CORRECTIVE JUSTICE

Although the long awaited amendments to the Code of Criminal Procedure (CrPC), which have been passed by the Parliament, will give the criminal judicial system the much needed human face, these would remain a half-way house till they are matched by police reforms in the states. Some of the amendments, which were introduced in the Parliament nearly three years ago, met with stiff opposition from lawyers across the country. This forced the government to refer them to a Standing Committee of Parliament. A few of the controversial clauses were subsequently dropped. This included the clause requiring an accused seeking anticipatory bail to subject himself to the court, where he risked being arrested by police on rejection of his application.
The amendments will drastically reduce the powers of the police to arrest the accused even for cognizable offences for which the punishment is less than seven years. For non-cognizable offences, no arrests can be made, except under a warrant or an order of the magistrate. There are also some reason-recording obligations while making arrests (the reasons for arrest have to be recorded in writing). In the context of Punjab, this will have far reaching implications; the police have a time honoured practice of arresting a man’s family members, especially mother, sister etc. to compel him to surrender! The extent to which the new obligations will be enforceable – from the point of view of law and order and also judicially, remains to be seen. Yet, what it does mean is that mere suspicion, as a ground for arrest will not do. Moreover, the amendment will check the tendency of many in the police to arrest a person out of a desire to extort, avenge, pressurise or harass, or on political directions.
Although other provisions like video recording of statements will bring about a measure of transparency in the criminal justice system, they don't go far enough. The statements of witnesses should be sworn before a magistrate and recorded in writing. This is not within the ambit of the CrPC but a really crying need is change in the law on perjury. The law must be such as to deter people who testify something in court and then turn ‘hostile’. At present this doesn’t even earn them a slap on the wrist, leave alone a jail term or a fine. For the common citizen, who is often the victim of circumstances, the clause making compensation mandatory in certain cases will be welcome. This amendment in the form of an addition to an existing clause would require all state governments to prepare a scheme in coordination with the Central Government for providing funds for compensation to the victim or his/ her dependents. Victims will be entitled to receive compensation if the offender is not caught and tried for the crime. This would put the onus on the government to catch and try the criminal or pay reparation in monetary terms to the victim.
The amendments are really path-breaking for victims of rape, a scourge that continues to haunt our society. The amendment bestows upon the victim of a crime the right to file an appeal against a court order acquitting the accused or convicting the accused of a lesser offence. For this, the victim would not have to seek permission of any law enforcement or prosecuting agency (as of now, appeals can be filed only if the prosecution so decides). The proposed amendment makes it mandatory for the police to complete investigation in a child rape case within a set time-frame from the date on which the case is registered. Another amendment states that rape cases are to be investigated by women police officers and also heard as far as possible by woman judges. These were hopefully spare further agony of rape victims.
There would be many of course, who would argue that these measures which only amount to tinkering with the system will make only a marginal, if any difference to the dismal state of affairs. They urge the need for making a major departure from the adversarial or the inquisitorial civil law tradition and the need to bring in the accusatorial system, which has of late been adopted by many countries. In the latter system, evidence gathered at the investigative stage is usually not permissible and instead only the evidence presented in a public hearing where the right of confrontation is granted is acceptable. However, it would be premature to move in this direction at this stage. Given the heavy backlog, it would be difficult for the judges to get to the truth on the basis of arguments alone during the trial period.
Yet, the amended Code would remain on paper unless the police as a law-enforcing agency are geared to implement its various clauses in letter and spirit. Despite the Supreme Court directives a few months ago, many states are still dragging their feet in bringing about the much-required police reforms. In fact, these reforms will have to be taken forward to ensure that the policemen at the cutting edge are not just educated on the new provisions but also trained to enforce them. In order to make the people aware of their rights in the light of the amendments, states should involve the village panchayats at the grassroots level.
The amendments should also be seen in the light of some other recent developments. Since a new National Investigative Agency with unprecedented powers has come about, besides anti-terror laws having been put in place in certain states like Maharashtra, it would be necessary to have a system of checks and balances in place, especially in states so that the security forces don’t use these to harass the common man on grounds of mere suspicion. That would be a self-defeating exercise and negate the amendments in the CrPC. It would be tantamount to taking away with one hand what is given by the other.