REFORMS IN CRIMINAL JUSTICE

SYSTEM Om Prakash Yadav

Reforms in Criminal Justice system in India is long due reform. Till date only
cosmetic surgery has been made which is not going to solve or address to the
core issues. We have inherited the British legacy and continued till date, the time
has come when we should strive to make in accommodative to the changing
socio-economic and political milieu and ensure that it delivers to the expectation
of the public at large.

INTRODUCTION-

C
riminal Justice System in India is a British legacy and had been
established by the British Govt. The Indian Penal Code, 1860, Indian
Evidence Act, 1871 and Criminal procedure Code of 1898 laid down
the foundation stone of Criminal Justice System in India. The police force
was created to execute and implement the verdict and bring the culprits to
book. Police Act was enacted in 1849 last amended in 1861 to make the
police force institutionalised. These above mentioned laws marked the
beginning of evolution of Criminal Justice System in Modern India.

India became independent and we continued the British legacy. The voice
of concerns against police apathy and atrocities gaining strength and it
became gradually lauder. With the passage of time the system of
governance and priorities of government underwent changes. The welfare
state concept, human rights ethos as declared in Universal Declaration of
Human rights by the UN on 10th December, 1948 etc necessitated drastic
changes in the prevailing and exiting monolith structure of Criminal Justice
System in our country.

The Criminal Justice System includes two aspect of Justice-

1. Police. 2. Judiciary

POLICE- Police being the most important and most visible part of Criminal
Justice System, it was required to be revamped. The vestiges of British
legacies were sought to be done away with by making it more people’s
friendly, more responsive and more responsible. To achieve this desired
goal and reform the structure one National Police Commission was
constituted in 1977 by Ministry of Home affairs which gave
recommendation on Police reforms.

NATIONAL POLICE COMMISSION-(1977-81) This commission was set up

on 15 November, 1977 headed by Dharam Vira ICS, The commission gave
as many as 8(eight) recommendation, last was submitted in 1981.
Unfortunately none of the recommendations were implemented by any
state. Important recommendation of this commission are-

• Police complaint Board as state level

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• Posting of DGP from panel prepared by a committee comprising of UPSC
chairman, CS and officers of MOH
• State security commission
• Gram Nyayalaya ( village courts)
• DGP would chose SPs and SPs would choose SHOs.
• APP& Additional PP on regular basis.
• Cadre of investigating officers should be increased.
• Directorate of Prosecution at state level and Deputy Director at regional
level.
• Police stations as whole and compact unit (catering to all needs like
traffic, Law and Order, Crime etc.
• Urban areas should have exclusive police stations.
• 150 sq KM should have one PS in rural areas
Unfortunately none except Sikkim implemented all such recommendation.
Due to apathy of most of the state governments as well as the Union
government, Prakash Singh retired IPS and ex DGP Uttar Pradesh, filed a
petition in the Apex court (Writ Petition 310/1996). He pleaded in his
petition that in spite clear cut and exhaustive recommendation of National
Police Commission, governments are taking them seriously and reforms in
the Police department is sitting idle in the back seat. After so many years
of arguments and counter-arguments of governments, NGOs,
organisations of civil society and media houses, the Supreme Court
passed order on 11 January 2007.The Apex court directed both Union and
the State governments to implement recommendations of the
Commission. The Court also gave some valuable guidelines and
suggestions. This judgement has now become the guiding principles of
police reforms in India.
The main points of judgement passed in the above Writ Petition
310/1996 are as follows-
1. Establishment of a National Security Commission- this was for the
Union Govt to implement. It was envisaged that this Commission
would be comprised of PM and other functionaries of the govt. It
would also have CMs of all federating states as members. Apart
from this Commission would also invite experts from different
walks of life.
2. Establishment of a State Security Commission- this direction was
for the State governments to implement. The idea was similar as
above and it was aimed providing inputs to the state governments
on various related issues.
3. Selection of DGP from a panel and its fixation of tenure. The crux of
the matter was to ensure that DGP should not be frequently
removed and transferred. The top police functionary should be
given minimum amount of functional freedom to perform and
deliver. The selection of DGP from the proposed panel was to be
done by UPSC and officers of MHA, govt of India.
4. Minimum tenure of IGP to other field level officers.
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5. Separation of Law and Order from investigation. In fact this was
one of the most important recommendations of the commission.
With changing pace to time, the nature, pattern, modus-operandi,
magnitude and intensity of crimes have also undergone
metamorphosis. To tackle it we do require dedicated team of
officers to investigate and prosecute. The separation of Law and
Order from Crime is one such step in this direction.
6. Police establishment board. This board was to make the transfer
and posting of subordinate police officers more institutionalise and
immune from political interference.
7. Constitution of Complaint Authority. The Supreme Court asked the
State governments to constitute police complaint authority headed
by Sitting or retired judge to look into complaints against the erring
police officers so that complaints against them are looked into by
an authority other than the police itself. Over a period of time
serious complaints against police like murder, dacoity, rape, loot,
fake encounter etc have frequently been levelled, but many of
them are thrown into dust bins and the complaints are wrapped in
carpets.
In pursuance of the above direction Government of Bihar
enacted Bihar Police Act, 2007 in the year 2007 and repealed the
relevant part of provisions of Police Act, 1861. State of Bihar took
lead in this direction and incorporated some of the directions given
by the Supreme Court. In section 59 of the act, the police
department at district level has been made answerableto district
complaint authority. Keeping in view of the spirit of judgment
delivered by the apex court in Prakash Singh v/s Union of India, a
civil officer, the district magistrate has been made chairman of this
complaint authority.
The Act has yet not been fully enforced in the sense that till date
Rules to this effect has not been framed. Section 94 of the Act
empowers the Govt to frame Rules; non framing thereto has
hampered the enforcement of this Act.

REFORMS IN CRIMINAL JUSTICE SYSTEM (JUDICIAL SIDE)

The first serious attempt was made in 2000 when Ministry of Home
affairs constituted a committee on 24 November, 2000 under the
chairmanship of Justice V.S. Mallimath, retired Chief Justice of
Karnataka High Court and Kerala High Courts. Eminent legal
luminaries like Chairman CAT, Member of NHRC were made
members of this committee which is popularly known as
MALLIMATH COMMITTEE.
TERMS OF REFERENCES-
• Suggest fundamental principle of Criminal Jurisprudence.
• Need to rewrite Criminal Procedure Code, Indian Penal
Code, IEA etc

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 • Simplifying procedure for dispensation of speedy justice
and simplifying complications in Criminal jurisprudence.
• Suggest ways and means developing synergy among Police,
Judiciary, and Prosecution.
• Concept of federal crime in List I of seventh schedule so
that heinous crimes can be removed from state list and
bought to Union list I( article 246 of Indian Constitution)

Recommendations of Malimath committee-

1- Striking a balance between adversarial and inquisitorial

system of investigation. The latter being supervised by a
judicial magistrate.
2- Restriction to right to silence. This fundamental right is
enshrined in Article 22 (3) of constitution which confers
the accused the right to keep mum in eliciting
information to a prosecution during examination.
3- Justice to victims. Present day criminal jurisprudence is
based on the concept of awarding punishment to a
accused to other than providing relief and succourto the
victims. Committee recommended for awarding
adequate compensation to the victims apart from
awarding punishments only.
4- Separation of investigation and law and order wing of the
police on line of NPC.
5- Special legislations to be enacted for organized crime,
economic offences, Terrorism and low intensity war.
6- Concept of Federal Crime to be inserted Criminal
jurisprudence and should be brought in list I of schedule
VII in Article 246 on Indian Constitution on lines of
America.

FATE OF MALIMATH COMMITTE’S RECOMENDATION –

Like many other recommendations of numerous committee

and commission, 158 recommendationsof this committee
also mat the same fade. Majority of the recommendations
have been thrown into the dust bins. Bihar is one such state
which has partially acted on lines of these recommendations
and has in acted Bihar Police Act 2007 repealing some of the
out dated, vestigial and obsolete provisions of Police Act
1861.

MAJOR CHALLANGES FACING INDIAN JUDICIAL SYSTEM –

1. Huge pendency of cases (3, 63, 36,000) in different

courts.
2. Inordinate delay in disposal of cases.
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3. Ill –prioritisation of cases. The listing of cases are still
done, despite computerisation , in most unscientific and
non transparent manner
4. The quality and quantity of judgement are affected not
by quality of judgement rather than personalities of the
lawyers. Jungle of rulings has swallowed the bare Acts
Codes.
5. Appointment procedures of High Court and Supreme
Court Judges are not institutionalised (Advocate on
record versus Union of India case in 1994 Supreme Court
of India)
6. The impeachment procedure of High Court and Supreme
Court Judges is arduous and complicated. This has led to
development of an idea that judges can never be sacked.
(The case of Justice Soumitra Sen, the judge of Calcutta
High Court is still to be taken up in the Parliament.
In the above mentioned circumstances, the new
government at centre cannot afford recalcitrant attitude
towards reforms in Criminal Justice System. The law
ministry under the new guard must take up the issue
with utmost seriousness to ensure that equality before
the law and speedy dispensation of justice are translated
from principle to reality.