10th D.P. Kohli Memorial Lecture on ‘Criminal justice system – growing responsibility in light of contemporary challenges’ by Hon’ble Sh. K.G. Balakri

Ladies and Gentlemen,
I consider it my privilege to be delivering this lecture - which is organised every year in memory of Shri D.P. Kohli, the esteemed founder of the Central Bureau of Investigation (CBI). I am grateful for this opportunity to speak about some of the contemporary challenges faced by our criminal justice system.

The Central Bureau of Investigation traces its origins to the creation of the Delhi Special Police Establishment in the 1940’s during World War II. The parent organisation was created for the purpose of investigating instances of corruption amongst government employees, which were perceived to be on the rise on account of increased governmental production and procurement activities. It was felt that police personnel faced undue obstructions while investigating such cases and hence there was a need for a specialised body at the central level to look into the same. A few years after independence, the Central Bureau of Investigation (CBI) came into being on account of the untiring efforts of people such as Sh. D.P. Kohli. From its original mandate of looking into corruption cases, the CBI has now taken on the responsibility of investigating serious crimes and economic offences, usually on the request of state governments and in some instances on the directions from the Supreme Court of India and the various High Courts.

The lower judiciary has also been expanded with the creation of Special CBI Courts in many districts. Even though the CBI Courts have been functioning more efficiently than the ordinary criminal courts, their existing number is inadequate to handle the case-load. Recently gathered statistics indicate that approximately 9,000 cases involving the CBI are pending before the various courts. There is obviously an urgent need for creating more CBI Courts which should be manned by judicial officers who have expertise in criminal law. A resolution demanding the same was passed at last year’s conference of High Court Chief Justices, following which I personally wrote a letter to the Prime Minister in order to highlight this issue.

Coming to the theme of this lecture – I have been asked to speak about some of the contemporary challenges faced by our criminal justice system. It would be impossible to speak about all the aspects of criminal justice in the allotted time, so I would like to confine my comments to three broad themes:-
Firstly – the debate over the recent amendments to the Code of Criminal Procedure (CrPC), particularly with respect to the law of arrest
Secondly, the suggestions for re-classifying the offences enumerated in the IPC and the various Special Laws so as to streamline the legal responses to them
Thirdly, some thoughts on the need for better treatment of victims and their interests under our criminal laws.
The subject of criminal justice reforms in our country has received considerable attention in recent years. While it was perceived that the 8 volume report of the National Police Commission (1977-1981) was not given due attention for many years, it was the recommendations of the Justice Malimath Committee on Criminal Justice Reforms (in 2003) which triggered a lively debate between police officials, the judiciary, practicing lawyers, academics and civil society activists. The Law Commission has also periodically given suggestions for reforms and the theme has also been touched upon by the National Commission to Review the Working of the Constitution (NCRWC) in 2002. Amongst the most recently published studies, one can refer to the ‘Draft National Policy on Criminal Justice’ which was released in July 2007 and some of the observations made by the Second Administrative Reforms Commission.

Amongst the many concerns that have been raised by these studies, a consistent strand has been the negative image of the police in the mind of the ordinary citizen. The main reason for this is the high incidence of arbitrary arrests and custodial abuse – even for minor offences. More often than not, it is poorer people who are more likely to be arrested, detained and mistreated – even in the course of routine investigations. Independent studies indicate that upto 60% of arrests made in our country are needless since the detained persons do not prove to be useful for the purpose of investigation or trial. Such a state of affairs exists even though the D.K. Basu judgment laid down clear guidelines to regulate powers of arrest and detention.1 However, undue delays in investigations, framing of charges and the conduct of trials is another problem where the blame is to be shared by the judiciary. These delays of course contribute to an increase in the population of ‘under-trials’ who face additional risks arising out of contact with hardened criminals, while in custody.2

Another problem is that even law-abiding citizens hesitate to approach the police with genuine complaints since there is a reluctance to register a First Information Report (FIR) unless the alleged offence is very serious or the complainant wields some influence. This chronic problem of ‘under-reporting’ of crimes is not merely a result of corruption at the grassroots level. It has been reasoned that at the level of a police-station, the personnel have an interest in recording low-crime rates in their respective area, since that is the basis of their evaluation by superiors. Hence the refusal to file FIR’s is a deliberate measure to artificially keep the crime-rates low. This tendency indicates that the crime statistics collected at the state and national level are mostly unreliable and do not paint a true picture about the actual incidence of various kinds of crime. In this regard, the Supreme Court has also passed some orders laying down the conditions under which a Station House Officer (S.H.O.) has an obligation to file a FIR and conduct a prompt investigation.3

The proposed changes to the law of arrest
There are many reasons behind these systemic problems and the recent amendments to the Code of Criminal Procedure (CrPC) have tried to tackle a few of them. The amendments are yet to be notified and have actually been the subject of controversy on account of criticisms made by some bar associations. There has also been considerable misunderstanding about the proposed changes to the law of arrest. The amendment bill seeks to give Investigating Officers (I.O.) a certain degree of discretion in the matter of arresting persons while investigating offences that are punishable with imprisonment of less than seven years. The legislative intent behind giving this discretionary power to the police is to reduce the high incidence of arbitrary and unnecessary arrests that take place in our criminal justice system. Some critics of this proposed change have argued that the deterrent value of penal provisions will be weakened since arrests will not be made in cases where the suspected persons use their money or muscle-power.

This criticism is unfounded because the proposed change does not take away the power to arrest in its entirety. Instead it requires arrests to be made in a reasonable and proportionate manner. The Investigating Officer (I.O.) is required to record reasons in writing for making an arrest, thereby creating a reliable basis for subsequent judicial scrutiny. In instances of exigency, such reasons can of course be recorded after the actual act of arrest. Such a requirement is in conformity with ‘due process’ norms and it will create a measure of accountability in police behaviour apart from providing material for consideration during bail proceedings. Furthermore an Investigating Officer is also to be given the power to issue a ‘notice of arrest’ to the person sought to be apprehended.

To my mind, these changes proposed to the law of arrest are well-intentioned and are being unfairly criticised by some.

Need for re-classification of offences
It must be kept in mind that another cause for the high incidence of unnecessary arrests in our country is the outdated scheme for the classification of offences in our criminal laws. The division between cognizable and non-cognizable offences, between bailable and non-bailable offences as well as the nature and quantum of punishments for the respective offences needs to be thoroughly re-evaluated. The triggers for the various responses of the criminal law machinery were originally designed in the colonial-era and despite some piecemeal changes from time to time there is a need to re-classify the offences. For instance many minor offences against property are still classified as non-bailable, whereas it is evident that classifying them as compoundable offences and relying on methods such as ‘plea-bargaining’ may be more effective and agreeable to address the injury caused by the same. It is also obvious that the number of offences wherein arrests can be made without warrants need to be streamlined in a systematic manner.

I must also draw your attention to the fact that a considerable proportion of the criminal cases pending before our courts actually involve regulatory offences such as traffic violations, dishonour of cheques and failure to pay maintenance. These regulatory offences have of course been created by the various special laws, wherein the legislature identified an overarching public interest in prescribing punitive remedies for certain kinds of acts that are otherwise more akin to civil wrongs. Hence an informed analysis of criminal laws must also differentiate between the nature of the acts and the subsequent degree of harm while deciding on the appropriate response from the criminal law machinery. This line of thinking is clear in the ‘Draft National Policy on Criminal Justice’ (published in 2007) wherein it has been suggested that all the offences presently identified under the Indian Penal Code (IPC) and the numerous special and local laws should be streamlined into four legislations.4 This re-classification is proposed to be done on the basis of the gravity of the offences, appropriate procedures for investigation and dispute-resolution as well as the proportionate nature and quantum of fines and punishments.

The proposed categories are those of a Social Welfare Offences Code, a Correctional Offences Code, the Penal Code and the Economic Offences Code. Such a re-classification is important since a ‘one-size-fits-all’ approach does not work and we need to adopt innovative procedures which will be responsive to social realities rather than legal niceties. The concept of ‘compoundable’ offences corresponds to the idea of arriving at a settlement without trial. Furthermore, with the introduction of ‘plea-bargaining’ in our system, there is a possibility for the accused to admit to his or her guilt in return for a lower penalty. This method will prevent the delays associated with the presentation and contestation of evidence in the usual trial procedure. Magistrates are already empowered to adapt their procedure for trying ‘petty offences’ and increasing reliance can be placed on ‘summary trials’ for handling offences which carry lower punishments.


Advancing the interests of victims
While such whole-scale legislative changes in our criminal laws may be several years away, there are some other important aspects in the recent CrPC amendment bill, which merit a discussion. I would like to highlight the proposed changes that seek to advance the rights and interests of the victims in the criminal justice process.

It has been frequently urged that most of the safeguards in the law of criminal procedure emphasise the rights of the accused. Aspects such as the presumption of innocence, the right against self-incrimination, the right to legal assistance and the other dimensions of the ‘right to fair trial’ such as the standard of ‘proof beyond reasonable doubt’, right of the accused to be informed of charges before trial and the right to present a defence among others - have all been developed through common-law principles that have been codified in our constitution and subsequently re-inforced by the higher judiciary. This continuing emphasis on the rights of the accused is a natural feature of any liberal democracy where the individual is given protections against the criminal law machinery controlled by the state.

However, in an era of widespread organised crime, terrorist attacks and ethnic conflicts there are often calls made for diluting these protections. This is indeed a dangerous trend, since a partial concession of the components of the ‘right to fair trial’ could be the precursor for more concessions later. It is often argued that departing from these norms is necessary to ensure justice for the victims of heinous crimes. These arguments are unfounded and absolutely miss the real concerns of victims in most cases. While punishments for various offences are indeed oriented around objectives such as retribution, incapacitation, deterrence and rehabilitation in different measures - the interests of victims are often left in the lurch under our existing criminal laws. It is amply clear that in many instances compensatory remedies are more appropriate than punitive remedies. While the state has an interest in imposing monetary penalties or imprisonment for the purpose of deterrence – the victim’s needs are not addressed by the same. It is important to understand that we can indeed engineer a shift towards restorative justice without departing from the safeguards that have been given to the accused persons in our constitutional and criminal jurisprudence.5

In order to respond to the interests of victims more effectively, it is important to ensure that they play an active role during investigation and trial. The problem with the existing statutory scheme is that once an investigation starts, the role of the victim is minimal. In many instances the police personnel proceed very slowly on investigations, thereby losing out on the opportunity to gather relevant evidence and opening up the possibility of corruption. Conversely, investigations involving well-connected and influential persons as victims tend to be taken up in a relatively expeditious manner. Even during the course of trial, the victim’s role is confined to that of acting as a ‘prosecution witness’ since the prosecution is entirely conducted by the State. The lawyers working as Public Prosecutors at the district level often lack the necessary competence and function in a manner that is not accountable to the victim in any way. As a result trials are unduly delayed either on account of the disinterest or conversely the heavy workload faced by the Public Prosecutors. Furthermore, victims as well as witnesses tend to face considerable inconvenience when they are required to repeatedly attend court hearings or face aggressive cross-examination from defence counsels. The situation is even more complicated for victims of sexual offences. This phenomenon of the victims of crimes facing even more harassment during the course of investigation and trial – is called ‘secondary victimisation’.6 The least that the law can do is to check and prevent such callousness.

The Justice Malimath Committee on Criminal Justice Reforms (2003)7 outlined several measures that could be taken to protect the interests of victims and some of those suggestions have found their way into the recent CrPC amendment bill. One such step it to allow the victim (or in the event of the victim’s death, the nearest relative of the victim) to engage a lawyer in addition to the Public Prosecutor.8 This lawyer will also be authorised to present separate arguments, examine witnesses and produce evidence if permitted by the Court. Furthermore, another change that has been proposed is to allow the victim to file an appeal against an acquittal of the accused, conviction for a lesser offence or the award of an inadequate sentence.9 These are indeed progressive measures which will greatly boost the public confidence in the criminal justice system.

The most far-reaching change has been the introduction of a victim’s compensation scheme – that will enable trial courts to grant monetary remedies on a more consistent basis.10 Suggestions for the same were made many years ago and many experts pointed to the Criminal Injuries Compensation Scheme implemented in the United Kingdom as an example to learn from.11 However, based on their experience as well as common sense, there are several practical questions which we will face in the coming years:-
First and foremost, criminal law provisions need to be examined in a fresh light so as to accommodate the logic of punishment as well as compensation. A majority of the punitive remedies enumerated in the statutes such as fines, penalties and imprisonment are not proportionate to the degree of harm suffered by the victim. Even thought the Supreme Court has crafted discretionary remedies under its writ jurisdiction to direct the payment of compensation to victims of abuses by state actors – such as custodial deaths, fake encounters and arbitrary arrests12 – there has been no statutory basis for the same. In some cases the Supreme Court has also directed offenders to pay compensation to victims in addition to the stipulated punishments.13 However, in the absence of a clear legislative framework, even the higher judiciary has been inconsistent in awarding compensation to victims. Even though the principles from tort law such as ‘strict liability’ and ‘negligence’ can be used in awarding such remedies, they need to be interpreted afresh for every fact situation.
Secondly, if the extent of compensation has to bear a rational correlation to the actual harm suffered, the trial judge will need to make a thorough inquiry into the nature and degree of such harm. While it may be relatively easy to ascertain external physical injuries, it will be far more difficult to ascertain harm suffered in the nature of mental trauma and psychological stresses that emerge much after the commission of the crime. Complications may also arise if the aim is to ensure compensation for loss of potential earnings, loss of livelihood on account of the death of an earning member of a family and other kinds of indirect costs linked to the crime.
Thirdly, there is the obvious question about the source of funds for granting compensation to the victims. In the case of ‘petty offences’ and ‘offences against property’ it may be possible to direct the offender to pay a compensation amount which is proportionate to the harm suffered. In acts involving abuses by government employees, compensation amounts can of course be drawn from public revenues. However, in many instances the offender may be indigent and hence unable to raise the resources necessary for paying compensation. Furthermore, in some instances the offender may never be identified or apprehended – which is quite conceivable in terrorist attacks or acts of criminal negligence which involve several intermediaries. Yet another possibility is that even the offender is identified and apprehended, he or she may not be convicted. Under these scenarios, there has to be some reliable source of funds for awarding compensation to victims. The suggestions in this regard have been that funds can be drawn from sources within the legal system such as collections of fines, forfeiture of bail amounts or money raised from the sale of attached or forfeiture properties. While there have been no empirical estimates on how much money will be needed to operate a meaningful victim’s compensation scheme, there is clearly a need for an informed debate on this aspect.

Concluding remarks
Having made these observations, I must say that I am quite optimistic that the proposed changes will definitely improve the role and status of victims in the criminal justice system. The larger agenda of criminal justice reforms touches on many more issues – such as better training for police personnel, a clear separation between the investigation and prosecution functions and continuous education for lawyers and judges. It is a big task and it can only be performed if the necessary political will exists for the same. If the failures of our criminal justice system are allowed to continue they will only encourage offenders to commit more crimes and correspondingly prompt acts of vigilante justice. The emerging crime scenario seriously threatens national security and economic development, warranting joint strategic measures between the union and the states on the basis of clear principles, priorities and objectives. An efficient yet fair criminal justice system is an essential requirement for a liberal democracy and these issues should be at the forefront of the agenda of all political parties.

I would like to once again thank all of you for inviting me here and being such a patient audience.


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Haider Ajaz
Said On
2-Apr-2009
New Delhi