Structural Realities of How Justice is Denied

The criminal justice system is a system which affects every individual of the country, irrespective of nationality, sex and religion, whether or not we have come in contact with it. It has a higher purpose of serving the public good through due process and protecting its people from harm. When we think of the criminal justice system, the first thought that crosses our minds is the judiciary, however, there are innumerable facets to be explored within this system and the primary stakeholders in it are the police, the prison systems, legal aid providers and the judiciary. The Indian Justice Report published in 2019, a first of its kind, evaluated different States on the basis of these four facets. This report coherently shows the innumerable falsities and fallacies within these four systems in India and it puts into perspective what the economically and socially weak have to battle against. The criminal justice system seems to be plagued with underfunding, under staffing, poor management, inadequate skill & training. 

The Judiciary and the Prisons of India

The chronic problem faced by all four institutes is lack of budgetary efficiency, lack of human resources as well as lack of adequate representation. According to the most recent statistics, there are around 3.3 crore cases  pending in subordinate courts in India, another 44 lakhs in the High courts and around 60 thousand  in the Supreme Court. Adding to this problem, there are vacancies for judicial staff, including judges, in all of these courts. As on 1st August 2020, there are three vacancies in the Supreme Court, 394 vacancies in all the High Courts and more than 25% in over eighteen states in subordinate courts. The number of pending cases filed with the courts has only been increasing overtime. The courts are overburdened with work and there exists a perennial problem of cases taking an average of 5 years and above to reach a decision. They are not able to clear as many cases as they receive in a year, which compounds into a very low clearance rate. Large states such as UP and Bihar show statistics in which 25% of all cases remain pending for above 5 years. An issue rampant within Indian courts is the habit of giving easy adjournments which substantially adds to the pending time of cases.  To prevent this, Order XVII of Code of Civil Procedure, exists but it has not been effective. Furthermore, there is poor representation of women in all three courts and extremely scarce representation of the transgender community. At the most, women judges have accounted for 44% of the total number of judges in high courts such as that of Telangana. However, in states like Bihar, woman account for just 13% of the total no of judges, showing signs of under-representation.

The long pendency of cases is directly reflected in the overcrowded prisons of India, in some places at 170% capacity. According to the NCRB PSI 2018 Report, out of the total 4,66,084 prisoners as on 31st December 2018 in all the prisons of India, the convicted prisoners were 1,39,488 (29.9%), the detenues were 2,384 (0.5%) and the undertrial prisoners were a whooping 3,23,537 (69.4%).This number has constantly been increasing with it being 67.7% in 2017 and 66% in 2007, showing that decision makers continually forget the unspoken rule of  “bail not jail”. As of end of 2018, one of the highest numbers of undertrials were jailed in Uttar Pradesh (72.3%), Bihar (81.4%) and Meghalaya (87.2%). The lowest percentages for states are still an exorbitant amount standing at 48.2% in Arunachal Pradesh and 50.6% in Tripura. Overcrowding is again a huge problem in UP with a 176.5% occupancy rate while Bihar managed to stay at 93.3%. Tamil Nadu had shown better management with only a 60% occupancy, a managerial trend which can be vaguely spotted in all four sectors among South Indian States. 

Amongst the various kinds of prisons are also special prisons for women. The women accompanied by children in prisons are 1,732 with 1,999 children as on 31st December 2018. Out of these 1,376 women are under trials and accompanied by 1,590 children, while only 355 were convicted women with 408 children. It is important to remember that the Indian criminal justice system works on the principle of presumption of innocence, thus all undertrials are considered innocent unless proven guilty. The children of these women are being forced to grow within the confines of a prison which barely have adequate provisions for adult prisoners. Not only are there not enough jail cells for these prisoners, the jail staff is inadequate too. The sanctioned strength for jail staff was 85,840 as on 31st December 2018, and only 60,024 of that was filed. Of medical staff it was 3,220 while only 1,914 was filled. 

There is a powerful paragraph in an order passed by judges D.K. Jain and Jagdish Singh Khekar in the case Thana Singh v Central Bureau of Narcotics[1] which says, “The laxity with which we throw citizens into prison reflect our lack of appreciation for the tribulations of incarcerations; the callousness with which we leave them there reflects our lack of deference for humanity. It also reflects out imprudence when our prisons are bursting at their seams. For the prisoner himself, imprisonment for the purposes of trial is as ignoble as imprisonment on conviction for an offence, since the damning finger and opprobrious eyes of society draw no difference between the two. The plight of the undertrial seems to gain focus only on a solicitous inquiry by the Court, and soon after, quickly fades into the backdrop.”

The Role of the Police

When it comes to the high number of undertrials, our judicial system, prison systems as well as legal aid systems have failed. The fourth stakeholder – the police force – comprises state police services and the Indian Police Services. As far as the police is concerned, it has similar problems as the judiciary. It is understaffed, it is underfunded and severely under trained. According to the Indian Justice Report, only an average of 6.4% of police officers are provided with in-service training, while the others deal with the public on a daily basis without any proper training. There are about 23% vacancies[2] in the police force and most of the states do not spend the funds allotted for the police force on them. India has one of the lowest police to population ratios at 151 police persons for 100,000 peoples. In some of the most populous and crime infested states, the police strength is even lower than this average; Bihar stands at 108, Rajasthan at 142 and UP is working with a 53% deficit in sanctioned capacity. Comparatively, Kerala and Tamil Nadu yet again come ahead with being the only states to reach its sanctioned strength. Tamil Nadu is also in the lead in terms of women in police force at a 13% strength, while Telangana stands at an unacceptable 2%.  The representation of women, transgenders as well as backward castes/class within the force is very poor. Karnataka is the only state to have nearly filled all caste category reservations amongst police officers. The Indian Justice Report estimates an average of mere 7% women in the police force.  

The states hardly ever completely use the policing budget on the police force and the ratio of increase in total budget of states to the budget for policing is not proportionate.  This directly manifests into poor infrastructure, coverage, equipment and training. The coverage of area per police station is vastly different for different areas, extending to 852 sq. kms in some areas and 2 sq. kms in other (urban) areas.[3] Even among the best performing states such as Tamil Nadu covered a vast area of 155 sq.km in rural areas while the worst stood at a staggering 1,842 sq.km in Jammu Kashmir. Poor budgetary usage reflects in the equipment provided to police officers too. The level of technical know-how as well as the provisions for technologically sound tools is very low within the force, which leads to poor investigative tools in this tech-dominated world.

Legal Aid accessibility 

We now look at the legal aid structures present in India and whether they are able to transverse socio-economic and gendered consequences in India, the answer to which is negative. As Adv. Rebecca John said in her interview, the reason that death penalty should be done away with in India is because of structural biases of the system which would inevitably lead to poor legal representation of the less fortunate.

The Indian Justice Report says that 80% of the 1.25 billion Indians are eligible to legal aid but only 15 million have used it since 1995.[4] There are states which have only recently established District Legal Services Authorities (DSLAs) despite the government’s mandate to do so as per S9(1) of the Legal Services Authorities Act enacted in 1987. The same Act extends legal aid to prisoners under section 12 and section 13. As per the Indian Justice Report, there are 1062 legal service clinics in 1412 jails (as of 2017). Provision of legal aid to prisoners is also talked of by S.303 of the CrPC and provisions of NALSA (Legal Services Clinics) Regulations 2011. While the statutory provisions exist, the implementation of the same is barely sufficient. India has a high amount of poverty and illiteracy and these are the people that tend to disappear in the fault lines of the criminal justice system. Despite the statutory mandate that each person should be provided with a lawyer, there are hundreds of persons languishing in jails with no legal representation. Cases like Hussainara Khatoon come up from time to time, but as the judges in Thana Singh case explained, the plight of these people is soon forgotten. Again, national legal services also face the issue of underfunding, lack of infrastructure as well as lack of representation. It is hard to study the effectiveness of legal aid services in India due to insufficient data available from reliable sources.

Conclusion

The Indian Justice Report made some recommendations for working towards a better criminal justice system, at the end of the report. Some of these suggestions targeted the foundational issues such as budgetary allocation and usage, information gathering and requirement for infrastructure. Other important suggestions accounted for legal awareness, accessibility and representation. Apart from this, we need to work towards stronger R&D for all sectors to incorporate higher efficiency. This includes compulsory skill training, provision of superior technological tools as well as reliable statistics to evaluate results. 

An important aspect, keeping in mind that we live in India, would be to increase coverage by police stations and legal aid services in rural areas instead of continually expanding the facilities in urban cities. We also need to work towards legal awareness of basic rights. Such campaigns have been incubating for a while, but hopefully the new decade sees significant results. Many people do not know to invoke their rights simply because they have no knowledge of them.  

There is also an urgent need to diversify the criminal justice fraternity by employing more women, transgenders, backward classes, backward castes and tribal populations. This needs to be done in all four sectors but more urgently so in the police and legal aid services. This will increase safety and encourage more people to register their complaints. It will also enable people to seek legal aid, as they would be more comfortable trusting people from the same community.  

Our criminal justice system has many faults and cracks however there have been times when it has given exceptional judgments, going beyond the norms of patriarchy, religiosity as well as privilege. Despite the efforts of many functionaries, these four stakeholders still need colossal reforms to be able to dispense justice to all persons as equals. From where we stand, equality seems a far-fetched dream, but we can certainly place shadows of it in reality. 


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[1] AIR 2013 SCC 603

[2] Ishita Purkaystha, Scales of Justice, INDIA LEGAL, November 25th, 2019, at 26. 

[3] supra 1

[4] supra 1

Anushka Khaitan


Author
Anushka Khaitan, 3rd Year, Jindal Global Law School 

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