India's Legal System: In need of broad and deep reforms

India's Legal System: In need of broad and deep reforms

- Looma Kushwaha

UPSC GENERAL STUDIES: PAPER II

Table of Contents

Legal System’s Problems

Lawmakers or Lawbreakers

Police

Prosecution

Courts

Conclusion

Associated Issue (Using Research and Technology for better Policing)

For far too long, reform of India’s legal institutions has been seen as a “second order” issue that could be addressed once critical economic reform measures were dealt with. This sequencing was shortsighted, given that the rule of law is the sine qua non not just for sustaining economic activity but also for upholding democracy itself.

India is a young nation long ruled by old laws—its police, for example, are governed by such colonial-era statutes as the Police Act of 1861, which predates independence by nearly a century.

The rule of law that exists on paper does not always exist in practice. When it comes to procedural effectiveness, India fares poorly.

There are many problems in the element of India’s rule of law supply chain—including the legislators who draft the laws and the police, prosecutors and courts who enforce them.

Indeed, the supply chain, never strong to begin with, has become deeply broken—threatening not only the rule of law but a belief in the value of law itself.

Government must acknowledge India’s weak performance in enforcing the rule of law and take immediate action to close the widening gulf between principle and practice...

Legal System’s Problems:

The first element in the dysfunctional supply chain is India’s archaic laws.

India does not employ sunset clauses that require the expiration of certain laws after a fixed period of time. Instead, its lawmakers—urged on by a zealous civil society—typically rush to enact new laws without repealing existing ones.

The multiplicity and complexity of laws make compliance, deterrence, and effective enforcement difficult if not impossible.

Example: The bizarre defamation law that allowed the actress Kushboo to be arrested for defaming Tamil womanhood (yes all of them!) for her suggestion that pre-marital sex might be okay as long as the parties take protection, goes back to the Indian Penal Code of 1860.

Example: The law against homosexuality also dates from 1860, and proscribes any form of sex that is “against the order of nature”. The Supreme Court’s judgment while reinstating Article 377 invokes the same “order of nature”, much to the delight of conservatives from all religions, but its worth emphasising that those words come from the mind of a British Victorian law maker and not, say, our Vaishnav tradition, where men are supposed to imagine themselves as gopis in love with Krishna

Solutions: 

The revising, repealing, and updating of old laws are sorely needed—and greater precision in the drafting of replacement language is essential.

Jain Commission & NLC Recommendations: In the late 1990s, the Jain Commission, in its Report of the Commission on Review of Administrative Laws, sought repeal of over 1,300 central laws while the National Law Commission too has been periodically giving recommendations for revision of laws

Lessons from the working of FSLRC: The legislative consolidation and simplification is the model established by the Financial Sector Legislative Reforms Commission (FSLRC). The Commission was given two years to evaluate and modernize the sector’s regulatory framework, identify overlaps and inconsistencies, and develop a lasting unified code. Divided into multi-disciplinary groups, it developed objectives for each area of the financial market, identified the sources of market failures, critically assessed the role of government, and evaluated the costs and benefits of redrafting legislation. This approach can be replicated across multiple sectors.

Lawmakers or Lawbreakers:

Many of India’s leading lawmakers are also its foremost lawbreakers; this has an insidious effect on rule of law.

Solutions:

Supreme Court Ruling: The Supreme Court ruled in March 2014 that lower courts must conclude trials of lawmakers charged with serious crimes within a year of charges being filed. To comply with this ruling, the government should consider establishing special electoral tribunals charged with adjudicating serious criminal cases against politicians.

EC Suggestions: The Election Commission of India has recommended additional changes to curb the nexus of crime and politics including the potential de-registration of political parties that circumvent campaign finance regulations or file false disclosures.

Police:

Police still follows colonial mandate: The primary objective of the police in India is maintaining law and order rather than preventing crime, a holdover from the days before independence when crowd control was key.

Deep politicization, and an overcentralized hierarchy have also hampered the police functioning.

Also demoralization, low popular support and pinched resources, the police remain understaffed and undertrained.

All of these factors, in turn, contribute to the low conviction rate that discredits both the police and the courts.

Importance of Reforming the Police Force

Important for smooth Political and Economic functioning: There is a need to emphasise that police reforms are absolutely essential if India is to emerge as a great power. Economic progress cannot be sustained if we are not able to generate a safe and secure environment. The democratic structure may also crumble if we do not arrest the trend of criminals gaining ascendancy in public life.

The three greatest problems confronting the country today are:

* The challenge of international terrorism

* The spread of Maoist influence over vast areas of Central India and

* The malaise of corruption

If we are to tackle these problems effectively, there is no getting away from having a professional police force, well trained and equipped, highly motivated, and committed to upholding the law of the land and the constitution of the country.

The police are the first responders in the event of any terrorist attack or Maoist violence, and they are also the backbone of our intelligence, investigation and anti-corruption agencies. Thus, looked at from any angle - the security of the common man, the survival of democracy, maintaining the trajectory of economic progress or dealing with the major threats confronting the country - we have to have a reformed, restructured and revitalised police force.

Prakash Singh vs Union of India

On September 22, 2006, the apex court passed an order in the case of Prakash Singh vs Union of India directing all states, Union territories and the Centre to bring in police reforms.

In a detailed order, which gave directions on how this was to be done, SC said its order must be followed until all states and the Centre pass new Police Acts incorporating the court’s guidelines.

The new Police Acts were ordered with an aim to bring police forces in tune with the times and make them people-centric rather than ruler-centric.

The 2006 SC directions included establishing:

* A State Security Commission (SSC) as a watchdog with members from the government, judiciary and the civil society. The commission was supposed to frame policies which make sure that “state government does not exercise unwarranted influence or pressure on the state police”.

*The order asked for tenure of DGP and field officers to be fixed at two years.

*A Police Establishment Board (PEB), instead of the government, would deal with transfers of policemen.

* It also asked for separation of investigation and law and order units for speedy probe.

How have the states reacted?

States hurriedly enacted respective acts. But the provisions of these acts were far diluted than the strict provisions laid down by the Supreme Court. One may conclude that the hurry was so that the Supreme Court guidelines could be avoided.

Case Study of Bihar: The seriousness of the states to bring in police reforms can be well gauged by this example: After SC directions, Bihar was the first state to pass a new Police Act in 2007. But the Act diluted SC directions considerably. The SSC has only government members. DGP’s tenure for two years could be removed on “administrative grounds” or “any other reason”. The PEB will only transfer low-ranking officers and have no powers to dispose of appeals on illegal orders by the government.

In 2015, a perusal of the acts passed by the 17 states shows that not much has changed. The composition of State Security Commission is not independent of political influence of the ruling government in almost all states.

Among the 17 states, only Assam and Tripura have set up police complaints authorities to hold the uniformed men accountable.

Barring Bihar, Gujarat, Karnataka and Kerala, no state has agreed to give powers of transfer to the Police Establishment Board.

Most states have refused to give more than a one-year fixed tenure to DGP irrespective of superannuation with the exception of Gujarat, Kerala, Karnataka and Rajasthan. Reasons for DGP’s removal tenure have been kept vague with grounds ranging from ‘public interest’, ‘incapacitation’ and ‘administrative exigencies’ to ‘any other reason’.

Except Kerala and Karnataka, no state has provided for complete separation of law and order and investigation duties. The new law, in most other states, says a special crime unit will be set up for serious crimes. Such arrangement already exists in the form of CIDs and crime branches and thus does not serve the objective of the SC directives.

Solution

The Prime Minister, at the Guwahati Conference of the Directors General of Police on November 30, 2014, enunciated the concept of SMART Police - a police which should be sensitive, mobile, alert, reliable and techno-savvy.

However, there has hardly been any progress in that direction because the police was not insulated from extraneous influences. You cannot have a sensitive police if it is under the thumb of the rulers.

The ruler's police should be transformed into the people's police

Prosecution

Problems

Prosecutors too suffer from a variety of maladies. Government lawyers are poorly briefed, while corporate and political defendants have a battery of highly paid lawyers who often have more time and competence as attested in Bishwajit Bhattacharyya’s new book, My Experience with the Office of Additional Solicitor General of India.

Solutions

Reform commissions set up by successive governments have articulated steps that both the central government and the states could take.

The reforms must include greater autonomy and more accountability, personnel, and material resources.

Case Study from Rajasthan: One police reform experiment in Rajasthan found that simple fixes such as freezing the transfers of officers and professional training had positive effects both on public satisfaction of police forces and the quality of actual police work.

Courts

Problem

The single biggest affliction of the justice system is the snail’s pace at which it proceeds. Each year, the courts take on more cases than they are able to process.

There is also the issue of judicial capacity, which raises questions about staffing levels—in the US, there are 108 judges per million citizens, compared with a mere 12 judges per million in India—as well as quality.

Solutions

 The government must streamline the process.

* It should simplify case management, in part by outsourcing. At the trial phase, courts should enforce a strict timetable with the imposition of costs to ensure compliance.

* To staff the courts with judges who are both competent and have integrity.

* One solution worth pursuing, recommended by the Law Commission and endorsed by several advisory bodies, is to create an all-India judicial service.

Conclusion

For far too long, reform of India’s legal institutions has been seen as a “second order” issue that could be addressed once critical economic reform measures were dealt with. This sequencing was shortsighted, given that the rule of law is the sine qua non not just for sustaining economic activity but also for upholding democracy itself.

It is time for India to reinvest in its rule of law machinery. The situation is so dire that even modest changes will have a dramatic impact.

Associated Issue (Using Research and Technology for better Policing)

Madhya Pradesh Police collaborates with leading research institutes for reforms

The MP state police department will work in tandem with leading foreign and Indian institutes to bring reforms in the department and enhance the way of policing.

The collaborations are a part of the recently established research and development (R&D) cell under the aegis of the director general of police (DGP) Rishi Kumar Shukla.

The R&D cell, which is one of the first-of-its-kind, will conduct research on various aspects of policing in collaboration with Massachusetts Institute of Technology (MIT), USA, Tata Institute of Social Sciences (TISS), Mumbai and National Law University (NLU), Delhi.

Research work with MIT will focus on action research related to development to enhance capacity building of the police department. The research programme with MIT will emphasise on the newly-recruited sub-inspectors (SI). It will help bring about a change in the behavior of the policemen with the public.

The R&D cell will work with TISS to conduct research on the accessibility of justice to the marginalised section of the society like women, minorities, SC &STs. The research will help the police in addressing their grievances in a better way and increase their accessibility to these sections.

The NLU will help in researching the perception of safety among the public. It will also research the usage of cyber investigation tools at the police station level.

At present, the police are working on anecdotes and perceptions, but the R&D cell will help the working of the police to go from anecdote-based to research-based policies.