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)
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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.
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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.
