Systemic assessment should precede criminal law reforms

While introducing the three new Criminal Law Bills to “transform our criminal justice system”, Union Home Minister Amit Shah declared that the government’s ultimate goal was to increase the conviction rate in criminal trials to above 90 per cent. For a country that currently has an average of 57 per cent conviction rate, even after years of delay, the target seems like a tall order. Contrast this with countries like Japan and China, which report an astounding 99.9 per cent conviction rate, or the US and UK, which report more than 80 per cent conviction rate. It is evident that India has much distance to travel.

‘Conviction’ by a court of law means that an accused person has been found to be guilty of the offence/s they were charged with, based on the evidence gathered by the police and satisfactorily presented by the prosecution before a judge. High convictions are indicative of effective discharge of duties by three key actors in the criminal justice system: first, the police in gathering timely evidence and identifying the most probable perpetrator; second, the public prosecutor, in building a legally tenable case against the accused based on credible evidence and assisting the court in appreciating such evidence; and third, the judge, in applying correct laws, principles and procedures in declaring the accused guilty beyond reasonable doubt. The current rate of conviction in India is reflective of the sorry state of affairs across all these three institutions -- police, public prosecutors, and courts. 

In the new Penal, Criminal Procedure and Evidence Bills, there is little to show for the bold goal set by the Home Minister. While there are provisions to augment police’s evidence-gathering capacities through emphasis on more forensic labs, this is unlikely to vastly improve the status quo if the public prosecutor’s office and courts remain untouched. 

Public Prosecutor Reforms 

A key difference between the Indian and the Japanese criminal justice system, which boasts the highest conviction rate in the world, is the role played by Public Prosecutors (PP). In Japan, prosecutors pursue only those cases where they are convinced of enough evidence to secure a conviction. Therefore, cases that are weak on evidence are filtered out and only robust cases make it to trial before a judge. However, the PP in India play a mere tokenistic role in deciding the feasibility of a case. This directly results in several innocents being dragged through long years of criminal trial, only to be acquitted for lack of evidence. The mechanical way in which trials are pursued, especially if the accused belongs to socio-economically weaker sections of society, leaves much to be desired. 

It is not just the powers vested with the PP (or the lack of it), there is also a severe shortage in the number of prosecutors appointed by the states. For instance, there are some 1,060 PPs handling around a million pending cases in Karnataka. This implies that on average, a PP handles around 950 cases. Further, the distribution of cases amongst the PPs is not uniform and the pay is low at an average of Rs 60,000 per month, leading to all-round discontentment. This invariably affects the quality of assistance rendered to the court, causing extreme delays in trials and increasing undertrial prison population. 

Prosecutors continue to be under the effective control of the State. Their mode of appointment, performance assessment and accountability frameworks are all in need of an overhaul. Lack of focus on the Public Prosecutor’s office in the new Bills is a missed opportunity and showcases a lack of awareness of ground realities. Irrespective of the quality of evidence and investigation, if the prosecution is ineffective or is working under perverse incentives, the ends of justice will remain unmet. 

Judicial Impact Assessment

At present, nearly 33 million criminal cases are pending in district courts across the country, with approximately 3.1 million cases pending for more than 10 years. If the courts remain incapacitated to such an extent, the creation of more offences or increasing police’s powers will neither deter nor punish criminals.

The complete lack of assessment of the courts’ capacity to deliver justice has been a significant gap in the law-making process in our country. Every new law creates a set of rights and duties, and the courts are tasked with enforcing and upholding them. Therefore, a serious law-making process would take into account the courts’ existing capacities and scientifically assess the resource requirements to effectively deal with new offences that any law creates. However, Judicial Impact Assessment (JIA), where the needs of the judiciary in terms of new judges, staff, training, budget are considered, is completely absent in India.

The Bharatiya Nyaya Sanhita (BNS) Bill seeks to streamline criminal provisions to ensure greater contemporary relevance and speedy justice. However, in addition to amending multiple provisions of the IPC, the Bill also creates 14 new offences. These include, among others, organised crime, terrorism, mob lynching, causing death by negligence, etc. Some of these offences are liable for capital punishment. The increased gravity in such instances puts a greater burden on the system to ensure that grave injustices do not occur. 

The 2008 Report of the Justice M Jagannadha Rao Committee had suggested that any new legislation proposed to be introduced must first take into account both the number of central and state legislations that the courts are currently in charge of discharging duties for, and the budgetary allocation for the judiciary. 

This information would have to be assessed by the Judicial Impact Office, which was to be created as part of the Department of Justice and in all High Courts. The final analysis would allow for adequate information on the current status and the expected impact of any new legislation on the court’s capacity to deliver justice. Any new changes made would then have to not only be realistic, but also take a wider approach towards capacity-building to ensure that its aims were fully realised. 

Nearly 90 new criminal offences have been created in recent years over various legislations (such as, for example, provisions in the Surrogacy (Regulation) Act 2021 or the Code on Social Security 2020). The new Criminal Law Bills are a missed opportunity in ensuring that overarching criminal laws take the realistic requirements and capacities of the judiciary into account. 

The aim of criminal prosecution is to ensure that the judiciary’s time and resources are spent in an effective manner to pursue the ends of justice. India’s low conviction rate, however, suggests that nearly half of criminal trials result in instances where the ‘real’ perpetrators are ultimately not brought to justice and innocents are dragged through years of trial. It is therefore imperative that the public prosecutors’ and courts’ capacities are holistically assessed and suitably increased so that the Home Minister’s grand statement on high conviction rate does not remain a pipe dream or come at the cost of justice. 

(Deepika Kinhal is Lead, JALDI (Justice, Access and Lowering Delays in India) Mission, Vidhi Centre for Legal Policy; Priyamvadha Shivaji is Research Fellow, JALDI)

(This is the ninth article in a DH-Vidhi Centre for Legal Policy series on the proposed new criminal law codes)