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Sunday, August 29, 2010

Criminal Law - Corruption


Corruption was also the subject of a 1997 U.N. General Assembly Resolution entitled Action Against Corruption. The resolution underscored the General Assembly's concern about the serious problems posed by corrupt practices to the stability and security of societies, the values of democracy and morality, and to social, economic and political development. Professor Ndiva Kofele-Kale has argued that an emerging customary law norm that treats corruption as a crime under international law draws strong support from the following: 1. Consistent, widespread and representative state practice proscribing and criminalising corruption; 2. The widespread condemnation of acts of corruption as reflected in the preambles of multilateral anti-corruption treaties and in declarations and resolutions of international organisations; 3. Pronouncements by states in recent years that evidence a universal condemnation of corrupt practices by public officials; 4. A general interest in cooperating to suppress acts of corruption; and 5. The writings of noted publicists recognising corruption as a component of international economic crimes. Based on these factors, he has argued that there is a strong case for treating corruption as a crime under international law with individual responsibility and punishment attached to it.
In India the problem of corruption emerges soon after the independence of the country and is regularly affecting the criminal Justice Delivery System in India. This problem which is not solved out till now has created the loopholes in the system which has resulted into injustice, inequality before law and biasness among the individuals.


Civil law governs the issues that arise between parties over private rights. Thus, a citizen who sues another for acquisition of a disputed property has grounds for a civil case. An example of a civil case is an individual suing the government for infringement of his fundamental rights. Still another example is a suit by one citizen against another for property damage or physical injury caused by an automobile accident. A civil case is brought by the injured party for damage to his or her personal rights, person, or property. The injured party seeks some sort of compensation (usually monetary) for the injury or damage to the person or property.
A criminal case is a suit that is brought by the government for violation or injury to public rights. Even though a crime may be perpetrated against a single victim, the public as a whole takes up the cause of the affected individual. An individual who violates the provision of law against anyone violates the rights of the public as a whole. The government enforces the rights of the public through prosecution based on criminal law, which ranges from petty offences to committal of murder. Criminal law includes all laws designed by the legislature to maintain order and safety in our society. It carries a penalty of a fine or imprisonment. A court may also order restitution (compensation) to the victim. With the exception of an order of restitution, generally any claim for damages by a victim who may have been injured by a crime must be resolved in a civil suit against the alleged criminal brought by the injured party.
In a civil case, the penalties are quite different. For example, there is no imprisonment. Secondly, any judgment that awards money is payable to the individual whose rights were invaded and injured. The award of money should be sufficient to compensate the injured party for the reasonable cost of the injuries, thus the term compensatory damages. Additionally, in cases where money cannot adequately compensate but some action could, the guilty party may be ordered to act or refrain from acting in a certain way. This is called injunctive relief and, more particularly, specific performance. This type of relief is quite limited. Some jurisdictions also permit the recovery of punitive damages (also Compensatory Damages- An award of money payable to the injured party for the reasonable cost of the injuries. known as exemplary damages), which are additional monies that the defendant is ordered to pay as a form of punishment. The reasoning behind punitive damages is that some actions are so grossly improper that the defendant should be punished in a way that will serve as an example to others who might contemplate the same wrongful conduct.
In civil cases, procedural law takes effect when citizens bring a dispute to the legal system. In criminal law, the law enforcement agencies and prosecutors who are part of the legal system initiate a claim against a citizen. Therefore, criminal procedural law begins at the time the law enforcement personnel anticipate that they will bring a dispute into the legal system.
Substantive Law
This is the law that creates and resolves the issue between the parties. Legal standards that guide conduct and that are applied to determine whether or not conduct was legally appropriate.
Substantive law creates, defines, and regulates rights, as opposed to adjective, procedural, or remedial law, which provides a method of enforcing rights. It is exactly what its name implies, the body, essence, and substance that guide the conduct of citizens. It encompasses principles of right and wrong as well as the principle that wrong will result in penalty. It includes the rights and duties of citizens, and it provides the basis to resolve issues involving those rights. Every citizen has the right to live and enjoy his or her own property free from intrusion by other citizens. All members of a populous society are obligated to respect and to not interfere with the rights of others. Substantive law establishes the extent of this right and obligation to which all persons are subjects. When a person engages in conduct that has an adverse effect on another individual, an injury may occur. An innocent injured party who wants to be compensated for the damage caused by the injury may request assistance from the legal system on the basis that the injuring party acted wrongfully. Such wrongful conduct gives rise to the dispute between the two parties. The court will examine the situation to determine whether the conduct of the party alleged to be at fault was indeed wrongful by society's standards. If it was, the party will be judged and will be penalized. If it was not, the party will be judged innocent. In either situation, the court resolves the issue based on what society has determined to be right and wrong conduct between individuals and entities
Procedural Law
(Procedural Law is the Law used to guide parties fairly and efficiently through the legal system.)
Procedural law prescribes a method of enforcing rights or of obtaining redress for the invasion of rights. The basic function of civil procedural law is to facilitate the movement of a lawsuit through the legal system. Procedural laws are created to ensure that each party will be afforded fair and impartial treatment. Further, procedural law has its goal that judges and juries will receive only evidence that will allow them to make a fair and impartial decision. Civil procedure can be likened to a large piece of machinery that assembles a product. It does not feel or possess opinions. The function of procedural law is to assemble all of the pieces into a complete product. The parties to the suit provide the pieces to the product at appropriate times and in the appropriate manner. The completed product delivered from the machine is the decision that resolves the dispute. This decision is based on the pieces of information (substantive law and facts of the case) that have been fed into the machine and assembled. The principles of law that were applied in a case to determine who should prevail, based on the most reasonable explanation of the facts, is substantive law. Procedural law also plays a part in the litigation and includes the following:
• The time limit for bringing a lawsuit.
There are distinct and sequential steps in filing a civil suit seeking specific remedies against particular persons (called "defendants".) These are discussed in detail in the next chapter.
• Subordinate Legislation or Delegated Legislation
Subordinate legislation, is the legislation made by an authority subordinate to the sovereign authority, namely, the legislature. According to Sir John Salmond, "Subordinate legislation is that which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority." Most of the enactment provide for the powers for making rules, regulations, by-laws or other statutory instruments, which are exercised by specified subordinate authorities. Such legislation is to be made within the framework of the powers so delegated by the legislature and is, therefore, known as delegated legislation,
• Necessity for subordinate legislation
The need and importance of subordinate legislation has been underlined by the Supreme. Court in the Gwalior Rayon Mills Mfg. (Wing) Co. Ltd. V. Asstt. Commissioner of Sales Tax thus:
Most of the modern socio-economic legislation passed by the legislature lay down the guiding principles and the legislative policy. The legislatures because of limitation imposed upon by the time factor hardly go into matters of detail. Provision is, therefore, made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. The practice of empowering the executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State.
In a modern welfare State, government activity has pervaded every field of human endeavour, social, economic, industrial, scientific and technical. Elaborate legislation by democratic process of discussion is not merely time consuming but is also becoming an increasingly complicated and technical affair. What a legislature can possibly do and actually does is that it lays down the policy and purpose of the legislation and leaves it to the executive, experts and technocrats to provide for working details within the framework of the enactment by way of rules, regulations, bye-laws or other statutory instruments.
That is why, delegated legislation is increasingly assuming an important role in the process of law making, comprising an important component of legislation. Powers have also been conferred under various provisions of the Constitution of India on the different functionaries {e.g., the President, the Government i.e., the executive), to frame rules, regulations or schemes dealing with various aspects.
• Nature of subordinate legislation
"Subordinateness" in subordinate legislation is not merely suggestive of the level of the authority making it but also of the nature of the legislation itself. Delegated legislation under such delegated powers is ancillary and cannot, by its very nature, replace or modify the parent law nor can it lay down details akin to substantive law. There are differences where pieces of subordinate legislation, which tended to replace or modify the provisions of the basic law or attempted to lay down new law by themselves had been struck down as ultra vires.

• Control of legislature on delegated legislation
While in the context of increasing complexity of law-making, subordinate legislation has become an important constituent element of legislation, it is equally important to see how this process of legislation by the executive under delegated powers, can be reconciled with .the democratic principles or parliamentary control. Legislation is an inherent and inalienable right of Parliament and it has to be seen that this power is not usurped nor transgressed under the guise of what is called subordinate legislation.
Etymologically the word "corruption" comes from the Latin verb "corruptus " (to break); it literally means broken object. Conceptually, corruption is a form of behaviour, which departs from ethics, morality, tradition, law and civic virtue.
The classic definition, followed by the World Bank and Transparency International, views corruption as the use of one's public position for illegitimate private gains. Abuse of power and personal gain, however, can occur in both the public and private domains and often in collusion with individuals from both sectors. Information International in Lebanon therefore adopted the following definition: "Corruption is the behaviour of private individuals or public officials who deviate from set responsibilities and use their position of power in order to serve private ends and secure private gains."
The UN's Global Programme against Corruption (GPAC)defines corruption as the "abuse of power for private gain" and includes thereby both the public and private sector. Although perceived differently from country to country, corruption tends to include the following behaviours: conflict of interest, embezzlement, fraud, bribery, political corruption, nepotism, secretarisme and extortion.One measure of the extent of corruption in a particular country is Transparency International's annual Bribe Payers and Corruption Perception Indices.

Why corruption develops varies from one country to the next. Among the contributing factors are faulty government and development policies; programmes that are poorly conceived and managed; failing institutions; inadequate checks and balances; an undeveloped civil society; a weak (corrupt) criminal justice system; inadequate civil servants' remuneration; and a lack of accountability and transparency.
A serious impediment to the success of any anti-corruption strategy is a corrupt judiciary. A corrupt judiciary means that the legal and institutional mechanism designed to curb corruption, however well-targeted, efficient or honest, remains crippled. Unfortunately mounting evidence is steadily surfacing of widespread judicial corruption in many parts of the world. Insufficient attention has been given to the integrity of the judiciary and the broader criminal justice system.
It is an acknowledged fact the Police, Prosecutors, Judges and the penal officers are all an integral part of the same criminal justice system. The goal is common. The objectives of all is to fight the menace of corruption and make the criminal justice system more efficient, effective and vibrant. It will be in the interest of all, to increase its respect and credibility of the criminal justice system in the eyes of the common people.
Today, apart from unchecked growth of population, the most serious problem facing the country is corruption. This country is on the thresh-hold of an historic transformation. We have taken great strides in food production, space exploration, economic development and most recently computers and information technology. We home to become a developed nation in the shortest time possible and leaders in Electronics and Information Technology. However, one factor which constantly worries us is the criticism of the criminal justice system from all quarters. Growing corruption., degradation of values and lack of ethics are being put at the door step of the criminal justice system in India. This can be possible only by making the system more responsive to the needs of the society. We all admit that "justice delayed is justice denied". Many a time the delay is attributable to the inordinately long time taken by the investigating agencies and even longer time taken by the Courts to try the offences and come to judgment. The strength of any system lies in the trust and credibility that it enjoys in the eyes of the people. The public, the parliament and the Press holds the Judiciary in high esteem and also agencies like the CBI and various other institutions like CVC etc. However, this is not sufficient to take the Nation forward and achieve our pride of place in the comity of Nations. Nor is it sufficient for progress of the Country and its people. The whole system has to work together to achieve the end results of providing an honest and corruption / crime free environment. Under our legal system, an investigation has to be honest, fair and truthful. The delay in investigation or biased investigation or even failure to apply scientific methods of investigation will inevitably lead to improper prosecution and miscarriage of justice. While there is much that can be done to avoid delays in the investigation of cases by the police there is also need to have a re-look at the legal provisions dealing with investigation. The Cr. PC has emphasized the need for speedier investigation and also imposed time limits for investigation as well as cognizance of cases.
The Supreme Court of India and various authorities and institutions have repeatedly enjoined on all police officers to expedite investigation of cases. Delay caused in investigation amounts to abdication of duty. However, it must be said in all fairness to the Investigating Officers that their present strength, equipment and facilities are highly inadequate. They are required to perform other important duties as a result of which the task of investigation gets relegated to the background. The Law Commission of India and National Police Commission have made several path breaking recommendations not only to increase the strength of investigating officers, modernize their equipment, provide better means of transport but also recommended amendments in various sections of the Cr. PC, evidence Act and IPC. In the recent past I have felt troubled by the problem of perjury. This aspect of disrespect for the law is increasing and we need to take stock of the situation immediately.
The miscarriage of justice takes place not only on account of biased / faulty investigations but also ineffective prosecution and improper trial. The prevention of Corruption Act lays down provision for day-to-day trial by Special Courts in corruption cases. However, due to various reasons, which are well known-this does not take place. Also many a time, undue and unnecessary importance is given to technical flaws and archaic procedures. The Defence Counsel and the Bar also play an important role in trials. But frequent strikes by the Members of the Bar Associations showing utter disregard for the interest of their clients, victims of crime, witnesses and the entire criminal justice system, brings the wheels of justice to a halt.
Long adjournments granted by courts have come to be seen as acts of favour shown to the mighty and influential. These adjournments not only lead to delay of justice but also denial of same to the victims, harassment of witnesses and sometimes create the impression that trials are being conducted only to safeguard the rights of the accused rather then provide justice to the victim and society at large.
In Criminal justice system maximum numbers of interlocutory proceedings are permitted. Our criminal justice system permits easy and frequent resort to interlocutory proceedings at several stages and several levels. As a result of this, the rich and the powerful are able to exploit the system to their advantage and escape the consequences of their corrupt / criminal acts. This not only demoralizes the Investigating Officers, Prosecutors and conscientious judges but also the general public and the Society.
The Indian legal system has seen many eminent judges who have delivered inspiring judgments. But now, sometimes, we have too many laws, rules and procedures but less justice. The trend of writing lengthy judgments, delivering complicated orders or reserving the judgments for long periods needs to be curbed. Innovations, time to time introspection, always yields solutions. I would like to quote from the speech of the Hon'ble Prime Minister of India which he delivered in the CBI Conference recently. He said "no doubt, shoddy investigation, leading to acquittal is a part of the answer. However, a major part of the blame lies with out criminal justice system. Its long delays and arcane procedures inspire little confidence either among the people or even among the investigating agencies. This calls for serious soul searching and urgent self-corrective action by the judiciary".
However, all of us are conscious of the lack of resources in the three wings of the criminal justice system. There are large number of vacancies and inadequate infra structural facilities at the grass root level. There is an urgent need to modernize and computerize the offices of not only the investigating officers but also of the Prosecutors and Judges.

Prior to the outbreak of the Second World War corruption among Public Servants was not felt as a social or national problem, though it was moderately confined to the lower ranks of the civil service. In particular corruption was prevalent in considerable measure amongst revenue, police, excise and public works department officials, in the lower grades. The higher ranks were comparatively free from this evil.

The immense war efforts of 1939, which involved annual expenditure of hundred of crores of rupees over all kinds of supplies and contracts created unprecedented opportunities for acquisition of wealth by doubtful means. Controls and scarcities generated by war provided ample opportunities for bribery, corruption, nepotism etc. In the face of the threat faced by the country, all out efforts were concentrated on war effort. Prompt attention was not paid towards the looming social danger that was destined to grow to gigantic dimensions and persist as a permanent problem in the decades ahead.

However the Government for long could not ignore the emerging virus in its administration. To arrest the spreading cancer of corruption among its servants, the then Government, by an executive order created the Special Police Establishment in the year 1941 under the War Department. As the exercise of investigative powers of the SPE was challenged before courts, Government to remedy the situation promulgated Ordinance XXII of 1943 to confer legal status and authority to the SPE . When this ordinance lapsed, a new ordinance (Ordinance 22 of 46) took its place. Finally Government in 1946 passed the Delhi Special Police Establishment Act .

The objects clauses of the act specifies the purpose of the act as "to make provision for the constitution of a Special Police force in Delhi for the investigation of certain offences in the Union Territories, for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences".

The act extends to the whole of India. The superintendence of the Delhi Special Police Establishment vested with the Central Government. In terms of recent order of the Supreme Court of India, it is now transferred and vests with Central Vigilance Commission since 1998 .

The jurisdiction of the SPE extends all-over India. But the SPE has to exercise its jurisdiction in any area of a State, (other than Union Territories) only with the consent of the Government of that State.

As a further measure for the effective prevention of Bribery and Corruption, the Prevention of Corruption Act 1947 was enacted. The objects and reason for this enactment was stated by the Government as under:

"The scope for bribery and corruption of public servants had been enormously increased by war conditions and though the war is now over, opportunities for corrupt practice will remain for considerable time to come. Contracts are being terminated; large amount of Government Surplus stores are being disposed of; there will be for years shortage of various kinds essential goods requiring imposition of controls and extensive schemes of post war reconstruction involving the disbursement of very large sums of Government money. All these activities offer wide scope for corruption and seriousness of the evil and possibility of its continuance or extension in future are such as to justify immediate and drastic action to stamp it out"

The country attained Independence in August 1947. The Government, which assumed office after independence, showed considerable concern to weed out the evil of corruption. In 1949 the Tek Chand Committee was appointed to review the working of the Prevention of Corruption Act. In 1951 the committee was also requested to assess the working of the SPE and its efficacy in combating corruption. All India Services (Discipline and Appeal) Rules, 1955 were formulated.

To provide for expeditious trial of offences involving corruption by public servants under Sec.161, 162, 163, 164, 165or Section 165A of Indian Penal Code or Section 5 of the Prevention of Corruption Act 1947, Government passed the Criminal Law Amendment Act, 1952 . This Act provided for trial by special judges thus modifying selectively the provisions of the Code of Criminal Procedure, 1898.

In October 1953, the Railway Corruption Enquiry Committee was appointed under Chairmanship of Acharya Kripalini . The Administrative Vigilance Division was set up in Govt. of India in August 1955 and the vigilance units in the Ministries/Departments came into existence immediately thereafter. To update your knowledge, I may point out that the Administrative Vigilance Division has been now scrapped after 1998, when the CVC was made a statutory body. Similarly CVOs (Chief Vigilance Officers) approved by the CVC function in all Vigilance Units in the Ministries/Departments under direct supervision and guidance of the CVC .

The second World War bought forth the evil of corruption to become widespread in public services. It got a further momentum and impetus in the post war period on account of the country accepting development planing on a large scale, budgeted heavily through deficit financing with inflation reaching double digits. The sudden expansion of Governmental activities in economic spheres resulted in a plethora of regulations, controls, licences and permits. These provided large opportunities for the unscrupulous elements in public service to capitalize on them. The Government was, consequently, waging a losing battle and it could not keep up the momentum of its anti-corruption drive. Speed Money became the watchword for pushing files through the maze of red tape and the caverns of rules and regulations. Corruption not only increased, but became a way of life in the civil and public services with the common man meekly accepting the inevitable and adjusting to live with it.

It was in this background that in June 1962, Government of India announced the appointment of a committee under Shri K.Santhanam , M.P. with a wide list of references to examine the problem and all attendant matters in their complete perspective to recommend comprehensive solutions. The Committee, which came to be popularly identified now as the Santhanam Committee submitted its report on 31-3-64 . This report marked a high watermark in the crusade against corruption. The broad cantours of the anti-corruption framework that exists even today is inherited from its recommendations.

The Indian Penal Code, 1860 is the central piece of legislation in India in combating all types of crimes. The corresponding procedural legislation describing various steps and courses to be followed in respect investigation, prosecution etc. under the Act is covered by the Code of Criminal Procedure. But corruption, as such, is not mentioned or described as a specific offence in the Indian Penal Code. This is because Corruption is recognized as a category or group of offences, which were earlier individually defined and punishment therefor mentioned in the Indian Penal Code. The various offences were earlier included in the Indian Penal Code under Section 161 to 165 and 165A, but have now been repealed with the Passing of the Prevention of Corruption Act 1988. The provisions that were part of Chapter IX of Indian Penal Code under Section Nos. referred above are now incorporated under Sec. 7, 8, 9, 10, 11 and 12 of the Prevention of Corruption Act, 1988 .

These offences covered in the group of offences (commonly recognized as 'corruption in public services ) are as under:

• Sec.161 - Public servant taking gratification other than legal remuneration in respect of an official act (presently covered by Sec.7 of Prevention of Corruption Act, 1988)

• Sec.162 -Taking gratification, in order, by corrupt or illegal means to influence public servants (presently covered by Sec.8 of Prevention of Corruption Act, 1988)

• Sec.163 -Taking gratification, for exercise or personal influence with public servant. (presently covered by Sec.9 of Prevention of Corruption Act, 1988)

• Sec.164- Punishment for abetment by Public Servant of offences defined in Section 162 or163. (presently covered by Sec.10 of Prevention of Corruption Act, 1988)

• Sec. 165- Public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted, by such public servant (presently covered by Sec.11 of Prevention of Corruption Act, 1988)

• Sec. 165A- Punishment for abetment of offences defined in Section 161 or Section 165 (presently covered by Sec.12 of Prevention of Corruption Act, 1988)

In 1988 in order to have a single consolidated and precise enactment for dealing with increasing number of criminal cases investigated by the CBI, the P.C Act was again amended by incorporating relevant sections of the Indian Penal Code (sections 16l to165 and 165A) within the ambit of the P.C. Act . The Criminal Law Amendment Act, 1952 was also repealed by incorporating its provisions in the P.C. Act, 1988. The consolidated P.C. Act, 1988 was passed by the Parliament on 9th September 1988. The P.C. Act, 1988 is therefore a substantive as well as procedural legislation to deal with corruption in public services. However proceedings under the Act will still be governed by provisions of the Code of Criminal Procedure and The Indian Evidences Act, those have not been amended by the Act.


The adversarial system as followed in our Country has contributed to satisfactory dispensation of criminal justice

The unsatisfactory state of criminal justice in India has nothing to with the adversarial system. The reason for that unsatisfactory situation lies elsewhere. India’s social structure and attitudes are very much conditioned by entrenched habits of discrimination. There are various forms of discrimination, among which one may mention caste discrimination, discrimination of indigenous (tribal) people, and minorities. Discrimination weighs heavily on the justice system. This has created severe obstacles for development of India’s justice system in general and the criminal justice system in particular. The investigative machinery regarding crimes is terribly underdeveloped, both in terms of attitudes as well as facilities. Further, the justice that one may get is also associated with poverty. The level of poverty in India is so appalling that the result is that the poor cannot afford justice. Beside this, the management of the criminal justice system is backward, inefficient and obsolete. Poor human resources and technical resources affect every area of the system.

Under these circumstances it can be said that the adversarial system has never stood a real chance in India. To the extent it has been effective it has mitigated the operation of traditional prejudices, however India continues to subsist under the Law of Manu, instead of modern rules of justice. It is against the background of the real history of India that the legal norms established by the British must be judged. In that light we see two things: first, new rules helped bring down the rigour of repression in the old system; second, old habits and practices prevented wholesome developments under the new principles.

The effect of abandoning the adversarial system will be negative for the people who have been less powerful in society throughout Indian history. Under the pretext of abandoning the adversarial system what seems to be underway is an effort to in fact abandon the more progressive aspects of the law, for the purpose of getting more easy convictions.

Investigation of cases being done under the supervision of the Judge, as in the inquisitorial system as in France ?
First it should be noted that many aspects of the inquisitorial system have come under heavy criticism in the European Court of Human Rights, and also from many French jurists. Now the tendency is to modify the inquisitorial system by incorporating many aspects of the adversarial system.

It is naïve to think that the civil law system merely involves having an inquiring judge. That system has had its own historical development and one of its major advantages is its mechanism to guide police investigators to act legally. That system requires a very highly developed police force. If India could develop such police, then there would be no need for any change because the adversarial system itself would function well with such an advanced policing system.

It must also be noted that a civil law system would be more expensive. In the place of one judge required for a court, there would have to be two—one inquiring judge and a trial judge—doubling the problem of finding good magistrates in India. It is already difficult to find one judge for every court: how much more difficult will it be to find two?

Above all it would take a long time to create the mental habits needed to operate this new system. Under all the best circumstances it might even take over half a century to get used to this new system. Given the slow Indian (South Asian) capacity to adjust to change, it may take even more time.

Instead it would be better to seriously address the defects of operation in the adversarial system in a comprehensive manner, and improve its real operation. This would mean improving the policing system, prosecution system and judicial system—particularly in the lower courts and those excising criminal jurisdiction.

In the system presently followed, the accused enjoys the "right of silence", which often comes in the way of search for truth in criminal cases.

The importance of the right of silence is that it ensures an efficient investigation into a crime before filing charges. That a person should be charged only if the prosecution has sufficient evidence to ensure a conviction is a very important principle. Otherwise there will be frivolous charges in the hope that perhaps the accused will incriminate himself or herself. As it stands now, when there is serious evidence against an accused the burden shifts to him to explain the matters in his disfavour. Thus, the principle is rich enough if the criminal investigations are done well, if the prosecutors are competent, and if the judges are well educated to deal with these principles. In contrast, if merely because a charge is filed the accused has to reveal his defense, the police and prosecutors will take more chances with their cases, instead of respecting the principle of the presumption of innocence.

It must also be noted that in the social circumstances of India, the opportunities for many accused to get good legal advice—or any legal advice at all—before making a defense are much less than in a developed country. Poverty and ignorance obstruct such opportunities. Through fear and other reasons an accused may put forward what he thinks is a better defense than the truth. Then the prosecutors can demolish the defense and expose the person as a liar. In my view, given the complex nature of human responses when faced with fear of punishment, it is very dangerous to demand that a person give a precise defence without he himself choosing to do so.
Demanding a defense beforehand will also reduce criminal trials to civil standards and blur the difference between the two. Given the fact that a person’s life and liberty is at risk, reducing criminal trials to the same level as civil ones is immoral.

Proof on the basis of preponderance of probabilities as in civil cases, instead of proof beyond reasonable doubt?

To effect such a change goes against the very fundamentals of criminal trial, which deal with the life and liberty of individuals. Civil disputes deal mainly with property matters and criminal trials deal with the life and liberty of people. If a person is to be sentenced to death on the preponderance of probabilities that is a mockery of justice. The same applies to imprisonment. Such a change to the standard of proof would trivialise criminal justice. A direct outcome would be the further degeneration of the police investigators and prosecutors. It would open the road for miscarriages of justice, which even now take place under a more strict burden of proof.

If no presumption of innocence or guilt of the accused is drawn, such neutrality would impact unfairly or lead to failure of justice?

It would destroy the very fabric of the criminal justice system. As the presumption of innocence of the accused was developed after a long struggle against very barbaric practices, not long after the removal of this presumption the system would surely fall back into such black practices.

In some laws, the burden of proof is placed on the defence by raising certain rebuttable presumptions against the accused.

The practice of placing rebuttable presumptions should be limited as much as possible, and in India (South Asia) in particular, where the police have yet to establish a reputation for acting in a fair manner.

Introduction of the concept of ‘plea-bargaining’ as is practised in USA?

While the concept of plea bargaining itself need not be rejected, some preconditions should be set out, such as representation by competent counsel. Given the social context of India, where many poorer persons become accused, they can be pressurized into bargaining even when they have had nothing to with the offence. In such circumstances the threat is that, "You may lose the case and if you fight you’ll be punished severely—so why not bargain for lesser punishment?" Thus a legally weak position of an accused without competent counsel can be exploited, even when the prosecution is aware that its case is a weak one.

The scheme of "Concessional treatment for offenders who on their own initiative choose to plead guilty without any bargaining" as recommended by the Law Commission of India in Chapter IX of its One Hundred and Forty Second report?

This statement merely restates a practice that has existed for a long time. It is also supported by such considerations as self-remorse and regret for wrongdoing. However, even in these instances it is the duty of the judge to ensure that the accused is in fact acting freely and is well advised legally. Again, in the Indian social context this must be a primary consideration.

Enlarging the number of offences compoundable with or without the permission of the court
This should not be allowed for serious crimes. Particularly, the compounding of offenses should not allowed for crimes where offenders are state officers: for example, acts of torture by police.

Incorporating a general provision in the Criminal Procedure Code (Cr. P. C.), to the effect that unless otherwise expressly provided, all offences under special enactments shall be compoundable?

No. The general principle should be that compounding of offences is not allowed unless specifically stated otherwise. Once again what is at stake is the very nature of criminal trial. Criminal trial will be trivialized if all criminal actions can be compounded. It will also encourage further corruption where police in particular will try to make greater profit. This will also adversely affect offenses against persons belonging to specially protected groups, such as women and "low castes". Further, it will affect the judicial mentality, which for the purpose of easy disposal of cases will develop bargaining habits instead of judicial habits. The same will happen also to the quality of lawyers.

Easy compunding of cases will encourage crimes. Like the proverbial Roman who felt that he could hit people and then pay them a small sum, criminals too can easily benefit from such a situation.

Enlarging the scope of Sec. 206 of Cr. P. C., by making it applicable to all offences where penalty prescribed is fine with or without imprisonment?

This should become a general principle. Threat of imprisonment is necessary for prevention of crime. More serious crimes, if proved, must result in imprisonment. Payment of fines is not enough. Payment of fines as the only punishment will also benefit the rich and act to disadvantage the poor. Even now many people go to prison for non-payment of fines. Finally, the special offences for protection of weaker social groups will become meaningless without the threat of possible imprisonment.

The predominant global view, including international conventions, appears to favour the abolition of death penalty. The Supreme Court of India has ruled that death penalty is not unconstitutional, and may be imposed in rarest of rare cases.

Life imprisonment exists as an alternative and that is quite enough punishment. Further, more and more cases are coming to light that indicate miscarriage of justice in a significant number of cases ending in death sentences. Discovery of a miscarriage of justice after execution is futile for the person concerned and his or her family. And further, the people who end up with death sentences are mostly the poor.

In the absence of a statutory definition of "imprisonment for life" the said expression has "imprisonment for life" to mean imprisonment till death, as is in vogue in several countries?

The legal definition should leave much discretion to the judges in determining imprisonment till death, subject to an absolute fixed minimum term. However, it is also necessary that in cases of serious crimes the term of imprisonment not be subject to easy reductions. In the future, when offences such as crimes against humanity are likely to enter into criminal codes, it will be necessary that a difference in punishment be maintained depending on the nature and the gravity of crimes. A set of guidelines can be developed to this end.

The punishments provided under Sec. 53 of Indian Penal Code (IPC) are death, imprisonment for life, imprisonment—rigourous or simple, forfeiture of property and fine. In many countries, there are other types of punishments, including rendering community service.

For less serious crimes, offenders who are not hardened criminals with demonstrably bad records, and young offenders, community service is a better form of punishment. Working for voluntary organizations dealing with humanitarian issues is even better, and orders to follow compulsory courses on humanism conducted by approved groups can also be useful and may contribute to rehabilitation. The state can develop more creative rehabilitation programs, which can combine basic moral and ethical education plus skill training.

Where offences are against specially protected groups such as women and "low castes", convicts can be ordered to go through special orientation courses, and where possible do community service related to the victims of this social group. This can help to reduce the prejudice levels and improve tolerance

The present level of equipment and experience of the Judges of the Criminal Courts is adequate and satisfactory?

Above all the change needed is one of mentality. Judges must be able to use modern communication and administration methods. However, for that they must feel that the system they are leading is really working. Above all they need higher morale. It is a common principle that every profession needs improvement. How you bring it about is another matter.

Witnesses are often subject to serious threats to life/ property by the accused or their supporters.

The causes of such threats can be removed only by strong anti-corruption measures, as suggested above. Systematic threats and intimidation take place due to the weaknesses of the system. The people who intimidate feel that law enforcement is weak and they can do what they like. Without improving the overall system it is not possible to change such a mentality.

Judges should be accountable?

Immunity of judges for their professional work is a fundamental principle. Their neglect or corruption must be dealt with under an efficient system of control as suggested above. To address such issues in ad hoc way will lead to more problems.

The quality of investigation by the Police?

The quality of investigations will depend on accountability. Improving police is a very hard nut to crack. A strong anti-corruption strategy, completely outside police control, is essential. Besides that there should be education and training.

Cadre of Investigating Officers devoted exclusively to investigation of cases?

There should be such a group. But this group must be under supervision of officers of higher rank. In the long run, without a strong anti–corruption agency such a group can turn out to be very dangerous. When crime is organized by the police themselves, it is this type of special group that becomes its hard core. The control of police must be through an outside source, such as the ICAC in Hong Kong.

It is becoming more and more difficult to obtain reliable oral evidence. The use of modern scientific evidence has therefore become indispensable for proof. But unfortunately, the forensic science techniques available in our country are neither adequate nor up-to-date.

Introduction of forensic facilities of the highest quality is essential. Funds must be provided for this; in fact, they are a priority. Attempts to improve the system will fail if more adequate forensic facilities are not provided

The confessional statements made by the accused during investigation being video recorded in the presence of an officers not below the rank of Dy. S. P. [Deputy Superintendent]?

Till the whole system goes through thorough reform it would be dangerous to do this. Police act as a group. High-ranking officers will only be used to give credibility. The problem as it stands now is that many high-ranking people are not reliable. If they were reliable, the system would not be bad. Their subordinates would not do wrong things. If the subordinates are not reliable then the superiors too are not reliable. Higher rank often means higher craftiness and not higher morality.

The level of prosecution is far from satisfactory

In AHRC’s understanding of criminal justice in Asian countries, the weakest link in the system is the prosecution. We have particularly studied Sri Lanka, where this weakness is very obvious. There we have been making recommendations for changes during the last few years. The major defect lies in not incorporating the changes that have taken place in common law countries during the 20th century and instead keeping the same practices that British introduced in the 19th Century, which the British have since changed in their own country. In our view it is more appropriate to adopt these changes rather than trying to adopt aspects of the inquisitorial system. The adversarial system has improved its prosecution systems during the last century. The prosecutors’ branch in the UK, US and Australia has developed more sophisticated prosecution strategies. One area of improvement is that investigators must keep prosecutors informed of cases from the very start, and be guided by their legal advice. To achieve that, the prosecutors’ branch has spread competent prosecutors throughout all parts of the judicial system in these countries. The central body provides guidelines and supervises the work. This way the excesses of investigators can be prevented and negligence addressed. Thus, bringing criminals before courts becomes a joint responsibility of prosecutors as well as investigators. Hence the improvements of these common law jurisdictions must be studied and adopted.

Prosecutors are often appointed on political and other irrelevant considerations and not on merits

The presence of political influence is a common perception. A real alternative to that is the ICAC-type of strategy suggested above. Without such an alternative there will be no change, as better people will find that they are not allowed to work professionally by others motivated by different factors. The recruitment of better persons must be accompanied by serious reforms to deal with corruption.

Good and proper grounds for withdrawal from prosecution

A prosecution case should be filed only when there is a likelihood of a successful prosecution. Thus, in principle, there can be no grounds for withdrawal. However, a settlement arrived at in court or in a manner acceptable in law may be a ground for withdrawal. Withdrawal at will only shows that the prosecution should not have been undertaken at all. As putting an individual to trial is a very serious matter for that person the filing of prosecution must be considered thoroughly and carefully before it is done. The prosecutors owe serious explanations if they are to withdraw a prosecution.
Notifying the victim before granting permission to withdraw from the prosecution, and to give him an opportunity, to continue the prosecution, if he so desires?

At all stages the prosecution must keep the victims aware of all that is happening to their cases. Victims rights must not be taken away by the prosecutors. The last word on these issues must be left to the victim.

Protection of Human Rights of the Citizens is one of the important responsibilities of the Criminal Justice System. The performance of the Criminal Justice System in protecting Human Rights.

It is not satisfactory at all. Systemic problems must be corrected by addressing them in a decisive way and introducing an ICAC-type institution. Meanwhile:
• Legal redress must be provided to victims of human rights violations.
• India must ratify the Convention Against Torture.
• Torture must be made an offence with serious punishment provided to offenders.
• Human rights claims must receive priority in courts.
• More compensation must be granted to victims.
• Violators should be debarred from the civil service.

The existing laws dealing with crimes against women, children, Dalits and the disadvantaged persons do not adequately safeguard their interests

There need to more improvements.. The most important aspect is the implementation of existing laws. For example, there are many laws relating to Dalits but they are hardly implemented. The reasons for non-implementation should be studied. One obvious reason is the attitudes of the law enforcement agencies. Radical change is needed in this area.

To employ information technology for improving the functional efficiency of administration of the Criminal Justice System?

ALL aspects of the criminal justice system must be revolutionized by the introduction of computers, data processing, web-sites and other communication systems. Advice of experts must be sought. A whole new section in the justice system must be established to this end.

The country should have an “oath of transparency in place of an oath of secrecy” to provide speedy disposal of cases, minimise manipulative and dilatory tactics of the babudom besides checking graft and corruption.
“Right to information should be guaranteed and needs to be given real substance,” the National Commission to review the working of the Constitution emphasises in its report in the context of the executive and public administration.
The government should take steps for the early enactment of the freedom of information legislation. “It will be a major step forward in strengthening the values of free and democratic society,” the commission noted.
Underling the need for a Lok Pal and keeping the Prime Minister out of its purview, the commission called for the setting up autonomous personnel boards for assisting the high-level political authorities in making key decisions.
The commission desired amending the Prevention of Corruption Act, 1988, to provide for the confiscation of the property of a public servant who is found to be in possession of assets disproportionate to his/her known sources of income and is convicted for the said offence. In this case the law should shift the burden of proof to the public servant who was convicted. A proof of preponderance of probability shall be sufficient for the confiscation of the property.
The commission was of the view that from the joint secretary-level and above all posts should be open for recruitment from a wide variety of sources, including the open market.
“Social audit of official working should be done for developing accountability and answerability.” Constitutional safeguards have acted to shield the guilty against swift and certain punishment for the abuse of public office for private gain. It has become necessary to revisit the issue of constitutional safeguards under Article 311 so that honest and efficient officials are given the requisite protection but the dishonest are not allowed to prosper in office.
“The civil service regulations need to be changed radically in the light of contemporary administrative theory to introduce modern evaluation methodology.”
Simultaneously, the administrative structure and systems have to be consciously redesigned to give appropriate recognition to the professional and technical services so that they may play their due role in modernising the economy and society. The specialist should not be required to play second fiddle to the generalist at the top.
While advocating enacting laws similar to the Whistle-blower Acts in several western countries to fight corruption, the commission said the Act must ensure that the informants are protected against retribution and any form of discrimination for reporting what they perceived to be wrong doing.
The government should examine coming forward with a comprehensive legislation to provide public servants causing loss to the state by their mala fide actions or omissions would be made liable to make good the loss caused and in addition be liable for damages.

1 comment:

  1. "Balderdash! We can’t live without corruption. It is as Desi as garam masala and coconut hair oil. Any attempt to root it out would be tantamount to treason!" Jai Hind!!



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