CRIMINAL JUSTICE SYSTEM IN INDIA: CURRENT CHALLENGES

CRIMINAL JUSTICE SYSTEM IN INDIA: CURRENT CHALLENGES

Introduction

A society has to work in an ideal manner. In a society, there are people who take advantage of and bully the poor or theweak.SotheSocietylaysdowncertainrulesorlawsandfortheselaws which are framed by the society, theyaretobegovernedandenforced.Andforthispurpose,the police are there to enforce and to educate the judiciary. On this principle, the Criminal justice system is based. Generally, the Criminal Justice System is based on:

  1. To protect the weak against the wrong;
  2. To protect the invasion of the right of the person/individual;
  3. To protect the individual property;
  4. To protect the law-abiding citizen against lawlessness and peaceful against the violence.

The pillar of the criminal Justice System are:

  1. Legislature
  2. Police or Executive
  3. Courts
  4. Correction or the Prisons
  5. And now the ​Community is the ​fifth pillar ​which is added which means we all are participants to this system.

Reason for Delay in the Criminal Justice System

There are various reasons for the delay in the criminal justice system. To elaborate a few:

  1. Procedure – The Indian system has a Lengthy procedure due to which the litigant gets frustrated and due to this lengthy procedure the
  2. Bail proceeding – Unfortunately, in the country, the law bail though spelt out through various judgement of the Supreme court that bail is is a normal route and jail is an exception but in practice, it is converse that jail is a route and bail is an exception. Days and days are taken to argue matters related to the bail application. Because of the pendency of bail application, this causes a delay in the criminal justice system.
  3. Vacancy in the lower judiciary One of the primary reasons that we are not able to contain the ever-growing pendency of cases is due to the short age of judges.​The number of vacancies in the judiciary are increasing day by day and the number of cases in the court is increasing day by day. And hence this is one of the reasons for the delay.
  4. Inefficiency in the investigation – The law requires that the investigation should be complete within the period of 60 days or 90 days and lay the charge sheet with in this period. But the police fail to do that and hence, a delay happens in criminal cases.

The above mentioned are the few reasons for delay but there are many more to be discussed. The criminal justice system was already facing some consequences in becoming efficient but now the COVID-19 or novel coronavirus transmission, that declared a global pandemic in March 2020, has impacted more than 4 million worldwide and eighty thousand in India with the figure rising every day. The pandemic has affected the economic, physical and social realities but it has thrown unprecedented challenges in the governance of the country. This has also affected the legal system and has directly impacted the criminal justice system if the ​COVID-19 crisis continues.

The question now is what will the long-term impact of this pandemic be on the criminal justice system?

Courts at every level have either postponed or cancelled regular proceedings in response to the spread of coronavirus. Courts across the country are just taking emergency cases, fewer arrests are being made, and many defendants have been released early from their sentences.

Infact, the Supreme Court of India ordered all states and Union Territories to set up high-level panels which would consider releasing all convicts who have been jailed for up to seven year son parole to decongest jails in an attempt to contain the Covid-19 outbreak. The Court further suggested that under trials awaiting trial for offences entailing maximum sentence of seven years also be extended a similar benefit. In a bid to decongest jails the State of Maharashtra has released 7200 prisoners till date on temporary parole or bail .

From this period of crisis the higher judiciary i.e. the Supreme Court of India and various High Courts of the State have started operating virtually through technology with the help of video conferencing or various applications available. Infact, the Supreme Court launched its software for E-filing cases .

With the help of technology, even the criminal courts in our country can function. No doubt in criminal cases investigation, inquiry and trial is the essential part of the system. Then also the criminal courts can function with the help of technology.

An investigation is the first step taken by the police officer.Where as in inquiry In quiry includes everything done by a Magistrate, irrespective of whether the case has been challenged or not. A trial is a judicial proceeding that ends either with conviction or acquittal. Chapter XXIV of Criminal Procedure deals with provisions relating to inquiry and trial.

The investigation includes all the proceedings under the Code required for the collection of evidence. It is conducted by a Police Officer or by any person other than a magistrate, who has been authorized by the magistrate on this behalf.

The Code of Civil Procedure, Inquiry includes every inquiry except for a trial conducted under this Code, that is done either by a Magistrate or by the Court. The inquiry relates to the proceedings that are carried out by the Magistrate before a trialisdone .Moreover,Section159

  1. https://economictimes.indiatimes.com/news/politics-and-nation/covid-19-maharashtra-releases-7200-pris oners-to-curb-overcrowding/articleshow/75785966.cms?from=mdr​
  2. https://www.hindustantimes.com/india-news/filing-of-cases-in-sc-will-undergo-radical-change-justice-dy-c handrachud/story-sFNEpebBzq5Z8rxAJawSpI.html​ dated 02.05.2020 3 Section 2(h)
  3. Section 2(h) of Code of Criminal Procedure, 1973
  4. Section 2(g) of Code of Criminal Procedure, 1973

of Cr.PC. empowers the Magistrate on a receipt of a police report under Section 157 of Cr PC,to hold a preliminary enquiry to ascertain whether an offence has been committed. If the offence has been committed then, whether any person should be put upon trial.

Once the investigation is over the Charge sheet is filed by the police authority in the court.The entire process of filing charge sheets and to conduct an inquiry by the magistrate can be done through technology. But we must make sure that in times of uncertainty, confirmation that the rule of law endures and justice will be served is a source of profound reassurance to all.

In the Indian legal system, the evidence is collected under the Indian Evidence Act 1872. In criminal proceedings, Section 230-234 of the Code of Criminal Procedure(Cr.PC)1973 specify the procedure of collecting evidence and the Court has the power to compel the witness to appear before it to give evidence.

There are no statues in India which have specific provisions for recording via video conferencing in India. It is the Indian judiciary that has, through judicial activism via its various landmark decisions, laid down the frame work and parameters for the use of video conferencing facilities to record evidence. Mindful of the circumstances in which the physical presence of a person cannot be obtained, Indian courts have held that the physical presence of a person can be dispensed with. In a number of cases, such as​Amitabh Bagchi vs. Ena Bagchi it was held that‘presence’ 5 does not necessarily mean actual physical presence in the court.

The concept of the video conference is an emerging concept in India. By virtue of the Amendment in the Evidence Act and insertion of Section 65 A and Section 65 B, a special provision as to evidence relating to electronic record and admissibility of electronic records had been introduced. Courts have also interpreted this provision to include videoconferencing.This position had been consolidated in 2003, in the landmark judgment of​ State of Maharashtra vs. Dr Praful B Desai , when the Supreme Court upheld video conferencing as a vital tool for 6 collecting evidence where the witness may not be conveniently or necessarily be examined in court.

No doubt for the use of video conferencing the witness during examination – in- chief, cross-examination and re-examination may face certain problems or may be unfamiliar with the technology, in that case, such vulnerable witnesses must be assisted to help them under stand the process of examination and cross-examination so that they can answer questions to the best of their capacity and face what can often be quite an aggressive cross-examination. If a party is not confident of this,they should have the right to request a physical cross-examination with reasons. Courtrooms by their very design and nature, especially because they are open courts, convey a sense of neutrality and transparency by being accessible to the public. Hence, a video conferencing platform should as far as possible reproduce such openness.

Current Possible Consequences in the Criminal Justice System during the Pandemic of COVID – 19:

1) Speedy trial Rights – The right to a speedy trial is a guaranteed fundamental right under Article 21 of the Constitution that is currently being violated.

2) Statutes of Limitation – The Limitation Act currently cannot be implemented efficiently and hence the period of limitation in filing appeal, revisions or review n

3) Create Backlog – The judiciary already had a number of a backlog going on. And currently, also the backlog has increased because the number of cases is not disposed of during this period.

Following Steps have been implemented or Considered during the Pandemic of COVID – 19:

1) Postpone hearing and trials. Currently, the judiciary has postponed its hearing and trails and only cases which are important are taken care off.

2) The Government has released prisoners on parole.

3) The orders which were given temporary are being continued until the courts don’t function regularly.

Challenges Faced While Using Technology in Criminal Matters:

Technology cannot be used in everything and cannot survive in the criminal proceedings. Following are challenges while using technology in criminal matters:

1) Trial – During trial where facts and evidence are to be collected that time technology cannot record evidence but however, the without the physical presence of the witness the criminal system will become a nightmare because a witness can provide unprovided answers or be hunted with answers from someone else and that time technology cannot be the court in providing fair and equitable justice.

2) Prejudice and hostile – The witness can probably become prejudiced and hostile andthiswill hamper the fairness of justice.

3) Lawyers, Judges and Litigants are not trained to use technology and moreover a person in a rural area cannot afford a laptop or computer, hence technology cannot be a saviour in everything.

Conclusion and Suggestions:

Regardless of the controversy as to whether there is a good criminal justice system or not,we are concerned with the evaluation of the performance and impact of the existing arrangements for the administration of criminal justice, and exploring possible avenues of improvement if the
overall performance is found to be inadequate or unsatisfactory. Our system should cater to all possible challenges especially in view of current happening throughout the country.

Suggestions

1) The use of technology or video conferencing can be done in the following cases in criminal matters in India:

i. Detention hearing

ii. Initial appearances

iii. Preliminary hearing

iv. Probation revocation proceedings

v. Bail application

vi Anticipatory Bail Application

vii. Arguments

viii. Filing of Proceeding

2) Training the judges, lawyers and common man to use the technology.

3) Executive and the court to emphasise that technology is supplied to each corner of the country and no lawyer or litigant is left out and he can participate in the proceedings.

4) Judiciary should take a proactive role and see to it that the police should complete the investigation expediently and file charge sheets at the earliest. The Court proceeded to sit earlier as possible. Only a minimum of witnesses required to prove the case no municipalities of the witness for unnecessary witnesses should be examined. By this,we can expedite the matter at the earliest.

5) All proceedings like revision and writ petitions should be minimised and the court should direct the parties to proceed the matter at the earliest and this can improve the criminal justice system.

6) The executive should make available and improve the infrastructure of the courts in the form of sitting space, technology, etc. to maintain social distancing.

7) Police should see unnecessary prosecution and arrest and charge sheets every one.They should take the onus on them self not to prosecute.

8) The lawyer must play a proactive role and also see that the matters go on as expediently as possible.

9) The examination of the witnesses should be carried out through video conferences and courts can take and adopt a certain method to see no prejudice is caused and see that the evidence is recorded in a fair and proper manner.

At last, to conclude it is now to adopt and enhance the technology to improve the lecunar in the criminal justice mechanism so that the citizens are not denied a uniform and consistent access to rights guaranteed by the constitution.​Let us hope that we will fulfill the dreams to improve the criminal justice system.

– Ms. Megna Devkar Faculty, K. C. Law College

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