Criminal Procedure Reform: The Dangers of Overvaluing the Ends and Forgetting the Means

This Blog has consistently argued that changes to the laws forming the bedrock of the Indian criminal justice architecture — The Indian Penal Code of 1860, Indian Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872 — are necessary. No legal system is, or can be, foolproof; but when the flaws end up defining the system, then there is a real problem at hand. That, unfortunately, is how things stand at present — the Indian criminal process is notorious for a distrust of police agencies, illegal and unnecessary pre-trial custody of persons, and unending delays that drain all hope without quenching the thirst for justice. 

Thus, it was a welcome surprise to read that the Union Government's was considering criminal justice reforms early on in its second term. The expectation diminished drastically when, in the immediate aftermath of reports alleging that a young lady had been raped and murdered in Hyderabad, it was reported that the Government's proposed "reforms" to the criminal justice system would erode away the accused's right to appeal and instead require everyone to travel to the Supreme Court at New Delhi to file an appeal, among other things. 

The expectations took another blow — on January 2, the Economic Times ran a report with quotes from unnamed government officials suggesting that amendments on the following lines are being seriously considered for India's criminal justice architecture: 

• Reducing the opportunities for accused persons to appeal against judgments, especially in cases involving crimes against women, towards ensuring speedy justice;
• Vesting judges with greater control over the criminal investigation, similar to the setup in jurisdictions such as France and commonly called an "Inquisitorial" system;
• Making forensic evidence "Compulsory" in cases where punishment is seven years or more; 
• Creating a new classification of offences to help police in their threat assessment for "internal security" purposes.

Since there is no White Paper or Draft Bill out yet, any such reports should not be treated with a high degree of seriousness. But, the repeated references to the idea that curbing the right of appeal is a "reform" measure towards securing "speedy justice" requires us to take it seriously. On doing so, this idea gets exposed for what it really is: not a reform measure, but a pig-headed, anti-poor, and ill-considered move that will only worsen the existing state of affairs. It is an arm-chair fix from the Union for a complex problem, which just cannot be subjected to a one-size-fits-all solution.  

In fact, if there were a hypothetical menu of "reforms" on offer, then taking away the right of appeal against the judgment of a trial court (or substituting it with only having a right to challenge the judgment before the Supreme Court), would rank as the worst possible policy choice our legislators and bureaucrats could make for the Indian setting. This is for several reasons:

• From the due process perspective: Almost every aspect of society works on the basis that there can be errors in decision-making, and so our social processes incorporate means to remedy this by allowing a second chance. The consequences of errors in criminal cases are potentially life-threatening, and therefore, the need for a right to challenge the verdict of a court is essential to prevent travesties and gross injustice. Taking away the right to appeal against a judgment most directly upends this sense of fairness.       
• From the delays perspective: At the same time, efforts to completely eliminate errors can make proceedings inordinately long and end up causing delays. This requires every system to strike a balance between the commitment to fairness and undue delay. Is taking away the the right to file an appeal / limiting it to only the Supreme Court justified when considered through this lens? Absolutely not. Simply looking at the number of years it takes to decide appeals and concluding that they are prone to delays is farcical. A closer look at how appellate courts function would show that the reason behind long gaps between two dates of hearing is courts being overburdened with miscellaneous hearings, where people challenge interim orders or investigative processes, with a view towards avoiding a trial altogether. Thus, taking away appeals won't expand judicial time for other, more proper, hearings, and the free time is likely to be filled up with more miscellaneous hearings and little else. If anything, removing or reducing the scope of miscellaneous hearings may help. 
• From the justice perspective: Not everyone has the financial means to file miscellaneous cases to avoid trials; they take serious money. As a result, criminal appeals end up being the only chance for people having limited means to clear their name from a badly reasoned judgment of the trial court. For similar reasons, a system where everyone in India must travel to New Delhi to file appeals against their local judgments is, again, going to selectively hurt those who need the protection of laws the most. 

News reports about the government's criminal justice reform agenda suggest that discussions have already become one-note and uninspired. Most of these proposals have been on the table for decades, now, and it seems that the exercise is simply directed towards searching the old closet for decent options (even the inquisitorial process idea has been mooted in some respects). It will be difficult to change anything by adopting this approach. Instead, some core beliefs may need to be thoroughly re-examined: For instance, why should everything with a mere "pulse" (as Divyang Thakur put it while writing here) filed by the police trigger the trial process? Or, to go one step further, why should the default setting of our legal system be directed towards carrying out trials for all kinds of cases and why should parties need several months to get permission for withdrawing a case which would ease the courts' load? Maybe, rather than try and cut down on appeals, legislators and bureaucrats should spend some time in redesigning the trial court processes — as I argued in a recent paper.        

Privileging the ends (speedy justice) is not a bad idea per se. But from an approach that considers the means but ultimately privileges the ends — which seemed to have been the Government approach back in August — the current mindset being revealed hints at a single-minded focus on achieving specific ends which will end up decimating all concerns about the means used to get there. What we will end up with are not courts of justice but bureaucracies, processing files at breakneck speed, all in a race to close them as quickly as possible.