criminal justice in india essay

Indian Criminal Justice System Reforms Essay

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Introduction

History of criminal justice system, modern india criminal justice system.

Bibliography

Throughout world history, numerous criminal injustices have been witnessed. In most parts of the world, security officials have been blamed for perpetuating injustices against human rights. However, India is prone to criminal activities due to the harsh economic times. As a result, the security system always faces the challenge of implementing the law and respecting human rights.

In as much as some human rights activists often complain of the violation of the rights by the justice system, India’s criminal system has faced significant changes since colonial times to the present. The Indian criminal justice field reforms were closely associated with social changes that shifted the focus from archaic rituals to more modern regulatory principles, with the introduction of an updated criminal justice system with juries and credible representatives; the law was the significant advancements.

Religious Governance

Initially, the natives relied on religious laws to govern themselves. For instance, Muslims were punished according to the Islamic laws while Hindus were punished according to their customs. Nevertheless, Ahmad illustrates that Muslim rules prevailed over other religious practices because it was the most popular religion. However, criminal justice was modified by the regulations and customs of the Mughal administration.

British Colonial

Queen Elizabeth granted a royal charter to the English East India Company to enact laws in their territory; however, the rules were not supposed to contradict England’s. The subsequent charters of 1609 and 1661 empowered the company and allowed it to make its laws without England’s interference.

The 1726 charter empowered the councils and governors to make by-laws that could control the activities taking place within their territory. The laws also allowed them to instill penalties and pain to those who disobeyed the regulations imposed. However, the pain and punishment would be reasonable and conform to the laws that governed England. The charter also introduced the mayor’s court in several towns within India.

The criminal laws that were initially derived from the Muslim values started to lose weight when the British regulations began to take effect.

Panchayat System

After the degradation of the traditional Muslim laws, Wilk attempted to revive the panchayat system of trial. He encouraged the rulers in India to equip themselves with Hindoo Panchayet to help govern India effectively. Wilk acknowledged that India needed leaders who were well conversant with the traditions and methods of conflict resolution since the regulations imposed by the colonial masters were receiving a lot of resistance, and in some cases, it failed to work. He wanted to revive the ancient Indian institutions because he was inspired by Malcolm, an advocate of the panchayat system. Malcolm believed in two aspects of panchayat:

• The serving of justice through investigations conducted by tribunals and the results transmitted for a chief ruler for justice dispensation.
• Formation of independent tribunals to mediate and arbitrate.

Sir Thomas Munro also advocated for common law in India, and Punchayet was recommended as the applicable law of governance. The plan was adopted in 1814 after the courts experienced a backlog of cases.

The East India Judges Act

The act harmonized the salaries and pensions of juries across India. It promoted an inquiry into juries’ role and function across India, resulting in Jury bill introduction. The Juries Act allowed only Christians to form part of the jury as locals were viewed as biased individuals.

The legal system can be traced back to the Roman empire, where people were required to act according to the law. In ancient Rome, the courts interpreted the rules and punished the offenders who were brought to them using legal means. The legal idea conceived in Rome has been used by several generations and currently influences the justice system across the globe.

After the gain of independence in 1947, the power was vested to Indians. However, the country was again faced with the issues of criminal injustices. Access to fair justice has been difficult for several decades, even though the constitution provides a framework for protecting citizens’ rights.

The Planning Commission of India has established a working group to help the justice department create a 12th five-year plan. The recommendations suggested by the working group include:

• strengthening of Alternate Dispute Resolution system;
• increased funding to the judicial system;
• establishing morning and evening special courts;
• enhancing ICT to develop an innovative e-Court system.

The constitution has strengthened the laws that affect establishing an independent judicial system and an active civil society. The establishment of The National Legal Services Authority (NALSA) in 1987 has enabled many poor Indians to access free legal services. The Department of Justice has collaborated with United Nations Development Program to ensure that the justice system is sustainable and able to adhere to the principles of equality, liberty, and fraternity.

However, the judicial system has worsened over the years despite the numerous actions to provide quality service. The poor delivery of services is caused by enormous backlogs, delays, and judicial pendency. According to Mudgal, the political class prefers a judiciary to easily manipulate to champion their interests because most of them face criminal charges. As a result, the police reforms have not been implemented, and numerous supreme court rulings have been violated.

The prisons across India are currently overcrowded due to the numerous criminals that are jailed. The judicial systems are also overwhelmed, and police brutality shows that the legal aid’s right stipulated in the constitution is far from being achieved.

Succinctly, the criminal justice system has changed significantly over the past decades. The government has formed a partnership with international bodies to ensure that the country meets the modern democratic countries’ justice system’s standards. Although several reforms have been made, numerous challenges are affecting the full implementation of the system. For instance, the political class has systematically weakened the judiciary, and at times the court rulings are not obeyed.

Ahmad, Sk Ehtesham Uddin. “Colonial Reshaping of Criminal Law Before the Code of 1860.” Proceedings of the Indian History Congress 73 (2012): 553-62.

Ganguly, Chawm. 2012. “ Dr. Ashwani Kumar Inaugurates International Conference on Equitable Access to Justice: Legal Aid and Legal Empowerment. ” Core Sector Communique . Web.

Jaffe, James A. “Custom, Identity, and the Jury in India, 1800-1832.” The Historical Journal 57, 1 (2014): 131-55.

May, Larry. Ancient Legal Thought: Equity, Justice, and Humaneness from Hammurabi and the Pharaohs to Justinian and the Talmud. Cambridge: Cambridge University Press, 2019.

Mudgal, Vipul. 2019. “ Reforming India’s Broken Criminal Justice System. ” The Hindustan Times . Web.

Shahidullah, Shahid M. Crime, Criminal Justice, and the Evolving Science of Criminology in South Asia . London: Palgrave Macmillan UK, 2017.

United Nations Centre Against Apartheid. Special Committee on Apartheid Hears Judge William H. Booth : New York: Department of Political and Security Council Affairs, 1971.

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Criminal Justice System of India – Is it time to implement the Malimath Committee Report?

Last updated on December 24, 2023 by ClearIAS Team

This results in a big problem of people losing faith in the Criminal Justice System of India – which is very dangerous.

The Government of India has been considering revisiting the Malimath Committee Report on reforms (2003) in the Criminal Justice System of India. In this context, ClearIAS  in this article, analyse the country’s Criminal Justice System, the Malimath Committee recommendations and the need for reforming the system.

Table of Contents

What is the Criminal Justice System (CJS)?

• The Criminal Justice System (CJS) includes the institutions/agencies and processes established by a government to control crime in the country. This includes components like police and courts.
• The aim of the Criminal Justice System (CJS) is to protect the rights and personal liberty of individuals and the society against its invasion by others.
• The Criminal law in India is contained in a number of sources – The Indian Penal Code of 1860, the Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989.
• CJS can impose penalties on those who violate the established laws.
• The criminal law and criminal procedure are in the concurrent list of the seventh schedule of the constitution.

Background of the Criminal Justice System in India

• The Criminal Justice System in India is an age-old system primarily based upon the Penal legal system that was established by the British Rule in India.
• The system has still not undergone any substantial changes even after 70 years of Independence. The biggest example could be Section 124A of the Indian Penal Code (IPC) that defines sedition and provides for its punishment.
• The entire Code of Criminal Procedure (Cr.P.C.) was amended in 1973.
• The appointment of the Vohra Committee was the very first attempt towards reforming the Criminal Justice System in India. Vohra Committee report (1993) made an observation on the criminalisation of politics and of the nexus among criminals, politicians and bureaucrats in India.
• In 2000, the government formed a panel headed by Justice V.S. Malimath, the former Chief Justice of Kerala and Karnataka, to suggest reform in the century-old criminal justice system.
• The Malimath Committee submitted its report in 2003 with 158 recommendations but these were never implemented.
• The Committee felt that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”

Why there is a need for reform in the  Criminal Justice System in India?

[click_to_tweet tweet=”In India only about 16 percent of people booked for criminal offences are finally convicted. Low rate of conviction points to the inefficiency of the Criminal Justice System of India – which includes the police, prosecutors, and the judiciary.” quote=”In India only about 16 percent of people booked for criminal offences are finally convicted. Low rate of conviction points to the inefficiency of the Criminal Justice System of India – which includes the police, prosecutors, and the judiciary.”]

• The system has become ineffective: The state has constituted the CJS to protect the rights of the innocent and punish the guilty but the system, based on century-old outdated laws, has led to harassment of people by the government agencies and also put pressure on the judiciary.
• Inefficiency in justice delivery: The system takes years to bring justice and has ceased to deter criminals. There is a lack of synergy among the judiciary, the prosecution and the police. A large number of guilty go unpunished in a large number of cases. On the contrary, many innocent people remain as undertrail prisoners as well. As per NCRB data , 67.2% of our total prison population comprises of undertrials prisoners.

• Complex nature of the crime: Crime has increased rapidly and the nature of crimes are becoming more and more complex due to technological innovations.
• Investigation incapability: It led to delay in or haphazard investigation of crimes which greatly contribute to the delay in dispensing prompt justice.
• Inequality in the justice: The rich and the powerful hardly get convicted, even in cases of serious crimes. Also, the growing nexus between crime and politics has added a new dimension to the crime scenario.
• The lowered confidence of common man: The judicial procedures have become complicated and expensive. There is a rise in cases of mob violence.

Recommendation of the Malimath Committee

Some of the important recommendations of the committee were:

• Courts and Judges: There is a need for more judges in the country.
• National Judicial Commission: The Constitution of a National Judicial Commission to deal with the appointment of judges to the higher courts and amending Article 124 to make impeachment of judges less difficult.
• Separate criminal division in higher courts: The higher courts should have a separate criminal division consisting of judges who have specialised in criminal law.
• The inquisitorial system of investigation:  The Inquisitorial system is practised in countries such as Germany and France should be followed.
• Power for court to summon any person: Court’s power to summon any person, whether or not listed as a witness if it felt necessary.
• Right to silence:  A modification to Article 20 (3) of the Constitution that protects the accused from being compelled to be a witness against himself/herself. The court should be given freedom to question the accused to elicit information and draw an adverse inference against the accused in case the latter refuses to answer.
• The right of accused: A schedule to the Code be brought out in all regional languages to make accused aware of his/her rights, as well as how to enforce them.
• Presumption of Innocence: The courts follow “proof beyond reasonable doubt” as the basis to convict an accused in criminal cases which is an unreasonable burden on the prosecution and hence a fact should be considered as proven “if the court is convinced that it is true” after evaluating the matters before it.
• Justice to the victims: The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation. If the victim is dead, the legal representative shall have the right to implead himself or herself as a party, in case of serious offences. The State should provide an advocate of victim’s choice to plead on his/her behalf and the cost has to be borne by the state if the victim can’t afford it.
• Victim Compensation Fund: A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated from organised crimes can be made part of the fund.
• Police Investigation: Hiving off the investigation wing of Law and Order
• National Security Commission and State Security Commissions: Setting up of a National Security Commission and State Security Commissions.
• SP in each district: Appointment of an SP in each district to maintain crime data, an organisation of specialised squads to deal with organised crime.
• Director of Prosecution: A new post, Director of Prosecution, should be created in every state to facilitate effective coordination between the investigating and prosecuting officers.
• Witness protection: The dying declarations, confessions, and audio/video recorded statements of witnesses should be authorised by law. There should be a strong witness protection mechanism . Witnesses should be treated with dignity.
• Arrears Eradication Scheme: To settle those cases which are pending for more than two years through Lok Adalat on a priority basis.
• Offences classification: It should be changed to the social welfare code, correctional code, criminal code, and economic and other offences code instead of the current classification of cognisable and non-cognisable.
• Substitution of death sentence: Substitute with imprisonment for life without commutation or remission.
• Central law for organized crime and terrorism: Though crime is a state subject, a central law must be enacted to deal with organised crime, federal crimes, and terrorism.
• Periodic review: A Presidential Commission was recommended for a periodical review of the functioning of the Criminal Justice System.

Key issues in the recommendations

• Malimath Committee report recommends making confessions made to a senior police officer (SP rank or above) admissible as evidence. Confessions to police have repeatedly come under scrutiny because of allegations of custodial torture, instances of custodial deaths, fake encounters and tampering with evidence .
• The report recommends diluting the standard of proof lower than the current ‘beyond reasonable doubt’ standard. It means that if a proof is enough to convince the court that something is true, then it can be considered as a standard proof. Such a measure would have adverse implications on suspects and requires considerable deliberation.

Reforms undertaken by the Government

• The government has implemented a number of recommendations like permitting videography of statements, the definition of rape has been expanded and new offences against women have been added. The victim compensation is now a part of the law.
• The Government is in the process to draft a new Memorandum of Procedure (MoP) for the appointment of High Court and Supreme Court Judges.
• The government has removed more than 1000 obsolete laws which came in the way of smooth administration.
• The Government has given its approval for implementation of an umbrella scheme of ‘Modernisation of Police Forces’ with proper use of technology.
• The Gram Nyayalayas and Lok Adalats were established to provide access to justice to the citizens at their doorsteps.
• The Legal Service Authority Act was enacted by the Parliament with an object to provide free and competent legal service to the weaker section of society.

Way Forward

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It is a good idea to revisit the committee recommendations with a view to considering their possible implementation. However, the reforms should be made with care and after proper debate. The provisions like diluting the standard of proof or considering confession to senior police as evidence must be properly debated.

Supreme Court had already set guidelines for how the prosecution and the police should function to get justice to the victims and punish the guilty.

Revamping the CJS should not undermine the principles on which the justice system was founded. The rules and procedures are needed to be simplified to make it convenient for the common man. The primary focus must be on police reforms , appointing more judges, deploying scientific techniques, beefing up forensic labs, and other infrastructure investments are the need of the hour.

Read:  Revised Criminal Laws

Article by: Alok Kumar

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October 13, 2018 at 12:35 am

Very illustrative and informative article. Thanks, ClearIas.

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India’s Criminal Justice Overhaul: A Deep Dive into the New Laws

The three new criminal laws came into effect on July 1, 2024, ushering significant changes to the country’s criminal justice system and ending colonial-era legislation. The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam have replaced the British-era Indian Penal Code of 1860, Code of Criminal Procedure of 1973, and Indian Evidence Act of 1872, respectively.

The law ministry has announced that any reference to the now-replaced Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Evidence Act in any statute, ordinance, or regulation would be interpreted as a reference to the new criminal justice laws. These old laws were replaced by the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) on July 1. The legislative department of the law ministry has issued a notification under the General Clauses Act to this effect. An official clarified that the notification reaffirms the provisions of the General Clauses Act, which addresses the repeal and re-enactment of laws.

The enforcement of the laws has evoked mixed responses from different quarters and stakeholders. A few PILs were filed in the Apex Court to derail or delay the implementation of the laws that seek to modernise the criminal justice system and make justice more accessible for ordinary citizens. Chief Justice of India DY Chandrachud has openly advocated fast-tracking of trials from every conceivable platform and has aggressively worked to introduce technology in the judicial process to deliver faster justice and reinforce the faith of the people in the judiciary. The Supreme Court refused to entertain any of these PILs.

There was a litany of newspaper articles and social media onslaught about the new criminal laws, accusing the Central Government of rushing the job without adequate discussion and consensus among the stakeholders. Some naysayers among the critical stakeholders in the criminal justice system, particularly retired police officers, lawyers, academia, and a few non-profits, sought to castigate the government initiative on one or the other pretext. However, they all failed to muster public opinion against the new laws.

On August 15, 2022, while addressing the nation from the ramparts of the Red Fort on India’s 76th Independence Day, Prime Minister Narendra Modi talked about the  ‘Panch Praan’ for the coming 25 years (Amrit Kaal) . Elaborating on the second Praan, he said, “In no part of our existence, not even in the deepest corners of our mind or habits, should there be any ounce of slavery. It should be nipped there itself. We have to liberate ourselves from the slavery mindset, which is visible in innumerable things within and around us. This is our second Praan Shakti.” He also said, “In this Azadi Ka Amrit Kaal, new laws should be made by abolishing the laws which have been going on from the time of slavery.” [1]

All the ministries were asked to identify obsolete provisions from the colonial era and draft new legislation that fulfilled the aspirations of a resurgent India. The Central Government has repealed over 1,500 archaic laws in the last decade. These three criminal laws are the result of such an endeavour.

The new laws address contemporary social realities and crimes while aligning with the ideals enshrined in the Constitution. Union Home Minister Amit Shah, who introduced the laws, stated that the new legislation prioritises justice over penal action provisioned in the colonial laws. “These laws are made by Indians, for Indians, and by an Indian Parliament, marking the end of colonial criminal justice laws,” Shah said. The “soul, body, and spirit” of the new laws are distinctly Indian, he added. [2] Shah explained that justice encompasses both the victim and the accused, and the new laws aim to ensure political, economic, and social justice with an Indian ethos.

Decolonisation rhetoric aside, there is consensus that the three new laws address the contemporary requirements of defining crimes, processes, and indictments, relying on the principles of justice as opposed to the retribution of the old laws. Justice would be delivered “up to the level of the Supreme Court” within three years of registering an FIR.

The Positives

The new laws positively impact the criminal justice system because wide-ranging consultations were held with legislators, judicial and legal pundits, police and corrections leadership, academia, NGOs and other stakeholders. According to the Union Home Minister, these laws were discussed in the Lok Sabha for 9 hours and 29 minutes and in the Rajya Sabha for 6 hours and 17 minutes. Suggestions were sought from all MPs, Chief Ministers, Supreme Court and High Court Judges, IPS officers and Collectors in 2020. The Minister attended 158 consultative meetings to prepare these Bills. The bills were later sent to the Home Ministry committee, which has representatives from all major political opposition parties. The Committee discussed the Bill for about three months. Most of the suggestions for reforms in criminal laws were incorporated, except four, which the Central Government found were political. This consultative process convincingly debunks the allegations of lack of discussion and hasty passage of the bills.

The new laws make critical changes at four levels of the whole criminal justice procedure:

• At the substantive crimes/offences level under BNS.
• At the Police investigation level.
• At the judicial magistrate level, and finally,
• At the Trial level.

The BNS is much shorter than the IPC. Redundant sections have either been pruned, merged or simplified, reducing the number of sections from 511 in the Indian Penal Code to 358. For example, definitions previously scattered across sections 6 to 52 are now consolidated into one section. Eighteen sections have been repealed, and four relating to weights and measures are now covered under the Legal Metrology Act of 2009. Some still criticise the new acts as colonial for retaining nearly 75% of the old sections.

New provisions address issues like false promises of marriage, gang rape of minors, mob lynching, and chain snatching, which the old Indian Penal Code did not adequately cover. A new provision addresses the abandonment of women after making sexual relations under a false promise of marriage.

Snatching, defined in Clause 304(1), is one of the ‘new’ crimes, distinct from theft. The definition reads: “In order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any moveable property”. Both theft and snatching prescribe a punishment of up to three years in jail.

All state governments are now mandated to implement witness protection schemes to ensure the safety and cooperation of witnesses, enhancing the credibility and effectiveness of legal proceedings. The definition of “gender” now includes transgender individuals, promoting inclusivity and equality.

Another notable addition to the BNS is the inclusion of offences such as organised crime and terror, previously in the ambit of specific stringent laws like the Unlawful Activities Prevention Act for terrorism and state-specific laws such as the Maharashtra Control of Organised Crime Act for organised crime. On terrorism, the BNS borrows heavily from the UAPA.

Organised crime, in Clause 111(1), encompasses “any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom. Sedition, which raised the freedom heckles from the civil society, has been replaced with treason. Some detractors of the retention of treason in the new code believe it to be a colonial hangover. The Supreme Court in May 2022 virtually stalled the operation of sedition law, deeming it “prima facie unconstitutional.” The Government claims the new laws have “done away with sedition.”

The BNS has, however, introduced the offence with a broader definition while incorporating the Supreme Court guidelines in the 1962 Kedarnath Singh case, which upheld the constitutional validity of the crime of sedition. In Hindi, the law carries out a simple name change—from rajdroh (rebellion against the king) to deshdroh (rebellion against the nation). The Central Government must be aware of the internal security challenges, extraneous factors, and different state and non-state actors fomenting fissiparous tendencies in our country. The jury is out to assess the Government’s assurance about the judicious use of the new treason provisions.

The BNS has also consolidated previously scattered provisions about crimes against women and children in one chapter (Chapter V). New provisions have been added to strengthen women’s rights. Section 69 BNS, for example, introduces a new offence not previously included in the IPC that penalises a man who engages in consensual sexual intercourse with a woman under four categories of deceit, including a false promise to marry.

In line with the Apex Court’s decriminalisation of adultery in the landmark Joseph Shine judgment, t he BNS has removed adultery from the criminal code.

Several crimes and their perpetrators have been made gender-neutral. For instance, Section 77 BNS (previously Section 354C IPC), which addresses voyeurism, is now gender-neutral concerning the perpetrator—the term ‘whoever’ replaces ‘any man’ from the IPC. Similarly, Section 76 BNS (previously Section 354B IPC), which addresses assault with intent to disrobe a woman, now uses ‘whoever’ instead of ‘any man,’ allowing for the prosecution of women perpetrators. Additionally, the BNS has enhanced punishment terms for many offences protecting women.

One of the glaring omissions from the new laws is the issue of marital rape. The status of marital rape, as an exception to the offence of rape in the IPC, is still retained in the new BNS, despite several court rulings recognising marital rape as a ground for divorce. The issue is sub judice in the Apex Court. Section 67 BNS still requires the victim of a forceful sexual assault by a separated husband to report the matter herself and not by any friend or family member. The BNS keeps such a horrible offence as a bailable offence.

The BNS, with a seemingly progressive outlook, entirely leaves out Section 377 of the IPC, which criminalised “carnal intercourse against the order of nature”. In 2018, the Apex Court read this provision down in its landmark Navtej Singh Johar v Union of India verdict, holding that it decriminalised consensual sex among adults, including those of the same sex. [3] The judgment created an exception in the case of consensual sex among same-sex individuals. However, with the exclusion of the entire Section 377 of the IPC provision in the BNS, and with rape laws still not made gender-neutral, there is little criminal recourse for male victims of such sexual assault, transgender people and the crimes of bestiality.

The BNS, under Section 103, for the first time, recognises murder on the grounds of race, caste, or community as a separate offence. The Supreme Court had, in 2018, directed the Centre to consider a separate law for lynching. The new provision should arrest the incidence of such crimes, which has shown an upward trend in recent years. The inclusion of offences for mob lynching is crucial and signals a legislative intent to curb such hate crimes.

These new laws aim to make the police investigation people-friendly with provisions like Zero FIR, online registration of police complaints, electronic summonses, and mandatory videography and forensic team visits to crime scenes for all heinous crimes. Electronic reporting of crimes is now a reality, eliminating the need to visit a police station physically and allowing for quicker action by the police. However, the complainant has to visit the police station within three days to sign the complaint physically. With the introduction of Zero FIR, a First Information Report (FIR) can be filed at any police station, regardless of jurisdiction, ensuring immediate reporting of offences. Empowering citizens to report crimes via text message or electronic mode will help them navigate the legal process without fear of stigma or hesitation.

Zero FIR is not mentioned in any of the new laws. However, a Bureau of Police Research and Development (BPRD) SOP (Standard operating procedure) seeks to institutionalise the concept of Zero FIR. When a case is reported at a police station other than the police station where the actual crime was committed, a Zero FIR is supposed to be registered by adding a Zero before the FIR number and then transferred to the police station where the crime occurred. The SOP needs to be revised to enlighten the mode of transfer of the FIR to the other police station. Will it be sent online, by post, special messenger or another mode? Is there any app or platform developed to transmit such FIRs nationwide? What happens when the recipient police station finds the crime mentioned in the FIR did not occur in their jurisdiction? Will they register another Zero FIR or return the same? The document needs more details.

In a case of crime against the body, a medical examination in a government hospital is mandatory. Who will get this examination conducted before the evidence is lost or contaminated remains unanswered in the SOP. With time, the police will find answers, and the courts will give appropriate directions.

Section 173(3) BNSS provides discretion to a police officer in registering an FIR in a cognisable matter if the offence is punishable with three or more years but less than seven years of imprisonment. The officer in charge of a police station ‘may’ (and not ‘shall’) proceed with investigation or conducting preliminary enquiry with the approval of his deputy superintendent of police or do nothing. This enquiry is mandated to be completed within fifteen days. The Apex Court first permitted preliminary enquiry in the Lalita Kumari case. Some people familiar with the police functioning suspect this provision may be misused by unscrupulous investigating officers to extract bribes or favours from the complainant and the accused. For example, the offence of cruelty to married women is still punishable with a maximum of three years of imprisonment; in all such cases, the victim, a married woman, will have to wait till the police officer makes up his mind to take up the investigation.

There should be no scope for discretion at the police’s end. Secondly, the law does not define the procedure for this preliminary enquiry. Will it be a cursory enquiry to ascertain the probability of commission of a cognisable offence, or will it be a full-fledged preliminary enquiry on the lines of the CBI’s preliminary enquiry, often termed PE? No SOP has so far been issued either by the police think tank BPRD or any state government for the guidance of field-level police officers.

Section 46 BNSS explicitly allows the police to handcuff the accused during arrest or court production for offences like rape, acid attacks, human trafficking, and sexual crimes against children. In several cases, criminals have taken advantage of the non-handcuff provisions to escape from police custody. It is undoubtedly a welcome step.

In the event of an arrest, the arrested person has the right to inform a person of their choice, ensuring immediate support. Arrest details will also be prominently displayed in police stations and district headquarters. The progress of the case will also be shared with the complainant from time to time.

Women, along with other vulnerable groups such as male children under 15, individuals over 60, and ill persons, etc., now need not go to the police stations to depose or record their statements in certain proceedings (proviso to Section 195(1) BNSS). Now, in rape cases, the proviso to Section 176(1) BNSS allows the police to record the statement of a rape victim through audio-video means, including mobile phones. A female police officer will record statements of rape victims in the presence of a guardian or relative, and medical reports must be completed within seven days.

The issue of enhanced police custody from 15 to 60 or 90 days (Section 187, BNSS) has invited sharp reactions. The proviso to Section 167(2)(a) of the repealed CrPC allowed a magistrate to extend custody beyond 15 days as long as it was not in police custody, meaning that beyond 15 days, the person had to go to judicial custody. However, the corresponding Section 187(3) of the BNSS has deleted the words “otherwise than in police custody” that exist in the CrPC, opening up the possibility of police custody for much longer duration than those envisaged in the UAPA [Unlawful Activities (Prevention) Act] or erstwhile stringent legislation like the POTA (Prevention of Terrorism Act) and TADA [Terrorist and Disruptive Activities (Prevention) Act].

However, the Union Home Minister clarified the new provision in a press conference. “I want to clarify that in BNS also, the remand period is 15 days. Earlier, if an accused was sent to police remand and got himself admitted to a hospital for 15 days, there was no interrogation as his remand period would expire. In BNS, there will be remand for a maximum of 15 days, but it can be taken in parts within an upper limit of 60 days,” [4] informed the Minister.

Forensic Push

The new laws make forensic investigation mandatory in offences punishable by seven years or more. The MHA aims to increase the conviction rate to 90 percent by involving forensic experts in spot visits and evidence collection, analysis, and presentation.

Section 176(3) of BNSS mandates compulsory inspection of heinous crime scenes by forensic experts, giving impetus to scientific investigation. In an adversarial judicial system, the judge relies on the parties to the present evidence. Properly collected, preserved, and tested forensic evidence from the scene of occurrence can help with inculpation and exculpation.

The new stipulation acutely burdens the existing forensic infrastructure regarding human resources and equipment. Only seven Central Forensic Science Laboratories (FSLs), 29 State FSLs, and over 50 Regional FSLs exist. Walking the talk, the Ministry of Home Affairs (MHA) had launched mobile forensic vans in Delhi to test the waters much before the passage of the laws. The results have been encouraging. Days after assuming office, the Modi 3.0 regime greenlit the MHA’s ambitious proposal for the National Forensic Infrastructure Enhancement Scheme (NFIES) with an allocation of Rs 2254.43 crore for the next five years. The scheme targets enhanced forensic human resources by establishing forensic science universities nationwide. This strategic move is designed to bolster capacity and efficiency in forensic examinations, mitigate the scarcity of trained human resources, alleviate backlogs, and align with the MHA’s target of exceeding a 90% conviction rate.

Videography and photography of the crime scenes are also made mandatory. Crime scene photography is quite different from casual mobile photography. This is one area where the states and the Centre will have to pay immediate attention by providing hardware (mobiles with good camera resolution) and training to all investigators in a phased manner.

The National Informatics Centre (NIC) has developed apps for storing digital evidence, recordings, pictures, etc. Still, the SOP for collection, search and seizure, storage, chain of custody, authentication, transmission, analysis, and presentation is yet to be developed. In contrast, the USA’s guidelines on the subject, issued in 2020 by the National Institute of Justice, US Department of Justice, clearly lays down the policies and procedures for digital evidence.

The whole judicial system is mired in humongous pendency. According to the National Judicial Data Grid, at the beginning of 2024, more than five crore cases were pending trial in various courts. The pileup has doubled in the last two decades. These cases include 169,000 cases pending for over 30 years in the district and high courts. According to a strategy paper by Niti Ayog 2018, it would take 324 years to clear this backlog at the current pace!

The pendency of court cases costs 1.5-2% of our GDP. The Rule of Law Index 2023, a country ranking published by the World Justice Project, ranked India 111th out of 142 countries in civil justice and 93rd in criminal justice.

In 1987, the Law Commission, in its 120th report on Manpower Planning in the Judiciary, recommended 50 judges per million population in a phased manner. Unfortunately, we have not yet reached the halfway mark of the desired level of judicial access. Fortunately, the government of India has pushed to reimagine substantive laws and widespread technology use and court processes in the new laws.

Section 183(6)(a) BNSS mandates that statements in certain sexual assault cases be recorded by a female judicial magistrate or, in her absence, by a male judicial magistrate in the presence of a woman. There was no such provision in the CrPC.

Another provision of Section 183(6)(a) BNSS requires a judicial magistrate to record a witness’s statement in cases punishable by ten years or more, life imprisonment, or death, including certain offences against women. For maintenance cases, Section 145 BNSS (previously Section 125 CrPC) allows dependent parents, including mothers, to file for maintenance at their residence, removing the previous requirement to file only at the ward’s residence.

Trial Stage Level

Section 21 BNSS (previously Section 26 CrPC) still provides that a woman judge shall preferably preside over court trials for certain women-sensitive offences. Also, the term ‘some adult male member’ in Section 64 CrPC, relating to serving summons, has been replaced with ‘some adult member’ in its succeeding provision of Section 66 BNSS, recognising women as capable of receiving court-issued summons on someone’s behalf. The BNSS also allows for the electronic setup of court proceedings, which makes it easier for the complainant and witnesses to depose without fear or favour.

Addressing the J20 Summit at Rio de Janerio on digital transformation and the use of technology to enhance judicial efficiency, the CJI claimed that “virtual hearings have democratised access to the Supreme Court.” He announced that over 750,000 cases were heard over videoconferencing and more than 150,000 cases were filed online as technology has renegotiated the relationship between law and enforcement agencies, including the judiciary. [5]

It is heartening that the central government is providing liberal budgetary support to unite all criminal justice system stakeholders through seamless communication and data exchange. It has committed INR 7,000 crore to the Phase III eCourts Project, which will be implemented over the next four years.

The new laws aim for justice to be received up to the level of the Supreme Court within three years of the registration of the FIR. The BNSS stipulates that charges should be framed within 60 days of the first hearing. Only two adjournments are provided, eliminating the ‘tarikh pe tarikh’ culture. Judgments in criminal cases are expected to be delivered within 45 days of trial completion.

The BNSS also permits trials in absentia of those criminals who have fled the country to evade prosecution. All the absconding proclaimed offenders can now be tried and awarded punishment in their absence. The CrPC only allowed the evidence to be recorded in the accused’s absence. The new provision paves the way for faster extradition of the fugitives from their safe havens.

The Outreach

Coinciding with the rolling out of the three criminal laws on July 1, the officers-in-charge of all police stations and senior supervisory officers in the country organised public interactions to highlight the critical features of the intent behind the enactment of the Bhartiya Nyaya Samhita, Bhartiya Nagaril Suraksha Sanhita and the Bhartiya Sakshya Adhiniyam. The outreach involved women, youth, students, senior citizens, retired police professionals, eminent personalities, self-help groups, etc., to spread awareness about the key objectives behind the replacement of the British era IPC, CrPC and Evidence Act to put the “Citizens First, Dignity First and Justice First.”

The new laws aim to enhance the use of technology in the investigation and trial of cases. Around two dozen modifications have been made in the Crime and Criminal Tracking Network and Systems(CCTNS) software to make it technologically compatible with the new laws and a host of mobile applications like National Crimes Record Bureau (NCRB) Sankalan, e-Sakshya (for electronically capturing evidence including forensics), Nyaya Shruti (for judicial hearings and onboarding of related documents) and e-Summons (for electronic delivery of court summonses) put in place to facilitate easy transition. The CCTNS 2.0 application e-connects police stations, forensics, prosecution, courts, and prisons.

Some critics have noted a need for more institutional preparedness before rolling out the new laws. Despite the general elections, the police leadership ensured that most of the investigating officers at the thana level had undergone refresher training, and handbooks were published for distribution among these personnel. This author spoke with several police chiefs, senior officers and ground-level officers who exuded confidence in rolling out the new laws without any hitch. Some, however, mentioned that some old police officers who were not comfortable with the digital upgrade of skills were mulling and seeking a posting in the non-investigative wings of the police.

Some find that over-reliance on deterrence, enhanced punishments, increased minimum sentences and fines, and death sentences do not go well with modern criminal jurisprudence. They are also quick to point out that the penalties prescribed are rehabilitative and restorative only in a few cases. For crimes like rape of a woman under 16 or 12 years of age (S. 65 BNS) or gang rape (S. 70 BNS), the fine may be reasonable. However, such penalties do not exist for many offences, such as rape or aggravated rape (S. 64 BNS) and sexual intercourse by a person in a position of authority (S. 68 BNS).

Community Service: A Hesitant Start

Among the fundamental positive changes in the new laws is introducing community service as an alternate punishment for some offences. Community service is essentially a work that the court may order, without any entitlement to any remuneration, that benefits the community. Though it is mentioned in the Statement of Objectives, BNS has introduced community service for just six offences, such as public servant unlawfully engaging in trade(S 202 BNS), misconduct in public by a drunken person (S 355 BNS), defamation (S 356(2) BNS), etc.  Several other petty crimes, such as committing a public nuisance, stay outside the community service ambit.

Indian prisons are teeming with under-trial prisoners. Nearly three-fourths of prisoners are those awaiting trial. Community service as an alternate form of punishment keeps first-time offenders and minor felons out of prisons, affording an opportunity to reform. The new laws have yet to take this opportunity. Hopefully, with the positive outcomes of the new provisions, the Government will be encouraged to expand the scope of community service in the coming days.

The BNS, however, does not define community service, leaving it to the judges’ discretion. Respective high courts and the Supreme Court can form a committee to devise a uniform award for community service.

There is broad consensus that the new laws are a step in the right direction. In the first 45 days of their enforcement, no criticism of the laws or inadequacies, particularly of the police, has been highlighted, which speaks volumes about the enhanced capabilities and efficient service delivery. No media, courts, critics or even the Parliament (which was in session) has discussed any systemic failures even in the initial days of implementation, which is a tribute to all the stakeholders in the criminal justice system.

The ‘Whole of Government’ approach played a crucial role in rolling out these transformative and pro-victims new criminal laws through support and wholehearted involvement from various government departments. As far as laws are concerned, they will remain subject to interpretation and amendment to be more inclusive and comprehensive.

There is a definite need for evolving standard procedures to amplify the spirit of the new laws, leaving nothing to discretion.

The role of police leadership would be to ensure the correct and just use of the laws, limiting any abuse of authority and miscarriage of justice.

Author Brief Bio: Shri Somesh Goyal is an IPS officer of the 1984 batch allocated to Himachal Pradesh. He is a former Director General of Police with over 37 years of experience having served in the Police, Prisons, and CAPFs like SPG, NSG, BSF, and SSB. He is known for excellent operational innovation and has won a host of awards including, the President’s Police Medal, the Police Medal for Meritorious Service, Kathin Sewa Medal with Bar, and Maharana Pratab Trophy for Best Border Management. He is a post-graduate in English Lit. and Journalism & Mass Communication. He is an alumnus of National Defence College.

References:

[1] https://pib.gov.in/PressReleasePage.aspx?PRID=1852024

[2] https://news.abplive.com/news/india/3-new-criminal-laws-bharatiya-nyaya-sanhita-bns-bnss-bsa-to-take-effect-monday-june-1-replacing-ipc-crpc-evidence-act-key-reforms-1699321

[3] https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/

[4] https://economictimes.indiatimes.com/news/india/police-remand-period-continues-to-be-15-days-under-bns-union-home-minister-amit-shah/articleshow/111407798.cms?from=mdr

[5] https://lawbeat.in/top-stories/virtual-hearings-democratised-access-supreme-court-cji-chandrachud

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Reforms in Criminal Justice System

The Criminal Justice System is a system comprising of various organisations/institutions that are involved in the procedure of bringing a crime to justice. Majorly there are three components of the system vis – a – vis Police, Judiciary, and Prisons which all work in synergy to ensure the proper delivery of Justice.

In the history of independent India, various reports have been published/suggested for reforming the justice system. Various reports of the Law Commission of India and of dedicated committees formed, have submitted their reports for the betterment of the ageing and inefficient criminal justice system. In this article, we’ll explain to you the reports of the Justice V.S. Malimath Committee and the Madhav Menon Committee.

The topic has a high probability of being asked as a Current Affairs Question in IAS Prelims. Visit the attached link to attempt practice quizzes on current affairs .

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Note: Visit the attached link to understand the Criminal Justice System of India in a simplified yet detailed manner.

Need for Reforms

There are many reasons to overhaul the current criminal justice system, this is admitted by the Union Government of India itself. The major reasons are listed below:

• Complex Process: The process is so cumbersome and complex that it is very difficult for common men to understand it. Keeping a large section of society unaware of the justice system makes way for the misuse of the innocence of the people and complexity of the system by law practitioners and police.
• Colonial Foundation : The laws have not undergone any major changes since India gained its independence.
• Delayed Delivery of Justice: Indian judiciary is overburdened with huge piles of pending cases.
• Status of Undertrials : More than 63% of accused are undertrials in Indian prisons.
• Corruption : Lack of transparency, at all levels but especially at lower levels, compromises with the justice delivery.
• No Fixed Accountability : Police officials in India are not provided with enough freedom to take up the matter and investigate when the cases are high profile, in such scenarios, they are required to function at the will of the political class.

V.S. Malimath Committee on Reforms in the Criminal Justice System

Justice V.S. Malimath had been the chief justice of Kerala and Karnataka high court and was the head of this 6 member committee which was constituted in the year 2000 and submitted its reports three years later in the year of 2003. The Malimath committee made 158 crucial suggestions, but none of them were accepted and implemented. Below are the most prominent recommendations made by the Malimath Committee:

• Creation of National Security Commission, and State Security Commissions.
• For maintenance of crime data, appointing additional SP in each district was suggested.
• Organise Specialised Squads for dealing with organised crimes.
• Creating a Police Establishment Board for matters related to postings and transfers, etc.
• For probing inter-State or transnational crimes, a special team of officers must be constituted.
• Increasing the police custody period from current 15 days to 30 days and an additional period of 9 days for filing of charge sheet in cases of serious crimes.
• Investigative Practices: It felt the need of borrowing certain features of investigative procedures followed in countries such as Germany, and France. The judicial magistrate should be responsible to supervise the whole investigation and the courts should be granted the powers to summon anyone for examination if required, even if he/she is not listed in the witness list.
• Right to Silence: The Article 20 (3) of the Indian Constitution should be amended in such a way as to allow the courts to infringe on this right of the accused and make him/her provide information which could go against himself/herself.
• Rights of the Accused: A charter should be launched in all the languages so as to make the people aware of their rights and know the steps to make them get enforced and whom to approach if it doesn’t get enforced in the way it should have been.
• Innocence Until Proven Guilty: the practice of presuming the accused to be innocent and unreasonably burdening the prosecution to prove otherwise should be done away with. Instead, a fact should be considered as proven if the court is so convinced subject to its complete evaluation of all the matters in front of it.
• In all the cases of serious crimes, the victim should be allowed to take part in.
• If the victim is dead, his/her legal representative should have the right to take part in the investigation of such a case.
• In case the victim can’t afford it, he/she should be provided an option of choosing a lawyer of his/her choice by the state and the cost involved must also be borne by the state itself.
• The compensation to the victim in all serious crimes, is the responsibility and an obligation on part of the state, irrespective of the fact of whether the accused is apprehended or not, convicted or acquitted.
• It also suggested creating a victim compensation fund, which could be funded with the money received after auctioning the items confiscated in the organised crimes.
• Dying Declarations: it suggested the law to authorise the audio/video recorded statements, confessions, and dying declarations.
• Public Prosecution:  the creation of a new post of Director of Prosecution in each state who will ensure effective coordination between the prosecution wing and the investigation wing of the police, using the guidance of the Advocate General of that state. It is also recommended to appoint the public prosecutors and assistant public prosecutors by means of a competitive exam instead of departmental promotions. These appointees shouldn’t be posted in their home districts or where they are already practising.
• Judges and Courts: The committee suggested increasing the number of judges in Indian Courts. It also suggested separating the division of criminal proceedings from the ordinary ones in High Courts and the Supreme Court, and allotting such cases to only those judges who have a proven experience and expertise in criminal laws. It also suggested the creation of a National Judicial Commission.
• Witness Protection: The witness should be treated with dignity; be provided with allowance on the same day; be provided with proper seating and resting facilities. A Witness protection law must be made on the lines of one that is in the USA.
• Perjury: The witness must be fined and/or imprisoned and be tried if he/she is found to be providing false information so as to influence the natural course of the case.
• Court Vacations: Considering the number of pending cases before the court, the committee suggested reducing the vacation period of the courts by 21 days.
• Arrears Eradication Scheme: Under this scheme, the cases which are pending for more than 2 years are to be settled by the Lok Adalats on priority. Such cases will be heard daily and no adjournment is allowed.
• Creation of permanent statutory permanent committee for suggesting sentencing guidelines.
• House arrest instead of prison sentence for pregnant ladies and women who have a child less than the age of 7 years, considering the child’s future and wellbeing.
• Settlement without any trial in cases where the interest of the society is absent. In case he/she cannot afford to pay a fine, some form of community service could be arranged for the convict.
• Life imprisonment to replace a death sentence without the scope for commutation or remission.
• Update Indian Penal Code (IPC) for adding or removing crimes as per the changing times.
• Economic Code
• Criminal Code
• Correctional Code
• Social Welfare Code
• Other Offences Code
• Periodic Review: The criminal justice system of India should be reviewed periodically by a committee constituted by the President of India.

Note: Visit the attached link to read about the Malimath Committee report from IAS Prelims point of view.

Madhav Menon Committee on Reforms in the Criminal Justice System

N.R. Madhav Menon was the head of the 4 member committee entrusted to draft the “Draft National Policy on Criminal Justice”. The committee submitted its report in the year of 2007, advocating a complete overhaul of the whole criminal justice system of India. The draft contained some provisions that are recommended by the V.S. Malimath Committee as well in 2003, like re-categorisation of offences within IPC; creation of National Security Commission, and matters related to rights of the victims among others.

The re-classification of offences as per this report should be on the basis of the following criteria:

• Social Welfare Offences Code: Punishment should not be the focus here, rather reparation and/or restitution be .
• Correctional Offences Code: Involving crimes that have the provision of imprisonment of up to 3 years and/or fines.
• Grave Offences Code: Involving crimes that have the provision of imprisonment of beyond 3 years and/or death.
• Economic Offences Code: For crimes that are related to economic security and other financial laws.

All the above 4 categories will contain the detailed nature of trial, rules of procedure, and types of punishments.

The committee also suggested for the creation of a victim compensation fund for those who turned out hostile due to the pressure from the culprits.

SC Judgement on Police Reforms

The Supreme Court of India in the year 2006, in the Prakash Singh v/s the Union of India case, gave 7 directives to all the States and Union Territories for carrying out police reforms. The major aim of the directives was to free the police system from the unwarranted interference and pressure from the political rulers and do their duty with full self-accountability. The Public Interest Litigation (PIL) was filed by a retired DGP (Director General of Police) having served in UP Police and Assam Police in the year 1996 seeking police reforms. 

The case took a decade to conclude into what is considered as to be one of the most important judgments ever given by the Supreme Court after the Kesavananda Bharati case of 1973.

Following were the 7 Directives for Police Reforms propounded by the Supreme Court in 2006:

• Create a State Security Commission (SSC) for ensuring no unwarranted pressure or interference is exercised on the police by the respective state government. The SSC will also be responsible for evaluation of the performance of the state police and to institute broad policy guidelines.
• The DGP must have a minimum tenure of 2 years and should be appointed via a transparent merit based process.
• Superintendents of Police (SP) of a district, the Station House Officers (SHOs) of each police station and other police officials on operational duty must also have a minimum 2 years of tenure .
• Hive off the prosecution, investigation, law and order, and other functions of the police.
• Giving decisions on the matters related to police officials below the rank of Deputy Superintendent of Police (DSP), such as transfers, postings, promotions among other service-related matters.
• For police officers above the rank of Deputy Superintendent of Police (DSP), recommend upon the matters such as postings, and transfers.
• State Level: To enquire into and deal with public complaints against officers above the rank of Deputy Superintendent of Police (DSP) including the DSP itself, in matters of serious misconduct such as rape in police custody, grievous hurt, custodial death, etc.
• District level: With the same provisions and powers as above but for the police personnel who are below the Deputy Superintendent of Police (DSP) rank.
• For the purpose of selection and placement of Chiefs of CPOs (Central Police Organisations) with a minimum tenure of 2 years, create a National Security Commission (NSC) for constituting a panel for the said purpose.

Implementation Status of SC Directives

As per a study report published by the Commonwealth Human Rights Initiative (CHRI), not even a single State /Union Territory in India has completely adhered to the above directives. Some have implemented a few among those in a manner so as to make the implementation useless and just for the namesake. It found that 18 states have passed the amendments to their respective Police Acts in pursuance of these directives. By and large, the Police is still under the control and influence of the State Governments and this hampers the overall criminal justice system as the officials feel hesitant to even file the cases, let alone investigate it honestly and ensure the delivery of justice.

It is important to understand that it is the action of the police which marks the beginning of the long process of justice delivery, an inaction on its part or an action under the undue influence of State Governments simply means denial of justice. The judges of already overburdened courts have limited capacity to take suo moto cases and oversee the investigations done by the police.

Recent Developments

• Union Home Minister Mr. Amit Shah has sought suggestions to make the criminal laws of India more people-centric. The suggestions have been primarily sought by the Chief Justice of India (CJI), Chief Ministers (CMs), and Members of Parliament (MPs) among others.
• In his statement, Mr. Amit Shah hinted that the days of third degree tortures will soon be over.
• The government is keen to make changes in the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act.
• At a recent meeting of the National Human Rights Commission (NHRC) core group, experts have expressed their serious concerns on the sluggish speed of reforms being made in the Criminal Justice System of India.

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India’s criminal law overhaul: An essential backgrounder

New rules aim to update justice system, but some fear they may bite off more than they can chew..

Published : Jul 12, 2024 19:55 IST - 1 MIN READ

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Advocates holding the banner of the All India Lawyers Union stage a protest demanding a halt to the implementation of new criminal laws, in Visakhapatnam on July 11, 2024. | Photo Credit: V RAJU / THE HINDU

The Centre has implemented new criminal laws effective July 1, 2024. The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) have replaced the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act, respectively.

Prime Minister Narendra Modi stated these reforms aim to “eradicate the mentality and symbols of slavery” and create a “new confident India.” The government argues that the new laws prioritise justice and fairness over punishment alone. However, legal experts and civil rights advocates have raised concerns about these changes.

The new laws include provisions that alter existing legal procedures. For instance, they grant expanded powers to the police, allowing preliminary inquiries before registering First Information Reports (FIRs) for certain offenses. Critics argue this could lead to increased police discretion and potential delays in filing cases.

Also, the new laws have effectively reintroduced provisions similar to the previously stayed sedition law, prompting concerns about potential impacts on freedom of speech. The omission of a provision comparable to Section 377 of the IPC has raised questions about legal protections for certain non-consensual sexual acts.

Some observers have criticised the rapid passage of these laws, citing limited debate and discussion. There are also concerns about the potential impact on pending litigation and a possible increase in the number of cases awaiting trial.

As India transitions to this new legal framework, Frontline presents a collection of stories and interviews examining these criminal and civil laws, their implications for Indian citizens, and their potential effects on India’s democracy and judicial system.

‘The new criminal laws are like old wine in new bottles’: Rebecca John

New criminal laws push India toward a regressive past

Father Stan Swamy: Silenced in death

G.N. Saibaba’s acquittal prompts calls to scrap UAPA

Sedition law report: A regressive step by Law Commission

Dangerous haste to reform criminal law

Sudha Bharadwaj: ‘A lot of democratic space has been lost’

Parliamentary panel’s draft proposal to make adultery a crime contradicts landmark SC judgment

Why UAPA is a threat to media freedom in India

Uniform Civil Code: Clash of moral universalism and cultural pluralism

The Centre’s controversial makeover of crucial criminal codes can have far-reaching impacts

The fallacy of one nation, one examination

Editor’s Note: Dirty skeletons in the NEET closet

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Criminal Justice System in India

• First Online: 01 January 2012

Cite this chapter

• R. Thilagaraj Ph.D. 4  

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The Union of India is a Federal Polity consisting of different states. The states have their own powers and functioning under the Constitution of India. The Police and Prison are the state subjects. However, the Federal laws are followed by the Police, Judiciary, and Correctional Institutes. The system followed in India for dispensation of criminal justice is the adversarial system of common law inherited from the British Colonial Rulers. This paper explains the structure, powers, and functioning of the three vital agencies of the Criminal Justice Administration of India, namely, the Police, Judiciary, and Correctional Administration. This paper also explains the community-based corrections, Juvenile Justice System, and Intervention of Apex Court for effecting the function in the Criminal Justice System in India.

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Thilagaraj, R. (2013). Criminal Justice System in India. In: Liu, J., Hebenton, B., Jou, S. (eds) Handbook of Asian Criminology. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-5218-8_13

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• Criminal Law
• Indian Penal Code

Historical development of the criminal justice system

This article is written by Kishita Gupta and Saloni Neema.  The article features the advancement of the Criminal Justice framework, particularly in Ancient India.

Table of Contents

Introduction

Like in each edified society, in India as well, a criminal equity framework developed. Financial and political conditions winning during various periods of the historical backdrop of India impacted its advancement. In like manner, the targets of the criminal equity and techniques for its organization changed every once in a while and starting with one time of history then onto the next. To suit the changing conditions the rulers acquainted new strategies and procedures with implement law and control equity. 

The Indian Criminal Justice System as we know today isn’t a modern development. It finds its origin from ancient times. There exited unique methods to deal with the criminals, with each state having its own different and unique mode of punishment and justice. The Judicial framework manages the organization of the laws through the organization of the courts. The framework gives the apparatus to the settling of the questions because of which the wronged Party moves toward the courts. Nothing annoys in the human heart more than an agonizing feeling of bad form. No general public can permit a circumstance to develop where the impression prevails of there being no change for complaints. 

The Criminal Justice System alludes to the organizations of the government accused of implementing the law, mediating wrongdoing, and rectifying criminal lead. The criminal equity framework is an instrument of social control which includes that the society considers a few practices so risky and damaging that it either carefully controls their event or bandits them by and large. It is the activity of the organizations of equity to forestall these practices by securing and rebuffing offenders or deflecting their future events.

The criminal equity framework is lumbering, costly, and aggregately lamentable. The poor can never arrive at the sanctuary of equity due to substantial costs engaged with obtaining entrance and the persona of lawful ethos. The order of courts, with a great many interests, puts lawful equity past the range of poor people. Making the legitimate cycle costlier is an aberrant disavowal of equity to the individuals and this hits hard on the refuse of the world in the public arena. The lawful framework has lost its believability for the more fragile segment of the network.

The judicial system in ancient India

Justice S. S. Dhavan said “India has the world’s oldest judiciary. No other judicial structure has a more ancient and exalted pedigree”.

The administration of justice was not a part of the state’s responsibilities in the early days. In Vedic literature, we do not see references to any judicial organization. The aggrieved party used to sit before the accused house in order to get its false relief and not travel until his (aggrieved party) arguments were resolved. The tribe and clan assemblies performed subsequent justice and the legal process was thus very clear. But the king eventually came to be called the root of justice with the expansion of the duties of the state and also the development of the royal powers, and a more or less complex system of judicial administration came into being. Knowledge regarding the well-developed judiciary is given to us by the Dharma Shastra’s, Niti Shastras and even the Arthashastra. The King is the head of the fountain of justice, according to this literature, and he was expected to spend a few hours per day in adjudication.

The primary responsibility of the king is the protection of his subjects, which entails the prosecution of the wrongdoer. In several ruling dynasties of ancient India, judicial structures for civil and criminal cases were essential features. The definition of sin was the norm by which crime was to be established, while civil wrongs applied largely to conflicts occurring over money. The Manusmrti or “Laws of Manu,” Sanskrit Manusm-ti, also known as Mānava-dharmaśāstra, is the most significant and earliest metrical work written by the ancient sage Manu of Hinduism’s Dharmaśāstra textual tradition, which prescribes ten essential rules for Dharma observance : patience (dhriti), forgiveness (kshama), piety or self-control (dama), integrity (asteya), sanctity (asteya) (krodha). (krodha). (krodha). (krodha). “Nonviolence, truth, non-coveting, purity of body and mind, control of senses are the essence of Dharma,” Manu further writes. Consequently, not only the person but all in society are regulated by dharmic rules.

Grounds of Litigation and different kinds of Law

Grounds for lawsuits and various forms of law:

These eighteen ‘Titles of Law’ or ‘Grounds for Lawsuits’ given by Manu refer to the reasons on which litigation may also be brought “(1) Non-payment of debts; (2) deposits; (3) selling without ownership; (4) partnership; (5) non-payment of gifts; (6) non-payment of salaries; (7) violation of contract; (8) termination of purchase or purchase; (9) disputes between herdsmen and owners; (10) non-payment of salaries; boundary dispute law; (11) verbal assault; (12) physical assault; (13) theft; (14) violence; (15) sexual crimes against herdsmen; (10) non-payment of salaries”.

• Different kinds of laws : In compliance with rules which fall under one or another of the following four heads, justice was administered, namely:
• Sacred law (Dharma)
• Secular Law (Vyavahara)
• Custom and (Chaitra)

Types of Court in Ancient India

Ancient India has the highest quality of any ancient nation in terms of the jurisdiction of the judiciary, learning, honesty, impartiality, and equality, and these expectations have not been surpassed until today; that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top, granting each higher court the right to review it, That the accused could not be punished in criminal trials unless his guilt was proven consistent with law; that the trial consisted of 4 stages in civil cases such as several modern trials, complaint, reply, hearing and decree; that Indian jurisprudence was familiar with doctrines such as res adjudicata (prangn yaya); that each one trials, civil jurisprudence That the decrees of all courts except the King be open to challenge or revision consistent with fixed principles; that the central obligation of the Court was to strive to do justice “without favor or fear,” was heard by a bench of several judges and barely by a judge sitting alone.

The courts, as given by Kat’yayana Smrithi, are divided into six according to their hierarchy.

• Kula (Family council) – The Mitakshara has described the Kula as consisting of a group of relations, relative or distant. In ancient India, the Kula, or joint families, were often very large. The elders used to try to resolve it whenever there was a disagreement between two members. This informal body of family elders was called Kula.
• Shreni (Council of trade or profession) – The matter was brought to Shreni court when the attempt at family arbitration failed. The word Shreni, was used to describe the guild courts that were a prominent feature of ancient India’s commercial life from 500 B.C. Sreni had four or five members of their own executive committees and it is possible that they may also have served as the Sreni court to resolve the disputes between their members. This was an assembly of people including betel sellers, weavers, shoe makers, etc. who followed a specific occupation.
• Gana (Assembly of village) – This was a large assembly of elders in the village or grama who are accepted by the people of the area as learned, impartial and having integrity.
• Adhikrita (Court appointed by the King) – These are the courts authorized by the King for delivering the justice in which persons who are well versed in the Sutras and Smrithis are appointed as judges. These kinds of courts were of varied types as consistent with their jurisdiction. they’re (I) Pratishtitha which was established at a specific village or town. (ii) Apratishtitha was a mobile court which would assemble during a particular place to undertake a selected case as called upon by the King. (iii) Mudrita was the next level court which was authorized to use the royal seal.
• Sasita (Kings Court) – It was the highest court of law in the Kingdom. It was presided over by the King himself. There was a chief Justice called Pradvivaka and a group of Judges called Sabhyas to aid and assist the King.
•  Nripa (King himself) – The King was the Supreme authority in the adjudication legal process and he was guided by the principles of Dharma, which he could not override.

Courts and their Jurisdiction

Kula , Shreni and Gana could trial all the civil and criminal disputes except for an offence of violence (Sahasa). The cases involving violence are to be tried by the Adhikrita a court appointed by the King. Corporal punishments are to be decided by the Sasita (Kings Court) but to be finalized by the King himself. A decision rendered by the Kula can be reviewed by the Shreni and a decision by Shreni can be reviewed by the Gana . Likewise, the decision of a Gana can be reviewed by the Adhikrita courts. The Law Commission in its Fourteenth Report had said: Ancient authors have defined the hierarchy of courts as having existed in the distant past, but later works by writers such as Narada, Brihaspathi and others seem to suggest that normal courts may have existed on a sizable scale. Thus the hierarchy of courts was considered to have existed in ancient India with certain elements of authoritative ladder of review power over the courts below.

Judicial Procedure

In ancient times, the courts operated on a well-laid procedural framework. If anyone has been harmed by others, he may file a Pratijna (plaint) with the court. Plaintiff was the vadin, and the defendant was prati vadin. Dharma kosa gives the evidence of the plaintiff that it should be un- ambiguous. The parties can produce the witness and in the absence summons to the witness was ordered by the Judge. The presumption of evidence was cast on the person alleging the crime. Jayapatra contains all the documents of victory, it usually contains brief statements about the plaintiff and they are in written form and judges should not be biased regarding their statements. In criminal justice system, kings and his officers usually take cognizance on their own. 

The Mahabharata states that ‘punishment preserves Dharma, Artha and Kama,’ and is well acknowledged in Sastras Dhanda Neeti. The judgment should be delivered in a way that guarantees confidence and trust in the judiciary. To correct the wrong doer, a deterrent is always needed. The penalties were categorized as (1) Vagdanda-admonition; (2) Dhigdanda-censorship; (3) Dhanadanda-fine; (4) Angaccheda – mutilation; (5) V adhadanda – Death penalty.

Importance of Jury

If they are not followed by a jury of three, five or seven jurors called sabhyas, then the king and chief justice could not begin a court’s trial. It was expected that they were unbiased and fearless. A juror who remained quiet was condemned. And if it was in contrast to that of the king, they should voice their view. A variety of prominent jurists contend that the king or judge ought to be directed by the jury’s judgment, and the king exercised his right to settle the case according to his own opinion only when the jurors did not come to a definitive decision.

As they were well versed in Dharmashastras, these sabhyas were usually Brahmins. There’s no need, however, regarding knowledge of sacred law when the case (the party to the dispute) involved conflicts between farmers, merchants and forest dwellers. The authors of Dharmashastra themselves proposed that the cases be tried with the aid of the jurors chosen from the castes or the occupations of the parties themselves. Sukra refers to the practice of appointing recognized agents in the law courts to defend a case when a party was himself unable to do so owing to his preoccupation or ignorance of the law. Such agents were known as Niyogins and they were expected to guard the interests of their parties very carefully. Their fee varied from six to half percent, according to the value of the property. If they colluded with the other party, they were punished by the state.

The sentences in vogue were fines, incarceration, banishment, mutilation and death penalty. Fines were the most widespread and punishment also varied with the accused’s race. The prison service was under the charge of an official named Sannidhata, and Bandhanagaradhyaksha was the name of the jailor. In separate wards, male and female inmates were held.

Administration of Justice during Vedic and Early Vedic Period

Naman was believed to be the fountain of justice in ancient India as the lord of Dharma and was entrusted with the sole authority of the administration of justice and his primary responsibility was to protect his subject’s rights. The King’s Court was the highest court, and the Chief Justice’s court was next to it (Pradvivaka). There was, thus, a hierarchy of judges. Village councils (Kulani) deal with basic civil and criminal disputes in villages. The courts were watched over at a higher level in cities and districts by government officials under the King’s jurisdiction to execute justice. Trade guilds were permitted to exert effective authority over their members in order to deal with problems between members of the craft community, merchants, etc. There were also existing family courts. Civil disputes among family members were resolved by Puga assemblies organized by groups of families in the same village. Minor criminal offences were dealt with in villages by judicial councils, while serious

Administration of Justice during Mauryan Times

The king was the head of justice, the fountainhead of the laws, and he ruled on all matters of significant consequence. Mostly in towns and villages presided over by pradesika, mahamatras, and rajukas, there were separate courts. Two types of courts have been established: dharmastheya dealing with civil matters and kantakasodhana dealing with criminal cases. At least one court and one police head office have been developed in all major towns and headquarters. Petty cases in the villages were decided in their panchayats by the village elders. The Hindu Code of Law, as envisaged in the shastras, has been administered in civil proceedings. There was reliance on the facts of credible people. Punishment was very severe, even for small offences like evasion of government’s taxes, giving false evidence, causing injury to artisans, ordinary theft, etc. In all of these cases, the body has been mutilated. Eighteen kinds of torture have happened, including seven whippings. The penal code was really relevant.

The criminal code was very harsh and enforced strictly. The idea was to set a precedent for others and prevent them from wrongdoing. Megasthenes is all praise “for the Mauryan law and order”. He reports that “There were few crimes; murders and thefts were almost unknown, people rarely locked their doors and the state guaranteed the safety of life and property.”

Guptas Times

The Gupta Empire was not only imposing because of the vastness of its structure but also benevolent. It had constitutional checks in the form of Council of Ministers and higher officials of the states. The whole administration was often guided by judiciously interpreted freedom of constitutional uses. Under the Guptas, the judicial administration was much more developed than in the initial periods. During this period, a number of law books were compiled for the first time. And there were well defined civil and criminal rules. Chief judicial officer was called ‘Mahadandnayak’. but the chief judge was KING/ SAMRAT. The King was the state’s highest legal body and therefore determined the conflicts. His decisions were absolute, but the king alone could not continue the judicial governance of such a large empire. He was also aided in the discharge of his judicial duties by a number of judges.

The court was divided into four classes: kings court, poog, shreni, kulik. We have already discussed types of courts. The penalty was very mild during the Gupta period. Punishments such as capital punishment and traumatic amputation have seldom been awarded. During the Gupta reign, the criminal laws were not as extreme as in the Maurya period. criminal cases were taken before the central court, typically kept under the King or Royal Authority. The method of appeal was exercised and the highest body of appeal was the Monarch. The lack of lawyers was one critical trait of the ancient Indian legal system. Another noteworthy characteristic was that it was often chosen for a bench of two or three judges to conduct justice rather than for a single person to be the sole justice administrator.

Relevance of Old Justice System in Present Times

Ancient India kept the highest standard of any antiquity. The capacity, learning, honesty, impartiality and freedom of the judiciary have not been overcome and these expectations have not been surpassed till now, the Indian judiciary consisted of a hierarchy of judges at the top of the Court of the Chief Justice (Praadvivaka), Each higher court is given the right to review the decision of the lower Courts; the cases is basically decided in line with same principle of natural justice concepts, that in criminal trials the accused could not be punished unless his guilt was proved according to law; that in civil cases the trial consisted of four stages like any modern trial – plaint, reply, hearing and decree; that such doctrines as res judicata ( prang nyaya ) were familiar to Indian jurisprudence; cases were resolved by the panel of several judges unlike today, and no case was resolved singly by any judge.

The judicial system in modern India

The legal framework gave by the Constitution of India is involved in the three kinds of courts. At the top, it is Supreme Court, at the centre the High Courts and at the base the subordinate Courts notwithstanding the Constitution, there are different laws and rules which direct the structure, force, and locale of these courts. Here conversation is given of the apparent multitude of three kinds of courts.

The role of the Supreme Court

The Supreme Court in India was established through an enactment passed in pre-independent India, with the introduction of the Regulating Act, 1773. the first Supreme Court started its function as a court of record at Calcutta, and therefore the 1st judge Sir Elijah Impey was appointed. The court was established to resolve the disputes in Bengal, Orissa, and Patna. Consequently, in 1800 and 1834, the King Gorge-III established the opposite two Supreme Courts in Bombay and Madras.

However, soon after the enactment of the Indian supreme court Act, 1861, the Supreme Courts in Calcutta, Bombay, and Madras were consequently abolished and therefore the courts in Calcutta, Bombay, and Madras resumed its functioning as the supreme court. In 1935, the British Parliament enacted the govt of India Act, 1935, after a resolution was gone by the Joint committee, which was headed by Lord Linlithgow.

The Government of India Act, 1935, led to the establishment of the court in India, which has vested more judicial power than the supreme court with original, appellate, and advisory jurisdiction. After independence, the Constitution of India was adopted on 26th January 1950, and therefore the court of India resumed functioning because of the Supreme Court of India on 28th January 1950, which was presided by Hon’ble Justice Harilal Jekisundas Kania.

As per article 124(1) of the Constitution, there should be a Supreme Court in India that will be presided by the judge of India with additional seven Judges until the parliament passes precedent for increasing the number of Judges. However, currently, there are 34 judges within the Supreme Court, and therefore the current judge of India is Justice Sharad Arvind Bodbe.

The role of the High Court 

As per the Indian Constitution, Articles 214-231 deals with the provisions of High Courts in India. It provides for separate supreme court s for separate states but consistent with the 7th constitutional amendment act an equivalent high court is often the court for quite one state resent, we’ve 21 high courts within the country, which incorporates 3 common high courts.

Constitution and composition of High courts

All the high courts comprise of a Chief Justice and several other judges, who are determined by the President of India from occasionally. Article 217 deals with the appointment of judges and state that every judge of the high court shall be appointed by the President of India by a warrant under his hand & seal after primary consultation with the Chief Justice of India, the Governor of the state.

The powers and jurisdiction of the high court are often classified under the following heads:

1. Original Jurisdiction- it means an applicant can directly attend high court and not through appeals. This power is employed within the following matters:

a. Disputes arising out of concerning members of Parliament and state legislature.

b. concerning marriage, law, admiralty divorce, contempt of court, etc.

c. Enforcement of fundamental rights (Supreme Court also has this power).

d. Cases transferred from another court to itself which involves an issue of law.

2. Writ Jurisdiction- Article 226 states that the High Court shall have power throughout the territories about which it exercises jurisdiction to issue to a person or authority including in appropriate cases, any government, within those territories directions, orders, or writs.

3. Appellate Jurisdiction- It is said that the high court is that the primary court of appeal i.e. it’s the power to listen to the appeals against the judgment of the subordinate courts within its territories. This power is often classified into 2 categories-Civil jurisdiction and Criminal jurisdiction In civil cases its jurisdiction includes the orders and judgments of the district courts, additional district courts, and other subordinate courts.

In criminal cases, its jurisdiction includes judgments concerning sessions courts and extra sessions court. These cases should be involving imprisonment for quite 7 years, confirmation of any death sentence awarded by session court before execution

4. Power of Superintendence – The high court has this power over all courts and tribunals except those handling the soldiers functioning within the state. Hence within the exercise of this power, it’s going to:

e. involve return from such courts.

f. May issue general rules and prescribe forms for regulating the practice and proceedings of such courts.

g. Prescribe the shape during which books and accounts are being kept by the officers of any court.

h. Settle fees payable to the sheriff clerks, officers and legal practitioners.

The constitution doesn’t place any restriction on this power of superintendence over the subordinate courts, it’s not only using appeal by the person, it is often suo motto. it’s of the character of revision because it verifies the sooner judgments. In this regard, it is considered as a special function because the Supreme Court has no similar power vis a vis the High Court.

5. Control over Subordinate Courts – This point is simply an extension of the above-mentioned supervisory and appellate jurisdiction. It states that the high court can withdraw a case pending before any subordinate court if it involves the substantial question of law. The case is often disposed of itself or solve the question of law and return to an equivalent court. within the second case, the opinion rendered by the supreme court would be binding on the subordinate court. It also deals with matters concerning posting promotion, the grant of leave, transfer, and discipline of the members therein. during this regard, it appoints officers and servants to be made by the chief justice or such other judge of high court as the chief justice may direct.

6. Court of Record – It involves the recording of judgments, proceedings, and acts of high courts to be recorded for the perpetual memory. These records can’t be further questioned in any court. supported this record it’s the power to punish for the contempt of court either with simple imprisonment or with fine or both.

7. Review – This power of the high court includes the facility to look at the constitutionality of legislative and executive orders of both central and state governments. it’s to be noted that the word review is not anywhere mentioned in our constitution but Article 13 and 226 explicitly provide the high court with this power.

8. Extension of jurisdiction of the high court to Union Territories – Parliament by law may extend the jurisdiction of a high court to or exclude the jurisdiction of a high court from any union territory.

The role of district courts 

Chapter VI under Part 4 of the Constitution of India consists of the provisions regarding the creation of the subordinate courts in the country. Below the supreme court, there’s the Court of District Judge which is the top court among subordinate courts. The appointment, posting, and promotion of District Judge are made by the Governor of the concerned State in consultation with the concerned supreme court. As regards eligibility for the post of the District Judge, a person not already within the service of the Union or the State shall only be eligible to be appointed as District Judge if he has been for not less than seven years an Advocate or a Pleader and is usually recommended by the concerned High Court.

Appointments of a person apart from District Judges to the judicial service of the State shall be made by the Governor of the State following rules made by him therein behalf after consultation with concerned State Public Service Commission and with the concerned supreme court. As regards control over subordinate courts, including the matters of posting, promotion, leave, etc., the concerned supreme court is vested with the power to possess control over subordinate courts but the supreme court is to exercise the control following the conditions of service under the law applicable regarding subordinate courts. 

The Governor may by public notification direct the appliance of the provisions of Chapter VI of the Constitution and thus the principles made thereunder on any class or classes of magistrates within the concerned State subject to any exception or modification.

Codification of laws

The first plan to modify the Muslim law of crime was initiated by Cornwallis in 1790.  Lord Cornwallis divested the Nizam of any authority over the Nizamat. He abrogated crucial Muslim laws formulated by Abu Hanifa that illogically maintained that a murdered wasn’t responsible for punishment if the crime was committed by strangling, drowning, poisoning, or with a weapon which wasn’t made from iron. it had been also declared that the kin of the deceased didn’t have any right to remit the sentences of the offender.

The government in 1791 also abolished the punishment of mutilation and imprisonment and hard labour were substituted in its place. Cornwallis desired the abolition of the rule under which a murderer wasn’t held susceptible to execution if he committed by drowning poisoning etc. The Muslim law didn’t permit a Hindu to testify against Muslims accused this law was now abolished.

As some confusion existed on certain points within the law of homicide the law was restated in 1797 through regulation for the aim of regulation was to try to away finally with all operations of the desire of the heirs. just in case of murder it had been laid down that a prisoner convicted of willful murder was to be punished with none regard to the heirs of the person killed. Another innovation made at that point was to substitute imprisonment for blood money, In cases where under the Muslim law, an individual convicted of homicide was susceptible to pay blood money the court of the circuit was to commute the fine to imprisonment for such period as it is considered adequate for the offence.

Regulation XIV of 1791 was a crucial measure which was inspired by humanitarian and benevolent sprit as it granted relief to the person already in prison on account of their inability to pay blood money. Regulation 17 of 1797 severe punishment was prescribed with a view to the offence.

Several changes were made to the legal code 1799-1802 by the govt of Lord Wellesley. consistent with Regulation of 1799 not was any murder to be justifiable and altogether cases of murder the offenders were to be punished by death. The regulation 18 of 1801 laid that a private convicted of getting deliberately and maliciously intended to murder an individual and accidentally killed another individual was to be susceptible to suffer death. Regulation 16 of 1802 had abolished the criminal and disgusting and inhuman practice of sacrificing young and innocent children and declared infanticide punishable as willful murder susceptible to a sentence of death.

The process of altering and adapting the Muslim law of crimes continued the process of giving punishments for perjury and forgery were enhanced through the introduction of Regulation II of 1807. Exemplary punishments were prescribed for Dacoity through Regulations VIII of 1808 because the crime has increased enormously. By Regulations XVII of 1817, the law relating to Adultery was revised. The necessity for four competent male witnesses was rigorously insisted upon and the presumptive proof wasn’t regarded sufficient to warrant a conviction for the offence. The regulation laid down that conviction for the offence of adultery might be supported confessions, creditable testimony or circumstantial evidence. the utmost punishment to be inflicted for the offence was fixed at thirty-nine stripes and imprisonment with the hard labour of up to seven years. Married women weren’t to be prosecuted on such charges.

After 1833, an All India Legislature was created and thru subsequent reforms through the years led to the enactment of the Indian legal code in 1860. During the amount from 1833-1860, changes were made within the legal code and therefore the important ones included that thugs came to be punished with imprisonment for all times with the hard labour, the status of slavery was declared to be non-recognizable in any court of the corporate, dacoits came to be punished with transportation for all times, or with imprisonment for any shorter term with hard labour. it’s going to even be mentioned punishments prescribed for offences by British Administrators were very severe initially, intending to suppress crime. But as society stabilized, and law and order situation improved, and incidence of crime lessened, liberalizing tendencies set in and therefore the rigours of punishment were somewhat mitigated

The Indian Penal Code, 1860

The government in Britain in 1833 appointed a commission referred to as the “Indian Law Commission” to discuss the jurisdiction, powers and rules of existing courts and to form reports setting forth the results of the inquiries and suggesting reforms. The law commission works on the Anglo-Indian Codes from 1834 to 1879 and one among the foremost important contributions of the primary Law Commission was the Indian penal code, submitted by Macaulay in 1837 and passed into law in 1860. Another important law that was codified was the code of criminal procedure.

When it had been first passed in 1861, the Code of Criminal Procedure fiercely guarded “privileges” or “rights” as they were alternatively described as and made the law both a symbolic and an actual marker of imperial power The code secured the legal superiority of “European-born British subjects “by reserving to them special privileges like the proper to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments, all this while maintaining and displaying European power and prestige. 

As legislative council Member Thomas said:

“Whether the planter gets justice or not at the hand of the Native Magistrate is quite a secondary consideration; the mere fact of his having, on some trifling charge, had to seem before and be tried by a Native Magistrate, of an equivalent caste and family, the codification of the criminal motion created a structure within the Indian system and this structure continued to dominate through the years of British decree India.”

The essential object of codification is to protect society against criminals and law-breakers. For this purpose the law holds out threats of punishments to prospective lawbreakers also as attempts to make the actual offenders suffer the prescribed punishments for his or her crimes. Therefore, code, in its wider sense, consists of both the substantive code and thus the procedural (or adjective) code. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law administers the substantive law.

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Criminal Justice System in India: Emerging Dimensions

The research paper explores the topic of victimology to criminology, examining the challenges faced by individuals seeking justice in India’s criminal justice system. The study emphasises the need to restore victims’ rights and highlights the historic evolution of victimology from a focus on retributive justice to prioritising perpetrators over victims. It delves into the adversarial and inquisitorial systems, comparing their functions in different legal frameworks. The adversarial system promotes open competition between opposing parties, while the inquisitorial system actively involves the court in the investigation and gathering of evidence. The paper highlights the plight of male victims in the criminal justice system, where power, money, and influence can sway outcomes. It discusses various laws implemented to protect vulnerable victim groups, such as women, children, and the elderly. The paper provides suggestions for improving the judicial system in India. These include abolishing court and advocate fees, avoiding systemic delays, setting up SC benches across the country, and shifting the burden of proof to the state in constitutional challenges. Overall, the research paper highlights the need for a more victim-centric approach in the criminal justice system and suggests reforms to ensure timely and fair justice for all.

• Constituent Assembly
• Justifiable
• Adequate Safeguards
• Ex-Post Facto Laws

This is an Open Access Research distributed under the terms of the Creative Commons Attribution License (www.creativecommons.org/licenses/by/2.0), which permits unrestricted use, distribution, and reproduction in any Medium, provided the original work is properly cited.

© 2023, Gangadharan, C.

Adv. Chandni Gangadharan @ [email protected]

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Volume 08 Issue 3, July– September, 2023

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Ann Wolbert Burgess, Cheryl Regehr, et al., Victimology Theories and Applications 05 (Jones and Bartlett Publishers, Sudbury, Massachusetts, 2010).

Kirchhoff GE. What is victimology, Monograph Series No. 1, Tokiwa International Victimology Institute, Seibundo Publishing Co, Tokyo, 2005.

Banerjea, Criminal Justice India Series, Volume 17, Chandigarh, Part 1 108 (Allied Publishers Pvt. Ltd., New Delhi, 2005).

Sharon Detrick, JE Doek and Nigel Cantwell, the United Nations Convention on the Rights of The Child: A Guide to the “TravauxPréparatoires” (1992).

Dubey S. (2019). Criminal Judiciary Reforms in India. [online] Legalserviceindia.com. Available at: http://www.legalserviceindia.com/legal/Art.-244-criminal-judiciary-refo‌r‌m‌s‌‌‌-in-in‌dia. html [Accessed 15 Jul. 2019].

Unodc.org. (2019). Integrity in the Criminal Justice System. [online] Available at: https://www. unodc.org/unodc/en/corruption/criminaljustice-system.html [Accessed 15 Jul. 2019].

Indiankanoon.org. (2019). Sabarimala Ayyappa Seva Samajam vsState of Kerala on 29 October, 2018. [online] Available at: https://indiankanoon.org/ doc/46072596/ [Accessed 15 Jul. 2019].

Frederikson SJ (1976). A comparison of selected personality and history variables in highly violent mildly violent and non-violent female offenders. (Unpublished doctoral dissertation, 1975, University of Minnesota). Paper presented at the 11th Annual MMPI Symposium, Minneapolis, March.

Cole KE, Fisher G, and Cole SS. Women who kill: A sociopsychological study. Archives of General Psychiatry, 1968;19:1-8.

Sec. 25, The Indian Evidence Act, 1972.

Ashok D. Ippe, The Protection of Women from Domestic Violence Act, 2005: With the Protection of Women from Domestic Violence Rules, 2006: Along with Useful Allied Laws (2009).

Abolition of Child Labour and Making Education A Reality for Every Child as a Right, (2008).

Sharon Detrick, JE Doek and Nigel Cantwell, the United Nations Convention on the Rights of the Child: A Guide to the “TravauxPréparatoires” (1992).

Shailendra Kumar. Awasthi, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (1999).

Rhode Island Bar Asso. vs Automobile Serv. Asso., 100 ALR 226, 55 RI 122, 179 A 139).

Somasundaram O, and Ponnudurai R. A study of delinquent boys using jesness inventory. Indian Journal of Psychiatry. 1980; 22:348-352.

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Indian Polity

Make Your Note

Police Reforms In Indian Criminal Justice System

• 15 Jul 2020
• GS Paper - 2

This article is based on the “Thoothukudi to Kanpur: The police are in the dock. Reforms must start with the political system” which was published in The Indian Express on 14/07/2020. It talks about the need for police reform in the criminal justice delivery system.

Recent custodial death of a father and son by police in Tamil Nadu and the death of a gangster (with alleged political connections) in an encounter by Uttar Pradesh police has put a question mark on objectivity and credentials of the police in delivering justice.

Factors responsible for atrocities done by police and criminals evading the criminal justice system range from their political nexus to inefficiency of police.

This can be also reflected in the Vohra Committee report, that highlighted the nexus between the criminals, politicians and government functionaries. It stated that the network of the mafia is virtually running a parallel government, pushing the state apparatus to irrelevance, and suggested that an institution be set up to effectively deal with the menace.

Thus, there is a need to decriminalise politics and bring about a number of reformations in the criminal justice system including the police reforms.

Issues Related to Functioning of Police

• Further, there has been an increasing phenomenon of criminalisation of politics.
• This nexus interferes with professional decision-making by the police (e.g., regarding how to respond to law and order situations or how to conduct investigations), resulting in a biased performance of duties.
• This is way too low when compared with the United Nations’ recommended standard of 222 police per lakh persons.
• Further, an average policeman ends up having an enormous workload and long working hours, which negatively affects his efficiency and performance.
• To check against such abuse of power, various safeguards should be adopted, such as accountability of the police to the political executive, internal accountability to senior police officers, and independent police oversight authorities.
• Also, the Bureau of Police Research and Development has also noted a 30.5% deficiency in stock of required vehicles with the state forces.
• Further, funds dedicated to the modernisation of infrastructure are typically not utilised fully. For example, in 2015-16, only 14% of such funds were used by the states.

Ways Forward

• Curbing Criminalisation of Politics: The criminal nexus with politics will have to be broken and reforms must start with the political system. Thus, there is a need for laws which debars persons with serious criminal cases from entering the assemblies and the Parliament.
• Creation of a fund to compensate victims who turn hostile from the pressure of culprits.
• Setting up of separate authority at the national level to deal with crimes threatening the country security.
• A complete revamp of the entire criminal procedure system.
• The Model Police Act, 2006 requires each state to set up an authority comprising retired High Court Judges, civil society members, retired police officers and public administrators from another state.
• Implementing the Supreme Court’s Directive : The Supreme Court’s directions in Prakash Singh case 2006 on police reforms must be implemented. The court laid out seven directives where considerable work in police reforms is still needed.

The issues of Police are the manifestation of the limitations of the Indian political and social setup. Thus, there is a need to carry out Police reforms and incentivise police department to adopt best practices. Along with that, without further delay, there is a need to build an environment where police become an instrument of service to the people.

This editorial is based on “Gains from rains: on monsoon performance” published in The Hindu on July 14 th , 2020. Now watch this on our Youtube channel.

• 14 Aug 2024

New laws, old shadows: India’s criminal legislation overhaul

This opinion was published in Global Voices on August 14, 2024.

Filed Under

• Crime and Punishment

About the Authors

Aashna is a Research Fellow with the Criminal Justice team at Vidhi. Having recently completed their B.A., LL.B. (Hons.) from Symbiosis Law School, Pune, they are keenly interested in Constitutional, Administrative, and Criminal Law. Outside of professional engagements, Aashna finds their greatest joy in animals and food, and also enjoys music, competitive parliamentary debate, and political and historical fiction.

Ishaan Bamba is a Research Fellow with the Crime & Punishment Team at Vidhi. Prior to joining Vidhi, Ishaan has worked as a Senior Policy Analyst at Swaniti Initiative, a Child Rights Fellow with the Delhi Government, and most recently, as a Young Professional at NITI Aayog. Ishaan provided research and technical support to Members of Parliament (MPs) and Civil Society Organisations on themes of human trafficking, bonded labour, and child labour while at Swaniti. As a Child Rights Fellow with the Delhi Commission for Protection of Child Rights (DCPCR), Govt. of NCT of Delhi, he worked directly on implementation and monitoring of various child-related policies in Delhi, impacting institutions and beneficiaries. Thereafter, at NITI Aayog, his work focused on revitalizing the Planning Departments across all States and UTs as well as on implementing the State Support Mission, a Central Sector Scheme. He graduated from Amity Law School, Delhi in 2017 with a B.A. LLB (Hons.) and completed his Master’s in Public Policy from National Law School of India University, Bengaluru (NLSIU) in 2019.

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Guest Essay

After 17 Years in Prison, I’m a Different Person. Do Cases Like Mine Deserve a Second Look?

By Joseph Sanchez

Mr. Sanchez is a writer incarcerated in New York.

At 21, I was a full-time college student. I also sold drugs and carried guns. In the early-morning hours of April 7, 2007, I was shot on a Bronx street, along with two other people. I survived. One person didn’t. The third, who was badly injured, gave testimony at trial that suggested I shot everyone, including myself. Based on that, I was convicted of all charges.

I maintain my innocence, but I am not here to convince you of that. Innocent-man narratives often discount the need for reforms to help all people, including guilty people. I want to tell you instead about the person I have become over the past 17 years in prison and the people I have met here.

At Sullivan Correctional Facility, a maximum-security prison in the Catskill Mountains in New York, I’m incarcerated with men who have earned college degrees while incarcerated and who fill their days with volunteer work. Despite bettering our lives — or aging out of criminal behavior — we have no opportunity to demonstrate our rehabilitation outside of parole hearings that may come decades in the future.

Lawmakers across the country have proposed so-called Second Look laws. The First Step Act, which was signed into law by President Donald Trump in 2018, gave federal judges the discretion to reduce the sentences of people convicted of federal crimes when there’s compelling evidence to do so.

In New York, State Senator Julia Salazar has introduced legislation that could help reset past policies that contributed to ballooning populations in state prisons. The state’s Second Look legislation would allow judges to weigh factors like victim impact statements, age, whether the prisoners were penalized for bringing their cases to trial (instead of accepting a plea bargain) and participation in rehabilitation programming when considering sentence reductions.

The bill is receiving plenty of support, including from people who will make decisions about the fates of prisoners, like the chief judge of the New York Court of Appeals, Rowan Wilson . While running for re-election last year, Bronx District Attorney Darcel Clark said , “Ultimately, there may be individuals who are incarcerated on sentences that no longer meet today’s sensibility of justice.”

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