Law should not remain dormant, while those who defy it go scot free and those who seek its protection lose hope. If such a situation develops, it is the Rule of Law which becomes the first casualty, people’s faith in the system gets eroded and criminals have the last laugh.
In our country, the criminal justice system suffers from such serious infirmities. With low rate of conviction of about 16 per cent, it opens hundreds of vistas for criminals to prolong and twist investigations, influence witnesses and even take repeated somersaults before trial courts.
There have also been cases where under-trials have been incarcerated for periods longer than the punishment prescribed for their alleged offences due to quagmire of delays or faulty investigations. As per National Crime Record Bureau, about 67.2 per cent of prisoners are undertrials.
While a few enjoy premature release because of good conduct during incarceration, others languish behind bars. There is no safeguard against the misuse of such powers as it rests upon the sole discretion of jail authorities. The recent premature release of Manu Sharma, awarded life imprisonment in the Jessica Lal murder case shows how the system works.
The release has struck blows on the principle of equality before law in as much as no fair exercise was done by authorities to identify other similarly situated persons who should have been entitled to get similar release.
It is already held by Supreme Court in Maru Ram Vs. Union of India and Another 1981 (1) SCR 1996 that life sentence is nothing less than life-long imprisonment. It makes it clear in several decided cases that imprisonment for life lasts until the last breath.’
However, in spite of such categorical propositions held by Supreme court, there are loopholes created in such a manner that a prisoner, even though awarded life imprisonment can get premature release and come out of jail after completing just 14 years of imprisonment.
This provision has left scope for promoting favouritism and corruption without appropriate safeguards to prevent misuse of powers. As per provisions contained in Section 433 of Code of Criminal Procedure 1973, a State Government may commute the sentence of imprisonment for life for a term not exceeding fourteen years or for fine.
Section 433 A of the same code lays down further that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
In case of woman prisoner, this period is at least 10 years. The procedure adopted for such premature release is that the Superintendent of Jail initiates the cases of prisoners who are eligible for release on the ground of their good conduct during incarceration and forwards the names to Deputy Commissioner of Police of the area where the crime was committed. He then ensures the reference of all such cases through Director General of Prisons before the Sentence Review Board.
There is no safeguard against use or misuse of such a power vested with Superintendent of Jail and other authorities. No judicial remedy can be invoked as it is the sole discretion of government.
This procedure of grant of premature release is in addition to the provisions contained in Articles 72 and 161 of the Constitution wherein the President of India and the Governor of a State can grant pardon, reprieve or remission to the convict. In K.M.Nanawati Vs. State of Maharashtra, such a power was exercised when the accused Nanavati was pardoned by the than Governor Smt. Vijay Lakshmi Pandit and released after barely three years of incarceration.
This evoked sharp reactions from all quarters and even the Supreme Court remarked that Governor had overreached her powers.
Nanawati left this country to settle down in Canada. Thereafter, numerous such instances kept on making a mockery of the criminal justice system. Our criminal justice system suffers from growing pendency, marked by delayed and shoddy investigation. As per details laid on the table of Lok Sabha by the Law Minister, there are 59,867 cases pending with Supreme Court, 44.75 lac cases pending with High Courts and whopping 3.14 crore cases pending with District Courts all over the country as of November, 2019.
The position of pendency in Tribunals is even more disturbing. This growing pendency is not merely due to large number of vacancies remaining un-filled but also because of our judicial system where either replies or rejoinders are not filed in time or adjournments are sought on one pretext or the other.
Some time ago, a proposal was mooted for recruitment of Judges through Indian Judicial Service on the pattern of IAS and IPS. But even this proposal could not be implemented because judges who recommend appointments of judges do not want to be deprived of their privileges. Vacancies of judges across courts in India has affected their functioning. As of 2017, High Courts had 403 vacancies and subordinate courts had 5,676 vacancies.
The vacancies for the post of public prosecutors are all the more alarming.
The system is rotting also because Courts often pass acquittal orders with remarks that prosecution has failed to bring substantial evidence. They do not go to the extent of ordering re-investigations to see the truth coming forth which is their prime objective. Lack of protection of witnesses is another major roadblock. Instances of intimidating witnesses and recording depositions under fear or allurement are common and widespread.
There are instances where witnesses were even murdered inside court compounds. There is no law yet to protect the witness and to punish the person trying to influence witnesses despite repeated recommendations by Law Commission. In U.K., intimidation of a witness is an offence punishable under law.
On the basis of recommendations of Law Commission, a Witness Protection Bill, 2015 was introduced providing a comprehensive system for protecting witnesses. However, the Bill is yet to be passed. If witnesses are to depose under fear or intimidation or allurement, the foundations of justice are bound to be weakened. It is the need of the hour to ensure that the Witness Protection Bill, is enacted at the earliest.
Criminalisation of politics and political patronage for criminals is another arena which has made the matters worse. Vohra Committee 1993 had suggested measures to curb criminalisation of politics. But its recommendations were not implemented. Jail reforms is another issue which forms part of the criminal justice system.
Jails are no longer reformatories as instances of riots, crimes, entry of drugs, objectionable items, mobiles etc have increased. Irregularities in grant of parole, extra facilities during Open Jail periods against rules and immoral activities go un-checked. A committee on reforms in the Criminal Justice system was constituted by the Government of India vide its order dated 24 November 2000 under chairmanship of Justice V.S. Malimath to suggest measures for revamping the system. After a prolonged exercise, committee submitted its 297-page report on 28 March 2003 and offered valuable suggestions.
However, the report has not received due consideration. It appears that there is lack of will to bring sweeping reforms in the criminal justice system. If no prompt action is taken to set it right, it is bound to cast its shadow on law and order and maintenance of peace in the society.
The writer is Advocate, Delhi High Court.