Let me tell you a true story. The protagonist and the locale do not matter; this happens to the poor every day in Bharat that is India. However, to make storytelling easier, let us call our main character Sunil, a name one could encounter anywhere in India. Sunil is a migrant who runs a very small shop, polishing the meagre gold jewellery owned by the poor residents of his locality. Since this is scarcely enough to keep body and soul together, he takes on the occasional, temporary job of driving private cars and auto rickshaws — very much a member of the huge unorganised sector in India.
It all started one fine winter morning when four hefty men barged into Sunil’s small shop and forcibly bundled Sunil into a private vehicle parked outside the shop. No one knew who had taken him away or where he had been taken. His mother, frantic with worry, called his close friends, who started the search for him. Almost six hours later, they located him in a police station away from his locality, detained for questioning in a jewellery theft case. A known jewellery thief, in the custody of the same police, was present there, testifying that Sunil had acted as a fence in melting stolen gold jewellery and reselling it. The local head of Sunil’s clan, all petty jewellers, also rushed to the police station to try and secure his release.
This is where the story takes a twist. The sub-inspector of police on duty claimed that Sunil had helped in the disposal of Rs. 25 lakhs worth of stolen jewellery. He offered to drop the case if Sunil arranged for the payment of an amount of Rs. 25 lakhs. After much bargaining, the sub-inspector agreed to give Sunil a day’s time to arrange for the money. In parting, he also let drop casually that Sunil should not think of approaching any influential person to help him; in fact, he should not even try to get any legal help in his case. Else, the policeman warned, he would arrange for Sunil to be implicated in a number of theft cases, which it would take him years to wriggle out of. The message coming through loud and clear, Sunil returned to the police station the next day with the head of his local jewellers’ association to negotiate the terms for his freedom. After a daylong haggling session, the sub-inspector finally magnanimously agreed to settle the case for Rs. 75000. Sunil raised Rs. 50000 from the local moneylender for immediate payment. A delay in settling the remaining Rs. 25000 saw another visit from the police, following which Sunil moved pillar and post to square his accounts with the police. A shaken Sunil decided to close down his jewellery business and concentrate on setting up a small eatery, apart from occasional driving assignments, to feed himself and his family.
There are thousands of Sunils across the length and breadth of India who have to confront the criminal justice system on a daily basis. I refer here to the three arms of this system: the police, the jails and the courts. Even where they are not invested with special powers, the police represent a very repressive arm of the state. Small wonder, then, that most ordinary citizens give them a wide berth, notwithstanding encouraging slogans on police vans like “With you, for you, always”. Nearly all public institutions in India have a strongly extractive (and extortionist) nature: the police, with its immense powers, are only an extreme example. Once a common man enters the chakravyuha of this system courtesy a criminal case, getting out is a herculean task, especially for those with limited means and no influence. Investigations are rarely completed and charge sheets are often not filed in the prescribed 60 or 90 day period. If the unfortunate “accused” is not able to raise bail, he remains incarcerated for months (and sometimes years) on end in jails that breed criminality. The new entrant into this system is exposed to hardened criminals and, with a police record against his name, may find it easier to join their group if and when he is finally released. This may take many years, given that the wheels of justice grind so slowly in India. Paying even a hefty bribe is seen as preferable to getting entangled in the coils of this system.
So what needs to be done to ensure that Article 21 of the Constitution of India becomes a reality, rather than a dream, for the aam aadmi, with his right to life and liberty being safeguarded? While there have been a host of reports on improving the criminal justice system, some suggestions to guard the ordinary citizen against unnecessary arrest and incarceration are being given here. When the commission of a cognisable or non-cognisable offence comes to or is brought to the notice of the police, a First Information Report (FIR) should be registered online, with the Aadhaar (unique identity) of the suspect being entered; where there is no such Aadhaar number, the Aadhaar identity should be obtained within twenty four hours. The FIR will go into a database which has details of every single individual who is being arraigned before the criminal justice system. Where the individual is committed to police or judicial custody, the database will keep track of the custody period so that bail can be offered; where the individual is not in a position to arrange bail, the case should be pursued expeditiously through the investigation stage and filing of chargesheet to final disposal by the court. This is imperative since the 2012 report of the Law Commission of India has observed that over 66% of those in India’s overcrowded prisons are undertrial prisoners. A time limit should be set for conclusion of trials and for hearing of appeals on conviction or acquittal, say, one year for offences punishable with imprisonment upto three years and two years for offences punishable with imprisonment for more than seven years.
National Crime Records Bureau statistics show pendency in courts, as of end-2010, of over 12 million cognisable offences under the Indian Penal Code and other local and special laws. With the backlog of cases increasing over the years, there would be well over 15 million cognisable criminal cases pending in Indian courts as of 2015. Not only does this confirm the adage “Justice delayed is justice denied”, it also enables the wealthy and influential to subvert the processes of justice, leading to a gradual erosion of faith in the rule of law among the general public. Measures like increasing the size of police forces, establishing an independent investigative agency, improving the quality of public prosecution and speedier trials, as well as using modern technology in a range of areas from forensic investigation and digitisation of police records to videoconferencing for judicial/police remand and use of online systems to speed up judicial decisions are all welcome and will contribute to the effective delivery of justice. But, in the final analysis, it is the actors in the drama — policemen, prosecutors, jailors and judges — who will determine the quality of criminal justice. Unless there is total dedication and commitment in all these players, no amount of sophisticated technology or superior monitoring systems will make any noticeable difference. The Roman satirist Juvenal employed the term “Who will guard the guards themselves?” in his Satires in the early years of the millennium, although he used it in a different context. This concept, in the context of accountability of power, is generally ascribed to Plato’s Republic, where the main character talks of men being responsible for their own actions. This swarajya, where each citizen, but especially those entrusted with governing others, are aware of their responsibility in sustaining and nurturing a free society will, in the final analysis, determine the contours and directions of democracy in India in the coming decades.