiciary Accountable to Anyone? www.expressindia.com; posted on April 26, 2007.
 India Corruption Study, to improve governance, Voll.II (Corruption on Judiciary), as study conducted by the Centre of Media Studies, http://www.cmsindia.org/cms/events/corruption.pdf.
 Bala Nikit, Set Back In Indian Judiciary; www.indlawnews.com; posted at Sunday, july 19, 2009.
 Abraham J. Henry; the Judiciary; The Supreme Court In Governmental Process; Brown And Benchmark Publications; 9th Ed. P:77.
 Joshi, V.T. and Anil Chawla; Indian Judiciary and The Review Of The Constitution Of India; Article available on www.indlawnews.com
 International Business Times; Article can be read on http://in.ibtimes.com/articles/20090214/hidh-court-delhi.htm. Posted on 14 Feb 2009.
 Krisnna Iyer,V.R.; Justice At Cross Roads; Deep And Deep Publications; Chapter-8 “Glasnost And perestroika for Judicial India”;PP:129-133.
 Ibid; PP: 138-141.
 People’s Democracy (weekly); Towards the Movement for Judicial Reforms; Vol:XXVII, NO.33; August 17,2003.
 INDIA:Without Drastic Justice Reforms Republic is Meaningless; Article posted by Asian Human Rights Commission; Jan 25,2007.
 Asia Pacific Judicial Reform Forum; Searching For Success In Judicial Reforms; article by Mohan Gopal, Development and Implementation Of Reforms Initiatives to Ensure Effective Judiciaries; Oxford University Press, 2009; P:46.
 Ideas for reforms are taken from the reading material provided by T.Devidas.
 Karl Lowenstein has written book “Political Power and the Governmental Process”, published by The University of Chicago Press.
The author can be reached at: firstname.lastname@example.org
| Posted by tulsiram on October 15, 2015
Adversarial Criminal Justice System
The system followed in India for dispensation of criminal justice is the adversarial system of common law inherited from the British Colonial Rulers. The accused is presumed to be innocent and the burden is on the prosecution to prove beyond resanoble doubt that he is guilty. The accused also enjoys the right to silence and cannot be compelled to reply. This right is guaranteed by Constitution of India in the form of fundamental right and also a universally recognised right of the accused under Art.14 of the International Convention on Civil and Political rights.
In the adversarial system truth is supposed to emerge from the respective versions of facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt. The trial is oral, continuous and confrontational. At the heart of the trial lies the principle of orality, which provides that evidence should generally be received through the live, oral testimony of witnesses in court.
In the adversarial system, the parties use cross-examination of witnesses to undermine the opposing case and to discover information and other side has not brought out. Hence we can say that, parties in the adversarial system enjoy a high degree of freedom of proof, which largely extends to the manner in which witnesses are cross-examined. As the adversarial system does not impose a positive duty on the judge to discover truth he plays a passive role. The judge neither takes part in investigation nor gives any instructions to prosecution.
As the researcher already discussed each system has its merits and demerits, the adversarial system insists upon strict adherence of proceduaral law which results into less room for the state to be biased against the accused. It provides ample opportunity to uncover the truth in a laboratory of courtroom. This model allows both parties to fully air their grievances and reach a final solution by a disinterested and impartial judge. The main advantage of this system is that there is not a direct involvement of the judge in the investigation otherwise it will lead to his predisposed to a formulation of the critical propositions. As the adversarial system does not impose a positive duty on the judge to discover truth he plays a passive role. Along with this the individual’s right to privacy is best preserved under it.
The main disadvantage of this system is that, the system is heavily loaded in favour of the accused and is insensitive to the victims plight and rights. Another thing is that in most of legal cases in this system do not go to trial; this can lead to great injustice when accused has an unskilled or overworked attorney. It fails to accurately resolve complex technical issue such as science, technology or tax or accounting regulations. To much insistence on procedure may lead to unnecessary delay and that is the reason justice delayed results into justice denied. When we discuss about the role of victim then victim act as a mere witness as they have no recognised status in either the pre-trial investigation or the trial itself.
In the adversarial criminal justice system owing to the conceptualization of crime as an offence against the state, the criminal justice system is traditionally viewed as a system to facilitate a conflict between the state and the accused. The victim is thereby inherently excluded.
5. (3) Inquisitorial Criminal Justice System
The inquisitorial model justice basically relates to Romano Germanic System of Law, which is also known as civil law system or continental law system. It aims to attain justice with the composite effort of the prosecutor, the police, the defense lawyer and the court. The court can play active role in procuring evidence, in the investigation of the case and the examination of the witness.
In this system power to investigate rests primarily with the judicial police officers (Police/Judiciare). They investigate and draw the documents on the basis of their investigation. The judicial police officer has to notify in writing of every offence which he has taken notice of and submit the dossier prepared after investigation to the concerned prosecutor. If the prosecutor finds that no case is made out he can close the case. If however he feels that further investigation is called for, he can instruct the judicial police to undertake further investigation.
The judicial police are required to gather evidence for and against the accused in a neutral and objective manner as it is their duty to assist the investigation and prosecution in discovering truth. The main feature of this system is that, the exclusionary rules of evidence hardly exist and at the same time hearsay evidence (rules) is unknown.
The main feature of this system is that the accused is presumed to be innocent and it is the responsibility of the judge to discover the truth.The statements of witnesses recorded during investigation are admissible and form the basis for the prosecution case during final trial.
The important thing is that before the trial, the judge, the accused and the victim are entitled to participate in the hearing. However the role of the parties is restricted to suggesting the questions that may be put to the witnesses. It is the judge who puts the questions to the witnesses and there is no cross-examination as such.
The evidence regarding character and antecedents of the accused such as previous convictions or conduct are relevant for proving the guilt or innocence of accused.When we discuss about the main advantage of this system then we can not ignore one thing that to prove the case, the standrad of proof required is the inner satisfaction or conviction of the judge and not proof beyond reasonable doubt as in the adversarial system. Victim plays an important role at every stage of the case.
The disadvantage of inquisitorial system is that there is lack of chances of fair trial and another thing is that participation of the court in the investigation of the case may lead to biased attitude while deciding the case. Right to privacy of the accused is denied and the accused is exposed to express everything which he need not express keeping in view of merit of case.
The inquisitorial system followed specially in civil law countries like France, Germany, Newzealand, Italy and Austria and the countries like United Kingdom, United State of America, India and other common law countries followed the adversarial criminal justice system. In India there is contrary views about the model, the various High Courts of India expressed their views about the present criminal justice system. The High Courts of Allahabad, Andhra Pradesh, Kerala, and Punjab & Haryana have said that the present system is satisfactory. The High Courts of Jarkhand and Uttaranchal have opined that the Adversarial System has failed. The High Courts of Bombay, Chattisgarh, Delhi, Himachal Pradesh, Kolkata, Madras, Madhya Pradesh and Orissa have expressed that the present system is not satisfactory. Some of them say that there is scope for improving the Adversarial System by adopting some of the useful features of the Inquisitorial System.
The majority of High Court gives stress on to make some changes in the existing criminal justice system. The former President of India, Dr.R.Venkataraman also made observation about present system:
“The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
The judge should play active role to find out the truth, he concern only about the proof as the evidences which lead before him on that basis he decides the case. The judge doesn’t have any role in the matter of investigation though he acted neutrally to decide the case. The Supreme Court has criticized the passive role played by the judges and emphasized the importance of finding truth in several cases. It is the duty of a court not only to do justice but also to ensure that justice is being done.
The researcher in nutshell tries to discuss the features of adversarial and inquisitorial criminal justice system. In India there is voice on the part of jurist, law Comission and even some of the High Courts to include some of the principles of inquisitorial model. To study these features are essential one as the researcher inteds to explore and analyse the role of the victim during criminal proceedings by way of comparing these two systems. To study the status and position of victim under criminal proceeding it is essential to analyse the interaction of the victims with the constituent elements of the criminal justice system i.e. the police, lawyers and courts and the role played by him at each stage of the criminal process. Ultimately the researcher intends to suggest remedial measures to enhance the role of victims during criminal proceedings and sensitise the criminal justice system to the needs and expectations of the victims.
Victims of crime are important players in criminal justice administration both as complainant/informant and as witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interests almost subordinating or disregarding the interests of victim. In the civil law systems generally, the victims enjoyed a better status in administration of criminal justice. Towards the last quarter of the twentieth century, the common law world realized the adverse consequences arising from this inequitable situation and enacted laws giving rights of participation and compensation to the victims.
The criminal justice system in India is excessively loaded in favour of the accused.The main principle on which the system of legal jurisprudence is based is to let ninety ninr persons get away free than to have even one innocent man punished. This tenet, while preventing injustice to one innocent, denies justice to ninety nine victims of crime.
The victims experiences with the professionals operating the system, police, prosecution and court are not good that results into the formation of definite attitudes on the part of the victim towards all of them. If victims come to regard their treatment as too stressful, demeaning, unfair, distorting of reality, too remote or too little concerned with their own rights, feelings and interests or if decisions are made which are felt to be unsatisfactory, it is possible that their faith shold be redused and ultimately lead to disenchantment, disinterest and future non- cooperation by the victim.
The researcher tries to discuss the role of victim and his/her iteraction with the different professional during the proceeding specially with police, prosecution and the court. In the last chapter the researcher discusses in detail the various provisions to give justice to victims of crime. In this chapter the researcher intends to highlight the actual problems which the victim face when he interacts with different agencies involved in the criminal proceeding and ultimately which results into the violation of human rights of victims.
5. (5) The Victim and the Police
The victims first contact with the criminal justice system is with the police. When a person who has been the victim of a cognizable offence gives information to the police regarding the same, the police is required to reduce the information into writing and read it over to the informant. The informant is required to sign it and get a copy of the FIR. If the police refuse to record the information, the victim – informant is allowed to send it in writing and by post to the Superintendent of Polcie concerned. However the provision mandates that the same needs to be done by post. This creates a problem because of the time that this process takes. Assuming that both the postal department and the Superintendent of Police are efficient, a delay of forty-eight hours can reasonably occur. This gives ample time to the accused to tamper with the evidence, and the first information report under Section 154 of the Cr.P.C. would then become fruitless. If the police refuse to investigate the case for whatever reason, the police officer is required to notify the informant of that fact. Alternatively, victims are enabled by Section 190 of the Cr. P. C. to avoid going to the Police Station for redress and directly approach the Magistrate with his complaint. This is termed as a ‘private complaint’ and the Magistrate is empowered to order investigation, under his or her supervision.
This is a formal process and would require the victim to engage a lawyer in order to satisfy the formal requirements stipulated by the law. In the context of filing the first information report the Indian law apears to put the onus completely on the victim. If the case is a non-cognisable one, the police are required to refer the informant to the Magistrate. Hence; there arises a scope for misuse by the police, which have been empirically recorded in India. The Mallimath Committee Report records the fact that informants are treated indifferently by the police and sometimes threatened when they go to them with their grievances. The facts are distorted in order to make cognizable cases non-cognizable.
Here the researcher likes to give reference of French criminal justice system that followed the inqusitorial model of criminal justice system. Under the French criminal law if the police do not have jurisdiction to investigate the offence reported, they are required to take the statement of the victim and pass the statement to the competent authorities. Incorporating this approach into the Indian criminal law would be beneficial for two reasons. First, the police will become the single point for the victim/informant to approach, which will address the problems that the present is said to have. Second, the time of a Magistrate may be better utilized, since instead of personally recording the statement of the victim/informant, the Magistrate will have to peruse the recorded statement and take a decision whether the case ought to be investigated or not.
Another alternative, which is suggested by the Malimath Committee Report, is that the distinction between cognizable and non-cognizable offences in relation to the power of the police to investigate offences should removed, and it should be made obligatory on the police to entertain complaints regarding commission of all offences and to investigate them. I think this is not desirable as the rationale in making this distinction is to keep the police out in certain situations. For instance, all offences against the institution of marriage are non-cognizable offences. The legislature seems to have intended that the Magistrate apply his or her mind before permitting the police to investigate such a complaint. Removing the distinction would nullify this objective. Hence, the French system seems to be more practical and desirable.
The researcher discusses the problem of victim from the procedural point of sense when they interact with police, but in generally also the victims face several problems when they approach to police station to register the case. Generally the victims are unwilling to report the cases to police. They are not happy about the attitude of police men. The most common problem suffered by many of the victims while reporting an offence is the absence of receptive and sympathetic attitude from police towards the victims. Sometime, in addition to the unhelpful attitude, the harassment of victim of crime by the police is not an uncommon feature.
In reality, the victims need cooperation and moral support from the police and it is also not possible for police to trace the crime without the help of victims. But in reality, the police do not necessarily value the victim as an important part of criminal justice system and they do not necessarily see their role as offering emotional support to victims.
When we discusses the relation between police and victim and how the victims face several problems while interacting with police in India we found that this problem is not restricted to India but worldwide the victims of crime, more or less face the similar problems. In foreign countries problems of crime victims vis-à-vis the police have received more attention than India. The Declaration of Basic Principles of Justice and Abuse of Power suggested several measures to improve police response towards crime victims. The Declaration calls upon the member States to treat the crime victims with compassion and respect for their dignity. According to Declaration, victims have certain rights which must be protected to ensure that they get a fair deal in the criminal justice process. The administrative process must respond sensitively to the needs of victims by informing them about the progress of investigation in their cases and by minimizing their inconveniences, providing protection and security to their families against any intimidation and retaliation. The Declaration further recommends that the police along with other relevant agencies of the criminal justice system should receive training to get sensitized to the needs of the victims.
The International Association of Chiefs of Police (IACP), in its policy declaration, expects police leaders to ensure that victims are treated as “privileged clients” and also urges police force to “establish procedures and train personnel” to implement the “incontrovertible rights of all crime victims”. They are as under:
1. To be free from intimidation;
2. To be informed about the availability of financial assistance and social services and how to procure them;
3. To be provided a secure area during interviews and court proceedings;
4. To get back stolen or other personal property when no longer needed as evidence;
5. To speedy disposition of the case, and to be periodically informed of case status and final disposition, and also about the release of perpetrator from custody;
6. To be interviewed by female official in case of rape and other sexual offences, where ever personnel and resource capabilities allow.
The Council of Europe for Improvement of Victim Protection has been equally emphatic in highlighting the plight and problems of victims of crime. In 1981, the Council set up a Select Committee of Experts on the Victim and Criminal and Social Policy. Apart from programs of victim-assistance, some guidelines relating to police response to the victims of crime framed by the Committee were approved by the Council of Europe in 1985.Some of these are as under:
i) The victim should be treated in the police station in a sensitive manner, so that he is not subjected to any additional emotional damage.
ii) The victim should be apprised of the possibilities of receiving financial, medical and psychological help from different sources.
iii) He should also be advised about the restitutional claims and compensation from the state.
iv) The right of victim should be protected and he should not subjected to secondary victimization i.e. additional damage during the process of criminal justice.
v) Suitable measures to protect the victim and his family against any possible threat from the offender should be taken.
vi) Informal procedures aiming at settlement of disputes between victim and offender, without resorting to criminal justice procedure, should be encouraged.
The Government in some countries has already enacted legislation to protect the rights of victims of crime. For instance, in the USA, 44 States and the federal Government have legislated guidelines as to how police and other officials in the criminal justice system should treat victims of crime. These acts lay down that the police are responsible for providing information to victims about the availability of emergency, medical, compensation and other social services, returning property to victims promptly, and informing the victims about the release of defendants.
Police officers are trained to deal with the varying needs of the victims of sexual assault, domestic violence and child abuse sensitivity. In Canada, the Royal Canadian Mounted Police and the Metropolitan Police forces in Montreal and Toronto require the police personal to respond to the cases of domestic violence and sexual assault in a sensitive manner.
In India to deal with the cases of juvenile the special juvenile police unit is set up as the juvenile needs a special treatment but unfortunately due to lack of implementation of the provision the purpose is not going to be served. To deal with the cases of sexual offences, the special machinery is essential one. At the stage of filling of the case the police have to give every kind of support including emotional support to victims of sexual offence.
The process of criminal justice is set into motion when the victim reports the incident to the police. The victim then becomes an important source of information for the police to arrest the culprit and to conduct investigation. The need to establish a healthy police-victim relationship is essential not only to reduce the reluctance of the victims to report crime to the police but also to improve the quality of investigation.
On another hand it is equally true that, the police in India is overburdened, often operates in high risk situations, lack of adequate remuneration and appropriate training. Proposals and reports on police reform have not borne fruitful until now. The proposals to strengthen the material and human resources in the police, to have a more sustained training policy must therefore be welcome as a real improvement for the police system in India. Equally, the creation of an investigation and a law and order wing could lead to more efficiency within the criminal justice system, through the higher specialization and qualification of investigation officers.
5. (6) The Process of Investigation and the Victim
The process of investigation is the part of proceeding to punish the wrongdoer. To collect the evidence, to find out the truth, the investigation is essential one to put all the matter before the court. In some cases the special investigation officer is appointed by the competent court to investigate the matter.
When we discuss the role of victim in the process of investigation, the Code does not seem to give any role to the victim during investigation. The statement of the victim, if he or she also happens to be the informant, is recorded in the form of first information report. If the victim is not the informant, then the victim will be independently questioned by the police.
The term ‘investigation’ is defined to include all the proceedings which are essential for collection of the evidence, conducted by a police officer or by any person authorized to do so by a magistrate. As soon as the investigation is completed, the investigation officer has to forward a report in the form prescribed in the Code to the magistrate. Hence, investigation begins with the filing of the first information report and ends with the submission of final report which is also known as ‘charge sheet’.
If we carefully observe the definition of ‘investigation’ it is clear that there is no reason why the police cannot involve the victim in the process of investigation. In fact, assistance of the victim might help the police to proceed the investigation in a proper way or direction. However, practice reveals that once the statement of the victim is recorded, the case is completely within the control of the police and they do not involve the victim in the investigation process at all. The Mallimath Committee report suggests that the victim should play an active part in during investigation. The objective of criminal justice system, according to the committee is to find out the truth. Hence the victims involvement becomes very important. The victim can assist the investigation in finding the offender and in collecting the evidence to prove the commission of the offence by the criminal. The committee also suggests that the victim should be allowed to offer suggestions with respect to the investigation and should be given the power to move the court for appropriate directions to ensure proper investigation of the case. This is similar to French criminal justice system, wherein, during the pre-trial inquiry the victim enjoys the same rights of participation as the suspect. He or she may request the judge d’instruction to carry out particular investigation and through his or her lawyer, access to the case dossier is provided.
Section 157 of Cr.P.C. deals with the procedure for investigation, it states that if it appears to the police officer that there is no sufficient ground for entering an investigation, he or she shall not investigate the case. However, if such a decision is taken, the officer is required to notify the informant the fact the case will not be investigated. This seems to have been provided to allow the informant to exercise the other options available in the Cr.P.C. to set the criminal justice system into motion.
The next important section in the Cr.P.C. is Section 167, which states that a person can be kept in custody for a period of ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or ten years; and sixty days in all other cases. If the police do not complete their investigation within the said period, the accused is entitled to be released on bail, subject to satisfying the conditions prescribed. This is another place where the victim can intervene and demand an explanation from the police as to why the investigation has not been completed on time. It would be desirable to incorporate a provision mandating the police keep the victim informed of the progress of the investigation. If the victim can contribute in expediting the process, his or her assistance should be taken.
Section 173 of the Cr.P.C. is a place where the informant is expressly mentioned. Subsection 2 (ii) states that, at the time of filing the charge sheet with the magistrate, the police officer shall also communicate the action taken by him to the person who first gave the information relating to the commission of the offence. Hence, the CrPC clearly involves the informant in the investigative process in two situations – the first under Section 170 under which a preliminary report is submitted to the magistrate by the police, if they believe that an offence has been committed and the second under Section 173 (2) (ii).
Once the charge sheet is filed, the magistrate may take cognizance of
| Posted by tulsiram on October 15, 2015
The victim does not get fair chance in the existing criminal justice system as it is the prosecution agency who is authorized to plead on his behalf. This action ultimately hampers his personal interest in the prosecution of the case. In a way even if he desires or intend he cannot play a lead role in the prosecution. Somehow his role is subsidiary and subservient to the prosecution agency.
The victim is the person who brought the criminal law in motion as once he reports a crime to police, then he interacts with the constituent elements of criminal justice system i.e. police, lawyers and court. When we try to understand the experience of victim with all these professionals operating the system, we found that there is a formation of definite attitude on the part of victim towards all of them. The police authorities are not co-operating them in proper manner and they do not necessarily value them as an important part of criminal justice system nor offer any kind of support. The victim may get the same kind of experience when he interacts with prosecution lawyer and the victim felt that their interests were not being represented by prosecutors.
The victims felt that they were denied participation in the proceedings and their role restricted merely as prosecution witness. They don’t have easy access to approach to prosecution lawyer and assist him as and when they feel necessary. The victims also don’t get any kind of information about the progress of investigation or about the proceedings. Apart from this the environment of court premises is also not conducive one as there are inadequate facilities such as waiting room, water facility and also they don’t get proper allowances to meet their expenses. After observing all these things any one can came to the conclusion that there are the chances of secondary victimization or revictimisation on the part of victims of crime and ultimately which results into the violation of human rights.
The law is lacking in all the four components in providing justice to the victims of crime. The failure to consider the plight of the victim is nearly universal. This ignorance may result in collapse of criminal justice system if victims refuse to co-operate. They may become disenchanted with the system and choose not to report or to co-operate in the future; their experience may also affect their friends and family and even the genearl public, spreading a reluctance to co-operate. This syndrome is best known in rape cases where few women are willing to co-operate, but it also exists in other areas. Hence due importance has to be given to the victim which he genuinely deserves. He is just not a passive object but an active component in the judicial process. Justice should not only be done but must be seemed to have been done.
The Indian judiciary plays a vital role to protect the rights of victim as it is the last ray of hope for any person. The Indian judiciary has a great contribution to protect the rights of person and hence the judiciary acts as the protector or guarantor of human rights. The Constitution of India conferred an Independent status to Indian Judiciary so no one can interfere in the domain of judiciary.
The Supreme Court of India is perhaps one of the most active courts when it comes to the matter of human rights. It has great reputation of independence and credibility. The Higher judiciary passed several decisions and gives various directions to protect the rights of victims of crime. The emergence of Public Interest Litigation and to dilute or liberalise the concept of locus standi, the credit goes to the judiciary to take such kind of initiative to protect the rights of victim. The most important development is in the form of compensatory jurisprudence to compensate the victims of crime or relatives of crime victims. Thus we can say that, the emergence of compensatory jurisprudence in the light of human rights philosophy proved signal indicating that the judiciary has undertaken the task of protecting the right to life and personal liberty of all the people irrespective of the absence of any express constitutional provision and of judicial precedent.
The Criminal Law (Amendment) Act, 2008 granted some rights to victims which uplift the status of victim under Indian Criminal Justice System but still there is a scope to build the laws relating to the rights of victims. The criminal justice system in India substantially occupied with many safeguards and protections to the accused. The Legislature must look into the recommendations made by the Malimath Committee and the Law Commission of India. The Legislature should also look into the laws of the various countries to strengthen its laws concerning to rights of victim.
Dispensing justice to victims of crime cannot any longer be ignored. The introduction of more victim rights will encourage victim participation and thus victim involvement can help to restore a sense of control and enhance their faith in the criminal justice system. So the time has come where consideration must, must and must be given to the victim of crime - to the one who suffers because of crime.
In the light of above conclusion the researcher likes to give following concrete suggestions to improve the plight of victims under Indian criminal justice system.
1. Victims should be treated with compassion and respect for their dignity and privacy and should take precaution so as to avoid any inconvenience to the victim during the course of whole proceeding.
2. The victims should be entitled to get the information about timing and progress of the proceedings and of the disposition of their cases. The victims have easy access towards the prosecution agencies so that victim can assist them right from inception of the case.
3. Victims should allow to express their views and concerns at appropriate stages of the proceedings and he/she should be allowed to participate actively and fairly at all levels of the criminal justice proceeding with a right to intervene at any stage of directly or through counsel of his/her choice without prejudice to the rights of the accused.
4. Victims should be allowed to offer suggestions with respect to the investigation of the case specially when the police authorities or investigation officer does not care or ignore about their suggestions.
23. It is also suggested that the to enhance the allowances which are given to the witnesses in the form of dearness and travelling allowance to meet their expenses and also to provide adequate facilities to victim and witnesses to fulfill their needs like drinking water, waiting rooms and urinals etc.
24. Since crime victims have been given various legal rights, however these rights are required to be properly enforced to meet the ends of justice.
25. It is equally important that the victims should always take the initiative to report the crime and co-operate with the law enforcement authorities so it will be discourage the proposed or supposed offender to commit crime.
Judiciary in every country has an obligation and a Constitutional role to protect Human Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to the superior judiciary namely the Supreme Court of India and High courts. The Supreme Court of India is perhaps one of the most active courts when it comes into the matter of protection of Human Rights. It has great reputation of independence and credibility. The preamble of the Constitution of India encapsulates the objectives of the Constitution-makers to build a new Socio-Economic order where there will be Social, Economic and Political Justice for everyone and equality of status and opportunity for all. This basic objective of the Constitution mandates every organ of the state, the executive, the legislature and the judiciary working harmoniously to strive to realize the objectives concretized in the Fundamental Rights and Directive Principles of State Policy.
6. (2) Writ Jurisdiction of the Supreme Court and the High Courts
The Constitution of India confers a writ jurisdiction only to High Courts and Supreme Court under Article 226 and 32 respectively to protect the rights of people including fundamental rights. At the same time, these articles confer the right on the part of people to approach directly to the High Courts and the Supreme Court for judicial rectification, redressal of grievances and enforcement of Fundamental Rights. In such a case the courts are empowered to issue appropriate directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto, and Certiorari to protect the rights of people. By virtue of Article 32, the Supreme Court of India has expanded the ambit of Judicial Review to include review of all those state measures, which either violate the Fundamental Rights or violative of the Basic Structure of the Constitution. There is express provision under Indian Constitution to confer the power on the High Courts and Supreme Court to declare a law unconstitutional if it is inconsistent with any of the provisions of part III of the Constitution, and this is nothing but the power of judicial review to test the legality of any law on the touchstone of Indian Constitution. Hence the power of Judicial Review exercised by the Supreme Court and High Courts is intended to keep every organ of the state within its limits and parameters laid down by the Constitution of India. It is in exercise of the power of Judicial Review that, the Supreme Court has developed the strategy of Public Interest Litigation. The right to move to the Supreme Court to enforce Fundamental Rights is itself a Fundamental Right under Article 32 of the Constitution of India. This remedial Fundamental Right has been described as “the Cornerstone of the Democratic Edifice” as the protector and guarantor of the Fundamentals Rights. It has been described as an integral part of the Basic Structure of the Constitution. Whenever, the legislative or the executive decision result in a breach of Fundamental Right, the jurisdiction of the Supreme Court and High Court can be invoked.
Dr. Babasaheb Ambedkar expressed his views to mention the importance of Article 32 of Indian Constitution on the floor of parliament, “ If I was asked to name any particular Article in this Constitution as the most important – an Article without which this Constitution would be a nullity – I could not refer to any other Article except this one ………… It is the very soul of the Constitution and the very heart of it.” It is true that a declaration of fundamental right is meaningless unless there is effective machinery for the enforcement of the rights. It is remedy which makes the right real. If there is no remedy there is no remedy at all.
The Right to Constitutional remedy under Article 32 can be suspended as provided under Articles 32(4), 358 and 359 during the period of promulgation of emergency. Accordingly, in case of violation of Fundamental Rights, the petitioner under Article 32 for enforcement of such right cannot be moved during the period of emergency. However, as soon as the order ceases to be operative, the infringement of rights made either by the legislative enactment or by executive action can be challenged by a citizen in a court of law and the same may have to be tried on merits, on the basis of that the rights alleged to have been infringed were in operation even during the pendency of the presidential proclamation of emergency. If, at the expiration of the presidential order, the parliament passes any legislation to protect the executive action taken during the pendency of the presidential order and afford indemnity to the execution in that behalf, the validity and effect of such legislation may have to be carefully scrutinized.
Under Article 226 of the Constitution of India, the High Courts have concurrent jurisdiction with the Supreme Court in the matter granting relief in cases of violation of the Fundamental Rights, though the High Courts exercise jurisdiction in case of any other rights also. Hence the High Court has wider jurisdiction than the Supreme Court. The Supreme Court observed that where the High Court dismissed a writ petition under Article 226 after hearing the matter on merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same relief filed by the same parties will be barred by the ‘rule of resjudicata’. The binding character of the judgment of the court of competent jurisdiction is in essence, a part of the rule of law on which, the administration of justice is founded . Thus the judgment of the High Court under Article 226 passed after hearing the parties on merits must bind the parties till set aside in the appeal as provided by the Constitution and cannot be permitted to be avoided by a petition under Article 32.
Article 226 contemplates that notwithstanding anything in Article 32, every High Court shall have power, throughout the territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including the appropriate cases, any government, within those territories, direction, orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari or any of them for the enforcement of Fundamental Rights conferred by part-III and for “any other purpose”. Hence, the jurisdiction of a High Court is not limited to the protection of the Fundamental Rights but also of the other legal rights as is clear from the words “any other purpose”. The concurrent jurisdiction conferred on High Courts under Article 226 does not imply that a person who alleges the violation of Fundamental Rights must first approach the High Court, and he can approach the Supreme Court directly . But in P.N. Kumar vs. Municipal Corporation of Delhi the Supreme Court expressed the view that a citizen should first go to the High Court and if not satisfied, he should approach the Supreme Court. Innumerable instances of Human Rights violation were brought before the Supreme Court as well as the High Courts. Supreme Court as the Apex Court devised new tools and innovative methods to give effective redressal.
6. (3) Emergence of Concept of Public Importance Litigation
The traditional rule is that the right to move the court is only available to those whose rights are violated including fundamental rights. A person who is not related to the subject matter of the case has no locus standi to invoke the jurisdiction of the court. But during the period of 1980s this rule of doctrine of locus standiliberalized by the competent court and allows any public spirited person to file the writ petition for the enforcement of fundamental rights and other legal rights of any other person or group of persons who are unable to approach the Court for relief due to poverty, illetracy or unawareness. The major credit goes to great Justice Krishna Iyer and Justice Bhagwati who takes the initiative to liberalise this doctrine of locus standiand allows the petition in the form of public interest litigation. The widening of the traditional rule of locus standi and the invention of PIL by the Court was a significant phase in the enforcement of human rights.
Lexically the expression PIL means a legal action initiated in a Court of law for enforcement of public interest or general interest or in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected…..Thus, the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records specially in the Arena of Constitutional and legal treatment for the un-represented and under represented.
Access to justice is one of the important aspects for any human being to protect their rights. When we talk about the access to justice to weaker sections it is almost illusory one due to their poverty, ignorance and illiteracy. Foe weaker sections the rights and benefits conferred by the Constitution meant nothing for them as they lacked the capacity to assert their rights. The Constitution had indeed shown a great concern for the underprivileged, conferred on them many rights and entitlements and laid obligations on the State to take measures for improving the conditions of their life. Towards that end, laws were enacted and administrative programmes formulated by the State for bringing about social and economic change and ensuring distributive justice to the people. But these Constitutional edicts, legal enactments and administrative measures needed to be implemented and enforced with vigour and dynamism, creativity and imaginatively and underprivileged assisted to reap their benefits and assert their rights. Someone had to act.
A survey of public interest litigations in our country shows that people have gone to Courts when they found that there was no other means of redressal. Unfortunately, the Executive in a vast number of cases was found to be no longer responsive to protests expressed by the people. The political leadership was expected to be sensitive to the urges and aspirations of the people. It was found not to be so. Matters, which have gone to Courts under PIL, were essentially of concern to numerically small and powerless minorities. Where a group of people is small and is not likely to have any organised strength to make itself politically, judicial process is preferred throughPIL, which has by now come to be accepted as a new method by which, to some extent, public injuries can be redressed or the Government, its agents or instrumentalities compelled to do their own duty in the interest of the citizen. This exercise by the Courts is aimed to serve the cause of justice and wean the people away from the lawless street and bring them to the Court of law - to maintain the rule of law.
The concept as to why the doctrine of locus standimust be diluted or liberalised is to be found in the concurring judgment of Krishna Iyer, J. in Fertilizer Corporation Kamgar Union .In this case Krishna Iyer J. enunciated the reasons for liberalisation of the rule of the doctrine of locus standi to meet the challenges of the time.This matter received attention also in the landmark decision of the Supreme Court in the judges transfer case. Six learned judges out of seven upheld the locus standi of the lawyers in challenging the validity of the circular issued by the Law Minister of India on March 18, 1981, so also non-extention of the term of Additional Judge Shri.S.N.Kumar and transfer of Chief Justice of Patna, Shri.K.B.N. Singh. This aspect was dealt at length by Bhagwati J in his judgment. While agreeing with what was stated by Krishna Iyer, J in Fertilizer Corporation Kamgar Union , Bhagwati,J reviewed the law – both Indian and foreign – and observed:
“It is fascinating exercise in the Court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisdiction which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide new concepts and doctrines which will change the complextion of the law and which were so far embedded in the womb of the future, are beginning to be born.”
Ultimately the Supreme Court has firmly established the rule regarding the public interest litigation. The Court held that any member of the public having “sufficient interest” can approach the court for enforcing constitutional or legal rights of other persons and redressal of a common grievance. However, the Court said that it would have to be decided from case to case as to whether the person approaching the court for relief has “sufficient interest” and has not acted with mala fide or political motives. In the instant case, the court upheld the right of the practicing lawyer to maintain a writ petition under Art.32 on matters affecting the independence of judiciary.
Hence we can say that the reasons for liberalisng the rule of doctrine of locus standi given by Krishna Iyer, J in Fertilizer Corporation Kamgar Union case and the ideal of PIL was blossomed in S.P.Gupta case. After the epoch-making decision of the Supreme Court in Judges Transfer Case , this matter came to be examined in detail in Bandhua Mukti Morcha, an organisation dedicated to the cause of release of bonded labours informed the Supreme Court through a letter that they conducted a survey of the stone-queries situated in Faridabad District of the State of Haryana and found that there were a large number of labours working in these stone-queries under “inhuman and intolerable conditions” and many of them were bonded labours. The petitioners prayed that a writ be issued for proper implementation of the various provisions of the Constitution and statutes with a view to ending the misery, suffering and helplessness of those labours and release of bonded labourers. The Court treated letter as a writ petition and appointed a Commission consisting of two advocates to visit these stone-querries and make an enquiry and report to the Court about the existence of bonded labourers. Speaking for the majority Bhagwati, J on behalf of himself and Pathak and Amarendra Nath Sen, JJ, held that where a public interest litigation alleging the existence of bonded labourers is filed it is not proper on the part of the Government to raise preliminary objection. On the contrary, the Government should welcome an enquiry by the court so that if it is found that there are bonded labourers or workers living inhuman condition such a situation can be set right by the Government.
The advent of Public Interest Litigation is one of the key components of the approach of “judicial activism” that is attributed to the higher judiciary in India.The verdict of Bhagwati, Jin M.C.Mehta v. Union of India, opened the doors of the highest Court of the nation for the oppressed, the exploited and the down trodden in villages of India or urban slums. The poor in India can seekenforcement of their fundamental rights from the Supreme Court by writing a letter to any judge of the Court even without the support of an affidavit. The Court has brought legal aid to the door steps of the teeming millions of Indian which the executive has not been able to do despite that a lot of money is being spent on new legal aid scheme operating at the Central and State level.
Supreme Court of India in Narmada Bacho Andolan v. U.O.I. held that Public Interest Litigation was an invention essentially to safeguard and protect human rights of those people who were unable to protect themselves. Public Interest Litigation can be entertained only if the impugned action is violative of fundamental rights of persons who are not in a position to protect their own interest and the cause is espoused by persons without oblique motive. The Petitioner must inspire confidence. Such petition should be entertained; otherwise faith of common man in the institution of judiciary and democratic setup of country would be weakened. However the Court must be satisfied that its forum is not being misused by any unscrupulous litigant, politician or busy body.
In the recent past Public Interest Litigation has acquired a new dimension. Apart from securing several non–justifiable socio–economic rights as guaranteed under the Fundamentals Rights, the Supreme Court has frequently resorted to a novel feature in the field of Human Rights jurisprudence such as compensatory jurisprudence, judicial law making with a view to secure justice to the down–trodden and also to the oppressed people. Public Interest Litigation is a weapon which has to be used with care and caution. The judiciary has to be extremely careful to see that whether it contains public interest or private vested interest. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The strategy of Public Interest Litigation should not be used for suspicious products of mischief. It should be aimed at the redressal of genuine public wrong or public injury and not publicity–oriented or founded on personal vendetta.
The courts must be satisfied about (a) the credentials of applicant, (b) prima facie correctness of nature of information given by him, (c) information being not vague and indefinite before entertaining PIL. The Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge wild and reckless allegations; and (ii) avoidance of public mischief. Hence the Court is ordinarily expected to be satisfied that there is some element of public interest, that the transaction impugned involves malafides, and that there is a need for balancing the consequences of the public good with the act of the State.
There have been in recent times, increasingly instances of abuse of Public Interest Litigations. Therefore there is a need to re–emphasize the parameters within which Public Interest Litigation can be resorted to by a petitioner and entertained by the court. It was essentially meant to protect basic Human Rights of week and disadvantaged. Public Interest Litigation has not been moved under disguise with some ulterior motive or some purpose. The courts are now imposing moderate to heavy costs in cases of misuse of Public Interest Litigation which should be an eye opener for non–serious Public Interest Litigation mover.
6. (4) Pro-active Role of Judiciary to Protect the Rights of Victim
The Indian judiciary has played a vital role to protect the rights of victim by way of their various judgments and directions. The accused enjoys various rights under Indian criminal justice system to prove his/her innocence and ultimately victim becomes the neglected object and the same thing observed by the judiciary and delivered number of judgments to protect the interest of crime victims. The view of higher judiciary to see towards the problems of victim changed during the period of 1980s.Krishna Iyer, J. in Ratan Singh v. State of Punjab , aptly highlighting the apathy of law to victim of crime, observed:
“It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature.”
Again in Maru Ram’s case , Krishna Iyer, J. has observed that while considering the problem of penology the Court should not look the plight of victimology and the suffering of the people who die, suffer or maimed at the hands of the criminals. Further in the judgment of State of Gujarat v. Hon’ble High Court of Gujarat , it is observed that in our effort to look after and protect the human rights of the accused or human rights of convict we cannot forget the victim or his family in case of his death or who is otherwise in capacitated to earn his livelihood because of the crime committed by convict. Hence we can say that the view of judiciary changed to see towards the plight of victim and judiciary gives number of decisions to protect the rights of victims and uplift the status of victim under Indian criminal justice system.
The victim has right to file a complaint and same should be registered by the police in the form of FIR and if the police refused to register a case the victim has right to knock the door of competent court. In Palwinder Singh v. State of Punjab , the Court gives direction that police cannot refuses to register the complaint nor can this power be usurped by the Magistrate. In this case the petitioners were constructing/repairing some religious building in their village on 07-04-1995 on an authorization by the village panchayat. One Kuldeep Singh and others duly armed with deadly weapons attacked and assaulted the petitioners and others. The petitioners were admitted in civil hospital and Asst. Sub Inspector recorded their statement but subsequently he can not reduce that statement into FIR as he stated that there was no weapon was used in the said occurrence and the statements of the three injured person were contradictory to each other. In this view the matter was doubtful and consequently a report was recorded in the daily diary. The petitioners challenged the act of ASI by way of writ petition.The Court gives above directions and firmly stated that the police should not refuse to register the complaint otherwise the object will be defeated if the police officer in charge of the police station refused to record the information as required by the Sect.154 of CrPC.
It is worthwhile to emphasis here that an information to have the status of first information report under Section 154 must be an information relating to the commission of a cognizable offence and it must not be vague but definite enough to enable the police to start investigation. It has also been clarified by the Supreme Court that since the word ‘information’ in Section 154 is not qualified as ‘reasonable’ it is the duty of the police to register the information under Section 154. The Punjab and Haryana rules prescribe that the police ‘is bound to formally register a case and then investigate into the crime’. Moreover recently Supreme Court in Latika Kumari v. Govt. of U.P. and Others was held that if information given clearly mentions about the commission of a cognizable offence there is no other option for the police, but to register FIR. Hence from above case law it is clear that the police authorities are bound to register the information and start the investigation to give justice to crime victims.
The victim reports the case to police station and on the basis of same report the police start the investigation to book the offender and give justice to victim. In the process of investigation it is to be supposed that the victim should be involved and he get the information of the progress of investigation but in reality the victim is unawared about the progress of investigation and also what action taken by the police at the time of filing of charge-sheet. The same thing pointed out by the Apex Court in Bhagwant Singh v. Commissioner of Police , and ruled that in a case where the Magistrate to whom a report is forwarded under Section 173 of CrPCdecides not to take cognizance of the offence or takes a view that there are no sufficient grounds for proceeding against some of the persons named in the first information report, the Magistrate must give notice to informant and provide him or her an opportunity to be heard at the time the report is considered.This was reiterated by the Court in a subsequent case, Union Public Service Commission v. Papaiah .Hence the higher judiciary tries to fill the gap where the Code of Criminal Procedure is silent specially when the magistrate is decided not to take any action or cognizance on the basis of repot given in charge-sheet and the same thing should inform or not to inform the informant. But now the picture is clear and the informant is entitled to know and also has right to heard about the action taken by the Court on the basis of report of charge-sheet.
The Supreme Court of India to make clearer the meaning of the term investigation gives the steps of investigation defined under Section 173 of CrPC. The Court ruled that investigation consists of the following steps : first, proceeding to the scene of crime; second, ascertainment of the facts and circumstances of the case; third, discovery and arrest of the offender; fourth, collection of evidence relating to the commission of the offence, which may consist of examination of various people acquainted with the case and search of places or seizure of things necessary for the investigation; fifth, formation of opinion as to whether, on the basis of the material collected, there is a case to place the accused before the Magistrate for trial and, if so, taking the necessary steps to do so by the filling of a charge-sheet. From above definition it is clear that there is no reason why the police cannot involve the victim in the process of investigation as it is essential one to involve the victim in the process of investigation to trace the offender and finally give justice to crime victims.
The Court protects the right of victim even though if there is any kind of defect or lacunae in the investigation and clearly states that such defect cannot become the ground of acquittal and further held that:
“The defect in the investigation by itself cannot be ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.”
The Supreme Court also recognizes the right of victim to participate in the trial as in J. K. International v. Government of the National Capital Territory of Delhi , the Supreme Court stated that Section 301 of Cr.P.C. makes it clear that the fact that the police have investigated the case, based on the information given by the victim and filed a charge sheet on the basis of the investigation conducted as a consequence of the first informati
| Posted by tulsiram on October 15, 2015
During the Muslim rule in India though enlightened monarchs like Sher Shah Suri and Akbar showed great zeal to administer justice impartially, yet as a whole the administration of justice during the Muslim period in India suffered from defects. The concept of equality was applicable only to the Muslim population in India and thus the bulk of the population, i.e. non-Muslims, was subjected to humiliating discrimination. The Hindus suffered in almost similar manner as the people of lower Varnasuffered at the hands the people of higher Varnaamong the Hindus. The major defect of Muslim criminal law was that most of the crimes were considered private affairs of the individuals. Many offences, including murder, could be compounded by the payment of ditya, i.e. blood money and human life was considered rather cheap, capable of assessment in terms of money. The criminal justice system developed by the Muslim rulers continued in India even after the British took control of India. It was in 1860 that the codification of laws changed the discriminatory provisions of Muslim criminal law.
The British after assuming power in India found the then prevailingcriminal justice administration defective decided to bring about drastic changes in it. The major credit goes to Lord Cornwallis who made detailed studies of the existing conditions of the criminal justice administration and introduced many reforms to revamp the whole system. Lord Hastings took special interest in reorganizing the police force to deal with the criminals and maintain law and order in the country. Lord Bentinck created the post of District and Sessions Judge and abolished the practice of sati and also supports for various social reforms in India with an intention to eradicate the social evils from the society. In 1843, Sir Charles Napier introduced a police system on the lines of Royal Irish Constabulary. He created the post of Inspector-General of Police to supervise the police in the whole province. Subsequently, the Indian Police Act of 1861 was enacted on the recommendations of a Commission which studied the police needs of the Government. They codified the existing laws; established the High Courts and Prisons Laws. At the same time we can not ignore the work of Lord Macaulay who is considered as father of Indian Penal Code as this code was drafted by him in 1834 and same was passed by British Parliament in 1860. Hence this was the first step to supersede the Mohammedan criminal law and applies the code uniformly to all the people apart from their caste and religion.A general Code of Criminal Procedure followed in 1861 and the process of superseding native by European law, so far as criminal justice is concerned, was completed by the enactment of Evidence Act of 1872. The Britishers through this codification of laws introduced the principles of equity, justice and good conscience, which results into the significant improvement in the preceding criminal laws and also in the present criminal laws as still we follow the same code and laws which were enacted by Britishers with little but change.
Thus, the Britishers introduced reforms wherever necessary. They adopted new principles by modifying the existing laws wherever required and made new laws where they felt it was a must. The institutions of police, magistracy, judiciary and jails developed during the British period still continue without significant changes in their structure and functioning. However, the British rulers also, while restructuring the criminal justice system, did not fully implement the concept of equality. The reforms introduced by them treated all Indians and non-British Europeans equally but the Britishers always enjoyed special privileges. It was only with the Constitution of India coming into existence which fully recognised the right to equality before law and incorporated the same as a Fundamental Right.
The researcher try to analyse the development of Indian Criminal Justice system in nutshell to understand the changes took place under the criminal justice system. From above discussion it is clear that the Indian criminal justice system mainly based on British model as Britishers ruled this country for hundreds of year and passed several laws and codes which are the basic foundations of present criminal justice system. One thing is certain due to the arrival of Britishers and the efforts taken by them, it is possible to establish uniform criminal justice system throughout the India. As we studied how there was discrimination during the ancient, medieval and mughal period while treating the wrongdoer and giving the justice to victims of crime. In present criminal justice system it is not possible to discriminate among the citizens on the basis of caste and religion. The only thing is that the view of criminal justice system is going to be changed to treat the offender or wrongdoer as from punitive to reformative. The various jurist of the globe fill that no criminal is a born criminal but due to some reasons the person going to commit a crime as the fault lies somewhere in the society itself. Due to this philosophy the real sufferer i.e. the victim becomes neglected object under the proceeding. Victims have no rights under the criminal justice system, and the state undertakes the full responsibility to prosecute and punish the offenders by treating the victims as mere witnesses. When we talk about Indian criminal justice system, it is essential one to know the nature and working of this system as it is essential to know that what kind of protections given to victims of crime and what are the provisions related to crime victims. The Indian criminal justice system governed by mainly four laws:
1) The Constitution of India
2) The Indian Penal Code
3) The Criminal Procedure Code
4) The Indian Evidence Act
4. (3) The Constitution of India
The Constitution of India is remarkable for many outstanding features which will distinguish it from other Constitutions even though it has been prepared after “ransacking all the known Constitution of the world” and most of its provisions are substantially borrowed from others. As Dr. Ambedkar observed -
“One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled when the first written Constitution was drafted. It has been followed by many other countries reducing their Constitution to writing… Given these facts, all Constitution in their main provisions must look similar. The only new things, if there be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.”
So, though our Constitution may be said to be a ‘borrowed’ Constitution, the credit of its framers lies in gathering the best features of the existing Constitutions and in modifying them with a view to avoiding the faults that have been disclosed in their working and to adapting them to the existing conditions and needs of this country. So, if it is a ‘patchwork’, it is a beautiful patchwork .
From above discussion it is clear that our Constitution is the mixture of all worlds Constitution but the framers gather the best things, the things which suited to Indian culture. Indian Constitution is the unique Constitution of the world which takes care of each and every section of the society. The most important feature of the Constitution is the fundamental rights as the framers of Constitution added a separate chapter in our Constitution i.e. Part III of the Constitution which talks about most sacred, inalienable, natural and inherent rights i.e. fundamental rights.
As we already discussed the Constitution of India is the highest law of land and the three major wings of the state i.e. Legislature, Executive and Judiciary works as per the powers conferred to them and ultimately within the sphere of four corners of Indian Constitution. When we talk about Indian criminal justice system, we found that it is the integral part of the Constitution and works for to give justice to the person or citizen. The‘Rule of Law’ is the basic feature of Indian Constitution and the same thing is obligated on the criminal justice system. Hence we can say that the Constitution of India takes utmost care and caution to protect the rights of every person. When we try to analyse the Constitutional protection to victims of crime, there are several provisions under the Constitution which protects the rights of victims. The Indian constitution has several provisions which endorse the principle of victim compensation. The guarantee against unjustified deprivation of life and liberty and obligates the state to compensate victims of criminal violence. Also constitutional law guarantees protection of arrest and detention in certain cases .
The principle of the state accepting legal liability for criminal injuries suffered by its citizens is an acknowledgement of states obligation for protection of human rights. It is also in public interest as it tends to strengthen the criminal justice system and promote general welfare according to the directive principles of the state policy .
Hence ultimately we can say that the social justice will never be meaningful or complete in the absence of justice to the victims of crime. The human values of Part III and Part IV of the Constitution also have vital bearing on the criminal justice. “We the people of India, justice-social, economic and political, “equal protection of law”; “dignity of the individual”; basic freedom, fair procedure and free legal aid-these and other provisions enshrined in the constitution humanize the system of social defence through criminal law. These rights and values are implicit in our constitution, which however, have been innocently ignored by the criminal justice system – that is by the Police, Prosecutors and Courts.
4. (4) Indian Penal Code
Indian Penal Code was the first codified law passed by the British Parliament in 1860 for India with an intention to have a uniform criminal law to punish the wrongdoer or offender. As we already discussed how the Muslim criminal law was discriminatory one which discriminate on the basis of religion and during that period crime was considered as private affairs of the individuals. This was the major reason Britishers decide to have a uniform law to establish criminal justice system and finally they constituted the First Law Commission under the chairmanship of Thomas Babington Macaulay who took tremendous efforts and prepared the draft of Indian Penal Code in 1834. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Elements were also derived from the Napoleonic Code and from Edward Livingston’s Louisiana Civil Code of 1825. The first final draft of the Indian Penal Code was submitted to the Governor-General of India in Council in 1837, but the draft was again revised. The drafting was completed in 1850 and the Code was presented to the Legislative Council in 1856, but it did not take its place on the statute book of British India until a generation later, following the Indian Rebellion of 1857. The draft then underwent a very careful revision at the hands of Barnes Peacock, who later became the first Chief Justice of the Calcutta High Court, and the future puisne judges of the Calcutta High Court, who were members of the Legislative Council, and was passed into law on 6 October 1860. The Code came into operation on 1 January 1862. Unfortunately, Macaulay did not survive to see his masterpiece come into force, having died near the end of 1859 .
It is pertinent to note that the Law Commission did not base its Draft Penal Code on either the then penal law prevailing in different provinces or the penal law system premised on the Mohammedan or Hindu law. The Commission reasoned:
The criminal law of the Hindus was long ago superseded… by that of the Mohammedans… The Mohammedan criminal law has in its turn been superseded, to a great extent, by the Regulations. Indeed, in the territories subject to the Presidency of Bombay, the criminal law of the Mohammedans, as well as that of the Hindus, has been altogether discarded, except in one particular class of cases; and even in such cases, it is not imperative on the judge to pay any attention to it. The British Regulations having been made by three different legislatures contain, as might be expected, very different provisions.
The object of this Act is to provide a general penal code for India and this code sub-divided into twenty three chapters, comprises five hundred and eleven sections. The Code starts with an introduction, provides explanations and exceptions used in it, and covers a wide range of offences. This was the first attempt to prescribe or to give a detailed list of offences and the punishment for the same. The word ‘offence’ defined as except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code. The act or omission which is prohibited by this Code is liable to punish as the punishment prescribed by the Code. The kinds of punishment prescribed under the Code and these are the only punishment which prevails in India and other kinds of barbaric punishments are abolished from society.
It is pertinent to note that the Indian Penal Code 1860 which has been amended only sparingly since its enactment in the post-British era is in operation as a major substantive penal law of India since about the last 150 years .Only three chapters namely, offences relating to criminal conspiracy, election and cruelty to married women, have been added to its original 23 chapters. Recently the Criminal Law (Amendment) Act, 2013 took place which makes the changes mainly related to sexual offences against women i.e.Sect.354 and 376 of IPC. This amendment has a history of Delhi gang rape case i.e. Nirbhaya Case, a college going girl brutally raped in moving bus that results into huge cry against Government and finally Government appointed a three member committee under the chairmanship of Justice J.S.Verma to make the amendment in the existing laws to prevent the sexual offences against the women. The Verma committee suggests several changes in the existing provisions but Government does not accept all the suggestions of this committee but finally took decision to make the amendment and tries to impose the stringent punishment for such offences.
The main purpose behind this amendment is to protect the victims of sexual offences, as several such offences are gradually going to be increased against woman and they feel insecured. When we talk about outraging modesty of woman, the punishment given under S.354 is not sufficient one and that is the reason the punishment under section 354 extended up to five years and inserted few things under the same section to give wider protection to woman. The main object of this section is to protect the women from outraging her modesty. In order to seek conviction under S.354, the prosecution has to prove not only that the accused assaulted or used criminal force to the woman but also that he did it with either the intent to outrage her modesty or the knowledge that it would outrage her modesty. However, what constitute an outrage to modesty of a woman is nowhere defined. It can be described as the quality of being modest and in relation to woman ‘woman propriety of behavior, scrupulous chastity of thought, speech and conduct, reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions’. It is a virtue attached to a woman owing to her sex.
To protect the woman from outraging her modesty, new sections inserted in Section 354 as Ss.354-A, 354-B, 354-C and 354-D by way of Criminal Law (Amendment) Act.2013.The new provisions are related to sexual harassment, voyeurism and stalking, these provisions are important one to give more protection to Indian woman. If we analyze the definition of the term sexual harassment given under S.354-A, we find that the key ingredients covered under the definition have been dealt under section 294 and section 509 of the IPC. The two sections cover the offense of sexual harassment of woman. The only thing is that the punishment is so meager under both the section as this punishment is not sufficient one seeing the present scenario of India, where the offense of sexual harassment has increased by leaps and bounds, and the offenders managing to escape the liability because of such meager punishment, but now we can not say like this as the punishment extended up to five years for such offences.
In modern era due to the advancement of technology which leads to various offences against woman and considering the same thing the two more thing added or inserted in S.354 i.e. voyeurism and stalking as S.354-C and S.354-D to protect the woman and their dignity. In both the cases, the men tries to take the undue advantage of such technology as in case of voyeurism, the man tries to watch or capture the images of woman engaging in a private act in circumstances where she would have the expectation of not being observed either by the perpetrator or by any other person. In case of stalking, a person cannot try to follow any woman through internet, email, mobile or any kind of electronic communication repeatedly despite a clear indication of disinterest by such woman. In both the cases, such offences are liable to be punished and the punishment extended up to seven years. I think this is a welcome step on the part of Government to give wider protection to women and prevent any kind of sexual harassment of woman.
The another change brought by this Criminal law (Amendment) Act, 2013 is related to the offence of rape as this amendment redefine the offence of rape and impose the severe punishment for such offence. The offence of ‘rape’ is the most brutal and heinous offence against the woman as it is the murder of soul of woman. It is ‘the ravishment of a woman, without her consent, by force, fear or fraud’, or ‘the carnal knowledge of a woman by force against her will’. Rapeis the fourth most common crime in India. According to the National Crime Record Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012.This is one fact relating to offences of rape in India as how such crimes are going to be increased and another thing which compelled the legislature to amend the existing provision, is Delhi gang rape case i.e. ‘Nirbhaya Case’ and finally Government redefine the offence of rape under S.375 of IPC.
The S.375 defines rape as, A man is said to commit "rape" if he –
(a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of another person or makes the person to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or
(c) manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such person or makes the person to do so with him or any other person; or
(d) applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First.–– Against her will.
Secondly.–– Without her consent.
Thirdly. –– With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. –– With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.–– With the consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
| Posted by Dr. Anand Kafaltiya on September 30, 2011
The Article is Satisfactory, comprehensive and beneficial to law students.
| Posted by Venugopalan on May 22, 2011
The language used in the article is awesome and worth to read...keep it up...!!!!
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