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As the investigation of the complaint was conducted by the same officers who had tortured Mondal the previous night, the process and outcome were predictable. The investigation took almost two years to complete. Moreover, the charge sheet did not name the real culprits and was devoid of any evidence. Mondal's statement was not recorded properly and was, in fact, the interpretation of the police officers rather than Mondal's version of the violent events she had experienced.
The case is now pending in the Jalpaiguri First Additional Sessions Court. In the past 10 years, the court only managed to complete the examination of witnesses. In between, the court ceased functioning since the judge was transferred. As of today the case has been adjourned without a decision. Meanwhile, in the ensuing years the government of India, through its Ministry of Home Affairs, has tried to identify what is wrong with the criminal justice system of India.
For example, in November 2000 the Indian government created the Committee on Reforms of the Criminal Justice System, headed by former judge V. S. Malimath, with a mandate to examine those issues -- procedural and legal -- which fail the criminal justice system in India. It was the government's response to the high acquittal rate in criminal trials. The committee submitted its report in April 2003, in which it suggested changes to several pieces of legislation in India, the most important of which were the Evidence Act, the Criminal Procedure Code and the Constitution.
The committee said that since there is a heavy burden of proof required to secure a conviction, the accused receives the benefit of the doubt and secures an acquittal. To overcome this frequent result of the legal system, the committee suggested several changes to the Evidence Act. The crux of its recommendations was to do away with the presumption of innocence. To achieve this aim, the committee suggested changes to the Criminal Procedure Code, such as making the statements of the accused to a police officer during the investigation final and binding. These two changes, though, flout Article 20(1), (2) and (3) of the Constitution of India. The committee had a simple solution: amend these articles. The recommendations of the committee were not implemented, however, as they were met with an uproar inside and outside of India.
Meanwhile, parallel studies, led by the National Human Commission and the National Police Commission, were conducted by other bodies within India. These commissions recommended changes in the policing system to improve the standards of criminal justice. They noted that the police, prosecution system and courts were choked with very little infrastructure, preventing them from functioning. They also pointed out that, unless immediate steps were taken to remove the possibilities of illegal political influence upon these institutions, the criminal justice system could not perform well -- a view reiterated by the Supreme Court in its recent judgment in Prakash Singh and Others versus Union of India.
In this judgment, delivered on Sept. 22, 2006, the court expressed its concern about the failure of the state and central governments to tackle the issues, particularly those concerning policing in India. The court ordered the government, among others, to take immediate steps to remove political interference in policing. Though eight months have passed since this judgment, the court's orders have not yet been implemented.
Against this backdrop, it is interesting to look into the activities of a committee constituted to draft a paper on the country's national policy on criminal justice. The same members who spared their "valuable" services to the Malimath Committee also constitute this committee, which, it is reported, is again advocating the proposition of changing domestic laws to facilitate easier convictions in criminal trials.
The committee is of the opinion that, since the accused has the option of hiring the best defense lawyer, the prosecution finds it hard to cope and secure a conviction. The committee thus far has refused though to examine the qualitative competence of the prosecutors. In spite of this shortcoming, however, it is suggesting changes, including the removal of such basic constitutional guarantees as the right to silence and the presumption of innocence.
The assumption is that a criminal justice system is judged by the number of convictions, and thus, since the conviction rate in India is low, the law must be amended. There has not been a single move to look into issues like corruption in the police or the inability of the police as an institution to gather evidence and investigate crimes. In addition, there has been no discussion to improve the facilities available to India's courts.
The criminal justice system in India has inherent problems that must be addressed immediately. Reforms must begin with the investigating agency. The widespread use of violence by the police has isolated them from the ordinary public. A forced confession is often used as the only method of criminal investigation. Scientific methods of investigating crimes are rare, and basic forensic facilities are not available to the police. Thus far, the committees constituted by the Home Ministry have failed to scrutinize these aspects of policing.
The next agency that requires reform is the prosecution. The appointment of prosecutors, for instance, is devoid of any merit. The decisive factor in the appointment of prosecutors is political affinity and money. Indeed, the prosecutors' offices are bribery collection centers. The prosecutor has no supervisory control over the investigation. In almost every case the prosecutor, particularly in the lower courts, is not even provided with the case records in time by the investigating agencies. The prosecutor, among other practicing lawyers, is considered to be the worst attorney in the profession in integrity and intellect. Again, the Home Ministry and its committees, which have spent millions of taxpayers' money, and other funding agencies have never looked into these facets of the prosecution system.
The poor performance of these two agencies is reflected in the courts. Burdened with flipping though hundreds of pages of a lopsided investigation and a poorly performing prosecutor, the work of the courts is further hampered by a lack of resources. The lower courts receive minimum funds to function. Often simple matters, from serving summons to obtaining copies of records, take months. Moreover, basic necessities, like electricity and telephone connections, are denied to the courts. To improve the criminal justice system in India, it is these issues that must be addressed first.
Changes are inevitable, particularly to basic laws, but these changes must be toward the betterment of individual freedoms and rights, not their restriction. In the name of improving standards, selfish individuals must not be allowed to corrupt India's basic laws. Recommendations and suggestions made by these people are nothing but tailor-made reports prepared by a few insensitive groups that are unconcerned about the failing justice system in India. Their recommendations, if implemented, will only help to further push India into greater chaos and confusion at, once again, the expense of India's taxpayers.
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(Bijo Francis is a human rights lawyer currently working for the Asian Legal Resource Center in Hong Kong.)
