This article is written by Sakshi Baadkar, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.
Justice means the sense of being just and providing the “deservers” what they deserve within suitable time and at the utmost need. India which was one of the countries under the control of British follows the common law system due to colonial influence and under this system, the customs, securities and legislations, all codify the law of the Court. The Constitution is based on the Government of India Act 1935 passed by the British Parliament.
The criminal justice system under Indian Constitution is a collective enterprise authorized and supported by the legitimacy and coercive power of the country to create and administer law. It is first and foremost a formal system oriented for the control of human affairs. The criminal-justice system consists of various institutes, agencies, process and procedure established by the sovereign body of the country. It includes law enforcement agencies, courts, lawyers and agencies for detaining and supervising offenders. The main purpose of the Criminal Justice System is to protect the rights and personal liberty of individuals and the society against its violation by others. For the proper functioning of the criminal justice system and accessing the justice system, the system should be fair and free from all kinds of biases.
Reality of Indian criminal justice system
In India, this formal system is not the way it should actually be to provide ‘justice’ to everyone. There are various problems which makes the fair criminal justice system a myth. Now, the ‘access to justice’ has changed to ‘justice achievable’ system. Agencies like police also are responsible for the unfairness in the criminal justice system. Besides piety offences are often not registered by the police leaving the offender free in exchange of some amount, the offenders of serious crime are also set free by the police due to various reasons like by taking ‘handsome’ bribe, pressure from higher authority, political pressure, etc.
In India, for almost every provision of law, a counter provision somehow also exists under the law which works as a defence to the accused under trial and this stretches the judgement day of the case. Keeping judgement day aside, parties in most of the cases don’t even attend the hearing and proceedings of the court and case. Parties leave everything on their lawyers and are almost completely dependent on their lawyers for everything. They even have the knowledge about the development of their case and due to such communication gap it takes a lot of time to bring all the evidence, witnesses and accused under one roof.
The lawyers, mostly in lower cases who usually don’t have much work, just keep stretching a case without believing in timely justice to fill their pocket from a particular client. A speedy trial is a constitutional right of every accused. Everyone wants quick and fair disposal of their case but expecting it in India would be like believing in a myth. If anyone is guilty, he/she should be punished and if it doesn’t happen then delay in justice would be justice denied and all this would not be effective to control the crime in the society which is the main purpose of the criminal justice system.
A principle which we know in the Criminal Justice System is “Bail is rule; jail is an exception”. But it seems that this principle was never for a normal accused under trial, it’s for only those who have good political connections or reach to higher bodies. Not granting bail during the 90s could be justified on the grounds that due to lack of technology it was hard to trace one if he/she runs away while being on bail. But now this should not be a reason for rejecting the bail request. Bail should be granted for petty offences because if an accused breaks bail-bond, he can easily be traced and be punished accordingly. An accused should not be denied on the ground that some other accused has broken his/her bail-bond in a similar situation.
Once the trial starts, in India it is sure to continue for a long time. An example of Nirbhaya rape case can be given here. It was an open and shut case but because of hassles in the criminal justice system and technicalities of law, it took 7 years to deliver the final judgement of an open and shut case. Such a mess is the criminal justice system of our country.
In India, advocates focus on winning the cases for their clients rather than providing justice to their clients and others by fair means. For this, many advocates don’t hesitate to use unethical means to influence the cases in their favour. Many a time, fake witnesses, evidence and crime scenes are created and manipulated to win the case even after knowing it to be an unethical, unfair practice and such practice is a crime in itself.
In India, many would agree if I say that the trial days of an accused is his/her learning days to get prepared for hard and tough situations of prison. The situation of a criminal in prison is not less than a hell. Powerful criminals and criminals of petty offences both serve their punishment in the same prison but one would easily find out who is powerful and who is weak. Everyone knows about the human rights violation in society but in prisons, there is nothing like human rights where sometimes brutality crosses its limit. Physical harassment, sexual assault and harassment, rape, etc., has become very common in every prison. Authorities themselves are involved in such inhuman practices. Supreme Court of India in case of Joginder Kumar v. State of U.P. clearly said that the quality of a nation’s civilization measured by the method used in the enforcement of the criminal law when the human rights are expanding the crime rate is increasing.
The Criminal Justice System is more ‘access to justice’ kind of system. “Justice delayed is justice denied” has become the new normal of Indian judicial system. The overall current performance of the criminal justice system is found to be inadequate or unsatisfactory. Our system should cater to all possible challenges especially in view of the new pattern of crimes happening throughout the country. Terrorism, cyber-crimes, white collar crimes, should all be curbed and there should be an organized endeavour to control anti-social behaviour to attain social harmony through law and its enforcement. Excellent research wings, new reforms, improved system and proper timely administration can contribute to the desired development of the law and criminal justice system of our country.
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