Wednesday, September 13, 2017

Criminal Procedure and Clogged Dockets - Reverse Engineering Solutions?

The delay and docket logjams in the Indian criminal justice system have been so abysmal for so long that, at some level, they've lost their shock value. Year on year, local and international reports will be dutifully published highlighting the plight of the system. The government has done its bit too, with the Indian Law Commission having reviewed the issue of delays on multiple occasions (the reports can be accessed on its website). Beyond losing their shock value, while reading most of these reports I also saw that the pervasive nature of the problem has also rendered discussions on solutions stale, with the same drum being beaten incessantly (for exceptions, see this piece by Vrinda Bhandari).

The solutions (give or take a few) range from (i) increasing courts, (ii) increasing fast-track courts, (iii) increasing alternate dispute mechanisms like Lok Adalats, (iv) make judges work more, (v) introduce time-limits for cases, (v) reinvigorate the dormant plea-bargaining system, (vi) enhance quality of investigations. If the criminal justice system were to be viewed as a funnel (to borrow an old and often-repeated imagery) with the persons who don't commit crimes at the broad top of the funnel and those who go to court at the narrow tip, then we see that these solutions are all focused at the tip. Everyone is talking about what happens when we reach the end of the funnel - why not look at what happens at the start itself?

If you think that there are no steps from the top of the funnel till its tip, you're quite mistaken. There are various steps, and each involves an exercise in discretion. Take speeding on the road as an example. First, not everyone who breaks the law gets apprehended - so the first filter is how many people get caught. Out of those who get caught, the second filter is how many of those are arrested and proceeded against at all (a talking to is all that you get). Next, out of those proceeded against, how many are actually made accused persons with a charge-sheet against them. After which, there is the possibility of discharge / dropping proceedings / settlement. Only after this do we get to cases that stay in courts.* So, what I am suggesting is that the current debates are (at best) only looking at when the courts get involved. But there is so much that happens before that needs to be looked at as well.   

At this stage you might have two conjoint objections arguing basically that everyone who gets caught in the web of law enforcement should be prosecuted and taken to court. Should they, really? The view is based on a gross assumption that the criminal justice system is capable of handling so many cases, which it is not. And in our already bloated criminal justice system, the capability to add fresh cases each year is especially reduced. Do the police know this? Of course they do. Are they encouraged to exercise greater restraint in taking cases forward? I don't think so. Should they be the ones making the decision to take the case forward? That is the big question that I think is not being asked often enough in our system. Most reports on police reform that I saw did not discuss this either and were more focused on improving administrative structures and the quality of investigations, rather than discuss the exercise of discretion (see, Model Police Bill 2015, PRS Report on Police Reforms 2017, Model Police Act 2006, Human Rights Initiative Report

If I am a police officer who invested months in an investigation, and then another few months in preparing the file of the case (all thanks to our cumbersome processes), will I ever think that the case should not be tried and justice not be done? If my track record rests on how many charge-sheets I file, am I not incentivised to add cases to the courts? The case is different from the crime and since the police are experts at dealing with the latter, they often make bad decisions about the former. This why the Criminal Procedure Code 1973 [Cr.P.C] stipulations in Section 169 requiring police officers to not take cases forward when there is deficiency of evidence are rarely applied in practice. Cases may not get taken ahead for many reasons when a crime is certainly committed - lack of evidence is obvious, but equally important are cost-benefit considerations since each trial imposes sever costs on the exchequer (as a judge constantly reminded me in the District Courts at Saket in New Delhi, you lawyers make citizens pay for each adjournment you take).  

Should, then, we have greater discretion being invested in prosecutors to take the decisions of what cases reach the court? This is common practice across the globe. Owing to certain issues with political interference in prosecution office across states with several posts in the Directorate of Public Prosecutions lying vacant without court intervention, I don't know how useful will it prove to have prosecutors make those calls. But I don't merely proceed on an abuse basis to make a claim - there are legal objections towards such a re-orientation. This comes from the primarily inquisitorial model that the Cr.P.C. contains in which judges have supervisory powers over the investigations being conducted by the police. The Supreme Court has already construed this to include a pro-active duty to monitor investigations in Sakiri Vasu and so I argue that this duty requires courts to throw bad cases away as well. This opportunity will not only present itself at the start when a police officer has to report to a magistrate upon beginning an investigation under Section 157, but will come periodically if a person is in custody due to the limits placed upon pre-trial detention under Section 167. Moreover, if the case is sent to the Magistrate after completion of investigation then the Magistrate can only recommend cases be sent for trial after considering various factors such as evidentiary satisfaction, costs, docket control etc. This would, naturally, mandate that the trial not proceed before the magistrates.     

This is a germ of an idea which is riddled with problems that I hope get exposed in the comments. But I do think that in reversing the focus and looking at the top of the funnel rather than the end, we might be able to come up with better solutions for our ailing criminal justice system. 

* The funnel analogy and this discussion are not my own ideas and were exposed to me as part of a class that I am currently enrolled in for my LLM at Harvard Law School. 


  1. Yes it is the compulsion of track record that makes police arrest and prosecute even when there is no evidence, nay, that makes the police use third degree to extort confession so they could say they have worked out the case; no matter if the case is acquitted after decades, and the accused denied bail till then. The real problem is why all others allow, or rather, encourage police to do it.

    1. Without commenting on the existence of brutal practices in the police (on which those reports that I linked have something to say), I agree with you that the lack of action by other bodies to take work away from the police is problematic and, also, suspicious.

  2. Just as a policeman's measure of performance, as you have rightly said, is by the number of cases s/he forwards to the trial courts, a judge's measure of performance is by the number of cases s/he disposes of. In a way, if we keep this incentive mechanism in place, the policeman and judge would, in a way, act like checks on each other. If the judges are disposing of cases based on certain factors, which over a period of time, would become a recurring theme with the same characters involved, then the policeman would not waste time pursuing those cases, of which he would have a strong idea, that those cases may get disposed.

    Another argument can be to incentive police to pursue cases which do NOT get dismissed/rejected on preliminary grounds, rather than the number of cases forwarded to the courts at the very outset.

    I feel the Indian judiciary, especially at the lower level, is taking one step forward, and two steps backward. The most prominent example, in my opinion, is the concept of how our judges are transferred. Simply by my experience (and you have experienced this far more than I have), when a judge gets transferred, and the case was at the stage of passing orders (be it on summoning, charge, conviction, etc.) by him, the entire process (of seeking dates which suits everyone, adducing arguments, submitting written submissions, then more dates for order) has to be repeated! This easily leads to a delay extending well over a year at times! It is propesterous and makes no sense to me. While judges indeed need to be transferred, they shouldn't be abruptly plucked out of their tests. A prior intimation should be given or certain conditions should be put in.

    I will write more (have to go back to work :P). Do tell me what you think!


    1. You're assuming that police interests are connected with disposal of the case once it reaches court. I don't think that assumption is entirely merited and so maybe the cops won't take easy disposals as a cue. Again, the idea of giving police an incentive is a bit hazy to me. Maybe you could expand that a bit. I agree that the administrative problems are certainly a hinderance and add to the time that is being wasted. If the smallest of jobs require notice periods I wonder why judicial transfers have to be immediate on so many occasions (some are understandable - corruption - but not the level at which the transfers currently happen).