Our criminal justice system can be classified into four successive stages. First comes the enactment of criminal law by the legislature. Secondly, the task of the police to enforce them; thirdly, the stage of criminal trial where the question of guilt is decided; and finally the task of reformatory exercise to change the convict through the process of reformatory punishment. But each tends to be the province of a different group of people.
Politicians make the laws; lawyers run the trials; magistrates and judges give their verdict on punishment; and the prison authorities deal with the convicted offenders. None of these organs are sensitive enough to give thought to the problems of the other or to consider the working of the system as a whole. For instance, it would not do any good if the legislature passes the laws, but the police do not enforce them. There is no use in catching a criminal, if the system of trial is so inefficient that it lets the culprit go free. The aspects of justice about which one may think are strictly not the business of the law enforcement agencies—the criminal laws, the system of trial and the question of punishment. These things all affect law enforcement work to an extent which is not sufficiently realised.
Dissatisfaction with the administration of justice is as old as law. These are not idle words. Is our machinery for administration of justice working well ? Certainly not ! The basic purpose of Criminal Justice System in India appears to have lost somewhere in the complicated and mis-interpreted procedures
created by the law enforcement agencies. The stone heart judges contributes to a large extent in throwing all principles of equity, natural justice and fair play to winds. The net result is that our Criminal Justice system has become sick and needs urgent reforms. In such a epressing situation, it would not be gainsaying the fact that something is rotten in our criminal justice system. It thus, casts an onerous responsibility upon justice loving persons like us, to find out possible remedial measures to end this tyrannical system and bring sensitive, reasonable and fair procedure to do justice with the litigants. But before going into this discussion, I feel that it is necessary to understand the reasons and effect of such unjust, illegal and insensitive system of criminal justice in our country.
From the experience gathered during practise in criminal law, I can say without hesitation that practically speaking, major drawbacks in the working of law enforcement agency viz.. the police and the criminal courts defeat the whole spirit of the criminal law. Firstly, the prosecution and even the trial court from the day one considers the suspect as an accused and believes the prosecution story as a gospel truth. What to say of the subordinate magistrate, but even the sessions judge and high court prima facie believes the police story while deciding the bail plea or quashing proceedings of the complaint or First Information Report. This, despite the fact, that the police personnel who author the document is unqualified and untrained person, generally prone to bias and influence on acount of subordination in rank in the police department. If the job to record the First Information Report is entrusted to a qualified person having thorough knowledge of the Criminal Procedure Code and Indian Penal Code, the attitude of the Judges to treat the document as correct may be justified, but today it is the pitiably the opposite. Nevertheless, the duty of the court to punish the culprit cannot be ignored, but the legal maxim, “A person is innocent until proved guilty”, has lost its significance in India, due to overzealous behavior of the criminal courts while trying the suspects on the basis of a document which ordinarily fails in the acid test of judicial scrutiny. In this way, before a person gets a decision from the court, he has already suffered the humiliation, harassment and agony of being condemned as “an accused”. Further, our subordinate judges lack up- date knowledge of latest law and judicial pronouncements on different subjects. In a country like India, where more than a thousand amendments or statutes are made every year, the judges behave like an illeterate in law. The outcome of this laxity falls on the head of poor litigants who loose their cause inspite of being legally correct. Is it not archaic ? Another sad fact is that the judges take different view while dealing with different persons. In other words, there is one law for the rich and another for the poor. In the case of a policeman being the accused, the judge adopts leniency, but treats a similarly placed common man with severity. For a policeman, bail is a right while it is not so for a common man. You file a complaint of a human rights violation against a police officer and see the fate of your case. It is going to be a humiliating experience, a battle lost before it starts, because the whole system stand by these criminals in uniform. Life Imprisonment or death sentence is a rule for a murder accused, but if a policeman beats a suspect to death in police custody or kills anybody in a fake encounter, the case becomes too weak to even secure conviction. Ways and means to acquit a policeman is considered with appreciation of a judge these days. Accountability, transparency and fair play is the price we have paid for keeping this inhuman and corrupt system alive. Having said these strong words, I would now place before you the case of our state, Punjab, in which our daring lawyers and human rights defenders strived hard to set right the criminal justice system to some extent.
State of Punjab reeled under a decade of bloodshed from 1984 till 1995. During this period, we saw the worst show of incompetence or rather impotence of all institutions of justice delivery system. It was a police state with no accountability of any organ of administration. Anybody raising voice against the police was sure to loose his life. The common man was apprehensive and frightened. More than ten thousand innocent persons lost their lives either at the hands of Punjab police or armed groups called “terrorists”. “Death” had become a matter of morbid humour in Punjab. Young sikh boys were picked up from the home or field and summarily liquidated by the police. The petitions for justice to the civil administration or judiciary were coldly turned down. In retaliation, the ‘sufferers’ took the life of innocent persons and this vicious circle went on for many years. When an institution consistently fails to perform the job that the people reasonably expects of it, its legitimacy ultimately comes into question. I can sadly recollect the behavior of judges of Punjab & Haryana High Court in 1989 when hundreds of Habeas Corpus petitions seeking the production of detenus were dismissed daily without any effective order. The Judges openly supported the police action of summary execution of alleged “terrorist”. The lawyers who opposed the police action were accused of abetting “terrorism”. Human Rights defenders who sought the prosecution of the policemen accused of extra-judicial killings, in accordance with law, were an eyesore in the eyes of police force and the judges supporting police brutality. Media too was hostile towards them. Even the Supreme Court affirmed the decision of the High Court. Getting a shot in the arm, the Punjab police were at daggers drawn with the human rights lawyers. One lawyer Ranbir Singh Manshahia of Bathinda, was picked up and made to ‘disappear’. Not many voices condemned his extra-judicial murder by the police. Thereafter, five human rights defenders were similarly done to death. This raised hackles among the lawyer fraternity. The most gruesome act of Punjab police was the murder of Kulwant Singh, his wife and three months old child in 1994. Lawyers all over the region went on a month long strike demanding prosecution of police personnel responsible for the inhuman act. The Punjab & Haryana High Court dismissed the petition by the lawyers seeking a CBI inquiry into the gruesome killings. It was then the Supreme Court of India responded positively and ordered a CBI inquiry which led to the prosecution of five Punjab police personnel responsible for the heinous crime. Encouraged with this landmark judgment and few other pronouncements from the Supreme Court holding the police force guilty of serious violations of human rights in Punjab, the lawyers fighting against State repression jointed together and formed an organisation called, “LAWYERS FOR HUMAN RIGHTS INTERNATIONAL” and provided free legal aid and protection of law to the victims of police atrocities. We sensitised the courts and convinced them that end cannot justify the means and the police cannot be permitted to transgress the law in order to end violence. Every policeman must bear in mind that “howsoever high you may be, law is above you”. With our efforts the wheel of justice started moving on the right path in the state and media exposed the cruel and dastardly acts of the policemen and courts started punishing them for their wrongdoings. Encouraged by the positive response, we convinced the same judges to act appropriately and got favourable orders. The judges who had earlier condoned the human rights abuses committed by security forces came to the rescue of the victims. Soon, flood gates of litigation was opened against the excesses committed by the men of the Punjab police. More than fifteen hundred policemen were brought to the dock by human rights lawyers in Punjab. CBI inquiries were held in as many as three hundred and twenty cases of “disappearance” or “fake encounter”. Many inquiries held policemen responsible for extra-judicial killings. Around eight hundred policemen were brought to trial and with our free legal aid and tierless effrots, around eighty policemen were convicted and sentenced to imprisonment varying from Life Imprisonment to seven years R.I. Around seventy policemen are still facing trial for various human rights abuses committed by them. Among them are senior police officers like Sumedh Singh Saini, Inspector General of Police, Mr.Rajan Gupta, Deputy Inspector General and others of subordinate ranks. But one thing which disturbed human rights lawyers was the faulty and poor quality of investigation done by the Central Bureau of Investigation while finding the truth behind the excesses committed by Punjab police. CBI has come out as merely a toothless, diseased paper tiger whose roar is more effective than its maul. How lackaisical is the CBI conduct can be gauged from the fact that in all cases filed by CBI against the police officers in Punjab, bails have been granted to the accused policemen. Fabricated witnesses and lenient sections of Indian Penal Code framed against the accused policemen enable the accused to easily go out of the bounds of law.