THE CONSTITUTION AND

CRIMINAL JUSTICE

ADMINISTRATION

Page 2 of 208

THE CONSTITUTION AND CRIMINAL JUSTICE ADMINISTRATION

Dalbir Bharti
M.A. (Pol. Sc.), LL.B., Ph.D. (Mumbai)

A.P.H. PUBLISHING CORPORATION

5, ANSARI ROAD, DARYA GANJ NEW DELHI-110 002

Page 3 of 208

DEDICATED
TO

THE FRAMERS
OF

THE CONSTITUTION OF INDIA

Who gave the mantra of JUSTICE, EQUALITY and LIBERTY
TO PRESERVE

THE DEMOCRACY

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Preface
A large number of publications are available on the Constitution of India. Similarly, the bibliography on criminal justice administration has a galaxy of authors. But no book has come to notice which makes a combined study of the Constitution and the criminal justice administration discussing their reciprocal relationship. The present book is an effort in this direction. Though the purpose and organization of this book are discussed in chapter 1, I would like to add some prefatory comments here as well. Having made an in-depth study of the Constituent Assembly Debates, I realized that the framers of the Constitution assigned a heavy responsibility to the criminal justice administration in not only preventing and punishing crime but also in maintaining the unity and integrity of the nation. After the Constitution came into being, the criminal justice administration got loaded with many additional responsibilities such as enforcing newly enacted social laws, protecting the democratic rights of the people, and facing emerging problems of communal riots and terrorism. As a result, while relentlessly striving for maintenance of public order, the criminal justice administration seems to have not been able to achieve desired results in keeping crime under control and delivering speedy criminal justice to the people. Holding the view that the criminal justice administration is the foremost organ of the constitutional democracy to protect peoples rights as well as the interests of the State, I have made an attempt to identify its problems and suggest solutions thereof. The book is mainly based on my doctoral thesis, accepted by the University of Mumbai. The views expressed in the book are my personal views derived through research or personal observation and not of the Government of India or the State Governments. A host of people including senior government officers, judges, academicians, advocates and journalists encouraged and helped me in bringing out this book. Since it is not possible to mention them individually, I express my sincere thanks to all of them. However, I am specially thankful to Dr. (Mrs.) Nawaz Mody and Dr. P.M. Bandivadekar for their constant guidance and support. I owe a deep debt of gratitude to Shri V.Ranganathan, IAS; Shri S.C. Malhotra, IPS; Shri O.P.Bali, IPS; Dr. P.S. Pasricha, IPS; Shri S.S. Suradkar, IPS; Shri Hasan Gafoor, IPS; Shri Pankaj Gupta, IPS; Shri Arup Patnaik, IPS; Shri R.K. Ghadge, IPS; Shri Ashok Sharma, IPS; and Shri P.K. Jain, IPS for their inspiring encouragement in my venture. My vision was broadened by discussions on important topics with Shri R.H. Mendonca, IPS (Retired); Shri S.S. Puri, IPS; Justice Thakur Das Sugla; Shri Vinay Kumar; Shri D. Sivanandhan, IPS; Shri Harish Kumar, IPS; Shri Y.C. Pawar, IPS (Retired); Dr. M.L. Gautam, IAS; Shri Ashok Deshpandey, IAS; Shri Ashok Dhamija; Shri R.P. Singh, IPS; Dr. K. Venkatesham, IPS; Shri S. Krishna, IRS, Shri Mehar Singh, IRS and Shri Rajendra Singh, IPS. I shall always remain indebted to them for their frank and candid opinions. I was benefitted from the discussions with Shri A.N. Roy, IPS; Shri A.V. Parasnis, IPS; Shri S.P.S. Yadav, IPS; Shri S.P. Gupta, IPS; Shri N.S. Sarvade, IPS; Dr. R.S. Sawant; Dr. V.U.M. Rao; Dr. Surendra Kumar Hooda; Dr. M.M. Juneja; Shri Modi Ram; Shri Tapan Chakraborty; Shri Pradeep Kaushal; Shri B.L. Bishnoi; Shri Brijendra Chahar; Shri Vinay Garg; Dr. Surindra Gupta; Shri S.K. Goyal; Shri Amarjeet Singh; and Shri Sanjeev Arya. I express my gratitude to them. My sincere thanks are also due to Shri S.C. Mathur, IPS; Shri K.L. Prasad, IPS; Shri K.K. Pathak, IPS; Shri U.S. Kamble, IPS; Shri K.L. Bishnoi, IPS; Shri Surendra Kumar, IPS; Shri S.S. Barve, IPS; Shri Bipin Bihari, IPS; Shri K.K. Mishra, IPS;

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Shri D. Kanakratnam, IPS; Shri Hemant Nagrale, IPS; Smt. Merry Fernades, IPS; Shri T.S. Bhal, IPS; Shri B.T. Bhalekar; Shri P.M. Shegaonkar; and Shri S.R. Meena for their encouragement and helping attitude. I shall be failing in my duty if I do not thankfully recognize varied help and contribution of Shri S. R. Gosavi; Shri U.S. Lokhande; Late Shri S.S. Talvalikar; Shri G.R. Manda; Shri Satish Vats; Shri A.D. Goyal; Shri G. Suman; Shri Anil Sharma; Shri Kanwar Singh; Shri Krishan Verma; Shri S.C. Kalia; Smt. Geeta Bharti; Shri Surendra Bansal; Shri Rohtash Gupta; Shri Devendra Gupta; Shri Arun Bansal; Shri V.K. Gupta; Dr. V.S. Teotia; Shri Sunil Sharma; Shri Manphool Singh; Shri Sabu Ram; Shri Indraj Singh; Shri S.K. Bhargava; Shri Baldev Singh; Shri Mahabir Singh; Shri Rajendra Singh; Shri Jagdish Pandey; Shri Vilas Nandgaonkar; Shri Rajesh Kalyan; and Shri Jeetendra Karle in my venture. I am deeply indebted to Shri Y.P. Singh, IPS; Shri Sudershan Kumar; Shri Manoj Jalan and Shri Rajiv Kumar for taking pains in going through rough drafts of the book and giving their valuable suggestions. I am also grateful to my wife, Sarla, and daughters, Deepa and Monika for their cooperation. Acknowledgements are also due to the staff of the libraries of Supreme Court, New Delhi; Bureau of Police Research and Development, New Delhi; Law Commission, New Delhi; National Institute of Criminology and Forensic Science, New Delhi; Vidhan Bhavan, Mumbai; British Council, Mumbai; University of Mumbai; and Ramnarain Ruia College, Mumbai for all cooperation they extended to me during my visits. I am equally thankful to my staff for their excellent assistance rendered to complete this task. Finally, I express my sincere thanks to A.P.H. Publishing Corporation, New Delhi, especially Shri S.B. Nangia, for bringing out this book in a very short time. If this book is able to bring a slightest change in the attitude of a few individuals who relentlessly criticize the criminal justice administration without knowing its constraints and limitations, the labour that has gone into it would not have been in vain.

26th January 2002. 76, Mall Colony, Kaimri Road, Hisar (Haryana)

Dr. Dalbir Bharti

Page 6 of 208 CONTENTS

04 Preface List of Tables and Charts 1. 2. INTRODUCTION EVOLUTION OF CRIMIANL JUSTICE SYSTEM HISTORICAL BACKGROUND OF THE CONSTITUTION THE CONSTITUTION AND CRIMINAL JUSTICE SYSTEM PRESENT CRIMINAL JUSTICE SYSTEM RIGHTS AND DUTIES OF THE PEOPLE EVALUATION OF CRIMINAL JUSTICE ADMINISTRATION AGENDA FOR REFORMS Bibliography Index 06 07 12

3. 4. 5.

44 51 76

6.

112

7.

132

8.

150 183 199

Page 7 of 208 Chapter 1 INTRODUCTION

Justice forms the cornerstone of each nations law. Alexis De Tocqueville The Constitution of India and the criminal justice administration have a reciprocal relationship. While the Constitution sets certain ideals of securing justice to the people and maintaining unity and integrity of the nation, the criminal justice administration plays a crucial role in their achievement. The criminal justice administration comprises of the police, bar, judiciary and prisons. These agencies constantly depend on the constitutional support to their principles and procedures. The people cannot enjoy their constitutional rights freely in an atmosphere of distrust, hatred, fear and insecurity. Since it is the responsibility of the criminal justice administration to prevent violation of peoples rights and maintain order, its performance has a direct impact on the process of achieving the aims and objectives of the Constitution. Failure of the criminal justice administration not only vitiates the constitutional guarantees but also jeopardizes the whole civil society leading it towards a chaotic situation where the Constitution will be nothing but a mockery. The Constitution was framed by men of great learning and erudition after intense deliberations in the Constituent Assembly. The framers of the Constitution gave India not merely a legal document to govern the country but an instrument of establishing a just society. Dr. Shankar Dayal Sharma, the then President of India, while addressing Parliament on 9th December 1996 on the occasion of the 50th anniversary of the first sitting of the Constituent Assembly said: It was our beloved leaders who belonged to masses, individuals with deep knowledge and learning and imbued with the values of our civilization, who were elected to participate in the Constituent Assembly. They had broad global vision which encompassed all humanity and sought to harmonize the great spiritual values of our culture with the modern dynamic approach of other traditions.1 Justice is at the top among the aims and objectives to be achieved by the Constitution as enshrined in the Preamble. The objective of justice, social, economic and political is directly incorporated in article 38.2 As observed by Seervai, the famous jurist, article 39 amplifies the concept of justice.3 The Supreme Court has held that social justice would include legal justice which means that the system of administration of justice must provide cheap, expeditious and effective instrument for realization

Page 8 of 208 of justice by all sections of the people irrespective of their social or economic position or their financial resources.4 The framers embodied a number of provisions relating to justice and its administration in the Constitution so that they are not abrogated by ordinary legislation. A few of the provisions relating to criminal justice administration were incorporated in the Constitution even though analogous provisions were available in the existing Cr.P.C., 1898. This discloses that the framers had given special emphasis on criminal justice and its administration. With the Constitution coming into being, the hopes of the people for a safer society and speedy criminal justice enhanced significantly. This required a qualitative improvement in the performance of various agencies involved in the administration of criminal justice. However, the statistics indicate that the situation has deteriorated in post-republic period instead of improving. The following remarks of Dr. A.S. Anand, the then Chief Justice of India, reflect the unsatisfactory state of affairs of the justice delivery system: One of the greatest challenges that stares us in the face as we approach the 21st Century is the failure of judiciary to deliver justice expeditiously, which has brought about a sense of frustration amongst the litigants. It has been noticed with dismay in recent years that often landlords do not file suits in rent courts but take the help of anti-social elements to throw out the tenants by force and coercion. This is nothing else but resorting to the rule of the jungle. If this tendency proliferates, it would be sad day for the constitutional democracy to which we are all wedded.5 Though both civil and criminal wings of the justice system influence the people; it is the criminal justice administration that plays more crucial role in maintaining the peoples faith in the whole justice delivery system. A weak criminal justice administration does not deter criminals. Instead, it encourages criminality. Meagre chances of being prosecuted or punished embolden the people to take law in their own hands or take help of anti-social elements to evict their tenants, take revenge, etc. In such a situation criminals thrive and law abiding citizens live under constant threat to their life, liberty, dignity and property. This shakes the constitutional authority and erodes the peoples faith in the whole State machinery. It reminds of the following observation of Kenneth J. Peak: An efficient and effective administration of criminal justice contributes more than any other circumstance to impressing the minds of the people and earning their affection and reverence towards the government.6 The process of preventing and punishing crime entails peoples active cooperation. The attitude of the people directly influences the performance of the criminal justice administration. People can help the police by informing designs or occurrences of crime. Their cooperation during investigation and

Page 9 of 208 search and seizure operations is of immense value. If people reveal truth during trials, there will be little scope for injustice. Even the correctional staff need peoples assistance in reforming and rehabilitating the criminals. On the other hand, the peoples apathy and indiscriminate criticism affect the morale of the criminal justice functionaries. Therefore, the people while expecting fair criminal justice should also realize their legal and moral duties to help the criminal justice administration in its pursuit to prevent and punish crime. Identifying the problems and finding solutions thereof, being the ultimate purpose, the book discusses the criminal justice administration in the context of constitutional provisions and the role of people. Chapter 2 of the book traces the origin of criminal justice system in India and briefly describes its evolution during different phases of Indian history. The reader may, in the beginning, find this chapter out of context. But as he reads other chapters he would realize the utility of having had an insight into the history of criminal justice system. Efforts are made to study the concept of Dharma, i.e. law, its sources and application. It finds that during ancient India, the Vedas were the main source of law and the King had no legislative authority. However, with the passage of time the King started making laws keeping in view the prevailing customs and local usage. The Kings lawssome of them even being contradictory to the Vedic declarationswere incorporated in the Smritis and thus became written laws. After having discussed the judicial system during Muslim rule in India, it observes that under the Islamic law serious offences such as murder were considered private wrongs and compromised by accepting diya, i.e. bloodmoney. It briefly describes how the British, though giving priority to safeguard their own economic and political interests, revamped the existing criminal justice system by introducing English principles of equity, justice and good conscience. Different institutions such as police, judiciary and prisons took a definite shape during the British rule in India. Codification of criminal laws and establishment of High Courts were the major contributions of the British to the Indian judicial system. While Chapter 3 briefly discusses the historical background of the Constitution, chapter 4 examines the constitutional provisions relating to criminal justice administration at length. To find how the framers of the Constitution viewed issues relating to criminal justice administration, the Constituent Assembly Debates have been studied and referred to frequently. It is seen that the framers made elaborate provisions for fair criminal justice and laid down principles and procedures for its administration. However, delay in implementation of some of the constitutional provisions seems to have prevented desired and timely improvement in the criminal justice administration.

Page 10 of 208 Chapter 5 elaborates the structure and working of various components of the present criminal justice system of India, viz. criminal law, police, bar, judiciary and correctional services. With a view to making the people aware, their important rights and duties under various criminal laws in India are delineated and discussed in chapter 6 in the context of rulings of various High Courts and the Supreme Court. Chapter 7 makes an attempt to evaluate the performance of the criminal justice administration in preventing crime and delivering speedy criminal justice. It is the joint responsibility of all components to work cohesively and harmoniously to achieve the goal of preventing and punishing crime. Therefore, the criminal justice administration is evaluated as a whole and not its components separately. The failure of one component in performing its part well may undermine the success of all other components. For example, the success of a properly chargesheeted police case may not yield desired results if the prosecutor is unable to present the case efficiently or the judge fails to assess the evidence properly. The evaluation exercise reveals that crime rate, especially of violent crimes, has gone up considerably; pendency of criminal cases has increased alarmingly; and conviction rate has declined drastically. Notwithstanding the significant contribution of the criminal justice administration in preserving democracy and maintaining the unity of the country, these findings manifest its inability to keep crime under control and deliver speedy criminal justice. Mere identifying the areas of failure not being the main purpose, efforts have been made in chapter 8 to analyze the problems faced by different agencies of the criminal justice administration and suggest solutions thereof. Inadequate strength of the police and judiciary, declining resources, and lack of coordination between the police and prosecution seem to be the major factors, which affect the efficiency and effectiveness of the criminal justice administration. The chapter inter alia suggests to amend and simplify criminal laws; compensate victims; introduce plea bargaining; introduce inquisitorial system; punish perjury; increase manpower of the police and judiciary; maintain coordination between the police and prosecution; bring the criminal justice system under plan budget for better assessment and allocation of financial resources; and to encourage peoples participation in the administration of criminal justice. The preceding items lead to conclude that the success of the Constitution largely depends on the effectiveness of the criminal justice administration, and the efficacy of the criminal justice administration is grossly influenced by the attitude of the people. Therefore, the State as well as the people should resolve to make the criminal justice administration an efficient and effective institution. If it plays its role well in preventing and punishing

Page 11 of 208 crime, India will certainly move towards a just society which the framers of the Constitution had dreamt of. oo()oo

Page 12 of 208 Chapter 2 EVOLUTION OF CRIMINAL JUSTICE SYSTEM

If men were angels, no government would be necessary. James Madison Like in every civilized society, in India too a criminal justice system evolved. Socio-economic and political conditions prevailing during different phases of the history of India influenced its evolution. Accordingly, the objectives of the criminal justice and methods of its administration changed from time to time and from one period of history to another. To suit the changing circumstances the rulers introduced new methods and techniques to enforce law and administer justice. In early society the victim had himself (as there was no State or other authority) to punish the offender through retaliatory and revengeful methods; this was, naturally, governed by chance and personal passion.7 Even in the advanced Rig-Vedic period there is a mention that punishment of a thief rested with the very person wronged.8 Gradually, individual revenge gave way to group revenge as the man could not have grown and survived in complete isolation and for his very survival and existence it was necessary to live in groups. Group life necessitated consensus on ideals and the formulation of rules of behavior to be followed by its members. These rules defined the appropriate behavior and the action that was to be taken when members did not obey the rules.9 This code of conduct, which governed the affairs of the people, came to be known as Dharma or law. In course of progress man felt that it was more convenient to live in society rather than in small groups. Organizations based upon the principle of blood relationship yielded, to some extent, to larger associationsthe societies. In the very early period of the Indian civilization great importance was attached to Dharma. Everyone was acting according to Dharma and there was no necessity of any authority to compel obedience to the law. The society was free from the evils arising from selfishness and exploitation by the individual.10 Each member of the society scrupulously respected the rights of his fellow members and infraction of such rights rarely or never took place.11 The following verse indicates the existence of such an ideal society. There was neither kingdom nor the King; neither punishment nor the guilty to be punished. People were acting according to Dharma; and thereby protecting one another.12

Page 13 of 208 However, the ideal stateless society did not last long. While the faith in the efficacy and utility of Dharma, belief in God and the God fearing attitude of people continued to dominate the society, the actual state of affairs gradually deteriorated. A situation arose when some persons began to exploit and torment the weaker sections of society for their selfish ends. Tyranny of the strong over the weak reigned unabated. This situation forced the law abiding people to search for a remedy. This resulted in the discovery of the institution of King and establishment of his authority over the society, which came to be known as the State.13 As the very purpose of establishing the State and the authority of the King was the protection of person and property of the people, the King organized a system to enforce the law and punish those who violated it. This system later came to be known as criminal justice system. Although the Indus-valley civilization suggests that an organized society existed during pre-Vedic period in India, traces of the criminal justice system can only be found during the Vedic period when well defined laws had come into existence. The oldest literature available to explain the code of conduct of the people and the rules to be followed by the King are Vedas. Therefore, while discussing the evolution of the criminal justice system the history of India is covered from the Vedic period onwards dividing it into three periodsAncient India (c. 1000 B.C. to A.D. 1000), Medieval India (A.D. 1000 to 1757) and Modern India (A.D. 1757 to 1947). ANCIENT INDIA (c. 1000 B.C. to A.D. 1000) This period of Indian history is also known as Hindu period because of the prevalence and dominance of Hindu law. The elements of state administration signifying rule by a King with the help of his advisers or assistants may be traced back to the early Vedic period. In the Rig-Veda the King is called Gopa janasya or protector of the people. This implies that he was charged with the maintenance of law and order.14 According to the Dharma sutras and the Arthashastra, it was the duty of the King to ensure the security and welfare of his subjects. Each state was divided into provinces and the provinces into divisions and districts. For each province, governors were appointed. District officers were entrusted with the judicial and administrative functions. According to Kautilyas Arthashastra, the administration of towns was entrusted to the Nagarka. He had not only to look after the maintenance of law and order but had also to enforce various building and sanitary regulations and to prepare census of the citizens.15 Apart from cities and towns, there were a large number of villages. In fact, the village was the basic unit of government. Each village consisted of a village headman and Village Council or Panchayat. The office of the village headman was mostly hereditary. In villages he represented the Kings administration.16

Page 14 of 208 The most remarkable feature of the early Vedic polity was the institution of popular assemblies, of which two, namely, the Sabha and Samiti deserve special mention. In the later Vedic period, the Samiti disappeared as popular assembly while the Sabha became a narrow body corresponding to the Kings Privy Council.17 The beginning of a regular system of state judicial administration may be traced to the pre-Mauryan age. The Mauryan period (c. 326-185 B.C.) fills a gap between two great epochs of administration of criminal justice in ancient India, namely, that as mentioned in the Dharma sutra on the one hand and that of Manus code on the other.18 The few references in Megasthenes Indica to the penalties for offences current in Chandraguptas time breathe the spirit of the penal law of the preceding period.19 From Pillar Edict IV of Ashoka, we learn that even after his conversion to Buddhism he continued the death penalty for crimes, only softening its rigour by giving the convicts three days respite before execution. The system of justice of the preceding period appears to have been continued by the Mauryas.20 The old division of urban and rural judiciary was continued in Ashokas reign. The few references in the records of Mauryas point to the continuance of the state police of the preceding period. The jail administration of the earlier times appears to have been continued.21 The rule of the foreign dynasties of the pre-Gupta period is an important episode in the history of ancient Indian administration. Some of the Indo-Greek Kings organized their Indian dominions under provincial governors bearing Greek titles. The Kushanas (c. A.D. 120-220) brought with them an exalted conception of monarchy. They introduced two new grades of military or judicial officers, Mahadandanayaks and Dandanayaks, to make the justice system more effective.22 The Guptas (c. A.D. 320-550) created afresh a system of administration on imperial lines after the downfall of the Mauryan empire. The civil administration apparently was in the charge of the Mantri as before. In the branch of provincial administration the Guptas adopted the older models with changed official nomenclature and some striking innovations. The Municipal Board consisted of four members, namely, the Guild-President, the Chief Merchant, the Chief Artisan and the Chief Scribe. This marks a bold attempt to associate popular representatives with local administration. After the Guptas, in Northern India, King Harshvardhana (A.D. 606-47) created a sound and efficient administration. The contemporary Chinese Buddhist pilgrim Hiuen Tsang gives high praise to Harshvardhana for his love of justice, his unremitting industry in the discharge of his duties and his piety and popularity.23 However, on the other hand, the penal law was marked by a certain degree of harshness in strong contrast to exceptional mildness under the Imperial Guptas.24 In the Deccan, the administration of the Imperial Chalukyas

Page 15 of 208 of Vatapi (A.D.540-753) was marked by the usual characteristics.25 The administration of Rajput states of Northern India was of the bureaucratic type. Salient features of the criminal justice system as evolved and prevailed during ancient India are described below. Concept of Dharma (Law) The Hindu legal system was embedded in Dharma as propounded in the Vedas, Puranas, Smritis and other works on the topic. Dharma, i.e. law, constituted the blue print or master-plan for all round development of the individual and different sections of the society.26 The following verse describes the importance of the Dharma (law): Those who destroy Dharma get destroyed. Dharma protects those who protect it. Therefore Dharma should not be destroyed.27 The law was recognized as a mighty instrument necessary for the protection of the individuals rights and liberties. Whenever the right or liberty of an individual was encroached upon by another, the injured individual could seek the protection of the law with the assistance of the King, howsoever powerful the opponent might be. The power of the King to enforce the law or to punish the wrong doer was recognized as the force (sanction) behind the law, which could compel implicit obedience to the law.28 Sources of Dharma The Veda was the first source of Dharma in ancient India.29 The Dharma sutras, Smritis and Puranas were the other important sources. Subsequently the Mimamsa (art of interpretation) and the Nibandhas (commentaries and digest) also became supplementary sources of law.30 Whenever there was conflict between Vedas, Smritis and Puranas, what was stated in the Vedas was to be taken as authority.31 The source of the Vedas was believed to be divine.32 The Vedas are four in number, viz. the Rig Veda, the Yajur Veda, the Sam Veda and the Atharva Veda. As per Wilkins, among the Vedas, the Rig-Veda is the oldest, next in order was the Yajur-Veda, then the Sama-Veda and last of all the Atharva-Veda.33 MaxMuller gives the probable date of the mantras, or hymn portion of the Vedas, from 1200 to 800 B.C., and the Brahmanas from 800 to 600 B.C, and the rest from 600 to 200 B.C. Each of the Vedas consists of two main parts: a Samhita, or collection of mantras or hymns; and a Brahmana, containing ritualistic precept and illustration. Attached to each Brahmana is an Upanishad containing secret or mystical doctrine.34 The Dharmashastras laid down the law or rules of conduct regulating the entire gamut of human activity. This necessarily included civil and criminal law.

Page 16 of 208 The earlier works, which laid down the law in the form of sutras, were divided into three classes, viz. Srauta sutras, Grihya sutras and Dharma sutras. The Dharma sutras dealt with civil and criminal law. The important Dharma sutras, which were considered as high authority, were of Gautama, Baudhayana, Apastamba, Harita, Vasista and Vishnu. These Dharma sutras, therefore, can be regarded as the earliest works on Hindu legal system.35 The next important source of the Hindu law was the Smritis. The compilation of the Smritis resembles the modern method of codification. All the legal principles scattered in the Vedas and also those included in the Dharma sutras as well as the custom or usage which came to be practised and accepted by the society were collected together and arranged subject wise in the Smritis. The Smritis dealt with constitution and gradation of courts, appointment of judges, the procedural law for the enforcement of substantive law, etc. They disclose a well developed legal and judicial system. The important Smritis are the Manu Smriti, the Yajnavalkya Smriti, the Narada Smriti, the Parashara Smriti and the Katyayana Smriti. The eighteen sub-divisions of law, which cover civil as well as criminal law, are the special features of the Manu Smriti. All the law writers, from the 2nd Century A.D. onwards, appear to have attached great importance to the Manu Smriti and it came to be recognized as the most authoritative work.36 However, in a research it has been found that out of 2685 verses (shlokas) in the Manu Smriti only 1214 verses are original and remaining 1471 verses are interpolated. The researcher has described how the interpolated verses of the Manu Smriti either contravene the views of Manu as expressed in other verses or are irrelevant to the subject matter where they are placed.37 Puranas were also a source of law in ancient India. Each Purana is devoted to the praise of some special deity, who, according to its teaching, is supreme. The deities, described in other Puranas in equally extravagant language, are slighted, and in some cases their worship forbidden. It seems to prove that these books must have been written at different times and in different places, and probably by those who were ignorant of what others had written.38 All the 18 Puranas are classified into three categories(i) those which are devoted to Brahma viz. the Brahma, the Brahmanda, the Brahmavaivarta, the Markandey, the Bhavishya, and the Vaman; (ii) those devoted to Vishnu viz. the Vishnu, the Bhagavata, the Naradiya, the Garuda, the Padma, and the Varaha; and (iii) those devoted to Siva, viz. the Siva, the Linga, the Skanda, the Agni, the Matsya, the Kurma.39 Kautilyas Arthashastra was considered to be another important and authoritative source of law during ancient India from the Mauryan period onwards. Kautilya, also known as Vishnugupta or Chankya, was a Minister of Chandragupta Maurya (c. 322-298 B.C.).40 He has given a detailed description

Page 17 of 208 of the legal system. According to Kautilya, an essential duty of government is maintaining order. He defines this broadly to include both maintenance of social order as well as order in the sense of preventing and punishing criminal activity. Kautilya has mentioned the law of procedures; the law of evidence in civil as well as criminal cases; procedure of criminal investigation; and quantum and method of punishments for various types of offences. Prisons, lockups and welfare of prisoners are also the subject matters of the Arthashastra. Kautilya has prescribed code of conduct for Judges and for the King.41 However, some of the provisions in the Arthashashra relating to punishments have also been found to be interpolations.42 To understand the real meaning of the provisions of the authoritative texts, the adoption of Mimamsa (art of interpretation) became inevitable. In addition to the Mimamsa, the contemporary jurists contributed by Nibandhas (commentaries and digests) to the development of law. It is pertinent to note that some of the Nibandhas which were accepted and followed by the society and enforced by the courts in the past are recognized even at present in India such as Mitakshara by Vijnaneswara and Dayabhaga by Jimutavahana.43 Dharmashastras did not confer on or recognize any legislative power in the King.44 Under the Hindu jurisprudence, though the law was enforceable by the political sovereignthe King, it was considered and recognized as superior and binding on that sovereign himself as is clear from the following verse. Law is the king of kings; nothing is superior to law. The law aided by the power of the king, enables the weak to prevail over the strong.45 However, the above position changed with passage of time as it came to be recognized that in case of conflict between the law laid down in the Shrutis (Vedas) or the Smritis and the Dharmanyaya, i.e. Kings law, the latter prevailed.46 In addition to the literary works of the Hindu law, the customs and usages were also considered as law to administer justice. The Gautama sutra declared: Administration of justice shall be regulated by the Vedas, the institutes of the sacred law; the Vedangas and the Puranas. The customs of the countries, castes and the family which are not opposed to sacred laws have also the authority.47 The Katyayana Smriti also provided that in the absence of a provision in the texts, a King should follow the usage. The Yajnavalkya Smriti prescribed that where two Smritis conflicted, principles of equity as determined by popular usages should prevail. The Narada Smriti mentioned: When it is impossible to act up to the precept of sacred law, it becomes necessary to adopt a method on reasoning because custom decides everything and over-rules the sacred law.48 From these provisions in the Smritis it is inferred that a practice had evolved to

Page 18 of 208 recognize the prevailing customs and local usage as authority during ancient India. As time elapsed the customs and usage had not only become the laws but also achieved superiority over the sacred law as found in the Vedas. As regards the residuary matters, the power was vested with the King. It was provided that in cases where no principle of law was found in the Shruti, Smritis or custom, the King should decide according to his conscience.49 As acknowledged by the Smritis themselves, they were based partly on usage, partly on regulations made by the rulers and partly on decisions arrived at as a result of experience.50 King and Courts Administration of justice, according to the Smritis, was one of the most important function of the King. The Smritis stressed that the very object with which the institution of kingship was conceived and brought into existence was for the enforcement of Dharma (law) by the use of might of the King and also to punish individuals for contravention of Dharma and to give protection and relief to those who were subjected to injury. The Smritis greatly emphasized that it was the responsibility of the King to protect the people through proper and impartial administration of justice and that alone could bring peace and prosperity to the King himself and to the people as well.51 The Kings Court was the highest court of appeal as well as an original court in cases of vital importance to the State. In the Kings Court, the King was advised by the Chief Justice and other judges, Ministers and elders, and representatives of trading community. Next to the Kings Court was the Court of Chief Justice, which consisted of a board of Judges to assist him. In towns and districts the courts were presided over by the State officers, under the authority of the King, to administer justice.52 Ashoka entrusted Mahamatras with the task of invigilation of the town judiciary by means of periodical tours.53 Judicial System in Villages The criminal justice system of ancient India was so organized that every villager had easy and convenient access to a judicial forum. In Vedic society the village Samitis and Sabhas were two important instruments of Indian polity. The Village Councils, similar to modern Panchayats, consisted of a board of five or more members to dispense justice to villagers.54 The administration of justice was largely the work of these village assemblies or other popular or communal bodies. Village headman had the authority to levy fines on offenders. There were several village committees, including a justice committee, appointed by peoples vote.55 Village Council dealt with simple civil and criminal cases. Other criminal cases were presented before the central court or the courts in towns and district headquarters presided over by the government officers under the Royal authority to administer justice.56

Page 19 of 208 Police The first institution of state police may be traced to the pre-Mauryan period. Its full development is recorded in Kautilyas Arthashastra. It mentions that the police during ancient India was divided in two wings, namely, the regular police and the secret police. The regular police consisted of three tiers of officials: the Pradesta (rural) or the Nagaraka (urban) at the top, the rural and urban Sthanikas in the middle and the rural and urban Gopas at the bottom. In the course of his description of the Pradestas duties, Kautilya tells how an inquest was held in case of sudden death. This involved a post-mortem examination of the body as well as thorough police investigation. In Kautilyas work the secret police is divided into two categories namely, the peripatetic and the stationary.57 The Manu Smriti prescribed instructions for the King to detect offences with the help of soldiers and spies. The Katyayana Smriti mentions of informant and investigating officer. This suggests that an agency like modern police existed during that period to assist the King in administration of justice.58 Jails Like the institution of the state police, that of the state jail also begins with the pre-Mauryan period. It was provided that a jail should be constructed in the capital providing separate accommodation for men and women and it should be guarded. It was also prescribed that the prisoners should be employed in useful work. The policy of taking a sympathetic view, as regards persons found guilty of offences and punished with imprisonment imposed on them, was also laid down in the ancient Indian law.59 The Dharmamahamatras were charged with the duty of protecting prisoners from molestation and releasing the deserving ones. The Arthashastra gives a detailed account of jail administration.60 Crime and Investigation Violation of criminal laws was considered an offence against the State. Any member of the public could bring the violation to the notice of the King and the King was under a duty to apprehend and punish the offender. It was provided that the King should take cognizance on his own, with or without any complaint by a private party, of criminal offences.61 The information or complaint about the offence committed by any individual could be made by any citizen and not necessarily by the person injured or his relatives. The person, who on his own accord detected commission of offences and reported to the King, was known as stobhaka, i.e.informant. He was entitled to remuneration from the King for giving first information.62 A person who was appointed by the King to detect commission of offences was called Suchaka, i.e. Investigation Officer.63 The special responsibility of the King in the matter of controlling crimes, detection of crimes and punishing the

Page 20 of 208 offenders was stressed in the Manu Smriti that contained the following guidelines for the King: (i) Persons who commit offences or who conspire to commit offences are generally found in assembly houses, hotels, brothels, gambling houses, etc.; The King must post soldiers and spies for patrolling such places and in order to keep away thieves and antisocial elements; and He should appoint reformed thieves who were formerly associated with such doubtful elements and through them offenders must be detected and punished.64

(ii) (iii)

Punishments The dandaniti, i.e. punishment policy, is one of the elaborately dwelt upon subjects in ancient India as it was intimately connected with the administration of the State. Manu emphasized the importance and utility of punishment saying: Punishment alone governs all created beings, it protects them and it watches over them while they are asleep.65 As per Manu, Yajnavalkya and Brihaspati there were four kinds or methods of punishment during ancient India, namely, admonition, censure, fine and corporal punishment.66 Corporal punishments included death penalty, cutting off the limb with which the offence was committed, branding on the head some mark indicating the offence committed, shaving the head of the offender and parading him in public streets. The nature and types of punishments were very cruel, inhuman and barbarous.67 Kautilya lays down that awarding of punishment must be regulated by a consideration of the motive and nature of the offence, time and place, strength, age, conduct, learning and monetary position of the offender, and by the fact, whether the offence is repeated.68 An old man over eighty, a boy below sixteen, women and persons suffering from diseases were to be given half the punishment; a child less than five committed no offence and was not to suffer any punishment.69 In certain cases, the court was empowered to grant compensation to the aggrieved party in addition to the punishment given to the offender.70 Manu prescribed that a Brahmana offender was not to be sentenced to death or corporal punishment for any offence; in such cases other punishments were substituted.71 But Katyayana and Kautilya were against exempting Brahmanas.72 The Katayayana Smriti prescribed death sentence for a Brahmana if he committed theft of gold, caused abortion or killed a woman.73 Kautilya mentions that a Brahmana who aspires for the Kingdom, or makes forcible entry into the Kings harem, or is guilty of sedition or instigates disaffection or rebellion against the King shall be drowned.74 There are several references in the jataka passages referring to the execution of Brahmanas.75

Page 21 of 208 The Manu Smriti and some other Smritis describe that the punishment was awarded according to the varna of the offender as well as of the victim. For example, the Gautam Smriti, the Manu Smriti and the Yajnavalkya Smriti prescribed that a Kshtriya or a Vaisya abusing or defaming a Brahmana was to be punished respectively with a fine of 100 panas and 150 panas while a Sudra was punished by corporal punishment. This shows that lower the varna of the offender the more severe the punishment. But, the Katyayana Smriti provided that if a Kshatriya was guilty of an offence the quantum of penalty imposed on him would be twice of the penalty imposed on a Sudra for the similar offence.76 The Manu Smriti has also a similar provision which provides that higher the varna of the offender greater the punishment.77 This indicates that there were contradictory provisions regarding punishment in different Smritis. Examination of Witnesses and Perjury It was prescribed that the examination of witnesses should not be delayed. A serious defect, namely, miscarriage of justice, would result owing to delay in examination of witnesses.78 Witnesses were under legal compulsion to give evidence before the court. Failure to appear before the court entailed heavy penalty. Failure to give evidence amounted to giving false evidence.79 Perjury, i.e. the act of giving false evidence, was considered a serious offence and punishment was prescribed for it.80 The entire wealth of a person, who cited false witnesses out of greed, would be confiscated by the King, and in addition he would be externed.81 The party whose witnesses deposed against him could examine further and better witnesses to prove his case as well as to prove that the witnesses examined earlier were guilty of perjury.82 Peoples Participation in Crime Prevention Failure of duty towards society was taken very seriously. Any person who fails to render assistance according to his ability in the prevention of crime would be banished with his goods and chattel.83 Any owner of a house failing to help another at the time of outbreak of fire was liable to be fined.84 Double punishment was prescribed for those who failed to give assistance to one calling for help though they happened to be on the spot or who ran away after being approached for help.85 Right of Self-defence Right of self-defence existed during ancient India. The law provided: A person can slay without hesitation an assassin who approaches him with murderous intent. By killing an assassin the slayer commits no offence. A person has a right to oppose and kill another not only in self-defence but also in defence of women and weak persons who are not in a position to defend themselves against murderous or violent attack. Even killing a Brahmana in exercise of such a right is no offence.86 As per Katyayana no blame is attached

Page 22 of 208 to one who kills wicked men who are about to kill a person, but if they have desisted from their evil act of killing, they should be captured and not killed.87 Offences by Public Servants Offences and misconduct committed by police officers, Jail Superintendent and other public servants were taken very seriously and severe punishments were prescribed.88 It was provided that the judges who passed unjust order, or took bribes, or betrayed the confidence reposed in them, should be banished.89 From the foregoing, it is seen that the institutions of the criminal justice administration had taken their roots during the Vedic period in India. The system gradually developed and during the Mauryan period a well-defined criminal justice system had come into existence as described in the Arthashashtra. MEDIEVAL INDIA (A.D. 1206 -1757) Towards the end of 11th Century began the downfall of the Hindu rule. Local Hindu rulers were attacked and defeated by foreign invaders of Turkish race. Gradually, old Hindu kingdoms began to disintegrate.90 The numerous Hindu states, which took shape from time to time, varying continually in number, extent, and in their relations with each other, seldom were at peace. The never-ending dynastic wars and revolutions did not bring about any development of political institutions. No republics were formed, no free towns were established.91 An atmosphere of great mutual distrust was created amongst the contending States which prevented their political unity against the common enemy.92 The real weakness in Indian administration lay in the influence of the great feudatory families whose power and ambition constituted a perpetual threat to the stability of the Central Government. Hindu kingdoms also suffered from the prevailing caste divisions.93 The numerous raids of Mahmud Ghazni during A.D. 1000 to 1026 had revealed that India was vulnerable and fabulously rich.94 After successive invasions by Ghazni, Mohammad Ghori attacked India, defeated Prithvi Raj, a Rajput King, in the year 1192 and occupied Delhi. After the conquest of various parts of India, Ghori returned to Khurasan leaving the Indian campaign in the hands of his slave Qutub-ud-din-Aibak. After the death of Ghori in 1206, Qutub-ud-din-Aibak established the Slave dynasty and became the first Muslim King to rule from Delhi.95 Subsequently, the Khiljis (A.D. 1290-1320); the Tughluqs (A.D. 1320-1414); the Syeds (A.D. 1414-50); the Lodhis (A.D. 14511526) ruled India as Sultans of the Delhi Sultanate. Babur defeated Ibrahim Lodhi in the famous First Battle of Panipat in A.D. 1526 and established the Mughal empire. The Mughal Emperors ruled India effectively up to A.D. 1707 except the period A.D. 1540-55 when the Suri dynasty established by Sher Shah Suri was in power.

Page 23 of 208 After the death of Aurangzeb in 1707 the Mughal empire started declining. Bahadurshah II was the last Muslim ruler. The Muslim rule in India came to an end formally in 1858 when the British took over the control of Indian affairs from the East India Company. The Muslim polity was based on the concept of the legal sovereignty of the Shara or Islamic law. The political theory laid emphasis on the fact that all Muslims formed one congregation of the faithfuls and it was necessary for them to unite closely in the form of an organized community. Any attempt to break away from the organized community was condemned by the religion.96 All the members of the community elected the Khalifa or Caliph as the Commander of the faithfuls. It was made obligatory on all Muslims to owe allegiance to the Caliph who was their ruler. In India the Sultans of Delhi, though absolute regents, claimed to be the representatives of the Caliph.97 The civil administration during the Muslim rule was headed by the King who was known as Sultan or Emperor. He was assisted by his Minister (Wazir). The kingdom was divided into provinces (subahs). Each province was composed of districts (sarkars). Each district was further divided into parganahs. A group of villages constituted a parganah.98 The Muslim rulers emphasized the importance of administration of criminal justice and introduced reforms to improve the judicial machinery. For the first time in the country, the Chief Judge was appointed by Qutub-ud-din-Aibak. Balban introduced the system of espionage to find the truth about the criminals. Sikandar Lodhi initiated several reforms in criminal justice system. The judicial reforms of Sher Shah Suri formed a bridge between the Sultanate period and the Mughal period. He reformed the judicial machinery. Sher Shah Suri was of the opinion that stability of the government depended on the justice and that it would be his greatest care not to violate it either by oppressing the weak or permitting the strong to infringe the laws with impunity. Heads of the Village Councils were recognized. They were ordered to prevent theft and robberies. In case of robberies, they were made to pay for the loss sustained by the victim. However, he did not disturb the village autonomy. Police regulations were drawn up for the first time in India. The judicial officers below the Chief Provincial Qazi were transferred after every two or three years.99 During the Mughal period, Akbar introduced many reforms in the administration of justice. He created common citizenship and a unanimous system of justice for all. Besides, he prohibited slavery, repealed the death penalty clause for criticizing Islam or Prophet Mohammad, and prohibited the forcible practice of sati. Jahangir abolished the cruel and barbarous punishments and decentralized the power of the courts. Shahjahan established the regular system of appeal.100 Aurangzeb entrusted the preparation of a

Page 24 of 208 comprehensive digest of Muslim criminal law to eminent Muslim theologians. The digest so prepared was entitled Fatwa-i-Alamgiri.101 When the Sultans ruled most of the parts of India from Delhi, a few Hindu kingdoms also existed in some parts of the country. Among these, the Vijyanagar empire, from A.D. 1336 to 1646, was the most famous. Krishnadevaraya was the greatest of the rulers of this dynasty. He reigned from 1509 to 1529.102 The example of Vijyanagar and their system of adjudication of the criminal justice indicate the functioning of full-fledged judicial system.103 But during the medieval period of Indian history the criminal justice system of India was highly influenced by the Muslim rulers and therefore, the period is generally known as the Muslim period. Salient features of the Muslim polity and evolution of criminal justice system during the Muslim rule in India are discussed below: Concept of Law During the Muslim rule in India, Islamic law or Shara was followed by all the Sultans and Mughal Emperors. Muslim criminal law as applied in India, was supposed to have been defined once for all in the Quran as revealed to the Arabian Prophet and his traditional sayings (hadis).104 The Muslims followed the principle of equality for men and they had no faith in the graded or sanctified inequality of caste system. Muslim religion places every man on an equal footing before God, overriding distinctions of class, nationality, race and colour. However, this concept of equality was applicable only to the Muslims. Under the Muslim law, non-Muslims did not enjoy all the rights and privileges which the Muslims did. They were not treated as equal to Muslims in law and were called zimmis. Their evidence was inadmissible in the courts against the Muslims. They had to pay an additional tax called jizya and as regards other normal taxes also they had to pay at double the rate than what a Muslim paid.105 A special feature of the Muslim law was that the Muslim criminal jurisprudence treated criminal law as a branch of private law rather than of public law. The principle governing the law was more in the nature of providing relief to the person injured in civil matters rather than to impose penalty for the offence committed. It was for the private persons to move the State machinery against such offences and the State would not suo-moto take cognizance of the same.106 Sources of Law The main source of Muslim law, i.e. Shara is Quran and sunnah or hadis, which means the practices and traditions of the Prophet who, is considered to be the best interpreter of Quran. On all matters on which Quran was silent, sunnah or hadis was regarded as paramount authority. In addition to these the

Page 25 of 208 other two sources which developed inevitably in order to meet the needs of expanding Muslim society were: Ijmaconsensus of opinion of the learned in Quran; and Qiyasanalogical reasoning having due regard to the teachings of Mohammad. As the society progressed, in view of the divergent views taken on various provisions of Quran by eminent Muslim jurists, four well-defined branches or schools of Muslim law came to be recognized by different sections of the Muslim society. They are the Hanafi school, the Maliki school, the Shafi school, and the Hanbali school.107 King The administration of justice was one of the primary functions of the King. The monarch was the head of the judicial organization.108 According to Islamic jurisprudence, as was the position under the Hindu jurisprudence, the ruler constituted the highest court of justice.109 To maintain and enforce the criminal code was one of the important functions of the King. Being head of the state, he was the supreme authority to administer justice in his kingdom. Courts Different courts were established to deal with different kinds of cases. Courts were constituted at central capital and at the headquarters of a province, district and parganah. During the Sultanate period the Court of Diwan-e-mulzim was the highest court of criminal appeal. To deal with the cases of criminal prosecutions of rebels and those charged with high treason, a separate court Diwan-e-siyasat was constituted. The judiciary and police were placed under the Chief Sadr and Chief Qazi, both offices being held usually by the same person. In due course a hierarchy of Qazis was established to dispose of cases of civil disputes and criminal complaints.110 At each provincial headquarters, Adalat Qazi-e-subah was empowered to try civil and criminal cases of any description and to hear appeals from the district courts. Similarly, there were courts at the district and parganah headquarters. Appeals were filed before the district court from the judgements of the Parganah Qazis, Kotwals and village Panchayats.111 Petty criminal cases were filed before the Kotwal who was the principal executive officer in towns. Sher Shah Suri introduced many reforms in the court system. In the parganahs, separate courts of first instance were established for civil and criminal cases. The Shiqahdars who had uptil now powers corresponding to those of Kotwals (of cities) were given magisterial powers within the parganahs. They continued to be in charge of the local police.112 During the Mughal rule a separate department of justice (mahukma-eadalat) was created to regulate and see that justice was administered properly. Justice was administered by means of a hierarchy of courts rising from the

Page 26 of 208 Village Council (Panchayat) to the parganah, sarkar and provincial courts and finally to the Chief Sadr-cum-Qazi and the Emperor himself.113 The Emperors Court had jurisdiction to hear original and criminal cases. In criminal cases the Mohtasib-e-Mumalik or the Chief Mohtasib, like the Attorney General of India today, assisted the Emperor. In order to hear an appeal, the Emperor presided over a Bench consisting of the Chief Justice and Qazis of the Chief Justices Court. The public was allowed to make representations and appeals to the Emperors Court in order to obtain his impartial judgement.114 The second important court of the empire was the court of the Chief Justice (Qazi-ul-qazat). This had original civil and criminal jurisdiction and also heard appeals. It was required to supervise the working of the provincial courts.115 At each provincial headquarters, the Provincial Chief Appellate Court, presided over by the Qazi-e-subah, besides hearing appeals had also the original civil and criminal jurisdiction. In each district, chief civil and criminal court of the district was presided over by the Qazi-e-sarkar, who was the principal judicial officer of the district. Qazi-e-parganah presided over the Adalat-e-parganah that had to deal with all civil and criminal cases arising within the jurisdiction of the parganah, including the villages.116 Judicial System in Villages During the Muslim rule in India village continued to be the smallest administrative unit of the government. Each paragnah consisted of a group of villages. For each group of villages there was a village Panchayat, a body of five leading men, elected by the villagers. The head of Panchayat was known as Sarpanch.117 From ancient times the Village Councils (Panchayats) were authorized to administer justice in all petty civil and criminal matters.118 The institution of Panchayat as it existed during the Hindu period remained untouched during the Muslim rule in India. The authority of Panchayat was recognized and it continued to decide both civil and criminal cases of purely local character during the Muslim period. Village Panchayats were mostly governed by their customary law. Though the decisions given by Panchayats were based on local customs and were not strictly according to the law of the kingdom, yet there was no interference in the working of Panchayats. As a general rule, the decision of Panchayat was binding upon the parties and no appeal was allowed from its decision.119 Mostly these Panchayats decided cases as between Hindus who formed the bulk of the population. Consequently, administration of justice under Muslim rulers did not cover about three-fourths of their subjects.120 Police Policing of the cities and towns was entrusted to Kotwals and of the countryside to Faujdars. Judiciary and Police were placed under the Chief Sadr and Chief Qazi both offices being held usually by the same person.121 The

Page 27 of 208 Mughals had established the kotwali system in the cities and the chowkidari system in the villages. The Court of Fauzdar tried petty criminal cases concerning security and suspected criminals. Kotwals were also authorized to decide petty criminal cases.122 Jails Prisoners awaiting trial were detained in prisons in the Muslim period of India. The duties of the Kotwal were to check the number of the persons in the prison and ascertain their answers to the charges against them. Imprisonment as punishment was not expressly provided for under the Islamic criminal law and thus there was, generally no need of prisons as penal instruments. But due to the provision of diya in that law, many prisoners, after conviction, had to spend their days for their inability to pay compensation. Again the discretion left to the Qazi to impose tazir, that is in offences not categorized under hadd, qisa and diya, enabled him to award imprisonment, if he so wished.123 Crimes and Criminal Procedure Contrary to the practice under Hindu law, all crimes were not considered injuries to the State under the Islamic penal law. The offences were classified under three heads, namely, (i) crimes against God, (ii) crimes against the State, and (iii) crimes against private individuals. Crimes against God and the State were treated as offences against public morals. Other crimes were treated as offences against the individuals; it was for the private persons to move the State machinery against such offences and the State would not suo-moto take cognizance of the same. While an offence like murder, which under modern law is treated as the most heinous crime, was considered as an offence against individual but drinking wine was considered a very serious offence against society. In criminal cases, a complaint was presented before the court either personally or through a representative. To every criminal was attached a public prosecutor known as Mohtasib. He instituted the prosecutions against the accused before the court. The court was empowered to call the accused at once and to begin hearing of the cases.124 The criminal process required a valid accusation made in the presence of the defendant who could confront his accusers and had the right to interrogate him, cross-examine him as also ask him to take the oath. The burden of proving the charge was always on the accusers and an accusation itself was no proof. A criminal trial was not a process designed to put the state against the accused. The victim-accuser was directly involved in the process.125 Ordinarily, the judgement was given in open court. In exceptional cases, where either the public trial was against the interest of the state or the accused was dangerously influential, the judgement was not pronounced in the open court.126

Page 28 of 208 Evidence was classified by the Hanafi law into three categories: (a) tawatur, i.e. full corroboration; (b) ehad, i.e. testimony of a single individual; and (c) iqrar, i.e. admission including confession. The law of evidence prescribed for proving the offence was highly technical. Some of the rules of evidence followed under Muslim criminal law were as follows: (i) (ii) (iii) (iv) No capital sentence could be inflicted on a Muslim on the evidence of a non-Muslim. In other cases, evidence of one Muslim was considered as equivalent to two non-Muslims. Evidence of two women was considered equivalent to that of one man. Evidence should be direct, viz. that of eye witnesses only and not circumstantial and further specified number of witnesses was a must to secure conviction. For instance, for proving offence of rape not only eye witnesses were necessary but also four such witnesses were insisted upon. Evidence of women was inadmissible to prove a charge of murder and in all cases of hadd or kisa.127

(v)

Punishments The punishments for various offences were classified into four broad categories, viz (a) kisa, i.e. retaliation which meant in principle, life for life and limb for limb; (b) diya meant bloodmoney being awarded to the victim or his heirs; (c) hadd inflicted on persons who committed offences against God; (d) tazeer, i.e. punishment for the cases not falling under hadd and kisa. The punishment which fell in this category consisted of imprisonment, corporal punishments and exile or any other humiliating treatment.128 The type and quantum of penalty to be imposed was entirely within the discretion of the Judge. In criminal cases, a great deal of discretion was allowed to them and they took a variety of factors into account in awarding punishment.129 Punishments prescribed were very cruel. Mutilation of the body was one of the type of punishment which resulted in great suffering and gradual death.130 A special feature of the punishments was that of diya i.e. bloodmoney. This applied to cases of certain offences including those falling under kisa. Bloodmoney was awarded to the victim or the heirs of the victim in a fixed scale. In the cases falling under kisa also the person entitled to inflict injury on the wrong doer could forego his right by accepting diya. If one of the heirs accepted kisa and gave pardon, the other heirs had no other alternative than to accept their share of bloodmoney. According to a fatwa delivered in march 1791, one man named Mongol Das murdered his wife and one of her heirs gave pardon and therefore no death sentence could be inflicted at the instance of

Page 29 of 208 other heirs and they had no alternative but to receive diya. Another special feature of the Muslim criminal law was that the death sentence was required to be executed by the heirs of the deceased.131 Institution of Lawyers Litigants were represented before the courts by professional legal experts. They were known as Vakils. The legal profession flourished during the Muslim period. The lawyers played a prominent role in the administration of justice. Two Muslim Indian Codes, namely, Fiqh-e-Firoz Shahi and Fatwa-e-Alamgiri, clearly state the duties of a Vakil. Ibn Batuta, who was a Judge during the reign of Mohmmad Tughluq mentions about Vakils in his book.132 Sometimes they were appointed to assist poor litigants by giving them free legal advice. A Vakil had a right of audience in the court. It was expected that the Vakil should maintain high standard of legal learning and behaviour.133 Appointment of Judges Chief Justice and other judges of higher rank were appointed by the Emperor. Sometimes the Chief Justice and other judges were appointed from amongst the eminent lawyers. Similarly, provincial and district Qazis were appointed from lawyers. The selection of a Qazi as a rule was made from amongst the lawyers practising in the courts.134 Lapses on the part of government officers were thoroughly investigated, if necessary, through commissions of inquiry.135 Corrupt judicial officers were punished and dismissed. Every possible effort was made to keep up the high standard of the judiciary.136 From the foregoing, it is seen that during the Muslim rule in India the criminal justice system marked a significant change from that of the Hindu period. Special emphasis was given on constitution and working of different courts. MODERN INDIA (A.D. 1757 1947) On 31st December 1600, Queen Elizabeth I of England granted a Charter to the East India Company of London to trade into and from the East Indies, in the countries and parts of Asia and Africa for a period of fifteen years. The provisions of the Charter of 1600 were only in connection with the trade and were not intended for acquisition of dominion in India. The legislative authority was given to the Company in order to enable it to regulate its own business and maintain discipline amongst its servants. In order to enable the Company to punish its servants for grosser offences on long voyages, the Company secured the First Royal Commission in 1601. Subsequently, the Company was authorized to continue its privileges in perpetuity and some additional powers were given for enforcing martial law.137

Page 30 of 208 After settling at Surat in 1612 the Company approached the Mughal Emperor Jahangir through Sir Thomas Roe, Ambassador of Englands King James I, and succeeded in securing a Royal Order called farman in 1618. The farman conferred inter alia the rights on the Company to establish a factory at Surat; to live according to their religion and law without any interference; to settle disputes as among Englishmen and to have the disputes as between Englishmen and local persons settled through local authorities.138 In view of the Charter of the King of England read with the farman of the Mughal Emperor, the legal position at Surat Factory was as follows: 139 (i) (ii) (iii) (iv) There was no common legal system which could apply to all persons in Surat. Civil justice was according to personal law of the Hindus and Muslims. Criminal law followed was the Muslim criminal law. Englishmen were to be governed by English law.

As the activities of the Company increased, King Charles II issued a new Charter in April 1661 authorizing the Company to try cases, both civil and criminal, relating to all persons whether servants of the Company or others according to the laws of England. By this Charter the laws of England were for the first time made applicable in the territory of India and through these powers, the Company started developing into a government for the locality.140 The Charter of 1668 was a step which further assisted the transition of the trading body into a territorial power. Charles II transferred in 1669 the island of Bombay, which he got as a dowry from Portugal, to the East India Company for an annual rent of ten pounds. The Charter of 1668 authorized the Company to make laws, orders, ordinances and constitutions for the good government of the island of Bombay. The Charter also empowered the Company to establish courts of judicatures similar to those established in England for the proper administration of justice.141 Subsequently, the Charter of 1683 provided that a court of judicature should be established at such places as the Company might consider suitable and decide according to equity, good conscience, laws and customs of merchants.142 With the passage of time the Company continued securing more and more powers and privileges from the British Crown. Being encouraged by the constant support of the British Government, the Company went on expanding its spheres not only in the business field but also in the political arena. The Battle of Plassey of 1757 was the first landmark in the history of the Companys political success in India. However, the Companys political power was established by the success in the Battle of Buxar of 1764. Thereafter, the Company continued to expand its rule in India till 1857. The Revolt of 1857

Page 31 of 208 proved fatal to the Companys political career in India.143 The British Crown assumed direct charge of the Indian affairs as the Government of India Act, 1858 deprived the East India Company of the Indian Government. The Proclamation of Queen Victoria of England on November 1, 1858 outlined the principles on which the Crown would govern India. The place of the President of the Board of Control was taken by a Secretary of State for India, who now became, in subordination to the cabinet, the fountain head of authority as well as the director of policy in India.144 The British rule in India continued till 1947. In order to control the vast area and population of India, the British had revamped the existing criminal justice system of India. They modified the existing laws, passed new laws and introduced new principles. The criminal justice system, as it exists today, was mostly evolved during the British period. The steps taken by the British to establish a well defined and uniform criminal justice system in India are discussed below. Status of Law During the Muslim rule in India, the Muslim criminal law had replaced the Hindu law as the law of the State. It was applied and enforced by the courts established by Muslim rulers. Hindu law, however, continued to be enforced by village Panchayats, but it could not be enforced in courts maintained by the State. The then prevalent Muslim criminal law and justice system were allowed to continue by the British not only for the Muslims but also for the non-Muslims as the general law except, however, at Bombay because at the time of its acquisition by the British from the Portuguese it was not under Muslim criminal law.145 Illbert describes the circumstances, which made the application of the Muslim criminal law inevitable and the compulsions which rendered the change of the criminal law a must in the following words: The object of the East India Company was to make as little alteration as possible in the existing state of things. Accordingly, the country courts were required, in the administration of criminal justice, to be guided by Mohammedan law. But it soon appeared that there were portions of the Mohammedan law, which no civilized government could administer. It was impossible to enforce the law of retaliation for murder, of stoning for sexual immorality or of mutilation for theft, or to recognize the incapacity of unbelievers to give evidence in cases affecting Mohammedans.146 Reforms in Criminal Law by Warren Hastings Warren Hastings, Governor of Bengal from 1772 and Governor-General from 1774-85, could observe the defects and inequities of the existing system of criminal law and the machinery of criminal justice. He, however, could not venture to uproot the Muslim criminal justice system and tried to tread a pragmatic path and adopted the device of experimentation with the triple policy

Page 32 of 208 of the preservation of the heritage as far as possible, reorganization where inevitable and improvements where inescapable.147 But such efforts of his could touch only the fringe of the problem. Reforms by Cornwallis (A.D. 1786-93) Before accepting his appointment as GovernorGeneral, Cornwallis laid down two conditions, that the Governor-General will have power to override his council and the office of the Governor-General and the Commander-in-Chief will be united under one person. The conditions laid down by Cornwallis were accepted and thus, the Governor-General became the effective ruler of British India under the authority of Board of Control and Court of Directors. The Governor-General and Council now became the Governor-General-in-Council and this position continued till India became independent in 1947. Certain specific instructions were given to Cornwallis in three matters: (i) to deal with the problem of land revenue; (ii) improvement in the administrative machinery; and (iii) to introduce reforms in the judicial system. The instructions contemplated the reuniting of the functions of revenue collector, civil judge and magistrate in one and the same person as it would lead to simplicity, justice and economy. Regarding criminal jurisdiction, it was stated that the powers of trial and punishment must, on no account, be exercised by any other than the established officers of the Muslim judiciary. Cornwallis reformed the whole system of civil and criminal justice by a method of trial and error. In the judicial system Cornwallis introduced reforms in three phasesin 1787, 1790 and 1793 respectively. (a) Judicial Plan of 1787The existing separation of the revenue and judicial functions, brought about by Warren Hastings, was removed and both the functions were united under the district collector, an Englishman. The Collector was also entrusted with magisterial powers in his district. While discharging his duties as a Magistrate, the Collector was empowered to arrest, try and punish the criminals for petty offences. All Europeans who were not British subjects were placed on the same footing in criminal matters as the Indians and the Mofussil Fauzdari Adalats were authorized to try and punish them.148 (b) Scheme of 1790After gaining sufficient experience from 1786 to 1790, Cornwallis realized that the prevailing system of the administration of criminal justice was very defective and futile.149 Robberies, murders and other crimes relating to life and property of the natives were increasing; dacoits and murderers were protected by zamindars; conditions of prisons were highly unsatisfactory; judges and law officers were paid low salaries, persons eager to amass money joined these posts, there was no security to tenure of these posts; cases were delayed on account of collusion between judges and offenders; and there was no uniform standard of imposing punishments.150

Page 33 of 208 In 1790 Lord Cornwallis circulated a questionnaire among all the Magistrates with the object of ascertaining the then existing conditions of the criminal justice system. He found that it was most uncivilized and intolerable. He noticed that death sentences, worst and cruel types of corporal punishments and indefinite imprisonment were frequent and numerous and at the same time the most notorious offenders very often escaped without punishment. He also noticed that the jails were over crowded with large number of criminals and offences such as murders, robberies and burglaries had become endemic. People were perpetually haunted with the fear of insecurity to their life and property.151 According to Cornwallis two factors contributed to such a state of affairs of the criminal justice system, viz. (i) the Muslim criminal law which was, in the opinion of Cornwallis, against natural justice and humane society, and (ii) defects in the constitution, organization and administration of criminal courts. With a view to reforming criminal judicature, Cornwallis prepared a new scheme and promulgated it in December 1790. The following were the most important reforms introduced under the scheme: (i) The Nawab was deprived of his position as the highest criminal court. This power was assumed by the Governor-General-in-Council with the designation of Sadar Nizamat Adalat. Courts of Circuit were established at each divisional headquarters. The Collector of each district was designated as Magistrate to preside over the lowest criminal courts in the hierarchy. The Magistrates had to take an oath before the Supreme Court, to qualify themselves to function as Justices of Peace and thereby acquired the authority to arrest Englishman accused of any offence. Europeans other than the British were to be treated in the same manner as Indians in the criminal matters. Cruel punishments were abolished, in case of murder, punishment was now to be given on the basis of the intention of the party; bloodmoney was abolished and choice given to the next of kin of the murdered person to remit the death penalty was done away with; and the courts were required to proceed against the accused even if the heirs refused to prosecute. Evidence of non-Muslims was admitted as valid.

(ii) (iii) (iv)

(v) (vi)

(vii) Salaries and allowances of the judges and the native officers were increased in order to check corruption. Subsequently, in the year 1792, provision was made for payment of small daily allowance to all prosecutors and witnesses who were in need of such

Page 34 of 208 assistance, which was one of the important steps to enable the parties to come in greater number to seek justice.152 (c) Scheme of 1793Cornwallis, after due consideration of the working of the system commenced in 1787, was convinced that concentration of power in the hands of collectors had proved injurious to the interest of the people and the administration of justice had suffered. He was of the opinion that the interests of the Companys government and that of the people were interconnected and therefore, protecting the interests of the people and ensuring their happiness and prosperity of the people was necessary to the Government even from the point of its own stability and permanency.153 In this background the scheme of 1793 was prepared and implemented by making necessary regulations. The scheme inter alia covered the following aspects: (i) (ii) (iii) The Collectors were divested of judicial powers. By Regulation IX of 1793 the magisterial functions of collectors were transferred to the Mofussil Diwani Adalats. Court of Circuit established in 1790 was merged in the Court of Appeal. Each such court was to consist of three English Judges. The court was to break into two divisions, one consisting of a single senior-most Judge and other consisting of two other Judges while functioning as the Circuit Court. After completion of the circuit all the three judges were to sit together as the court of Appeal to hear appeals against the decisions of the Mofussil Diwani Adalats. Collectors and all executive officers were made answerable to the Diwani Adalats for their official acts. This established judicial supremacy over executive action. Regulation VII of 1793 was made in order to fulfill the requirement of a well organized legal profession. This inter alia made the following provisions:154 (a) Pleaders who were found guilty of misconduct including misbehaviour in private life were liable to be suspended by the court; (b) The Vakils were required to charge moderate fees as laid down in the regulations and they were liable for dismissal if they accepted anything beyond the scheduled fee from their clients. To give effect to this provision, fees of lawyers were required to be collected by the court;

(iv)

(v)

Page 35 of 208 (c) Vakils who were found to be wilfully adopting dilatory tactics for their own advantage were liable for damages and also dismissal; (d) Vakils were liable for prosecution by their clients, if they resorted to fraudulent method or other types of malpractices; and (e) Provision was made to appoint a few government lawyers to conduct cases required to be conducted at public expenses. During his second tenure as Governor General, Cornwallis introduced a very important reform in 1805 providing that the Chief Judge will not be a member of the Council. His main aim in doing so was to separate judicial functions from the executive and legislature.155 However, one major defect in the reforms of the judicial system introduced by Cornwallis was the ineligibility of Indians to hold any judicial post except that of Munsif. But in the course of time this defect was removed and more and more Indians came to be associated with the administration of justice. Reforms between 1793 and 1828 Sir John Shore (A.D. 1793-98) could not do much as far as criminal justice was concerned.156 Lord Wellesely (A.D. 1798-1805) introduced certain major reforms to improve the administration of justice. In order to expedite the disposal of the pending judicial work, in zilas, and cities, Head Native Commissioners, also known as Sadar Ameens, were appointed. In each district a civil servant of the Company was appointed as Judge and Magistrate, and another civil servant as Collector.157 Lord Hastings (A.D. 1813-23) brought about many improvements in the working of the criminal courts. The Magistrates were given powers to refer to Native Law Officers and Sadar Ameens, cases of petty offences for trial; the jurisdiction of Magistrates and Joint Magistrates was enlarged; efforts were also made to deal with the unnecessary delay in the administration of justice and to dispose of arrears of work. Lord Hastings took special interest in reorganizing the police force to deal with criminals and to maintain law and order in the country.158 Lord Amherst, who took over from Hastings in 1823, also introduced certain reforms in the judicial sphere. In criminal cases, where it was necessary to obtain more information from certain accused persons regarding the main crime, the Magistrates and the Superintendents of Police were authorized to pardon such persons. It assisted the police in investigating the crimes and punishing the persons who were really responsible for committing the crimes.159 Reforms of Lord Bentinck

Page 36 of 208 Lord William Bentinck as Governor-General from 1828 to 1835 showed keen interest in improving the machinery of the administration of justice and introduced several reforms of great importance. He reorganized and consolidated the whole system of civil and criminal courts. He abolished the Courts of Circuit and in their place appointed Commissioners of Revenue and Circuit to control the working of the magistracy, police, Collectors and other revenue officers. Because of the combination of three functions in the Commissioners, viz., revenue, police and judicial power to try criminal cases, the work load on them became too heavy. In order to reduce the burden of the Commissioners, in 1831, Sessions Judges were appointed to try cases committed to them by the Magistrates. This became the origin of the district and sessions court.160 In 1829 Bentinck took a very bold step to abolish the prevailing inhuman practice of sati. It was made an offence punishable like culpable homicide and its abetment was also made a punishable offence.161 Lord Bentinck disliked the old policy of Lord Cornwallis to exclude Indians from judicial offices and appointed Indians in the civil and criminal courts of the country. This policy also resulted in economy as the English Judges were highly paid while Indians were available at a small salary. In 1832 the Commissioners of Circuit and Sessions Judges were authorized to take the assistance of respectable natives in criminal trials either by referring some matters to them as Panchayat for investigation or by calling them to the Court as jury.162 System of Courts Although the British had acquired control and obtained rights of fiscal administration of Bengal, Bihar and Orissa in 1765, the Company did not take responsibility of administration of justice. As a result the criminal jurisdiction in these provinces was still left with the puppet Nawab. Thus a system of dual government was established, under which the Company, whilst assuming complete control over the revenues, left in other hands the responsibility for maintaining law and order and administration of justice. The system proved disastrous.163 The Company introduced many reforms to bring about improvements in the court system. The Judicial Plan of 1772 prepared by Warren Hastings was the first major step in this regard. This followed a series of reforms. Consequently, the Company assumed full responsibility of administration of justice and a dual system of courts, namely, (i) the Companys courts and (ii) the Kings courts came into existence in India. The hierarchy of criminal courts, having their jurisdiction outside the presidency towns and known as the Companys courts was as follows.

Page 37 of 208 (i) Magistrates (Collectors) whose jurisdiction was limited to petty offences involving the punishment of imprisonment for not more than 15 days. Mofussil Diwani Adalat at district level. Circuit court. It was a touring court having its headquarters at divisional headquarters. It also worked as a Court of Appeal.(iv) Sadar Nizamat Adalat, the highest criminal court headed by the Nawab till 1790 and thereafter by the Governor-General.

(ii) (iii)

As regards the Kings courts, in each province, i.e. Bombay, Calcutta and Madras, a Supreme Court was established which derived its authority from the King of England. Their jurisdiction was mainly limited to the presidency towns respectively. The original jurisdiction of the Supreme Courts was extended inter alia to (i) British subjects throughout India in all civil and criminal cases; (ii) inhabitants of Calcutta, Madras and Bombay within fixed limits, whether natives or others in all civil and criminal cases; (iii) all persons for maritime crimes.164 Thus, two sets of courts were administering justice in India. The Kings Courts and the Companys Courts formed the dual system of courts having their separate jurisdictions and applying different laws.165 The Supreme Courts mostly applied English law, both civil and criminal, with certain exceptions relating to Hindus and Mohammedans. The Companys courts in the mofussil area applied only the regulations of the government which were passed before 1834. English law was not applied by the Companys Courts. In cases for which there was no ascertainable law or custom, the Judges were required to exercise their discretion according to justice, equity and good conscience. In criminal cases, Mohammedan law of crimes, as modified by the Regulation, was applied by the mofussil courts in Bengal and Madras provinces but in Bombay a regular code superseded the Muslim law of crimes.166 The existence of the dual system of courts created many difficulties and conflicts. In order to achieve uniformity, certainty and efficiency it was considered necessary to bridge the gap by legislative measures.167 Law Commissions As per the provisions of the Charter Act of 1833, the First Law Commission was appointed in 1835. The Commission was required to inquire fully into the jurisdiction, powers and rules of existing Courts and all existing judicial procedure and into the nature and operation of all laws in force in the British territories. Macaulay, who was a barrister and a member of the House of Commons in England, was appointed as the Chairman of the First Law Commission. The most significant contribution of the First Law Commission was the preparation of draft Indian Penal Code for purposes of codification of penal laws in India.168

Page 38 of 208 The Second Law Commission was appointed in 1853 and the term of the Commission was fixed at three years. The Commission inter alia recommended that a body of substantive law as applicable to whole of India was necessary; such a uniform law should be prepared taking English law as the basis; exception may have to be carved out in favour of certain classes; and law should apply to one and all except those who are saved by the provisions.169 Subsequently, the Third Law Commission and the Fourth Law Commission were appointed in 1861 and 1879 respectively. These Commissions also recommended the codification of laws in different spheres in India and accordingly a large number of Acts were passed including the Indian Evidence Act, 1872. The labour of these Commissions, which consisted of eminent English jurists, spread over half a century, gave to India a system of Codes dealing with important parts of substantive and procedural civil and criminal law. The Commissions became powerful instruments which injected English common and statute law and equitable principles into the expanding structure of Indian jurisprudence.170 The practice of appointing Law Commissions to study the prevailing law and procedures is still followed in India. Codification of Laws The Draft Penal Code, which was drafted and submitted to the GovernorGeneral in 1837, was revised and enacted into law in 1860 by Indian Legislature.171 The Indian Penal Code based on English principles wholly superseded the Mohammedan criminal law. A general Code of Criminal Procedure followed in 1861 and the process of superseding native by European law, so far as criminal justice is concerned, was completed by the enactment of Evidence Act of 1872.172 The British by codification and by introducing the English principles of equity, justice and good conscience, made significant improvement in the preceding criminal laws. Organizing the Police Lord Cornwallis was the first British administrator who tried to improve the police system. He appointed a Superintendent of Police for Calcutta in 1791 and thereafter, extended his efforts to the mofussil. Cornwallis took police powers out of the hands of the zamindars of Bengal, Bihar and Orissa, and ordered, in 1793, the District Judge to open a police station for every four hundred square miles and to place a regular police station officer over it. He was known as the Daroga. The Kotwal continued to be in charge of the police in the town.173 The period between 1801 to 1860 turned out to be a period of clumsy attempts in organizing the police system in the country. Each province made attempts to organize it in divergent ways. In 1816, Sir Thomas Munro, in such an attempt, took the Superintendent of Police in Madras out of the hands of the Judge and placed him in the hands of peripatetic Collector, who had the

Page 39 of 208 indigenous village police under his control.174 This was soon followed by other provinces. In 1843 Sir Charles Napier set himself to the task of introducing a police system on the lines of the Royal Irish Constabulary in the newly conquered territory of Sind, now in Pakistan. As per his plan, while the police force was to continue under the authority of the Collector, yet in each district they were to be supervised by an officer whose sole duty was to control and direct them. Napier created a separate police organization directed by its own officers. Direction throughout the area of Sind was in the hands of the Inspector General of Police and in each district with the Superintendent of Police. The latter was accountable to the Inspector General of Police as well as the District Collector. In 1848, Sir George Clarke, the Governor of Bombay, appointed full-time European Superintendents of Police in many districts. In 1853, the police in Bombay was remodelled on Napiers lines.175 The revolt of 1857 drew the attention of the Government of India to the urgency of police reorganization. Accordingly, a commission was appointed in 1860 to study exhaustively the police needs of the government. Its main recommendations were embodied in the Indian Police Act of 1861. The aims of the Act as enshrined in the Act itself were to re-organize the police and to make it a more efficient instrument for the prevention and detection of crime. This Act is still in force in India without any significant change. Jail Reforms As the British continued to follow the criminal justice system of the Muslim period for a long time, the jails, as part of the whole system, were administered by the East India Company without any change. As the Company was reluctant to spend money on jails, the condition of the jails was deplorable. In many jails, there was no separation between male and female prisoners by day or night. Up to 1860, the management of District Jails had devolved upon the District Magistrate.176 There was no manual of rules or regulations for the guidance of the jail staff. In the presidency of Bombay a simple Code of Rules was framed in 1860 and this was followed by Gaols Rules framed in 1866. In Bengal, the Jail Code was compiled in 1864 which defined inter alia the duties, responsibilities and powers of the various officers in the jails.177 With a view to understanding the problems in the jails and to bring about reforms, various committees were appointed in the latter half of nineteenth century. A few recommendations of these committees were carried into effect from time to time but the reforms never reached to a satisfactory level. Finally, the Prisoners Act of 1894 was enacted followed by the Reformatory Schools Act of 1897. The Prisons Act of 1894 provided that convicted prisoners may be confined either in association or individually in cells. It fixed nine hours labour a day for convicts sentenced to labour.178 The British appointed another

Page 40 of 208 committee in 1919 known as the Indian Jails Committee. As a result of the recommendations of this committee a number of changes were introduced in the rules governing the jail system of the country.179 Establishment of High Courts After codification of laws, the next step to reform the existing judicial system was to amalgamate the two sets of the courts, i.e. the Supreme Courts (the Kings Courts) and Sadar Adalats (the Companys Courts). In 1858, the assumption of direct control of the Government of India by the Crown made the task easier.180 The British Parliament passed the Indian High Courts Act, 1861 which empowered the Crown to establish, by Letters Patent, High Courts of Judicature at Calcutta, Madras and Bombay abolishing the Supreme Courts and the Courts of Sadar Diwani and Sadar Nizamat Adalat. The jurisdiction and powers of the High Courts were to be fixed by the Letters Patent. Accordingly, the High Courts at Bombay, Madras and Calcutta were established in the year 1862. Subsequently, High Courts were established at other places in India. Each High Court was empowered to have supervision over all courts subject to its appellate jurisdiction. With this the number of courts were decreased; the quality of work of the lower courts improved; efficiency of the Judges improved; procedures were simplified and the appellate procedure also became uniform. The Letters Patent also empowered the High Courts to enrol and remove Advocates, Vakils and Attorneys-at-Law.181 The establishment of High Courts was a significant step in the evolution of the criminal justice system in India. Privy Council The Privy Council, a committee under the King of England to hear appeals from colonies, was the highest Court of Appeal from India.182 It originated in course of many developments in the judicial sphere in England in 17th century or earlier. In 18th century with the growth of the British Empire the work of the Privy Council greatly increased. As the working of the existing Privy Council was under criticism, the British Parliament passed the Judicial Committee Act, 1833 establishing a statutory permanent committee of legal experts to hear appeals from the British colonies. The Acts of 1844, 1908 and 1929 further modified the working of the Privy Council.183 Initially, there was no appeal to the Privy Council without its special leave. But from 1943 onwards appeals could be made under a certificate granted by any of the Presidency High Courts.184 There was no provision to appeals to the Privy Council in criminal proceedings as of right. The Privy Council laid fundamental principles of law in a lucid manner for the guidance of Indian courts. The law declared by the Privy Council in the pre-Constitution period is

Page 41 of 208 still binding on the High Courts except in those cases where the Supreme Court of India took a different view. The principles of integrity, impartiality, independence and the rule of law, which were laid down by the Privy Council, are still followed by the Supreme Court of India in its judgements. It shows the amount of respect which the Indian judiciary still has for the Privy Council judgements.185 Federal Court of India The Government of India Act, 1935 changed the structure of the Indian Government from unitary to that of the federal type. It laid the foundation for a federal framework in India. A federal Constitution involves a distribution of powers between the centre and the constituent units. Therefore, setting up of a federal court was necessary, and accordingly, as per the provisions of the Government of India Act, 1935 the Federal Court of India was inaugurated at Delhi on 1st October 1937.186 Although a Federal Court was established, the system of appeals from High Courts to the Privy Council remained intact and unaffected. The Federal Court was interposed between the High Courts and the Privy Council only for the restricted category of cases in which a question of constitutional law was involved. However, in criminal matters the Federal Court (Enlargement of Jurisdiction) Act, 1947 enlarged the jurisdiction of the Federal Court in India. In 1949 the Constituent Assembly decided to give full judicial autonomy to the Indian judiciary. The Draft of the new Constitution of India was at its final stage and the leaders wanted to give it a smooth transition. The Assembly, therefore, passed the Abolition of the Privy Council Jurisdiction Act in 1949. The Act came into force from 10th October 1949 and it repealed section 208 of the Government of India Act, 1935 which was the basis of the Privy Councils appellate jurisdiction over the Federal Court. The Federal Court of India as such followed the same principles as were followed by the Privy Council in the exercise of its appellate jurisdiction in criminal matters. The Government of India Act of 1935 provided that the law declared by the Federal Court and any judgement of the Privy Council will be binding on all the courts in British India. Thus the English doctrine of precedent was introduced in India. It is pertinent to note that the Federal Court Order-in-Council of 1937 fixed the salary of the Chief Justice of the Federal Court at Rs. 7,000 a month and of other Judges at Rs. 5,000 a month. They were specially paid high salaries so that they could maintain a high standard of living, befitting their eminent positions.187 The Federal Court functioned successfully and effectively during the transitional period in Indian history, when there was no written Constitution. It built up great traditions of independence, impartiality and integrity which all

Page 42 of 208 were inherited by its successor, the Supreme Court of India, established on 26th January 1950 under the Constitution of India. CONCLUSION The criminal justice system in India has evolved over a period of three thousand years. Initially, the Law or Dharma, as propounded in the Vedas was considered supreme in ancient India for the King had no legislative power. But gradually, this situation changed and the King started making laws and regulations keeping in view the customs and local usages. The punishments during ancient India were cruel, barbarous and inhuman. As regards the procedure and quantum of the punishments there were contradictions between various Smritis and in certain cases even among the provisions found in one Smriti itself. The system of awarding punishments on the basis of varna contravened the concept of equality of all human beings as propounded by the Vedas. The discriminatory system of inflicting punishments and contradictory provisions in different legal literature made the criminal justice system defective and confusing. During the Muslim rule in India though enlightened monarchs like Sher Shah Suri and Akbar showed great zeal to administer justice impartially, yet as a whole the administration of justice during the Muslim period in India suffered from defects. The concept of equality was applicable only to the Muslim population in India and thus the bulk of the population, i.e. non-Muslims, was subjected to humiliating discrimination. The Hindus suffered in almost similar manner as the people of lower varna suffered at the hands the people of higher varna among the Hindus. The major defect of Muslim criminal law was that most of the crimes were considered private affairs of the individuals. Many offences, including murder, could be compounded by the payment of diya, i.e. bloodmoney and human life was considered rather cheap, capable of assessment in terms of money. The criminal justice system developed by the Muslim rulers continued in India even after the British took control of India. It was in 1860 that the codification of laws changed the discriminatory provisions of Muslim criminal law. The British after assuming power in India found the then prevailing criminal justice administration defective decided to bring about drastic changes in it. Lord Cornwallis made detailed studies of the existing conditions of the criminal justice administration. He introduced many reforms to revamp the whole system. Lord Hastings took special interest in reorganizing the police force to deal with the criminals and maintain law and order in the country. Lord Bentinck created the post of District and Sessions Judge and abolished the practice of sati. In 1843, Sir Charles Napier introduced a police system on the lines of Royal Irish Constabulary. He created the post of Inspector-General of Police to supervise the police in the whole province. Subsequently, the Indian

Page 43 of 208 Police Act of 1861 was enacted on the recommendations of a Commission which studied the police needs of the Government. They codified the existing laws; established the High Courts and Prisons Laws. Thus, the British introduced reforms wherever necessary. They adopted new principles by modifying the existing laws wherever required and made new laws where they felt it was a must. The institutions of police, magistracy, judiciary and jails developed during the British period still continue without significant changes in their structure and functioning. However, the British rulers also, while restructuring the criminal justice system, did not fully implement the concept of equality. The reforms introduced by them treated all Indians and non-British Europeans equally but the British always enjoyed special privileges. It was only with the Constitution of India coming into being that the right to equality before law was fully recognized and incorporated in the Constitution as a Fundamental Right. oo()oo

Page 44 of 208 Chapter 3 HISTORICAL BACKGROUND OF THE CONSTITUTION

A good constitution is infinitely better than the best despot. Macaulay It was the year 1858 when the British Crown assumed control over India from the East India Company and the British Parliament enacted the first statute for the governance of India under the direct rule of the British governmentthe Government of India Act, 1858. This Act can be considered the starting point of constitutional history of modern India. It was dominated by the principal of absolute imperial control without any popular participation in the administration of the country. However, subsequently, the imperial control started showing gradual relaxation giving way to the evolution of responsible government.188 As per the Government of India Act, 1858, the Secretary of State for India, assisted by a Council of fifteen members known as the Council of India, exercised the power of the Crown. The Secretary of State for India, who was responsible to the British Parliament, governed India through the Governor-General assisted by an Executive Council, which consisted of high officials of the Government.189 Indian Councils Acts of 1861 and 1892 introduced a grain of popular element in the administration of the country.190 The Indian Councils Act, 1861 provided that the Governor-Generals Executive Council, which was so long composed exclusively of officials, should include certain non-official members while transacting legislative council. The Indian Councils Act, 1892 made important changes and it inter alia provided that (a) though the majority of official members were retained, the non-officials of the Indian Legislative Council were henceforth to be nominated by the Bengal Chambers of Commerce and the Provincial Legislative Councils while the non-official members of the Provincial Councils were to be nominated by local bodies such as universities, district boards, municipalities. The Indian Councils Act, 1909 implemented the Morley-Minto reforms which aimed at introducing the popular element of some substance in the administration of the country. By this Act, the size of the Provincial Legislative Council was enlarged by including elected non-officials members. An element of election was also introduced in the Legislative Council at the Centre but the officials majority was maintained. The Act provided, for the first time, for separate representation of the Muslim community and thus it sowed the seeds of communal separatism.191

Page 45 of 208 The Government of India Act, 1915 consolidated all the preceding Government of India Acts and all the existing provisions relating to all branches of executive, legislative and judiciary were put in one enactment. This could be called the first Constitution of India framed by the British consisting of provisions relating to various aspects of the administration of the country. The next important step towards the constitutional development was the Government of India Act, 1919. This was the outcome of the Montague-Chelmsford report. It introduced substantive changes in the existing system of governance. The main features of the system introduced by the Government of India Act, 1919, included: (a) dyarchy in the Provinces (b) relaxation of central control over the provinces and (c) making the Indian Legislature more representative and bicameral consisting of an Upper House named the Council of States and a Lower House named the Legislative Assembly. As envisaged under section 84 of the Government of India Act, 1919 the British Government appointed Simon Commission in 1927 to inquire and report on the working of the Act of 1919. The report of the Commission was considered by a Round Table Conference. However, the Congress Party boycotted this Conference and did not depute its representative to participate in it. Some of the suggestions of the Simon Commission played a vital role when the Government of India Act, 1935 was framed.192 After the First Round Table Conference the Viceroy entered into conversations with Congress leaders and Gandhi- Irwin Pact paved the way for the Congress to join the deliberations of the Second Round Table Conference. Congress sent Mahatma Gandhi as its sole representative to the Conference. At the Conference, the minorities demanded that their claims should be settled first but Gandhi, being unable to solve the communal problem returned to India holding a view that the Conference had only widened the differences between the Congress and the Muslim League. As the Indian leaders failed to solve the communal problem, the British Prime Minister Mr. Ramsay MacDonald announced the Communal Award in 1932. It recommended separate electorate on communal basis by reserving separate seats for Muslims, Europeans and Sikhs. As far as depressed classes were concerned, they were included in the general electorate. However, certain constituencies had to be reserved for them for which only the depressed classes were entitled to contest. Mahatma Gandhi took strong exception to the Communal Award. Gandhi declared that the depressed classes were Hindus and therefore, these must be excluded from the system of separate electorates envisaged by the Award. He undertook fast unto death protesting against communal electorate to the depressed classes.193 When Mahatma Gandhis condition became serious, though the British Government did not budge, Indian leaders convinced Dr. Ambedkar, the leader of the depressed classes, and the historical Poona Pact was signed on September 24, 1932. Dr. Ambedkar, on the suggestion of the

Page 46 of 208 Congress, agreed for reservation of seats for the depressed classes, but with joint electorates. The Poona Pact, as accepted by the Government, provided that the depressed classes would not form separate electorate but seats to be reserved for them out of the general electoral seats in the Provincial Legislatures and the Central Legislature. It was also agreed that depressed classes were to be given fair representation in local bodies and public services.194 The Third Round Table Conference did not bring any significant changes in the atmosphere solving Indias constitutional problem. The Round Table Conferences were followed by a White Paper, which contained the proposal of the British Government for an Indian Constitution. These proposals were considered by a Joint Select Committee and on the basis of the recommendations of the Committee a Bill was introduced in the British Parliament in December 1934. After prolonged debate, the Bill was enacted as the Government of India Act, 1935 which came into force on April 1,1937. The Government of India Act,1935 was the major landmark in the constitutional development of India. The main features of this Act were as under: (i) Provision of separate representation for Muslim, the Sikhs, the Europeans, Indian Christians and Anglo-Indians. Seats were reserved for scheduled castes out of general seats. Seats were also reserved for women and among those seats also a few were reserved for Mohammedans, Anglo-Indians and Indian Christians. Creation of a federation taking the provinces and the Indian states for whom it was optional to join the federation. However, the Indian States never consented and the federation, as envisaged by the Act, of 1935, never came into being. Division of legislative powers between the Provincial and Central Legislature and autonomy to provinces. Dyarchy at the Center was introduced. Creation of a Federal Court.

(ii)

(iii) (iv) (v)

The period subsequent to the Government of India Act, 1935 coming into force witnessed many developments which decided the fate of future India and finally led to the passing of the Indian Independence Act, 1947. Indian National Congress, in 1935, had asserted the demand for a Constitution made by the people of India without outside interference. In 1938, Pandit Jawahar Lal Nehru definitely formulated his demand for a Constituent Assembly to frame the Constitution of the free India. Outbreak of World War II forced the British Government to realize the urgency of solving the Indian constitutional problem when the Japanese were at the doors of India. The British Government sent Stafford Cripps, a member of the British cabinet, to India with a draft declaration of the Government which was to be adopted at the end of the War. The proposal,

Page 47 of 208 inter alia, mentioned that the Constitution of India was to be framed by an elected Constituent Assembly of the Indian people. But the two major parties, viz. the Congress and the Muslim League failed to come to an agreement to accept the proposal. After the rejection of the Cripps proposal the British made various attempts to reconcile the two parities. The efforts included the Simla Conference followed by Wavell Plan of 1945. When the British Government observed no positive result of its attempts to solve the prolonged issue, it sent a Cabinet delegation to India. The Cabinet Mission ruled out the possibility of the formation of Pakistan as desired by the Muslim League. The Mission recommended that there should be a Union of India embracing both British India and the Indian States. The Union should have an Executive and Legislature constituted from British India and States representatives. Any question raising a major communal issue in the Legislature should require the decision of the majority of the representatives present and voting of each of the two major communities as well as a majority of all the members present and voting. In order to frame a Constitution on the lines suggested by the Mission the members of the Constituent Assembly were to be elected by the Provincial Legislatures. The essentials of this scheme of elections were as follows:195 (i) Each Province and each Indian State or group of States were allotted the total number of seats proportional to their respective populations roughly in the ratio of one to a million. As a result the Provinces were to elect 292 members while the Indian States were allotted a minimum of 93 seats. (ii) The seats in each Province were distributed among the three main communities, Muslim, Sikh and General, in proportion to their respective populations. (iii) Members of each community in the Provincial Legislative Assembly elected their own representatives by the method of proportional representation with single transferable vote. (iv) The method of selection in the case of representatives of Indian States was to be determined by consultation. Following the scheme of the Cabinet Mission elections were held for the Constituent Assembly. The Muslim League joined the elections and its candidates were returned. But in the mean time a major difference of opinion had arisen between the Muslim League and the Congress regarding the interpretation of the Groupings clauses of the proposal of the Cabinet Mission.196 The British Government intervened to solve the dead lock. It upheld that the contention of the Muslim league was correct, and on December 6,1946, published the following statement:197 Should a Constitution come to be framed by the Constituent Assembly in which large section of the Indian population had not been represented, his

Page 48 of 208 Majestys Government would not contemplate forcing such a constitution upon any unwilling part of the country. Thus, for the first time, the British Government acknowledged the possibility of two Constituent Assemblies and division of India. The result was that on December 9,1946 when the Constituent Assembly first met, the Muslim League did not attend and the Constituent Assembly began to function with the nonMuslim League members. The Muslim League now urged for dissolution of the Constituent Assembly of India on the ground that it was not fully representative of all sections of the people of India.198 As the Muslim League did not join the Constituent Assembly and went on pressing for another Constituent Assembly for Muslim India, British Government sent Lord Mountbatten to India as the Governor-General to expedite the preparations for the transfer of power. Lord Mountbatten accepted the demand of division of India and the British Government made a statement on June 3, 1947 which inter alia provided that the Provincial Legislative Assemblies of Bengal and the Punjab will decide whether or not the provinces should be partitioned. As the Provincial Legislative Assembly decided for partition, the Governor-General, on July 26, 1947 announced the setting up of a separate Constituent Assembly for Pakistan. Subsequently, the British passed the India Independence Act, 1947. The main object of the Act of 1947 was to give legal effect to the plan of Lord Mountbatten. Important provisions of the Act were as follows: (i) (ii) The Act provided for the partition of India and establishment of two Dominions of India and Pakistan. Until a new Constitution was framed for each Dominion, the Act converted the existing Constituent Assemblies into the Dominion Legislatures for the time being. The Assemblies were to exercise all the powers which were formerly exercised by the Central Legislature in addition to its powers regarding the framing of a new Constitution. Pending the framing of a new Constitution, each of the Dominions and all the Provinces were to be governed in accordance with the Government of India Act, 1935. All laws in force in the two Dominions on August 15, 1947 would remain so until amended by the respective Legislatures. The right was given to the Governor-General to assent in the name of His Majesty to any law or the Dominion Legislature made in its ordinary legislative capacity.

(iii)

(iv) (v)

The Constituent Assembly which had been elected for undivided India reassembled on the 14th August 1947 as the sovereign Constituent Assembly.

Page 49 of 208 Pandit Jawaharlal Nehru, addressing the members of the First Constituent Assembly of free India, said: Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awaken to life and freedom. It is fitting that at this solemn moment we take pledge of dedication to the service of India and her people and to the still larger cause of humanity.199 The Constituent Assembly appointed a drafting committee on 29th August 1947. The drafting committee unanimously elected Dr. B.R. Ambedkar as its chairman. Dr. Ambedkar introduced the Draft Constitution in the Constituent Assembly on 4th November 1948 for consideration. While addressing the House, Dr. Ambedkar explained the constitutional scheme to govern India. Excerpts from his speech are as under: The Draft Constitution has sought to forge means and methods whereby India will have federation and at the same time will have uniformity in all the basic matters which are essential to maintain the unity of the country. The means adopted by the Draft Constitution are three(1) a single judiciary, (2) uniformity in fundamental laws, civil and criminal, and (3) a common all India service to man important posts. The Indian federation though a dual polity has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law or the criminal law. Care is taken to eliminate all diversity from laws which are at the basis of civic and corporate life. The great Codes of Civil and Criminal Laws as the Civil Procedure Code, the Penal Code, the Criminal Procedure Code, the Evidence Act, are either placed in the Concurrent List so that the necessary uniformity can always be preserved without impairing the federal system. 200 While deliberating upon the Draft Constitution the Assembly moved, discussed and disposed of as many as 2473 amendments out of a total 7635. Dr. Ambedkar made a very emotional yet reasoned speech on 25th November 1949. He cautioned the people of India saying: Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of caste and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time probably be lost forever.

Page 50 of 208 This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.201 Dr. Rajendra Prasad, the President of the Constituent Assembly, while putting the motion for adoption made his historic speech tracing the historic events commencing from the freedom struggle up to the finalization of the Constitution of free India. To quote him: I shall only hope that those whose good fortune it may be to work this Constitution in future will remember that it was a unique victory which we have achieved by unique methods taught to us by the Father of the nation, and it is up to us to preserve and protect the independence that we have won to make it really bear trust for the man in the street.202 Finally, the Constitution of India was adopted on 26th November 1949. Provisions relating to citizenship, elections, provisional Parliament, temporary and transitional provisions, were given immediate effect, i.e. from November 26, 1949. Rest of Constitution came into force on the 26th January 1950. The Constituent Assembly ceased to exist transforming itself into the provisional Parliament of India until new Parliament was constituted in 1952 as per the provisions of the Constitution. oo()oo

Page 51 of 208 Chapter 4 THE CONSTITUTION AND CRIMINAL JUSTICE SYSTEM

Constitutions are intended to preserve practical and substantial rights, not to maintain theories. Oliver Wendell Holmes In a democratic country the Constitution guarantees certain basic rights and liberties to the people while criminal justice administration protects them by enforcing laws and punishing the offenders. If the Constitution is a chariot then the four components of the criminal justice system, viz. the police, bar, judiciary and correctional services are its horses. Harmonious efforts of all these four agencies are essential for moving the Constitution towards its goal of establishing a just society in India. The Constitution of India was framed by the Constituent Assembly which comprised members elected through Provincial Legislative Assemblies and representatives of Indian Princely States and Chief Commissioners provinces. While deliberating upon the Draft Constitution, the distinguished members of the Constituent Assembly, many of them being advocates and legal luminaries, discussed at length and expressed their views freely and frankly on subjects of vital importance. Although the Indian Constitution was made during December 1946 to November 1949, most of its enduring values were shaped during the national movement for independence.203 Granville Austin observes: The Constitution was to foster the achievement of many goals. Transcendent among them was that of social revolution. Through this revolution would be fulfilled the basic needs of the common man, and, it was hoped that this revolution would bring about fundamental changes in the structure of Indian societya society with the long glorious cultural tradition, but greatly in need, Assembly members believed, powerful infusion of energy and rationalism. The theme of social revolution runs throughout the proceedings and documents of the Assembly.204 The framers of the Constitution were committed to bringing about a social change by removing social disabilities and providing every citizen opportunities for his all round development. The core of this commitment lies in Part III and Part IV of the Constitution which deal with the Fundamental Rights of the people and Directive Principles of State Policy. According to S.P. Sathe, in a society known for its hierarchical social structure based on inequality, the right to equality and liberty were indeed going to trigger a great revolution.205 In the Directive Principles of State Policy, the Constitution envisions profound social and economic change to be ushered into through state intervention.206

Page 52 of 208 Most of the Fundamental Rights are protection against arbitrary and prejudicial State action while some aim at protecting the individual against the actions of private citizens. Constitutional rights without a remedy for their enforcement do not serve the intended purpose. Therefore, the framers decided to provide the remedy in the Constitution itself. The remedy for enforcement of Fundamental Rights or, to put in other words, against violation of Fundamental Rights, may be divided into two parts, namely, (i) approaching the Supreme Court and High Courts under articles 32 and 226 respectively; and (ii) approaching the police or subordinate courts. Since the Constitution declares violation of some of the Fundamental Rights offence under articles 17 and 23 punishable under law, the criminal justice administration has a direct responsibility to enforce these rights and curb their violation. Contravention of some other Fundamental Rights such as right to life and personal liberty is offence under existing criminal laws the enforcement of which is the responsibility of the criminal justice administration. While granting rights and liberties to the people, the framers also envisaged adequate provisions for maintaining public order, morality, decency, security of the State, etc. They empowered the State, which includes the authorities of the criminal justice administration as defined under article 12, to impose reasonable restrictions on some of the Fundamental Rights for ensuring protection of these national interests. Thus, the criminal justice administration, by enforcing the Fundamental Rights and safeguarding unity and integrity of the nation, plays an instrumental role in facilitating the process of achieving the aims and objectives of the Constitution. The success of the Constitution largely depends upon the efficiency and effectiveness of the criminal justice administration. On the other hand, without constitutional support the principles and policies of the criminal justice administration can not survive and hence, there is a reciprocal relationship between the Constitution and the criminal justice administration. Keeping in view the importance of the criminal justice administration, the framers incorporated in the Constitution itself many provisions relating to the administration of criminal justice. They intended to establish a just society in India by ensuring fair and speedy criminal justice to the people. This required a qualitative improvement in the performance of the criminal justice administration. However, the rising violent crimes; huge pendency and inordinate delay in disposal of criminal cases; and declining conviction rate during the last four decades indicate that the performance of the criminal justice administration in post-independence period has been constantly deteriorating, instead of improving. It is, therefore, imperative to find as what has gone wrong and how. Whether the framers failed to make adequate provisions for a sound criminal justice administration or the State authorities and the people did not pay desired attention to enhance its efficacy.

Page 53 of 208 An analysis of the constitutional provisions, done in the context of the Constituent Assembly Debates, may reveal how the framers while adopting various provisions emphasized the importance of the criminal justice administration and its role in working the Constitution. Fundamental Rights and the State For the purpose of Part III, i.e. Fundamental Rights, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities as defined in article 12 of the Constitution. The authorities involved in the administration of criminal justice, such as police and judiciary, are the State and therefore, bound to ensure free exercise of Fundamental Rights by the people. Article 13 prescribes that any law, ordinance, order, bye-law, rule, regulation and notification, etc. which takes away or abridges any Fundamental Right shall be void. However, the State authorities such as the police and Executive Magistrates, under article 19, may impose reasonable restrictions on the exercise of certain Fundamental Rights in the interests of decency or morality, public order, security of the State, etc. When the above articles came up for consideration before the Constituent Assembly, an honourable member, Mahboob Ali Baig Sahib Bahadur, objected to the inclusion of local or other authorities in the definition of the State. He was of the view that in the light of that definition a Magistrate or even a petty officer in authority could rightly claim to have authority to abridge a citizens rights.207 However, Dr. Ambedkar explained that the object of the Fundamental Rights was two-fold. First, that every citizen must be in a position to claim those rights, and secondly, they must be binding upon every authority which had got either the power to make laws or the power to have discretion vested in it. The authority which is under obligation to make available the rights to the people should also have the authority vested in it to make laws relating to the Fundamental Rights. After this clarification by Dr. Ambedkar, the articles were adopted with minor modifications.208 It is in accordance with these provisions that Executive Magistrates or police officers are empowered, under various laws such as the Cr.P.C., the Bombay Police Act, etc., to impose reasonable restrictions on the exercise of certain Fundamental Rights of the people by promulgating orders to prohibit assembly of persons, movements and certain other actions to maintain, decency, public order, etc. Prohibition of Discrimination Article 15 of the Constitution inter alia deals with the provisions of prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth. The article provides two things(1) It requires the State not to discriminate against any citizen on grounds only of religion, race, caste, sex,

Page 54 of 208 place of birth or any of them. (2) It provides that no citizen shall be subject to any disability, liability, restriction or condition with regard to (a) access to shops, hotels, etc., and (b) the use of wells, roads, places of public resort, etc. maintained wholly or partly out of State funds or dedicated to the use of general public. Clause (1) prohibits the State from causing discrimination whereas clause (2) requires the State as well as general public not to subject any citizen to disability, etc. Clause (3) of the article provides that nothing shall prevent the State from making any special provision for women and children. Subsequently, clause (4) was added 209 which allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. With a view to making sure that the concerned State authorities or private persons refrain from causing any discrimination, Shri. Mohammed Tahir moved an amendment to provide that any contravention of the provisions of this article should be an offence punishable in accordance with law.210 But Dr. Ambedkar pointing out the provisions of article 17 (which abolishes untouchability and makes its practice an offence) explained that the Constitution contained ample provisions in that regard.211 After this. Shri Tahir did not press his amendment and the article was adopted without any penal clause. However, it is to be noted that though Shri Mohammed Tahir, while moving his amendment to add the penal clause to article 15, had referred to the discriminations being practised against the people of scheduled castes, his amendment also covered discrimination on other grounds also such as religion, race, sex, place of birth, etc. If the article had a penal clause, like that of article 17, the aggrieved persons would have got an easy remedy to approach the police or the lower criminal courts to lodge complaints and set the State machinery in motion. In the absence of such a provision, a person who is subjected to discrimination, as described in article 15 has to approach either the High Court or the Supreme Court for redressal of his grievance. As approaching the Supreme Court or the High Court entails a cumbersome and expensive procedure, the poor people are not able to make effective use of this remedy. Abolition of Untouchability Article 17 provides, Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable with law. To give effect to this article, Parliament enacted the Untouchability (Offences) Act, 1955. This Act, as amended and amended in 1976 as the Protection of Civil Rights Act, 1955, declares certain acts as offences and prescribes punishment thereof.212 Subsequently, Parliament enacted another law, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989.

Page 55 of 208 At the time of consideration of this article in the Constituent Assembly, Shri V.I. Muniswamy Pillai said that it was a matter of great satisfaction that the Constitution had brought out a very important item and thereby untouchability was abolished. He further said, The very clause about untouchability and its abolition goes a long way to show to the world that the unfortunate communities that are called untouchables will find solace when this Constitution comes into effect.213 Another member Dr. Monomohon Das after having mentioned the role of Mahatma Gandhi to remove untouchability, referred to the names of Swami Vivekanand, Raja Ram Mohan Roy, Rabindranath Tagore stating that they had led a relentless struggle against the heinous custom. He concluded his speech saying: Last of all, I cannot resist the temptation of saying a few words about our great and eminent Law Minister and Chairman of the Drafting Committee, Dr. Ambedkar. It is an irony of fate that the man who was driven from one school to another, who was forced to take his lessons outside the class room, has been entrusted with this great job of framing the Constitution of free and independent India, and it is he who has finally dealt the death blow to this custom of untouchability, of which he was himself a victim in his younger days.214 The above extracts from the speeches of the members of the Constituent Assembly show the extent of expectation and certainty they had in their mind about the effectiveness of article 17 while putting it in the Constitution. But the fact that a large number of offences are reported every year under the Protection of Civil Rights, Act 1955, and under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 shows that the practice of untouchability is still in existence in India. As observed by the Supreme Court, in Ganpat v. Returning Officer,215 the monstrous curse of untouchability has got to be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. It seems that more efforts for effective enforcement of the provisions of article 17, obeying the spirit and not just the letter, are required. Rights Regarding Freedom of Speech, etc. Article 19 provides that all citizens shall have the right(i) to freedom of speech and expression; (ii) to assemble peaceably and without arms; (iii) to form associations or unions; (iv) to move freely throughout the territory of India; (v) to reside and settle in any part of the territory of India; and (vi) to practise any profession, or to carry on any occupation, trade or business. The article allows the State to make laws to impose reasonable restrictions on the exercise of the right conferred by this article in the interests of security of the State, public order, decency or morality, etc. The word State includes the

Page 56 of 208 local and other authorities, and the word notification, etc. as defined in article 13. law includes any order, rule,

Originally, the word reasonable was not there in the article of the Draft Constitution. But during the debates, Pandit Thakur Das Bhargava observed that under the provisions as suggested by the Drafting Committee if the State enacted a law saying that its object was to serve the interests of the public or to protect public order then the courts would be helpless to come to the rescue of the nationals of this country in respect of the restriction. He suggested to put the word reasonable before the word restrictions so that the court would have powers to see whether a particular law was in the interests of the public and whether the restrictions imposed were reasonable, proper and necessary in the circumstances of the case.216 While making provisions for the freedoms of the people, the Constituent Assembly was equally concerned about the security of the State. Shri K. Hanumanthaiya, supporting the proposal of the Drafting Committee to put restrictions on the freedoms of the citizens, opined that no man who believed in violence and who wanted to upset the State and society by violent means should be allowed to have his way under the colour of these rights. He was also of the opinion that the article was so worded that it would be a fruitful source to constitutional lawyers. He apprehended that the Supreme Court would be full of disputes between individuals and individuals, between individuals and State, etc. Referring to a Kannada proverb, the meaning of which is a successful party in a case is as good as defeated and a defeated party in a case is as good as dead, he said, Litigation surely ruins both the parties to it.217 Dr. Ambedkar agreed to the suggestion of Pandit Bhargava and accordingly the article was amended to put the word reasonable before the word restrictions.218 This change was of great significance as it allowed judicial review of the State action of imposing restrictions on the freedoms described in article 19. Thus, the Constitution placed a major restriction on the scope of legislative competence, for the judges may review the reasonableness of restrictions imposed on the Fundamental Rights and thus have mutatis mutandis the same power in relation to article 19 which the American Judges enjoy generally under the clause of due-process-of-law.219 Protection in Respect of Conviction for Offences Article 20 provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act; that no person shall be prosecuted and punished for the same offence more than once; and that no person accused of any offence shall be compelled to be a witness against himself.

Page 57 of 208 An important issue which came before the House with regard to article 20 was the amendment moved by Kazi Syed Karimuddin who wanted that the following be added as clause (4) in the article 20.220 (4) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized. While justifying his move the Honourable Member made an elaborate speech and cited similar provisions in other constitutions. Keeping in view the significance of the article and the intended purpose of the amendment moved by Kazi Syed Karimuddin, excerpts from his speech deserves to be quoted. He said: This is very important amendment. You will be pleased to find that this finds place as article 4 in the American Constitution and in the Irish Constitution there are clauses (2) and (5) which are similar and in the German Constitution there are article 114 and 115 on the same lines. In the book of Dr. AmbedkarMinorities and Stateson page 11, item No. 10, a similar provision has been made. What is the situation in India today? Arrests are made without warrant and searches without justification. We are being governed by lawless laws and there is no remedy for the redress of grievances on account of unauthorized arrests and searches.221 Dr. Ambedkar showed his willingness to accept the amendment suggested by Kazi Syed Karimuddin. To quote him: I think it is a useful provision and may find a place in our Constitution. There is nothing novel in it because the whole of the clause as suggested by him is to be found in the Criminal Procedure Code so that it might be said in a sense that this is already the law of the land. It is perfectly possible that the legislatures of the future may abrogate the provisions specified in this amendment but they are so important so far as personal liberty is concerned that it is very desirable to place these provisions beyond the reach of the legislature and I am therefore prepared to accept his amendment. 222 When the amendment moved by Kazi Syed Karimuddin and accepted by Dr. Ambedkar was put to vote, it took an interesting turn. On that day, 3rd December 1948, Vice-President Dr. H.C. Mookherjee was presiding over the Constituent Assembly. The relevant portions of the proceedings are reproduced below:223 Mr.Vice-President: I think the Ayes have it. Shri T.T. Krishnamachari: The Noes have it.

Page 58 of 208 Mr.Vice-President: I will again put it to the vote. I think the Ayes have it. Shri T.T. Krishnamachari: No, Sir, the Noes have it. Mr. Vice-President: I shall first of all call for a show of hands. (The Division Bell was rung.) Shri Mahavir Tyagi: May I propose that this question might be postponed for the time being and a chance be given for the members to confer between themselves and arrive at a decision. Even the British House of Commons, sometimes converts itself into a committee to give various parties a chance to confer and arrive at an agreed solution. Mr. Vice-President: I am prepared to postpone the voting on this amendment provided the House gives me the requisite permission. I would request the House to be calm. This is not the way to come to decisions which must be reached through cooperative effort and through goodwill. Does the House give me the necessary power to postpone voting on this? The Honourable Pandit Jawaharlal Nehru: Mr. Vice-President, Sir, as apparently a slight confusion has arisen in many members minds on this point, I think, Sir, that the suggestion made is eminently desirable. It will be the wish of the House that will prevail of course. I would suggest to you, Sir, and to the House that your suggestion be accepted. Dr. B.V. Keskar: Can it be done after the division bell has rung? Mr. Vice-President: I never go by technicalities. I shall continue to use common-sense as long as I am here. I have little knowledge of the technicalities, but I have some knowledge of human nature. I know that in the long run it is good sense, it is common-sense, it is goodwill which alone will carry weight. I ask the permission of the House to postpone the voting. Honourable Members: Yes. Thus, a confusion had arisen and the voting was postponed in a dramatic manner. The matter came before the House again on 6th December 1948. When the Chairman desired to put the amendment moved by Mr. Karimuddin to vote, Mr. Naziruddin Ahmad raised a point of order that the amendment had already been carried on 3rd December 1948. But Dr. Mookherjee, Vice-President, who was presiding over, called for the official records of the deliberations of the 3rd December which showed that voting was postponed. Finally, the Vice-President took the permission of the House and put the amendment No. 512 to vote. The amendment was negatived.224 Thus, certain provisions similar to American, Irish, and German Constitutions as regards arrests and searches, etc., to which at one point of time the House appeared to be in favour, could not be incorporated in the Constitution of India.

Page 59 of 208 Protection of Life and Personal Liberty Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Although the right to of life and personal liberty is most important, it can not be absolute. With a view to maintaining order and securing criminal justice, the State authorities in certain circumstances have to deprive the people of their personal liberty and life by arresting or executing them in accordance with the provisions of law. The only protection the Constitution can ensure is the legal procedure which governs such arrests and executions. There were two options available before the Constituent Assembly, namely, procedure established by law and due process of law. There were long debates as which of these principles would suit India most. Finally, the Assembly adopted the principle of procedure established by law. It is to be noted that the Advisory Committee on Fundamental Rights,225 appointed by the Constituent Assembly, had suggested the principle of due process of law as available in the American Constitution. But the Drafting Committee preferred to include procedure established by law in the Draft Constitution. When the article came up for consideration in the Constituent Assembly, Kazi Syed Karimuddin moved an amendment to substitute the words without due process for the words except according to procedure established by law.226 Distinguished members like Pandit Thakur Das Bhargava, Shri Chimanlal Chakkubai Shah, Shri Krishna Chandra Sharma, Shri H.V. Pataskar, Shri K.M. Munshi, Shri Z.H. Lari who spoke at length to support the amendment.227 At last, the Chairman of the House asked Dr. Ambedkar to make the position clear. Since the principle involved in the article was of great significance having far reaching implications, it would be interesting to know how Dr. Ambedkar, as Chairman of the Drafting Committee, viewed both the principles. Excerpts from his speech are given below: I must confess that I am somewhat in a difficult position with regard to article 15 (article 21 of the Constitution) and the amendment moved by my friend Pandit Bhargava for the deletion of the words "procedure according to law" and the substitution of the words "due process". ..Let me explain what exactly "due process" involves. The question of "due process" raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal Constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular Legislature. ...The `due process' clause, in my judgement, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is

Page 60 of 208 in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law. The law may be perfectly good and valid so far as the authority of the legislature is concerned. But, it may not be a good law, that is to say, it violates certain fundamental principles; and the judiciary would have that additional power of declaring the law invalid. The question which arises in considering this matter is this. We have no doubt given the judiciary the power to examine the law made by different legislative bodies on the ground whether that law is in accordance with the powers given to it. The question now raised by the introduction of the phrase `due process' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles. There are two views on this point. One view is this: that the legislature may be trusted not to make any law which would abrogate the fundamental rights of man, so to say, the Fundamental Rights which apply to every individual, and consequently, there is no danger arising from the introduction of the phrase `due process'. Another view is this: that it is not possible to trust the legislature; the legislature is likely to err, is likely to be led away by passion, by party prejudice, by party considerations, and the legislature may make a law which may abrogate what may be regarded as the fundamental principles which safeguard the individual rights of a citizen. We are, therefore, placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad law. There are dangers on both sides. For myself, I cannot altogether omit the possibility of a legislature packed by partymen making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. . I, therefore, would not say anything. I would leave it to the House to decide in any way it likes. 228 Thus, Dr. Ambedkar, who had the responsibility of piloting the Draft Constitution through the Constituent Assembly, did not give his clear opinion whether to adopt the principle of procedure established by law or due process of law. However, subsequently, he disclosed that he was in favour of due

Page 61 of 208 process of law when he moved a new article 15A (article 22 of the Constitution). It is also observed that Dr. Ambedkar, as a private member before his appointment as Chairman of the Drafting Committee, had also preferred due process of law in his note submitted to the Advisory Committee of the Constituent Assembly early in March 1947.229 It is astonishing that despite being in favour of due process clause, Dr. Ambedkar did not advise the Assembly to facilitate its adoption when it was on the verge of making a choice between the two principles.230 The article was finally adopted as contained in the Draft Constitution, i.e. with the procedure established by law. Prior to the decision of the Supreme Court in Manekas case (1978)231, article 21 was construed narrowly only as a guarantee against executive action unsupported by law. But, the Supreme Court in this case widened the scope of article 21. Subsequently, the apex Court, in Francis v. Union Territory, further clarified the principle and observed: Manekas case has opened up a new dimension and laid down that it imposed a limitation upon law making as well, namely, that while prescribing a procedure for depriving a person of his life or personal liberty, it must prescribe a procedure which is reasonable, fair and just.232 Thus, the Supreme Court has expanded the scope and ambit of the right to life and personal liberty enshrined in article 21 and sowed the seed for future development of the law enlarging this most fundamental of the Fundamental Rights.233 Protection against Arrest and Detention in certain cases Article 22 is another important article from criminal justice point of view. It deals with the safeguards of the people against arbitrary arrest and detention. The article also contains provisions for preventive detention which power the police and the magistracy exercise to maintain public order in exceptional circumstances. As discussed above Dr. Ambedkar, while speaking on article 15, had not disclosed his opinion to advise the House to make a choice between the due process and the procedure established by law. But, while introducing article 15A (article 22 of the Constitution), he made it clear that he was in favour of due process clause. In his own words: I know that a large part of the House including myself were greatly dissatisfied with the wording of article 15. It will also be recalled that there is no part of our Draft Constitution which has been so violently criticized by the public outside as article 15 because all that article 15 does is this, it only prevents the executive from making an arrest. All that is necessary is to have a law and the law need to be subject to any conditions or limitations. We are therefore, now, by introducing article 15A, making, if I may say so, compensation for what was done then in passing article 15. In other words,

Page 62 of 208 we are providing for the substance of the law of due process by the introduction of article 15A.234 He continued: Article 15 A nearly lifts from the provisions of the Criminal Procedure Code two of the most important fundamental principles which every civilized country follows as principles of international justice. It is quite true that these two provisions contained in clause (1) and clause (2) are already to be found in the Criminal Procedure Code and therefore, probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of article 15A is to put a limitation upon the authority both of Parliament as well as of the provincial legislature not to abrogate these two provisions, because they are now introduced in our Constitution itself.235 He commended the article with these words, I think, on the whole, those who are fighting for the protection of individual freedom ought to congratulate themselves that it has been found possible to introduce this clause which, although it may not satisfy those who hold absolute views in this matter, certainly saves a great deal which had been lost by the non-introduction of the words due process of law.236 Pandit Thakur Das Bhargava moved a few amendments to article 15A and spoke at length. He revealed his observations on the working of the magistracy and police, and told the House that he was apprehensive about the future. Extracts from his speech which give an insight into the then prevailing criminal justice system are as under: .I should think that in the circumstances of our country, this provision of 'due process' is certainly necessary cent per cent. It is the only right process in this country. Our country is not trained to the restraints and discipline which mark out a country in which democracy has worked for a long time. Our country is full of autocratic ideas. We wanted that the words 'due process of law' should be there. I am glad that Dr. Ambedkar, who has been very cautious in this matter, has today confessed that he is of the same view as many other lawyers in this House. But our misfortune was that the greatest obstacle to this due process came from the greatest jurist in this House and it is most unfortunate to this country that we have not been able to pass this due process' clause. In the long history of the struggle for liberty which the Congress had to wage with the foreign government, the High Courts and the Supreme Court many a time held that the laws passed by the bureaucracy were not valid. Now, this power is being taken away from our Indian courts in the name of liberty. My submission is that the first casualty in this Constitution is justice. Article 15 is the crown of our failures because by virtue of article 15 we have given the executive and the legislature power to do as they like with the people of this country, so far as

Page 63 of 208 procedure is concerned. I cannot describe the state of mind in which I felt myself when I could not succeed in getting this House to agree to the due process clause. Now Dr. Ambedkar says that he has given a compensation for that clause. . I congratulate him on the efforts he has made in salvaging something out of the lost cause. 237 He expressed his apprehensions: After all what is the magistracy? All the powers of the magistracy will remain in this country as before. They are not going to make any change so far as the question of separation of the judiciary from the executive is concerned. We know that the magistracy, especially the special class magistrates, is police ridden, because the superintendent of police has only to write a letter in secret against the magistrate and the magistrate will be no more. Therefore, the ordinary Magistrates have not the guts to do anything against the wishes of the police, and therefore, they allow detention as a matter of course.238 He expressed his concern about the working of the police in the following words: I shall come to another clause. No person shall be subject to unnecessary restraints or to unreasonable search of person or property. Dr. Ambedkar would have known fully well, if he had practised as a criminal lawyer in the mofussil, that as a matter of fact, when houses are searched, it is not the search which we object to, but property is sometimes planted and then searches are made in the presence of witnesses who are procured by the police. The House must remember that at least in 50 per cent of the criminal cases brought before the courts the accused are either discharged or acquitted. The House can see what amount of corruption, what amount of embarrassment and harassment is being caused to the public, on account of this corrupt and incompetent police. I know when we say this we are, condemning ourselves. I do not take any pride in saying that the police is so bad. But we have just started reforming them after 200 years of slavery and it may take some time to change. Similarly when you go to the other question about speedy trial, what are the functions of Government? Justice delayed is justice denied and I need not emphasize it.239 Shri Naziruddin Ahmad, expressing his views on the provisions preventive detention being suggested in article 15, said: of

Although there are similar provisions in the Criminal Procedure Code, we must insert fool-proof provisions in the Constitution so as to make it impossible for a Legislature to change those salutary provisions. Therefore, it is very necessary that the Constitution should be particularly careful about limiting the authority of the police in effecting arrests. 240

Page 64 of 208 Dr. P.S. Deshmukh who was critical of the provisions of the article 15A opined that the existing provisions in the Cr.P.C. were quite sufficient to protect the liberties of the people.241 To quote him: So, the apprehension that the liberty of persons living in India will not be safe is not really based on the inadequacy of provisions existing in the Criminal Procedure Code. It arises from the fact that the provisions, which we had respected far more before, are not being respected today. I admit the fact that at the present moment we are not respecting the provisions which exist because there are many people who feel that the liberties or the rights given by the Code of Criminal Procedure or the penal laws of India are not such as can be enjoyed by people after freedom. If you want to prevent this sort of thing happening, you will have to go, much farther than you are prepared to go in this article. This article can be no remedy; it is a mere repetition of what exists in the Code of Criminal Procedure and if you are not prepared to respect that Code I am sure there will not be much respect given to this provision either.242 After prolonged deliberations, article 15A moved by Dr. Ambedkar, as amended by incorporating some of the suggestions of Pandit Bhargava and other members of the House, was adopted. From the foregoing, it is observed that originally the Draft Constitution did not contain provisions regarding protection against arrest and detention. It was during the debates in the Constituent Assembly that Dr. Ambedkar, who was disappointed by the Assemblys decision of not adopting the due process clause in article 15, wanted to introduce certain provisions to safeguard the rights of the people from arbitrary arrests and detentions. His desire was welcomed by the House. The speech of Pandit Thakur Das Bhargava reveals the state of affairs of the then prevailing criminal justice system. He had his apprehensions about the ramifications of not putting the due process clause in the Constitution. In pursuance of the provisions of the above article, Parliament enacted preventive laws to detain certain persons in certain circumstances such as the Preventive Detention Act, 1950; the Maintenance of Internal Security Act, 1971; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; and the National Security Act, 1980. Preventive detention being a subject of the Concurrent List243 enables the State legislatures to enact preventive detention laws. During the Emergency, between the period of June 1975 and March 1977, the Maintenance of Internal Security Act was used frequently to detain leaders and workers of many political parties. The Janata Government which succeeded the Congress Government in the Centre in March 1977, passed the

Page 65 of 208 Constitution (44th Amendment) Act, 1978. Among other things it amended Clauses (4) and (7) of article 22 to improve the procedural safeguards for preventive detention. However, while most of the other provisions of the 44th Amendment Act, which received the assent of the President of India in April 1979, have been implemented, the Government of India has not yet issued the notification to bring into effect the amendments relating to article 22.244 The matter was brought before the Supreme Court, in A.K.Roy v. Union of India (1982)245. Though the Court did not appreciate the delay in issuing the notification, it could not direct the Central Government by issuing the writ of mandamus to bring the amendments into force. The implementation of provisions of section 3 of the Constitution (44th Amendment) Act, 1978 will certainly improve the right to personal liberty of the individual. Prohibition of Traffic in Human Beings Article 23 of the Constitution provides that traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. A part of this article was enforced by the Suppression of Immoral Traffic in Women and Girls Act, 1956 (called the Immoral Traffic (Prevention) Act since 1986). However, to give effect to the provisions relating to forced labour it took a long time to enact the law. Parliament in the year 1976 enacted the Bonded Labour System (Abolition) Act, 1976 prescribing certain acts as offences and procedures to deal with the problem of bonded labour in India. Remedies for Enforcement of Fundamental Rights Article 32 entitles the people to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights. While speaking in the Constituent Assembly at the time of consideration of article 32 (article 25 of the Draft Constitution) Dr. Ambedkar made a remarkable statement signifying the utmost importance of the article. To quote him: If I was asked to name any particular article in this Constitution as the most importantan article without which this Constitution would be a nullityI could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.246 The debates in the Assembly indicate the anxiety of the framers to ensure that the administration of justice was not perverted by the Executive or political pressure, and they took steps to enact provisions which would secure that object. Article 32 gives the Supreme Court power to issue writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto for enforcement of Fundamental Rights. Similarly, article 226 empowers the High Courts to issue

Page 66 of 208 the writs for Fundamental Rights and for any other purpose. These two articles secure judicial control of administrative action.247 Power of President and Governor to grant Pardon, etc. The Constitution under articles 72 and 161 empowers the President and the Governor respectively to grant pardon or to suspend, remit or commute sentences in criminal cases. These are exceptional powers granted to the head of the Union and the State to meet extra-ordinary requirements in certain circumstances when the judiciary had given its final verdict and no other remedy remained available to the concerned person. The Presidents powers of pardoning under article 72 extends to (i) all cases of punishment by a Court Martial, (ii) offences against laws made under the Union and the Concurrent Lists, and (iii) all cases where the sentence is a sentence of death. Article 161 provides that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Though the Governor has no power to pardon a sentence of death, he has, under section 54 of the Indian Penal Code and sections 432 and 433 of the Cr.P.C., the power to suspend, remit or commute a sentence of death in certain circumstances. When article 59 (article 72 of the Constitution) came for consideration before the Constituent Assembly, Mr. Tajamul Hussain moved an amendment suggesting that the power to pardon or suspend, remit or commute a sentence of death should be only with the President.248 But another member Mr. R.K. Sidhwa opposed this amendment.249 Finally, Dr. Ambedkar explained the scheme embodied in the article that even after the Governor rejected the mercy plea of an offender in the case of a sentence of death he could approach the President with another mercy petition.250 Thereafter, the article was put to vote and was adopted. However, article 141 (article 161 of the Constitution) which deals with the power of the Governor was adopted by the Constituent Assembly without any debate thereon. Article 72 empowers the Executive with judicial powers to pardon or suspend, remit or commute the sentences in criminal cases including the death sentence. The Supreme Court has held that the power of the President to commute any sentence is not subject to any constitutional or judicial restraints except that it can not be used to enhance the sentence.251 The apex Court has also observed that section 433A of the Code of Criminal Procedure, 1973 is not violative of the provisions in article 72 because the source and substance of the two powers are different.252 In the case of Kehar Singh v. Union of India (Mrs. Indira Gandhis assassination case), the Supreme Court observed that being an executive power, the power of the President is to be exercised on the advice

Page 67 of 208 tendered by the Council of Ministers.253 Since the Presidents power under article 72 is a constitutional power and is an executive power unlike the Courts statutory and judicial power254 under sections 432 and 433A, Cr.P.C., the order of the President under article 72 cannot be subjected to judicial review and the merits.255 If, however, reasons are given in the Presidents order, and these are held to be irrelevant, the Court would interfere.256 The Court has admitted judicial review on some specific grounds, e.g. (a) to determine the scope of the Presidents power under article 72,257 (b) where the Presidents exercise of the power is vitiated by self-denial on erroneous appreciation of the full amplitude of the power conferred by article 72,258 or (c) to determine whether there has been an inordinate delay in disposing of a mercy petition which prolongs delay in execution of the death sentence, for no default of the accused.259 The Supreme Court has also held that though the power under article 72 (or article 161) belongs to the President (or the Governor) the Court may, in a case of manifest injustice, entertain a petition under article 32 and recommend commutation of a death sentence to the President (or Governor) and stay the execution until the decision of the President (or Governor).260 However, any person who has been prejudicially affected by the grant of pardon or remission is entitled to challenge it in a proceeding under article 226.261 Being constitutional power, the exercise of power under articles 72 or 161 cannot be followed by any statutory provision, such as sections 432, 433, 433A, Cr.P.C. However, the Court may interfere(a) on the ground that the authority, which purported to have exercised the power had no jurisdiction to exercise it, or (b) on the ground that the impugned order goes beyond the power conferred by the law upon the authority who made it, or (c) on the ground that the order was obtained by fraud, or (d) on the ground that the exercise of the power has been mala fide, e.g. taking into account considerations not germane to the power conferred.262 The administration of justice through courts of law, is a part of the constitutional scheme to secure law and order and the protection of life, liberty and property. Under that scheme, it is for the judge to pronounce judgement and sentence, and it is for the executive to enforce them. Normally such enforcement presents no difficulty; but circumstances may arise where carrying out a sentence, or setting the machinery of justice in motion, might imperil the safety of the realm. If the enforcement of a sentence is likely to lead to bloodshed and revolution, the executive might well pause before exposing the State to such peril.263 Attorney General and Advocate General Articles 76 and 165 contain provisions for the Attorney-General of India and the Advocate-General for each State respectively. Both these constitutional functionaries are closely associated with the administration of justice in their

Page 68 of 208 respective jurisdiction. Article 76 inter alia provides that it shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President. Article 165 assigns the similar duties to the Advocate-General of a State. When the above articles came up before the Constituent Assembly for consideration attempts were made to make the offices of both these functionaries purely political. However, by rejecting all such attempts and making them non-political, the framers of the Constitution made independent legal advice at the highest level available to the Union and the States. Appellate Jurisdiction of the Supreme Court Articles 110 to 112 of the Draft Constitution (132 to 136 of the Constitution) dealt with the appellate jurisdiction of the Supreme Court. Article 110 provided that an appeal may lie to the Supreme Court in any criminal case if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. While article 112 contained the provision of appeal to the Supreme Court if the Court, in its discretion, granted special leave to appeal, article 111 dealt with civil matters only. In this way the Draft Constitution had not made any provision of appeal to the Supreme Court in criminal matters as of right. Since under the then prevailing criminal justice system no such right to the people was granted and the appeals in criminal cases against the orders of the High Court were admitted by the Privy Council in its sheer discretion, the members of the Constituent Assembly objected to the decision of the Drafting Committee to continue the old practice in free India. They showed grave concern towards this lacuna and vehemently argued for having such a provision in the Constitution. Keeping in view, the importance of the matter and its direct relevance to the criminal justice administration, extracts from the speeches of a few members who argued for this innovative constitutional right in the Constituent Assembly are given below. Shri Rohini Kumar Chaudhuri words: expressed his anxiety in the following

After all, the loss of property and the loss of money cannot be as important as the loss of life and liberty. You have given ample scope to those who are aggrieved by the judgement of a civil court to go to the Supreme Court. But you have left no door for persons convicted or punished for loss of liberty or life by a criminal court. That, I think, is taking away the right which we today possess in going to the Privy Council.264 Pandit Thakur Das Bhargava, being seriously concerned about the peoples rights to life and personal liberty, expressed his views on the inadequacy of the provisions in the Draft Constitution to safeguard these rights. He argued:

Page 69 of 208 Those persons who are condemned to death cannot be recalled to life if the wrong sentence is carried out. Life is much more important than any amount of civil rights. Therefore, I submit that whereas you provide two or three appeals in civil suits involving Rs. 20,000 or so, in these cases of sentence of death you provide only one appeal. It is a long-standing complaint, and all legal practitioners know it, that in many cases in courts injustice is done. If we look at the number of appeals accepted as compared with the convictions, it will be apparent that in large number of cases appeals are accepted. It is quite true that a person does not get justice in the original court. I am not complaining of district courts. In very many cases of riots in which more than five persons are involved, a number of innocent persons are implicated. I can speak with authority on this point. I am a legal practitioner and have been having criminal practice for a large number of years. If we want to do justice to the people, we must make it a rule that in all questions of death an appeal as right should be given to persons sentenced to death.265 Another member, Prof. Shibban Lal Saksena, who was dissatisfied with the prevailing criminal justice system and disappointed to find no provision for appeal to the Supreme Court as of right, put forward his demand for such a right. To quote him: I fervently hope that the present system of justice will be soon changed, so that justice, pure and simple, should be guaranteed to the people, cheaply and quickly. I have carefully studied the provisions regarding the powers of the Supreme Court and listened to the speeches made here. I am not able to find any provision which guarantees to the citizen who has been condemned to death or whose civil liberty has been taken away that he shall have an inherent right of going in appeal to the highest tribunal-the Supreme Court. I appeal to the House that either in this article or in any subsequent article there must be made a provision that those who are condemned to death shall have an inherent right of appeal to the Supreme Court.266 On strong demand of the members, Dr. Ambedkar introduced a new article 111A (article 134 of the Constitution) to make provisions in the Constitution for an appeal to the Supreme Court as of right in criminal cases.267 Since the article suggested by Dr. Ambedkar covered most of the points suggested by different members, other amendments moved in that regard were either withdrawn or negatived and article 111A was adopted. This article gave the people of India a new right to approach the highest Court in criminal cases. Prior to this it was only in a limited sphere that the Privy Council entertained appeals in criminal cases from the High Courts by special leave or on a certificate issued by the High Courts, but there was no appeal against the orders of the High Courts in criminal cases as of right. This was a significant reform in the criminal justice

Page 70 of 208 administration. It entitled the people, for the first time, to make an appeal to the highest Court of the country in criminal proceedings as of right.268 Authority of Law Declared by the Supreme Court The framers of the Constitution not only gave a high status to the Supreme Court but also adequately equipped it to assert its authority over civil and judicial authorities in the territory of India. This authority lies in the Supreme Court under articles 141 and 144. Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India while as per article 144, all authorities, civil and judicial, in the territory of India shall act in aid to the Supreme Court. In absence of these articles the Supreme Court would not have been able to act as a guardian of the Constitution and upholder of the Rule of law. Though the Constitution provides full support, it depends upon the prudence of the Supreme Court as to where and how to exercise its authority. As regards declaring law under article 141, the Supreme Court in the Delhi Transport Corporation 269 case has held that the Court must do away with the childish fiction that law is not made by the judiciary. The Supreme Court under article 141 of the Constitution, is enjoined to declare law. The law declared by the Supreme Court is the law of the land. The apex Court, in this case, has further observed that to deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. As per the provisions of article 144, all civil as well as judicial authorities are required to aid the Supreme Court. Article 144 is wider in scope than article 141 as it includes not only courts but also other civil authorities. In Sachdev v. Union of India, it has been held that any authority failing to comply with the direction of the Supreme Court shall be liable for contempt of Court.270 In this case, the apex Court has also held that where the contemptner is the Union of India, the Court will proceed against the Secretary of the relevant Ministry. In another case it has been held that even though the Legislature may render ineffective a declaratory decision of the Supreme Court by changing the law retrospectively and by enacting a validating Act, the Executive cannot avoid a direction of the Court in a case to which it was a party, by changing the rules retrospectively, so as to nullify the judgement of the Court.271 Despite the fact that the Supreme Courts orders are legally binding on all civil and judicial authorities, there have been instances of non-compliance with the directions or the orders of the apex Court. In the case of Sachdev v. Union of India (1991)272, the Supreme Court itself observed: In recent times, instances of non-compliance with Courts directions have multiplied and it is necessary to curb such tendency of litigating parties. Subsequent to this case, instances

Page 71 of 208 of non-compliance with or disobedience of the orders of the Supreme Court also came to the notice of the apex Court. In many of such cases the Court, taking a lenient view, accepted the apologies of the contemptners and did not take strong action. But in a few cases, the apex Court has taken a very serious view and sentenced the contemptners to imprisonment. Two of such exemplary cases are cited below: 1. In Mohd. Aslam v. Union of India,273 the Supreme Court held that there was no immunity for any authority of Government, if a personal element was shown in the act of disobedience of the order of the Court. In this case the Supreme Court convicted the Chief Minister of a State of the offence of Contempt of Court and sentenced him to a token imprisonment of one day and fine of Rs. 2000/-.

2.

In another case, T.R. Dhananjaya v. J. Vasudevan,274 the Supreme Court found the accused, a senior I.A.S. officer of Karnataka cadre, guilty of committing contempt by non-complying with its orders and sentenced him to undergo simple imprisonment for one month. It is pertinent to mention here about the mercy petition filed by the accused in this case. Before the mercy petition came for hearing, a colleague of the accused, another senior I.A.S. officer of Karnataka cadre,275 met Justice K. Ramaswamy, Judge of the Supreme Court, at his residence to seek his good wishes and blessings and also to beg some mercy for his friend who had been sentenced to one months imprisonment and who had filed mercy petition. Justice Ramaswamy not only resented the prayer for mercy made by this officer for his friend in such a manner but also took up the matter at the time of hearing of the mercy petition in the Court. As the officer, who had met the honourable Judge at his residence, realized the gross mistake committed by him, the Court taking a lenient view did not proceed further and closed the matter by ordering that an entry would be made in his C.R. (confidential rolls) about the gross impropriety committed by him in meeting Justice Ramaswamy. Thereafter, the mercy appeal filed by the accused, J.Vasudevan, was also dismissed by the Court.276 Jurisdiction of High Courts

Under article 226 a High Court is empowered to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari(a) for the enforcement of any of the Fundamental Rights, and (b) for any other purposes. A High Court may issue a writ if it finds that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed.277 Thus, the writ jurisdiction of a High Court is larger than that of the Supreme Court as the Supreme Court can issue a writ only in cases of Fundamental Rights but the High Court has the power to issue writs for enforcement of Fundamental Rights as well as legal rights.

Page 72 of 208 As per the provisions of article 227, every High Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. However, any court or tribunal constituted by or under any law relating to armed forces has been kept out of purview of the High Court. The power of superintendence is not confined to administrative superintendence only and there may be judicial interference in appropriate cases.278 In the case of State of Haryana v. Inder, the Supreme Court has very clearly stated that the Constitution vests in the High Court administrative, judicial and disciplinary control over members of the judicial service.279 Separation of Judiciary from Executive Article 50 of the Constitution, which is a Directive Principle of the State Policy, reads as: The State shall take steps to separate the judiciary from the executive in the public services of the State. This article was not a part of the Draft Constitution. Dr. Ambedkar introduced it by moving an amendment to the Draft Constitution in the Constituent Assembly.280 The most important feature of the article moved by Dr. Ambedkar was that, though a Directive Principle of the State Policy, it prescribed a time limit of three years within which its provisions were to be implemented. While speaking on the occasion, Dr. Ambedkar reminded the House that it had been the desire of the country from long past that there should be separation of the judiciary from the executive and the demand had been continued right from the time when the Congress was founded. He made it clear that this was being put in the Chapter dealing with Directive Principles instead of making it a fundamental principle so that it was not absolutely obligatory to enforce the principle instantaneously on the passage of the Constitution. However, he had suggested a time limit of three years within which the provisions of the article were to be implemented.281 Shri T.T. Krishnamachari, opposing the move of Dr. Ambedkar, opined that the demand was made when the British were in power and now it was not necessary to separate the judiciary from the executive.282 Another Member Shri B.Das was also of the view that the question of separation of the executive and the judiciary had changed in view of the attainment of the freedom. He suggested that the matter be postponed.283 But Shri R.K. Sidhwa strongly supported Dr. Ambedkar. To quote him: The District Magistrate is a prosecutor and he is also the administrator of justice. May I ask whether under these circumstances, can impartial justice be dispensed by the same person who prosecutes and also at the same time sits in the judgement over that case?284 Pandit Jawaharlal Nehru, the then Prime Minister, also strongly supported the proposed article.285 Dr Bakshi Tek Chand while supporting the new article referred to a few instances of misuse of the present system. He shared with the

Page 73 of 208 House that in one province in a case pending in a criminal court, the ministry sent for the record and passed an order directing the trying Magistrate to stay proceedings in the case. The matter eventually went up to the High Court and very strong remarks were passed against such executive interference with the administration of justice. In another province a case was being tried against a member of the Legislative Assembly and a directive went from the District Magistrate to the Magistrate trying the case not to proceed with it further and release the man. This case also went up to the High Court and very strong remarks were passed by the Chief Justice of the High Court. After citing these instances, the Honourable member submitted that with the change of the circumstances and with the advent of freedom and the introduction of democracy, it had become all the more necessary to bring about the separation of the judiciary from the executive at the earliest possible opportunity.286 After prolonged debates, the move of Dr. Ambedkar to insert article 39A (article 50 of the Constitution) in the Constitution was adopted except the time limit of three years to implement the provisions of the article. The above discussion indicates the great concern shown by the framers of the Constitution to the cause of separating the judiciary from the executive. They were keen to bring the Magistrates, administering criminal justice, under the control of the High Court.287 Eminent members of the Constituent Assembly like Pandit Nehru, Dr. Ambedkar, Pandit Thakur Das Bhargava and many others desired that the provisions to separate the judiciary from the executive should be enforced at the earliest. This indicates that they found the then prevailing system defective and wanted to bring about improvement by separating the judiciary from the executive. However, the provisions of article 50 were not fully implemented in many States for about 24 years. It was only with the new Code of Criminal Procedure of 1973 coming into force on 1st April 1974, that the judiciary was separated from the executive. Control over Subordinate Courts Articles 233 to 237 deal with the subordinate courts. This is one of the unique features of the Constitution of India that the provisions relating to the subordinate courts are incorporated in it. The Draft Constitution did not have such provisions and it was during the debates in the Constituent Assembly that Dr. Ambedkar moved articles 209A, 209B, 209C, 209D, and 209E as amendments.288 While introducing these articles, Dr. Ambedkar explained their object. According to him, the first object was to make provisions for the appointment of district judges and subordinate judges and their qualifications while the other object was to place the whole civil judiciary under the control of the High Court. He said:

Page 74 of 208 The only thing which has been excepted from the general provisions contained in article 209A, 209B and 209C is with regard to the magistracy which is dealt with in article 209E. The Drafting Committee would have been very happy if it was in a position to recommend to the House that immediately on the commencement of the Constitution, provisions with regard to the appointment and control of the civil judiciary by the High Court were also made applicable to the magistracy. But it has been realized, and it must be realized that the magistracy is intimately connected with the general system of administration. .It has been felt that the best thing is to leave this matter to the Governor to do by public notification as soon as the appropriate changes for the separation of the judiciary and the executive are carried through in any of the province.289 Pandit Thakur Das Bhargava, a staunch supporter of separation of the judiciary from the executive, utilized the opportunity to once again put forward his strong remarks against the existing system. To quote him: What happens at present is known to all members of this House. At present the Magistrates are under the control of the District Magistrates who are also the chief officers of the police, in the districts. Therefore, the Magistrates do not work with that independence and impartiality which we should expect if we want even-handed justice to be meted out to the people. The District Magistrate in whom all powers are centred, if he wants to pull up the Magistrates, can call them to his court.290 Another member, Prof. Shibban Lal Saksena, commented upon the provisions suggested by Dr. Ambedkar. He was of the opinion that the present provisions were complete denial of the civil liberties of the person and there was no separation of the judiciary from the executive. He feared that after those provisions were put in the Constitution, no province would care to go for separation of the executive and the judiciary.291 The Assembly adopted the amendments to the Draft Constitution moved by Dr. Ambedkar and thus, the provisions about the subordinate courts came to be included in the Constitution itself under articles 233 to 237. Prior to the Constitution, the Magistrates who administered criminal justice were under the control of the State Government and the High Court had no hand in their appointment, promotion, etc. Under the old Cr. P.C. (of 1898), all Magistrates in every district outside the presidency towns were subordinate to the District Magistrate.292 He was empowered to make rules or give special orders as to the distribution of business among them, and subject to the control of State Government, define local areas within which the Magistrates were to exercise their powers. There was no court of Chief Judicial Magistrate and the powers and functions which the Chief Judicial Magistrates under new Cr.P.C (of 1973) exercise were vested with the District Magistrate.293 The Magistrates

Page 75 of 208 including District Magistrate and Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges were appointed by the State Government. Neither the District Magistrate nor any Magistrate was subordinate to the Sessions Judge except to a very limited extent.294 For the presidency towns of Bombay, Madras and Calcutta there were Chief Metropolitan Magistrates; they were appointed by the State Government and were under its control.295 The framers knew that that so long as the Magistrates remain under the control or influence of the executive, they would not administer justice in an independent and impartial manner. But they could not make such provisions which could separate the judiciary from the executive instantaneously with the commencement of the Constitution. However, they inserted a Directive Principle under article 50 to separate the judiciary from the executive.296 Under article 237, power was conferred on the Governor to apply the provisions of articles 233 to 235, which were applicable to civil judiciary, to the Magistrates also whenever the reform of separation of judiciary, as provided in article 50, was carried out. Accordingly, with the implementation of article 50 by the Cr. P.C. of 1973, the provisions of articles 233 to 235 have been applied to all Judicial Magistrates, bringing them under the control of the High Courts.297 CONCLUSION From the foregoing analysis of the constitutional provisions, it is observed that the ideals of equality, liberty and dignity of the individual were kept constantly in view while framing the Constitution. The framers gave top priority to justice. They made several provisions for criminal justice and its administration in the Constitution itself. While recognizing rights of the people, the imperatives of security, unity and integrity of the State were also kept in view constantly. The Constitution allows the State, which includes the police and magistracy, to impose reasonable restrictions on some of the Fundamental Rights of the people in certain circumstances to maintain order, decency, morality, etc. Thus, the Constitution contains adequate provisions for fair administration of criminal justice. However, for achieving desired results, the provisions need to be implemented meticulously obeying the spirit behind them and not just the letter. It may be proper to recall the following remarks of Dr. Rajendra Prasad, the first President of India. While speaking in the Constituent Assembly on 26th November 1949, he said: If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country.298 oo()oo

Page 76 of 208 Chapter 5 PRESENT CRIMINAL JUSTICE SYSTEM OF INDIA

Wherever law ends, tyranny begins. John Locke Criminal justice system refers to the structure, functions, and decision processes of agencies that deal with the crime prevention, investigation, prosecution, punishment and correction. Some believe that it is not totally accurate to speak of a criminal justice system. A system, they argue, is an interactive, interrelated, interdependent group of elements performing related functions that make up a complex whole. The criminal justice system is a loose confederation of agencies that perform different functions and are independently funded, managed and operated.299 However, despite their independence, these agencies of criminal justice system are interrelated because what one agency does affects all others. That is why they are called a system. The present criminal justice system of India is the product of a continuous effort on the part of rulers who controlled the affairs of the country from time to time. In every phase of Indian history the rulers contributed to the development of the criminal justice system. However, most of them treated the criminal justice system more as an instrument to subjugate the masses rather than to protect their rights. The British rulers who made well-thought-out efforts for the establishment of a sound and well defined criminal justice system in India were also not free from this weakness. They too looked at the criminal justice system more as an instrument to uphold the colonial rule in India and less for the administration of fair criminal justice to the people. The main objective of the criminal justice system is to create social harmony and maintain order by enforcing the laws and curbing their violation. For attainment of this objective, a network consisting of the police, bar, judiciary and correctional services constitute the criminal justice system. Since the criminal law provides the basic framework for the whole criminal justice system, it is also considered as a component of the whole system. Various components of the present criminal justice system of India are briefly discussed below. CRIMINAL LAW Rule of law, which means that the law and not the wishes of any individual governs the public affairs, presupposes a set of laws including criminal laws to control the actions of the people as well as the State. The laws should be purposeful, public welfare oriented, unambiguous and practicable. The laws, made in an autocratic manner without due consideration for social welfare are

Page 77 of 208 liable to degenerate into an engine of oppression. Ambiguity or uncertainty in criminal law not only causes inconvenience and irritation to the people but may also create traumatic conditions for a man if the law enforcing agency resorts to arrest or detain him, or seize his property, under the pretext of a legal provision interpreted contrary to its spirit. Therefore, a well defined criminal law is the foundation on which the whole structure of criminal justice system stands. It is the responsibility of the legislators to make the foundation strong by making criminal laws sound in all respects. After taking over the control of Bihar, Bengal and Orissa in 1765, the East India Company made some attempts to introduce reforms in the existing criminal laws. However, it was only after the British Crown took over the control of Indian affairs from the East India Company in 1858 that the process of improvement in criminal laws gained momentum. The British had realized that without sound and effective criminal law it was not possible to control a vast country like India where people of diverse cultures, religions, castes and classes lived. The reformation and codification of criminal laws being the need of the time, the British took up the task on a priority basis. The Indian Penal Code, 1860; the Police Act, 1861; the Code of Criminal Procedure of 1861; the Indian Evidence Act, 1872; and Indian High Courts Act, 1861 are the major landmarks in the history of criminal law of India. Most of the laws enacted by the British are still in force in India as adopted under article 372 of the Constitution. The major criminal laws which are most commonly used for administration of criminal justice in India are: the Constitution of India, the Indian Penal Code, the Code of Criminal Procedure, and the Evidence Act. In addition to these major criminal laws there are numerous Central and State criminal Acts in force in India. The Constitution of India During freedom movement, repressive laws and high-handed attitude of the functionaries of the criminal justice system were at the top in the agenda to oppose the British rule in India. Having suffered injustice at the hands of the foreign rulers the people of India, after independence, expected a qualitative improvement in the existing criminal justice system. The framers of the Constitution rose up to the occasion to cater to those expectations. They not only put the justice at the top among the aims and objectives of the Constitution and made elaborate arrangement in the Constitution itself to secure it to the people. All laws in India, criminal as well as others, are made by Parliament or the State Legislatures in accordance with the provisions of the Constitution of India. To put the Constitution in the category of criminal laws may not sound well, but, it being the source of all criminal laws of the country, may be reckoned as the supreme criminal law. The Constitution under articles 17 and

Page 78 of 208 23 declares certain acts as offences punishable in accordance with law. It deals with many matters which have a direct bearing on the criminal justice administration, e.g. protection in respect of conviction for offences (article 20), protection of life and personal liberty (article 21), protection against arrest and detention (article 22), appeal to Supreme Court in criminal matters (article 134), and powers of President and Governor to pardon, suspend, remit sentences (articles 72 and 161). The Constitution provides for a federal polity where Parliament as well as the State Legislatures share the powers to frame laws. Articles 245 to 255 and Seventh Schedule of the Constitution deal with the distribution of Legislative powers. The subjects have been divided into three categories, viz. (1) Union List, (2) State List, and (3) Concurrent List. Parliament and the State Legislatures have exclusive powers to make laws on the subjects under the Union List and the State List respectively. As regards the Concurrent List, both Parliament as well as the State Legislatures have concurrent jurisdiction to make laws. However, in case of conflict between the laws made by Parliament and the State Legislature on any subject under the Concurrent List, the law made by Parliament shall prevail upon the other.300 The Constitution also empowers the President under article 123, and the Governor under article 213 to promulgate ordinances in urgent situations, when Parliament or the State Legislative Assembly, as the case may be, is not in session. However, the ordinance shall have the effect of law for a limited period of six months only. The subjects relating to the criminal justice system as included in the Seventh Schedule of the Constitution of India are given below: List IUnion List (i) (ii) (iii) Central Bureau of Intelligence and Investigation.301 Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.302 Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court) and fees taken therein; persons entitled to practise before the Supreme Court.303 Constitution and organization including vacations of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.304 Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union Territory.305 Extension of the powers and jurisdiction of members of a police force belonging to any state to any area outside that state, but not so as to enable the police of one state to exercise powers and jurisdiction in any

(iv)

(v) (vi)

Page 79 of 208 area outside that state without the consent of the government of the state in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any state to railway areas outside that state.306 (vii) Offences against laws with respect to any of the matters in this List.307 (viii) Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list; admiralty jurisdiction.308 List IIState List (i) Public order but not including the use of any naval, military or air force or any other armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in aid of the civil power.309 Police including railway and village police subject to the provisions of entry 2A of List-I.310 Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.311 Prisons, reformatories, Borstal institutions and institutions of a like nature and persons detained therein; arrangements with other states for the use of prisons and other institutions.312 Offences against laws with respect to any of the matters in this List.313 Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.314

(ii) (iii) (iv)

(v) (vi)

List IIIConcurrent List (i) Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.315 Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.316 Preventive detention for reasons connected with the security of a state, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.317

(ii) (iii)

Page 80 of 208 (iv) Removal from one state to another state of prisoners, accused persons and persons subjected to preventive detention for reasons specified in entry 3 of this List.318 Administration of justice; constitution and organization of all courts, except the Supreme Court and the High Courts.319 Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.320

(v) (vi)

(vii) Legal, medical and other professions.321 (viii) Jurisdiction and powers of all courts, except the Supreme Court with respect to any of the matters in this List.322 Indian Penal Code The First Law Commission of India, under the chairmanship of Lord Macaulay, the first Law Member of the Governor-Generals Council, was constituted in 1834.323 The Commission was entrusted with the duty to investigate into the jurisdiction, powers, rules of the existing courts and police establishments and into the laws in operation in British India; and to make reports thereon and suggest alterations having due regard to the distinction of caste, religion and opinions prevailing among different races and in different parts of the country. Elucidating the task Lord Macaulay observed: I believe that no country ever stood so much in need of a code of law as India and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this uniformity when you can have it; diversity when you must have it; but, in all cases, certainty. 324 A Draft Code prepared by the Commission, popularly known as Macaulays Code, was submitted to the Governor-General on October 14, 1837.325 It was circulated among the Judges and law advisors of the Crown. For more than twenty-two years, the Code remained in the shape of a mere draft. Finally, it was passed by the Legislative Council on October 6, 1860. It, however, came into effect on January 1, 1862.326 It superseded all Rules, Regulations, and Orders of criminal law in India and provided a uniform criminal law for all the people in the then British India.327 Since then it is the main penal law of India. The Indian Penal Code is a substantive law. It deals with the offences and provides punishments thereof. It is divided into 23 Chapters containing 511 sections out of which 386 sections are punitive provisions for various offences while the rest contain definitions, exceptions and explanations. Offences are divided into various categories such as offences against the State,

Page 81 of 208 offences against the public tranquillity, offences against public justice, offences against the human body, offences against property, etc. Classification of offences into cognizable or non-cognizable; bailable or non-bailable and triable by sessions court or a Magistrate of first class or second class is done in accordance with the provisions in the First Schedule of the Cr.P.C., 1973. Section 320, Cr.P.C. enumerates the compoundable offences under the I.P.C.328 The Indian Penal Code, being a criminal law falling under the Concurrent List of the Seventh Schedule of the Constitution, is amendable by Parliament as well as the State Legislatures.329 However, the offences against laws with respect to any of the matters specified in Union List and State List have been excluded from the concurrent jurisdiction.330 Since its enactment in 1860, Parliament, by way of amendments, has added about 45 new sections to it while about 15 sections have been either repealed or omitted. Many other minor amendments have also been made in the I.P.C. by Parliament. In addition to the amendments made by Parliament, many states have also amended the I.P.C. to suit their requirements.331 Code of Criminal Procedure Before 1882, there was no uniform law of criminal procedure for the whole of India. There were separate Acts, mostly rudimentary in their character, to guide the procedure of the courts in the erstwhile provinces and the presidency towns. Those applying to the presidency-towns were first consolidated by the Criminal Procedure Supreme Courts Act, 1852, which in the course of time gave place to the High Court Criminal Procedure Act, 1865. The Acts of procedure applying to the provinces were replaced by the general Criminal Procedure Code, 1861. This Code was replaced by the Code of 1872. It was the Criminal Procedure Code of 1882, which gave for the first time a uniform law of procedure for the whole of India. The Act of 1882 was supplanted by the Code of Criminal Procedure, 1898. The Code of 1898 was amended many times, the most important being those passed in 1923 and 1955.332 The Code of 1898 remained in force till 1973 when a new Code of Criminal Procedure of 1973 replaced it. The new Code has separated the judiciary from the executive and thereby, implemented article 50 of the Constitution of India. Abolition of jury system for trials is another significant feature of the new Code. The Code of Criminal Procedure, 1973, is today the main law of criminal procedure in India.333 It is divided into 37 Chapters consisting of 484 sections. Two Schedulesthe first, classifying the offences under the I.P.C. and against other laws, and the second, containing formshave also been appended to it. The Code of Criminal Procedure inter alia deals with the constitution of courts, powers of courts, various processes to compel appearance of persons and

Page 82 of 208 production of things, powers of police, maintenance of order, arrest, bail, trials, appeals, etc. The criminal procedure is a subject of concurrent jurisdiction enabling Parliament as well as the State Legislatures to amend it.334 Parliament has brought many amendments in it during the last 27 years to meet the requirements of changing circumstances. Many states, according to their requirements, have also amended the Code of Criminal Procedure, 1973. Indian Evidence Act Before enactment of the Indian Evidence Act, 1872, the principles of English law of evidence were followed by the courts in India in presidency towns. In the mofussil, Mohammedan law of evidence was followed for some time by the British courts but subsequently various regulations, dealing with principles of evidence, were passed for the guidance of mofussil Courts. An Act of 1855 partially codified the law of evidence. But it did not affect the practice in vogue in mofussil courts. In 1868 Mr. Maine prepared a draft Bill of the Law of Evidence, but it was abandoned as not suited to the country. In 1871 Mr. Stephen prepared a new draft which was passed as Indian Evidence Act.335 One great objective of the Evidence Act is to prevent laxity in the admissibility of evidence, and to introduce a more correct and uniform rule of practice than was previously in vogue. The Act prescribes rules for admissibility or otherwise of the evidence on the issues as to which the courts have to record findings. The main principles, which underlie the law of evidence, are(1) evidence must be confirmed to the matter in issue; (2) hearsay evidence must not be admitted; and (3) best evidence must be given in all cases.336 The Indian Evidence Act, 1872 contains 167 sections grouped into 11 Chapters. The Supreme Court had held in 1961 that for the interpretation of the sections of the Act the court could look to the relevant English common law.337 But subsequently, in 1971, the apex Court held that the law of evidence which is a complete Code does not permit the importation of any principle of English Law relating to evidence in criminal cases to the contrary.338 The Law of Evidence falls under the Concurrent List of the Constitution of India.339 However, there has not been much amendments to the Act by Parliament or the State Legislatures. It is, thus, seen that even before the Constitution came into force in 1950 India had a set of criminal laws for administration of criminal justice and they still exist without much changes.

Page 83 of 208 POLICE Police has always been and remains the central agency of criminal justice system. In theory, the safety and liberty of the people depend upon the laws and the Constitution, but in practice the decisions of the legislature and the courts would remain merely on paper if there was no effective police to enforce them. The functioning of police is law in action. As a law enforcement agency, the police in all societies, developing or developed, has to preserve and protect the very basic need of human survival and social intercourse, and when pushed to the rock bottom, this is what the criminal justice system has been all about.340 Having realized the importance of the instrumental role of the police in the society, the Gazetteer of India has concluded: The creation and efficient operation of a modernized police force is essential to guarantee the Rule of Law in the social structure of today.341 The Revolt of 1857 led the British administrators to serious rethinking for reorganization of the police throughout India and to make it an effective and highly disciplined instrument of civil administration. In 1860 the Government of India appointed the First Police Commission. On the recommendations of the Commission, the Police Act, 1861, was enacted, which imposed a uniform police system. The Act established the police on a provincial basis with an Inspector General of Police as its head. Initially the Police Act of 1861 was not applicable to many parts of the country and in such areas local Police Acts were in force but subsequently, it was made applicable to most of such areas by making amendments in the local police Acts by the provincial/state governments or Regulations of the central government. The Police Act of 1861, which is still in force with minor modifications, regulates the organization, recruitment and discipline of the police force in India. Police and the Constitution of India The Constitution puts police and public order (including railway and village-police) in the State List of the Seventh Schedule giving the State Legislatures the powers to legislate on these subjects. The Constitution, however, assigns a definite role of supervision and coordination to the Union Government also in the matters pertaining to police.342 While police and public order are within the State field of legislative competence; preventive detention for reasons connected with the security of a state, the maintenance of public order and persons subjected to such detention are under concurrent jurisdiction of Parliament as well as State Legislatures. Article 249 of the Constitution gives powers to Parliament to intervene in state police administration, if there is enough justification for doing so.

Page 84 of 208 Police Acts The Police Act of 1861, which prescribes the framework of police, is the nucleus structure around which the various central and varying state laws have grown to organize policing at village, tehsil, district, State and Union levels. The Police Act of 1888 was enacted to create general police districts embracing parts of two or more provinces. It provided that the superintendence of the police throughout a general police district, so constituted, shall vest in, and be exercised by, the Central Government. The Police (Incitement to Disaffection) Act, 1922 was enacted to penalise any attempt by means of threats, intimidation and otherwise to induce members of the police force to refrain from doing their duty and to spread disaffection among them. After independence another Police Act was passed in 1949 which empowered the Central Government to constitute a general police district embracing two or more Union Territories and applied the provisions of the Police Act, 1861 to such a general police district. The Police Forces (Restriction of Rights) Act, 1966 provides for the restriction of certain rights conferred by Part III (Fundamental Rights) of the Constitution in their application to the members of the forces charged with the maintenance of public order so as to ensure proper discharge of their duties and maintenance of discipline among them. Many States have also enacted laws to create, restructure and regulate their police forces such as the Bombay Police Act of 1951, the Kerala Police Act of 1960 and the Mysore Police Act of 1963. In addition to the Police Acts, the police derives powers from the Cr.P.C., I.P.C., Indian Evidence Act and numerous other central and state criminal laws. Chapters IV to VII, and X to XII of the Cr. P.C. contain detailed provisions relating to the powers of the police including the power to arrest, search, investigate, disperse unlawful assembly, take preventive action. The police forces in India are broadly divided into two, namely, (1) State Police and (2) Central Police Organizations. (1) State Police As regards the police set up in the States, the entire police establishment under a State Government is deemed to be one police force. The superintendence of the police throughout a State is vested in and, is exercised by the State Government and except as authorized under the provisions of the Police Act, 1861, no person, officer or court can be empowered by the State Government to supersede or control any police functionary. Since for maintaining public order in the Union Territories, the Union Territory police, though under the control of the Central Government, functions on the pattern of

Page 85 of 208 the State police as prescribed by the Police Act, 1861 and therefore, wherever State police is referred, it also includes Union Territory police unless otherwise stated. As per the provisions of the Police Act, 1861 the administration of the police throughout the State is vested in an officer to be styled as Inspector General of Police. In post-independence period most of the States have created the ranks of Director General of Police and Additional Director General of Police which are higher than the rank of I.G.P. and therefore, now-a-days an officer of the rank of D.G.P. is posted as the head of the State police. However, in pursuance of the provisions of the Police Act the head of the State police is still designated as Director General of Police & Inspector General of Police.343 The State is divided into convenient territorial divisions called police ranges. Generally an officer of the rank of Deputy Inspector General of Police is posted as head of the police range, but in some states like Maharashtra and Haryana, the practice of posting I.G.P. as an incharge of police range has come in vogue. In some States like Uttar Pradesh and Madhya Pradesh, a number of police ranges, manned by the D.I.G.s, constitute the zone which is put under an I.G.P. A police range consists of a number of districts. The administration of the district police, under the general control and direction of the District Magistrate, is vested in an officer of the rank of Superintendent of Police. The whole area of the district is divided into police stations which are considered the basic units of the State police. An Inspector or Sub-Inspector is posted as officer in-charge of the police station, who, in some States like Haryana, is also known as Station House Officer. Although the jurisdiction of a police station is further sub-divided into police out-posts, police chowkies or police beats, yet the police station continues to be the basic unit of the State/U.T. police. A group of police stations forms a police sub-division which is supervised by a Deputy Superintendent of Police or Assistant Superintendent of Police. In most of the States the incharge of a sub-division is designated as Subdivisional Police Officer while in some States like Uttar Pradesh he is known as Circle Officer. In addition to the normal field hierarchy, as described above, there are specialized units and branches in the State, districts and police commissionerates which perform the subsidiary functions and work in coordination with the executive police. These include criminal investigation department, intelligence branch, traffic branch, motor transport section, wireless section, dog units, training institutions, etc.

Page 86 of 208 Police Commissionerates Some states have set up police commissionerates in some cities. Under this system, a certain area of one or more districts is put under the control of a Commissioner of Police instead of Superintendent of Police. Initially Commissioners of Police used to be appointed for metropolitan cities only but the recent trend is to create police commissionerates even for smaller cities. A Commissioner of Police may be of the rank of D.I.G.P. or I.G.P. or even Addl. D.G.P./D.G.P. according to the size and sensitivity of the area. Officers of the rank of S.P. can also be appointed as Commissioner of Police as is the practice in Kerala. At present there are 32 police commissionerates in seven States/U.T.s. Out of these Andhra Pradesh has 3, Delhi 1, Gujarat 6, Karnatka 4, Kerala 3, Maharashtra 9 and Tamil Nadu has 6 police commissionerates. In police commissionerates, the District Magistrate does not have the powers of general control and direction of the police as these powers are vested in the Commissioner of Police. The C.P. is also empowered under various laws to issue arms and ammunition licences; to license and control places of public entertainment and public amusement; to issue prohibitory orders; and to detain persons under preventive laws. These powers are exercised by the District Magistrates in the areas which are not under the control of the Commissioner of Police. A police commissionerate is divided into various territorial units such as regions, zones, divisions, etc. Officers of the rank of Dy.S.P., S.P., D.I.G.P., and I.G.P. are posted as Assistant Commissioner of Police, Deputy Commissioner of Police, Additional Commissioner of Police, and Joint Commissioner of Police respectively to assist the Commissioner of Police. All these officers enjoy magisterial powers under the provisions of the Cr.P.C. and other state/central Acts to effectively discharge their duties of crime prevention and maintenance of law and order. Recruitment The members of the Indian Police Service, who occupy senior positions in the State as well as the central police organizations, are recruited by the Union Government. The I.P.S. is an All India Service, created under article 312 of the Constitution of India. The service conditions of the members of the Service are governed by the Union Government.344 There are two methods of recruitment to the I.P.S.(i) direct recruitment on the basis of a competitive examination held by Union Public Service Commission, New Delhi, and (ii) by promotion of substantive members of a State Police Service.345

Page 87 of 208 Recruitment of the officers of the State police is done by the concerned State Government. In most of the States there is direct entry to the ranks of Constable, Sub-Inspector of Police and Deputy Superintendent of Police. Recruitment of police officers of the rank of Sub-Inspector and above is done by the State Governments on the recommendations of the State Public Service Commission or a recruitment board. Constables and other lower ranks are directly recruited by the district S.P./C.P. or Commandant of the armed battalion. There is a uniform system of ranks and badges of police in India including the central police organizations. However, any government may create additional ranks for its police. For example, Maharashtra has created the ranks of Police Naik (above Constable) and Assistant Police Inspector (above Sub-Inspector). While the ranks remain same the police personnel are designated differently according to prevailing practice and nature of job. Training For training of the members of newly created Indian Police Service, the Central Police Training College was established in 1948 at Mount Abu. The College was renamed as Sardar Vallabhbhai Patel National Police Academy and shifted to a new campus at Hyderabad in 1975. It is the premier training institute for newly recruited as well as in-service Indian Police Service officers. At the State level the police training is generally institutionalized in State Police Academies/Police Training Colleges and Recruit Police Training Schools. Training for newly recruited police constables and inservice policemen is also arranged at district level. Introduction of sophisticated weapons like carbines, AK-47, etc.; development of wireless communication; use of computers; and new scientific methods in police work in post-independence period made it imperative to improve the training structure. The recommendations of the Gore Committee, constituted by the Union Government in 1974, paved the way for the revision of syllabi of training courses in the States to include behavioural science, management, socio-economic problems of modern India and application of science and technology to police work.346 (2) Central Police Organizations The Union Government has created its own central police organizations for discharging certain specific duties such as investigation, vigilance, collection of intelligence and to assist the police forces of the states in certain situations such as elections, natural calamities, V.I.P. security, etc. Since the central police organizations play a definite role by assisting the state police forces and

Page 88 of 208 supplementing police functions, they criminal justice system. Brief description of the major Government is given below. Central Bureau of Investigation The C.B.I. was created in 1963. Prior to that the organization was known as Special Police Establishment created and functioning under the Delhi Special Police Establishment Act, 1946. The functions of this organization were enlarged in 1963 covering besides investigation the role of National Central Bureau for India under the International Criminal Police Organization (INTERPOL), as also the Central Forensic Science Laboratory. The C.B.I. is the principal investigation agency of the Union Government and is concerned with the investigation of important cases of corruption, fraud, cheating, cases committed by organized gangs or professional criminals having inter-state or international ramifications. The C.B.I. derives its powers to investigate from the Delhi Special Police Establishment Act, 1946.347 Intelligence Bureau The I.B. is the primary central agency of our country for collection of intelligence. Its network spreads all over India for the purpose of collecting intelligence relating to the security of the country and protection of foreign visitors. The I.B. maintains a close liaison with the similar establishments in states and advises them in matters of common interest.348 Central Reserve Police Force The C.R.P.F. is a para-military force for internal security management. This Force was raised in 1939 as the Crown Representatives Police and was renamed as Central Reserve Police Force in 1949.349 The C.R.P.F. assists state police forces in maintenance of law and order specially during elections, communal disturbances and natural calamities. Border Security Force The B.S.F., raised in 1965, is the largest para-military force of the Union. It is entrusted with the task of maintaining permanent vigilance on Indias international borders. The B.S.F. has been assigned the role of promoting a sense of security amongst the people living in the border areas and preventing trans-border crimes, such as smuggling, infiltration and other illegal activities.350 In addition to the above, Indo-Tibetan Border Police, Assam Rifles, Railway Protection Force, Central Industrial Security Force, National Security Guards, Special Protection Group, Bureau of Police Research play an important role under the

police establishments under the Central

Page 89 of 208 and Development, and National Crimes Record Bureau are other important central police establishments. These organizations keep vigil on borders; undertake counter insurgency operations; provide security to railway properties and industrial complexes; protect V.I.P.s coordinate police research and training; maintain records and perform subsidiary functions. The police forces of the Union Territories are also controlled by the Central Government but they, being governed by the Police Act 1861, function on the pattern of the State police.

Recruitment The recruitment of officers in the gazetted cadre of the central police organizations is done by the Union Government on the recommendations of the U.P.S.C. while other officers and men are recruited directly by the chief of the concerned C.P.O. or on the recommendation of the U.P.S.C. In most of the C.P.O.s, the direct entry is at the ranks of (i) Constable, (ii) Sub-Inspector, and (iii) Deputy Superintendent of Police. Recruitment to other ranks is by way of promotions. The officers and men of the C.P.O.s have similar ranks and wear badges as the state police. However, they are designated differently according to prevailing practice and the nature of job. Administration and Training All central police organizations have their own administrative set up. An officer of the rank of Director General of Police heads each central police organization. To assist him, there are Addl.D.G.P.s, I.G.P.s, D.I.G.P.s and S.P.s at the C.P.O. headquarters. Keeping in view the requirements, each C.P.O. is divided into various territorial and functional units. Officers of different ranks from S.P. to Addl. D.G.P. are posted to supervise different field units. The C.P.O.s have their own training institutes. C.B.I. Academy, Ghaziabad; Internal Security Academy, Mount Abu; and Advanced Weapons Training Centre of B.S.F., Indore, are some of the premier training institutes of the central police organizations. From the foregoing, it is observed that the police plays a crucial role in the administration of criminal justice as well as in maintaining the unity and integrity of the nation. The police system of pre-independence period developed by the British rulers still continues in India. The Police Act of 1861, enacted in the wake of the Revolt of 1857, still governs the basic structure of police in India. The new Code of Criminal Procedure of 1973, which deals

Page 90 of 208 with the powers of the police in great details, has also not made any significant change. Though some efforts have been made to modernize the police and improve the administration and training, most of the old methods and procedures of policing still continue. BAR: PROSECUTION AND DEFENCE The Bar is another important component of the criminal justice system. Generally, only the prosecution is considered as a component of the criminal justice system. But the Bar, which includes prosecution as well as the defence, as a whole plays a vital role in the administration of criminal justice by assisting the judiciary in reaching to the truth in criminal cases and therefore, both its wings deserve to be discussed together. Emphasizing the role of the lawyers, the Supreme Court in the case of Bar Council of Maharashtra v. M.V. Dabholkar351 observed: The central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice social justice. The Constitution, under articles 124, 217 and 233, makes qualified advocates eligible for appointment as District Judges, Judges of the High Courts and the Supreme Court. As on February 1, 1999, out of 382 permanent Judges of all 18 High Courts in India as many as 250, i.e. about two-thirds, were appointed from among the members of the Bar, and out of 24 Judges of the Supreme Court twenty two Judges came from the Bar while only two Apparently, in addition to its Judges represented the judicial services.352 normal functions of assisting the judiciary in dispensing justice, the Bar plays another crucial role by offering its members for appointment as Judges. Legal Profession in India Before the Constitution came into existence, there was no uniform system of legal profession in India; though there was a strong demand for a unified Indian Bar. With the establishment of the Supreme Court of India in 1950, a new stimulus was given to the demand for a unified All India Bar. The Supreme Court Advocates Act, 1951 provided that every advocate of the Supreme Court was entitled, as of right, to practise in any High Court whether or not he was an advocate of that High Court.353 Subsequently, the Government of India felt the necessity for sponsoring a Bill for setting up an All India Bar Council. Accordingly, it constituted a committee under the chairmanship of Justice S.R. Das of Supreme Court. The Committee gave its report in 1953 and recommended creation of a unified national Bar, and compilation and maintenance of one comprehensive common roll of advocates. The Law

Page 91 of 208 Commission of India, in its 14th Report of 1958, adopted almost all the recommendations of the Das Committee. The Commission favoured division of the Bar into senior advocates and junior advocates.354 Advocates Act, 1961 For implementing the recommendations of the Bar Committee and the Law Commission, the Advocates Act, 1961 was passed.355 The main features of the Act are: (i) establishment of All India Bar Council and a common roll of advocates, an advocate on the common roll has a right to practise in any part of the country and in any court including the Supreme Court; (ii) integration of the Bar into a single class of legal practitioners as advocates; (iii) prescription of a uniform qualification for the admission of persons to the profession; (iv) division of advocates into senior advocates and other advocates based on merit; (v) creation of autonomous Bar Councils, one for the whole of India and one for each Statethe Council for India being constituted by representatives elected by State councils; and (vi) punishment of advocates for misconduct356. State Bar Councils A State Bar Council consists of 15 to 20 members from among advocates on the roll of the state Bar. The Advocate-General of the state is an ex-officio member.357 The State Bar Council is inter alia empowered: (i) to admit persons as advocates on rolls; (ii) to entertain and determine cases of misconduct against advocates on its roll; (iii) to safeguard the rights, privileges and interests of advocates on the roll; (iv) to promote and support law reforms; and (v) to make rules for efficient functioning of the Bar council.358 Bar Council of India The Advocates Act, 1961 provides that the Bar Council of India shall consist of: (i) the Attorney General of India, ex-officio member, (ii) Solicitor General of India, ex-officio member, and (iii) one member elected by each state bar council from amongst its members. The council would elect its own Chairman and Vice-Chairman.359 The Bar Council of India has laid down various rules as regards the duties of an advocate to the court; to his clients and to his colleagues. It inter alia carries out the following functions: (i) (ii) (iii) (iv) Preparation and maintenance of the common roll of advocates. Lays down standards of professional conduct and etiquette for advocates. Lays down the procedure to be followed by its disciplinary committee and the disciplinary committee of each state bar council. Lays down standards of legal education and recognizes universities whose degree in law will be a qualification for enrolment.

Page 92 of 208 (v) Exercises general supervision and control over state bar councils and safeguards the rights, privileges and interests of advocates. 360

Professional Misconduct Chapter V of the Advocates Act, 1961 deals with Conduct of Advocates. Section 35 of the Act provides that where on receipt of a complaint or otherwise, a State Bar Council has reason to believe that an advocate on its roll has been guilty of professional or other misconduct, it must refer the case to the disciplinary committee of that Bar Council. After giving an opportunity to be heard to the advocate concerned and the Advocate-General, the committee can either(a) dismiss the complaint; or (b) reprimand the advocate; or (c) suspend the advocate from practice; or (d) remove the name of the advocate from the roll of advocates of the State. Any person who is aggrieved by an order of the disciplinary committee of a State Bar Council can prefer an appeal to the Bar Council of India. The Advocate-General of the State is also given a similar right of appeal. Such an appeal is then heard by the disciplinary committee of the Bar Council of India. An appeal from the order of the disciplinary committee of the Bar Council of India lies straight to the Supreme Court. The Supreme Court dealt with the subject of professional misconduct of advocates in great detail in the case of Bar Council of Maharashtra v. M.V. Dabholkar.361 The apex Court, in this case, observed: The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystallized into rigid rules but felt by the collective conscience of the practitioners as right. The canons of ethics and propriety for the legal profession totally taboo conduct of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business. Law is no trade, briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarize the legal profession. From the criminal justice administration point of view the Bar is divided into two wings, namely, (1) Prosecution wing and (2) Defence wing. (1) Prosecution Wing The prosecution wing of the Bar includes Attorney General of India and Advocate-General for each State and Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors; Assistant Public Prosecutors and Police Prosecutors. They represent the Union and State Governments before the courts at various levels. The Prosecutors are required to present the cases investigated by the police in the courts of law. Even a properly investigated case may fail to achieve desired results in the court if the facts are not properly articulated and the evidence in their support collected by the investigating

Page 93 of 208 agency is not put before the court in an efficient and effective manner so as to stand the scrutiny by the defence. As in India the crimes are considered injuries to the State, all courts have been provided with a prosecution agency to conduct criminal cases on behalf of the State. Section 225, Cr.P.C. provides that in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor appointed under section 24 of the Cr.P.C. For trials before the courts below the sessions court, Assistant Public Prosecutors are appointed under section 25 of the Cr.P.C., 1973. Section 30, Cr.P.C. contains general provisions as to inquiries and trials. As per section 301(1), Cr.P.C. the Public Prosecutor or Assistant Public Prosecutor in-charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. Constitutional Functionaries The Constitution contains provisions for appointment of Attorney General of India under article 76 and Advocates-General for the States under article 165. They are the principal law officers to represent the Union and the States respectively in the courts of law and advise the concerned government on legal matters. In the performance of his duties the Attorney General of India shall have right of audience in all courts in the territory of India. In the discharge of his functions, the Attorney General is assisted by Solicitor General and Additional Solicitor General. Public Prosecutors and Special Public Prosecutors Section 24 (1), Cr.P.C. provides that for every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceedings on behalf of the central government or state government as the case may be. The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area under section 24 (2) of the Cr.P.C. Under section 24(3), Cr.P.C. for every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. An advocate with seven years practice is eligible for appointment as Public Prosecutor or Additional Public Prosecutor for a district. As per the provisions of section 24 (4), Cr.P.C. the District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. Only those whose names appear in the panel prepared by the District Magistrate shall be considered for the appointment. However, where in a State there exists a regular cadre of prosecuting officers,

Page 94 of 208 the State Government may make the appointment from among the persons constituting such cadre. Under section 24 (8), Cr.P.C. the Union Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a special public prosecutor. Assistant Public Prosecutors Section 25 (1), Cr.P.C. provides that the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of Magistrates. As per newly added sub-section (1A) of the section 25, Cr. P.C. the Union Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the courts of Magistrates. Where no Assistant Public Prosecutor is available for the purpose of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case under section 25 (3) of the Cr.P.C. But no police officer shall be appointed under section 25 (3) as Assistant Public Prosecutor: (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector. The main points of difference between the public prosecutor and the assistant public prosecutor are two(i) only an advocate with seven years of practice can be appointed as a Public Prosecutor while there is no such requirement for Assistant Public Prosecutor; and (ii) even a police officer of and above the rank of the Inspector can be appointed as Assistant Public Prosecutor while no police officer can be appointed as Public Prosecutor.362 Prosecution by Private Persons As per the provisions of section 301 (2), Cr.P.C. a private person can also appoint a private counsel to prosecute any person but such a private counsel or pleader shall act under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the court, submit written arguments after the evidence is closed in the case. Section 302, Cr.P.C. provides that any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. But no police officer, who has taken part in the investigation of such a case, shall be permitted to conduct the prosecution. The section further provides that any person conducting the prosecution may do so personally or through a pleader. Section 302, Cr.P.C. empowers a trial Magistrate to permit any person other than the Public Prosecutor to conduct a trial before it, when it is necessary to meet the ends of justice. However, the permission totally depends on the discretion of the court.

Page 95 of 208 No person can claim it as a matter of right. The provisions of this section apply to conduct a case before a trial court and they cannot be extended to an appeal.363 It is only when a private counsel is entrusted with an independent charge of the case that permission is necessary under section 302, Cr. P.C. So long as that counsel acts under the supervision, guidance or control of the Public Prosecutor, no such permission is necessary, and he can examine and cross examine the witnesses and address arguments.364 The Karnataka High Court has held that in the prosecution of a case of murder, an advocate privately engaged is not a proper person to conduct the prosecution, for the government stands not necessarily for a conviction but for the justice.365 It indicates in very clear terms that a prosecutors duty is not necessarily to secure conviction in each case but to help the court in reaching to the truth to do justice. At any stage if he finds that the accused has been entangled falsely, he must inform the court accordingly. The Sessions Judge has no power to by-pass any of the provisions in sections 225 to 235, Cr.P.C. which include the requirement that a sessions trial must be conducted by a Public Prosecutor. A private pleader can be permitted under section 301(2), Cr.P.C. to assist the Public Prosecutor but the Public Prosecutor cannot leave the entire case in the hands of a private individual.366 There seems to be a sound purpose behind the policy of not allowing private persons to prosecute. Had there been no such restrictions, people with enough means would have had another area to harass their opponents by prosecuting them by engaging private advocates. But the law seems to have taken utmost precaution to safeguard the people against prosecution on false and fictitious grounds. There is another risk in allowing people to prosecute the accused with the help of private advocates as the rich and influential people accused or interested in accused persons might force the victims/complainants, first to seek permission for private prosecution without any help or supervision of Public Prosecutor, and then to discourage them from pursuing the cases properly so that discharge or acquittal is sure outcome in the cases against them. (2) Defence Wing As there are Public Prosecutors and Assistant Public prosecutors to present the criminal cases in the courts of law, the accused, who are not competent to defend themselves, also need help of legal experts to reply the charges levelled against them, to contradict the evidence of the prosecution, and to obtain bail, etc. The legal practitioners, who are enrolled as advocates, work as defence lawyers on behalf of the accused in the Magistrates courts, sessions courts and also in the High Courts and the Supreme Court. Avocates are also designated as senior advocates and advocates on record.

Page 96 of 208 Senior Advocates Until 1954, an advocate of not less than 10 years standing in a High Court was eligible to be enrolled as a senior advocate of the Supreme Court.367 He could, at his option, automatically become enrolled as a senior advocate of the Supreme Court. This rule is now altered and any person can enrol himself as an advocate of the Supreme Court on application. The applicant is required to give an undertaking that he shall not draw pleadings, affidavits, advice on evidence or do any drafting work of an analogous nature. Any advocate may be designated as a senior advocate, if the Supreme Court or a High Court is of the opinion that by virtue of his ability, experience and standing at the Bar, he deserves such a distinction. The Court confers the distinction of a senior advocate only if the full Bench opines that the applicant deserves such a distinction by virtue of his ability, status and reputation at the Bar.368 Advocates on Record The advocates at the Supreme Court who pass a prescribed examination in court rules and procedures are designated as advocates on record. Only an advocate on record, on having authorized by the client, can file cases/petitions before the court and is entitled to the right of audience. However, other advocates can also appear on behalf of the clients in such cases before the court. Ordinarily, the main job of an advocate on record is to work as connecting link between the court and the client, and the client and the pleading advocate. From the foregoing it is seen that in post-independence period, passing of the Advocates Act, 1961 and constitution of the Bar Council of India and the State Bar Councils are the most important developments relating to the Bar. JUDICIARY The judiciary is one of the three basic organs of the Statethe other two being the legislature and the executive. It has a vital role in the functioning of the State, more so, in a democracy, based on rule of law. In governance of a federal polity where powers are distributed between the Union Government and the State Governments, the judiciary, by virtue of its very task of interpreting the constitutional provisions and reviewing the decisions of Union as well as State Governments, assumes a significant and special importance. Justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice as stipulated in the Preamble to the Constitution. The judiciary, therefore, becomes the most prominent and outstanding wing of the constitutional system for fulfilling the mandate of the Constitution.369 Having realized the importance of the role of the judiciary, the framers of the Constitution incorporated detailed provisions relating to higher as well as subordinate judiciary in the constitution itself. The Constitution has provided

Page 97 of 208 for a single integrated system of courts to administer both central and state laws. Supreme Court of India At the top of the entire judicial system exists the Supreme Court of India. The Supreme Court acts as a federal court for determination of disputes between the constituent units of the federation. It is the highest interpreter of the Constitution and thus plays the role of its guardian and saviour. For this purpose, the framers of Indian Constitution vested the power of judicial review with the Supreme Court so that any law or order enacted, promulgated or passed by the State authorities which contravenes the provisions of the Constitution, could be declared null and void. Under article 32 of the Constitution, it is to act as the protector of the Fundamental Rights of the people. The Supreme Court is the highest court of appeal in the country in civil as well as criminal matters. The Supreme Court, presently, consists of a Chief Justice and not more than 25 Judges.370 Parliament by law may raise the number of total Judges. Provisions are also made in the Constitution for appointment of ad hoc Judges and the attendance of retired Judges at the sittings of the Supreme Court, in case of need. The Constitution covers various areas such as qualifications, appointment, tenure, terms of office, procedure for removal and immunities of the Judges of the Supreme Court. Powers and jurisdiction of the Supreme Court have also been well defined by the Constitution.371 Every Judge of the Supreme Court is appointed by the President of India after consultation with the Chief Justice of India and such of the Judges of the Supreme Court and of the High Courts in the states as he may deem necessary. A citizen of India who has been a Judge of High Court at least for five years or have been for at least ten years an advocate of a High Court or is in the opinion of the President, a distinguished jurist shall be eligible for appointment as a Judge of the Supreme Court. The Judges of the apex Court hold office till they attain the age of 65 years if not earlier resigned or removed.372 The jurisdiction of the Supreme Court can be divided into three categories, namely, original, appellate and advisory. Parliament, may, by law, enlarge the jurisdiction of the Court.373 Section 2, Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, has enlarged the Supreme Courts jurisdiction.374 Important provisions describing the role and jurisdiction of the Supreme Court are as under: 1. Under article 132 of the Constitution of India, an appeal shall lie to the Supreme Court from any judgement or final order of a High Court in criminal proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.

Page 98 of 208 2. As per the provisions of article 134 of the Constitution, read with the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, an appeal shall lie to the Supreme Court from any Judgement, final order or sentence in a criminal proceeding of a High Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to life imprisonment or to imprisonment for a period of not less than ten years; or (b) has withdrawn for trial before itself any case from any subordinate court and has in such trial convicted the accused person and sentenced to death or to life imprisonment or to imprisonment for a period of not less than ten years; or (c) the High Court certifies that the case is a fit one for appeal to the Supreme Court.375 Section 379, Cr.P.C. also has similar provision of appeal to the Supreme Court. Under article 136 of the Constitution, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, sentence or order passed or made by any court or tribunal. This includes criminal cases also. Under section 406, Cr.P.C. the Supreme Court can transfer any particular case or appeal from one High Court to another or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court on application of the Attorney-General of India or of a party interested. As protector of the civil liberties, the Supreme Court, under article 32 of the Constitution, is empowered to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights. As per the provisions of article 141of the Constitution, the law declared by the Supreme Court shall be binding on all courts in India. Article 144 of the Constitution provides that all authorities, civil and judicial, in the territories of India shall act in aid of the Supreme Court.

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It is pertinent to note that prior to the Constitution of India, there was no provision of appeal against the orders of the High Courts in criminal cases as of right. It was only in a limited sphere that the Privy Council entertained appeals in criminal cases from the High Courts.376 However, the framers of the Constitution decided, after a long debate, to provide such right to the people of India and accordingly incorporated the provisions under article 134.377 Thus, notwithstanding the fact that section 6, Cr.P.C. does not mention the Supreme Court among the classes of criminal courts, it being empowered under articles 132, 134 and 136 of the Constitution to deal with criminal matters is the highest criminal Court of India.

Page 99 of 208 High Courts The jurisdiction of the existing High Courts, the law administered by them and the powers to make rules of the Court were allowed by the Constitution to continue as were immediately before then commencement of the Constitution.378 The Constitution contains provisions relating to High Courts under articles 214 to 231. It provides a High Court for each State or for a common High Court for two or more States. A High Court may have one or more benches at different place in its jurisdiction for keeping in view the convenience of the people. At present there are 21 High Courts in India with benches at different places covering all States and Union Territories in India including the three newly formed States of Uttranchal, Jharkhand and Chhatisgarh,. Every High Court consists of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Every Judge of a High Court is appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. A Judge of the High Court holds office till he attains the age of 62 years if not resigned or removed earlier. A citizen of India who (a) has for at least ten years held a judicial office in India; or (b) has for at least ten years been an advocate of a High Court or of two or more such courts in succession, shall be eligible for appointment as Judge of the High Court. There are also provisions for appointment of additional and acting Judges. The Chief Justice of a High Court, with the previous consent of the President, can request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court.379 The High Courts enjoy original and appellate jurisdiction including powers of revision and review. The High Courts in the presidency towns of Calcutta, Bombay and Madras possessed an original jurisdiction, both civil and criminal, over cases arising within the presidency towns whereas other High Courts did not enjoy such original jurisdiction.380 Though the original criminal jurisdiction of the Bombay and Madras High Courts has recently been entrusted to City Sessions Courts, the original civil jurisdiction of these High Courts is still retained in respect of actions of higher values. The City Sessions Court has also been set up in Calcutta but the High Court of Calcutta still retains its original criminal jurisdiction over more serious cases.381 The jurisdiction and powers of the High Courts, from the criminal justice point of view, can be summarized as under: 1. Any person convicted in a trial held by a Sessions Judge or an Additional Sessions Judge or in a trial held by any other court in which a sentence of

Page 100 of 208 imprisonment for more than seven years has been passed against him may appeal to the High Court under section 374 of the Cr.P.C., 1973. 2. Under section 377, Cr.P.C. the State Government and the Union Government may file appeal to the High Court against the sentence imposed on the ground of inadequacy of such sentence. In cases of acquittal, the State or the Union Government or the complainant, if the case was instituted upon private complaint, the High Court may grant special leave to appeal under section 378, Cr.P.C, 1973. Under section 397, Cr.P.C., the High Court may call for and examine the record of any proceeding before any inferior criminal court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. The Court may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his bond pending the examination of the record. As provided under article 228 of the Constitution, if the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution, it shall withdraw the case and may(a) either dispose of the case itself, or (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgement on such question. Section 407, Cr.P.C empowers the High Court to transfer any case or appeal from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction. As per the requirement of section 28, Cr.P.C., any sentence of death passed by a Sessions Judge or Additional Sessions Judge shall be submitted to the High Court for confirmation. The High Court is empowered to direct, under section 367, Cr.P.C., that a further inquiry should be made or additional evidence be taken upon any point bearing upon the guilt or innocence of the convicted person, or it, under section 368, Cr.P.C., may confirm the sentence, or pass any other sentence warranted by law, or may annul the conviction, or may acquit the accused person. Article 226 of the Constitution empowers every High Court to issue to any person or authority directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of any of the Fundamental Rights and for any other purpose.

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Page 101 of 208 9. Every High Court has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The Supreme Court has held that the High Court has both powers of administrative as well as judicial superintendence over the subordinate courts within its jurisdiction.382

Subordinate Courts The Constitution of India contains provisions regarding appointment of District Judges, recruitment of persons other than District Judges to the judicial service, control over subordinate courts, etc. in Part VI, Chapter VI Subordinate Courts. Hence the courts of and below the District and Sessions Judges are called subordinate courts. District and Sessions Court is a principal civil court and also a criminal court to try serious offences as provided in Schedule I of the Cr.P.C., 1973.383 The District Judge while dealing with the criminal cases is called Sessions Judge. Below the District and Sessions Court, the judiciary is divided into two categories, namely, civil and criminal. The courts of civil jurisdiction are known as Munsifs, Sub-Judges, Civil Judges; whereas the criminal judiciary comprises courts of Magistrates.384 However, as per the provisions of section 11(3), of the Cr.P.C., the powers of a Judicial Magistrate of the first class or of the second class can be conferred on a Judge of a civil court. Thus the lower judiciary below the District and Sessions Judge is not compartmentalized into civil and criminal in absolute sense as a court may deal with both civil as well as criminal cases in certain circumstances. Detailed provisions about criminal courts, their jurisdictions, etc. are found in Chapter II of the Code of Criminal Procedure, 1973. Section 6, Cr.P.C. provides that besides the High Courts and the courts constituted under any law, other than the Cr. P.C., there shall be, in every state, the following classes of criminal courts, namely:- Courts of Session; Judicial Magistrates of the First class and, in any metropolitan area, Metropolitan Magistrates; Judicial Magistrate of the second class; and Executive Magistrates. Courts of Session As per the provisions of section 7, Cr.P.C., every State shall be a sessions division or shall consist of sessions divisions. A sessions division may consist of one or more districts. Under section 9, Cr.P.C., for every court of session, the High Court shall appoint a Judge to preside over the court. Provisions have also been made for appointment of Additional Sessions Judges and Assistant Sessions Judges. A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.385

Page 102 of 208 Courts of Judicial Magistrates In every district, except the metropolitan area, there are courts of Judicial Magistrates of the first class and of the second class. Presiding officers of such courts are appointed by the High Court under section 11(2) of the Cr.P.C. The High Court may confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the judicial service of the state, functioning as a Judge in a civil court.386 To supervise the work of the Judicial Magistrates, the High Court appoints a Chief Judicial Magistrate in every district. The Court may also appoint an Additional Chief Judicial Magistrate, and may designate any Judicial Magistrate of the first class as Sub-divisional Judicial Magistrate. Every Chief Judicial Magistrate is subordinate to the Sessions Judge and every Judicial Magistrate, subject to the general control of the Sessions Judge, is subordinate to the Chief Judicial Magistrate. Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local jurisdiction of the areas within which the Judicial Magistrates may exercise their powers.387 The court of Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. The court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. However, the court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.388 Courts of Metropolitan Magistrates For every metropolitan area there is a Chief Metropolitan Magistrate and under him a number of Metropolitan Magistrates. The presiding officers of such courts are appointed by the High Court. An Additional Chief Metropolitan Magistrate may be appointed by the High Court.389 The court of a Chief Metropolitan Magistrate has the powers of the court of a Chief Judicial Magistrate; and the court of a Metropolitan Magistrate has the powers of the court of a Magistrate of the first class.390 The High Court may, if requested by the Union or State Government to do so, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable on a Judicial Magistrate of the first class or of the second class or a Metropolitan Magistrate. The persons who have been conferred such powers shall be called Special Judicial Magistrates or Special Metropolitan Magistrates.391

Page 103 of 208 Special Courts Criminal courts can also be constituted under Union and State Special Laws to meet particular needs. The courts of coroners in the presidency towns constituted under the Coroners Act, 1871 and courts of Cantonment Magistrates in cantonments under the Cantonments Act, 1924 are examples of such courts. The powers of such courts are either specifically mentioned in the law under which they are created or such courts exercise powers specified in part II of the First Schedule of the Cr.P.C.,1973. Executive Magistrates and Special Executive Magistrates Although the Code of Criminal Procedure, 1973 has separated the judiciary from the executive, it still continues to describe Executive Magistrates as one of the classes of criminal courts under section 6 of the Cr.P.C. Generally the Executive Magistrates handle executive work which may be of quasi-judicial nature. However, in certain circumstances they can deal with judicial work, e.g. section 167(2A), Cr.P.C. provides that where a Judicial Magistrate is not available, a person arrested by police can be produced before the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred. Section 20, Cr.P.C. provides that in every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them as District Magistrate. The State Government may also appoint Additional District Magistrate for a district. The State Government may place an Executive Magistrate in charge of a subdivision to be called Sub-divisional Magistrate. All Executive Magistrates except the Additional District Magistrate shall be subordinate to the District Magistrate. Sub-section (5) of section 20, Cr.P.C. provides that nothing in section 20 shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. In pursuance of these provisions, the State Governments have empowered the Commissioners of Police, Joint Commissioners of Police, Additional Commissioners of Police, Deputy Commissioners of Police and Assistant Commissioners of Police to exercise powers under sections 107, 108, 109, 110, 133, 144, etc. of the Cr.P.C.,1973 within the areas for which they are appointed. In addition to the above, there are also provisions for appointment of Special Executive Magistrates for particular areas or for particular functions. Such of the powers as are conferrable under the Cr.P.C. on Executive Magistrates may be conferred on the Special Executive Magistrates under section 21 of the Cr.P.C.

Page 104 of 208 The above description of the judiciary as a component of the criminal justice system shows that a well-defined hierarchy of criminal courts exists in India to administer criminal justice. The very fact that the Constitution itself contains elaborate provisions for the judiciary including the subordinate courts, indicates the importance the framers of the Constitution accorded to this important organ of criminal justice administration. CORRECTIONAL SERVICES Today, the main objective of the criminal justice administration is not merely to punish the offender but to effect changes in his behaviour in the over all interest of the society. This calls for correctional agencies to decriminalize and reform the offenders to make them fit for society and not to dehumanize them by giving harsh and inhuman treatment. Any failure on their part to bring the offenders on the right path again will make the whole process a futile exercise and the main purpose of the criminal justice administration will be defeated. The role of the correctional services, therefore, becomes very crucial. The correctional system of India mainly consists of prisons, probation and parole.

Prisons The prisons, reformatories, borstal institutions and other institutions of like nature are included in state list under the Constitution of India.392 The legal base for prisons is section 4 of the Prisons Act which requires the state governments to provide accommodation for prisoners in their territories, in prisons which, as per section 3, means any jail or place used permanently or temporarily for the detention of prisoners. Further, under section 417 of the Code of Criminal Procedure, 1973, a State Government may direct in what place a person liable to be imprisoned or committed to custody is to be confined.393 Prison Reforms and Prison Manuals Many of the Indian leaders who had played an important role in the countrys struggle for freedom and had spent many years in prison were fully aware of the urgency of improving the conditions in Indian jails. Therefore, immediately after India became free, steps were taken to improve the prisons on a priority basis. The Government of India set up an All India Jail Manual Committee to prepare a Model Prison Manual for the use of various states in India. The Committee finalised a Model Prison Manual in 1960. It inter alia recommended diversification of institutions; setting up of Boards(a) Central Bureau of Correctional Services, (b) Central and State Advisory Boards, and (c) Board of

Page 105 of 208 Visitors, Review Board and Service Board in each jail; adequate training of staff; personnel discipline; educational programme for all prisoners; vocational training; and after care and rehabilitation.394 The administration of prisons being a state subject under the Constitution of India, the recommendations of the All India Jail Committee are not of mandatory nature and only provide guidelines to achieve some uniformity in all the states. However, the central laws, i.e. the Prisons Act of 1894 and the Prisoners Act of 1900 which still govern the management of prisons in the country, provide an overall uniformity in the administration of prisons. The prison manuals of the State Governments are based on the central Acts.395 Prison establishments in different States/Union Territories comprise several tiers of prisons or jails. The most common and standard jail institutions in India are Central Jail, District Jails and Sub-Jails. The other types of jail establishments are Women Jails, Children or Borstal Schools, Open Jails and Special Jails. Central Jails The criteria for a jail to be termed as Central Jail differ from State to State. However, the common features observed in all States are that the prisoners sentenced to imprisonment for longer period are confined in the Central Jail and these Jails have more accommodation in comparison to other jails in any State.396 Open Prisons The need for a change of attitude towards the treatment of prisoners has been growing since independence. With the advance of knowledge of human behaviour, the part played by psycho-social environment in the development of the criminal is being recognized. Treatment of offenders in open conditions, as similar to outside world as possible, is one of the new ideas which have come into practice recently.397 The Open Prison means any open place or area fixed permanently under any order of the state government for the detention of prisoners. The object is to save lifers and long term prisoners from ill effects of prison life and continuous exposure to criminal culture of closed prisons having traditional walls. The concept of open prison is based on containment of the offender with balanced deterrence so that his mental outlook is not impaired.398 Special Jails Special Jail means any prison provided for the confinement of a particular class or classes of prisoners which are broadly classified as follows: (i) Prisoners who have committed serious violations of prison discipline.

Page 106 of 208 (ii) (iii) (iv) Prisoners showing tendencies towards violence and aggression. Difficult discipline cases of habitual offenders. Difficult discipline cases from group of professional and organised criminals.399

Borstal Schools Young offenders are kept in separate institutions known as Borstal Schools so that they do not come in contact with adult criminals. States have opened separate prison establishments for young offenders as the main emphasis of these is to impart education to the inmates.400 During 1997 there were 31 Borstal Schools in 11 States.401 Prison Administration Prison administration is the responsibility of the State Governments under the provisions of the Prisons Act, 1894 and the respective jail manuals. At the State level, prison administration functions under the Home Department. The prison department is headed by Inspector General of Prisons who is assisted in some states by Deputy Inspectors General of Prisons. Prison Superintendents are in charge of district and central prisons. The organizational pattern of the prison department differs from State to State depending upon the local conditions.402 The Prison Superintendents are assisted by Jailors, Sub-Jailors, Warders, and other jail staff. As regards the prison administration, the Supreme Court in the case of Sunil Batra v. Delhi Administration403 observed: Prisons are built with stones of law and so it behoves the Court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant guardians of the prison system where they go berserk and defile the dignity of human inmates. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials dressed in a little, brief authority. For when a prisoner is traumatized, the Constitution suffers a shock. The Court in this case further observed that the Prisons Act and Rules need revision if a constitutionally and culturally congruous code is to be fashioned.404 The apex Court inter alia issued following directions: 1. 2. 3. 4. The State shall take early steps to prepare in Hindi a Prisoners Handbook and circulate copies to bring legal awareness home to the inmates. Copies of the Prison Manual shall be within ready reach of prisoners. Prisons Act and Rules need revision. All visitors, officials and non-official, at every visit, shall inspect the barracks, cell wards, worksheds and other buildings of the jail generally and cooked food.

Page 107 of 208 5. The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations especially those relating to work and wages, treatment with dignity, community contact and correctional strategies.

Prison Personnel The prison personnel are selected by the prison department or by the State Government, except the Inspector General of Prisons, if he is an officer from the Indian Police Service. However, the All India Jail Manual Committee has recommended: In filling the post of Inspector General, special care should be taken that only persons with sufficient knowledge and suitable experience shall be considered. If a suitable departmental officer is available, he should be given preference.405 The concept regarding the duties, responsibilities and functions of correctional personnel has undergone a fundamental change. The All India Jail Manual Committee has stressed the necessity of careful selection of correctional personnel. During recent times, more attention is being paid to this aspect of prison administration. Method of selecting prison personnel has improved and trained social workers are being recruited in prison service. Likewise, graduates in social sciences are being recruited as prison officers. More attention is being paid to the selection of prison guards and other prison personnel.406 Training of Prison Staff The All India Jail Committee stressed the need of training of prison personnel. It is now recognized that correctional work is specialized work. The Tata Institute of Social Sciences, Bombay, and the Jail Training School, Lucknow, have done pioneering work in respect of training of prison personnel. The T.I.S.S. has set up a department of criminology and correctional administration. In 1955, Maharashtra State set up the Jail Officers Training School at Yeravada, Pune.407 Subsequently, other Jail Training Institutions have been established. Central Bureau of Correctional Services As a sequel to the recommendations of the All India Jail Committee, the Central Bureau of Correctional Services was set up by the Government of India in 1961. The main functions of the Bureau are: (i) to standardize the collection, on a national basis, of statistics relating to crime, jail, probation and other correctional work in different states in India; (ii) to coordinate the work and develop a uniform policy of prevention of crime and treatment of offenders; (iii) to exchange information in regard to crime, prevention and correctional services between the states and provide technical knowledge and assistance and other information either generally or on specific programme; (iv) to examine information, where necessary, between India and foreign governments and with

Page 108 of 208 the United Nations Organization; (v) to promote research and staff training and to undertake studies, surveys and any required research and experimentation in the field; and (vi) to disseminate information and stimulate interest by publication of bulletins, etc. on the subject.408 National Institute of Social Defence In 1974, the Central Bureau of Correctional Services was converted into National Institute of Social Defence. This Institute reviews the implementation of the recommendations of the All India Jail Manual Committee. It has been the endeavour of the Institute to ensure that the recommendations about prison reforms are properly implemented and prison administration is streamlined on proper lines by the various states.409 The Institute is becoming a focal point where a new thinking in regard to various aspects of social defence is evolving.410 Central Advisory Board on Correctional Services In 1969, a Central Advisory Board on Correctional Services, comprising social scientists and correctional administrators, was set up by the Ministry of Social Welfare, Government of India.411 The objectives of this board are: (i) to advise the central and state governments on matters of policy in providing correctional services; (ii) to help the central and state governments to effectively develop programme of correctional services throughout the country and to fill up gaps that exist at present in different areas of services; (iii) to advise on matters relating to the social aspects of prevention, control and treatment of delinquency and crime; (iv) to suggest measures for improving levels of coordination between administration of justice, police administration and correctional administration; and (v) to suggest ways and means of creating social consciousness for the rehabilitation of offenders.412 Probation Probation means conditional suspension of imposition of a sentence by the court, in selected cases, especially of young offenders, who are not sent to prisons but are released on probation, on agreeing to abide by certain conditions. Probation has been described by the Economic and Social Council of the United Nations as one of the most important aspects of the development of rational and social policy.413 Provincial Governments of C.P. and Berar, Madras, U.P., Bombay, West Bengal and Hyderabad had enacted Probation laws for their respective areas during the period 1936 to 1954. However, having realized the need of a central comprehensive law on probation, the Indian Parliament passed the Probation of Offenders Act, 1958.414 Section 19 of the Act provides that section 562, Cr.P.C. (section 360 of the new Cr.P.C.) ceases to apply to the states or parts thereof in which this Act is brought into force.

Page 109 of 208 Probation of Offenders Act Before passing the Probation of Offenders Act, 1958 there was no central legislation containing provisions for reform, rehabilitation and supervision of the offenders released on probation as section 562 merely provided for release of the offenders. Passing of the Probation of Offenders Act indicates that something more was required than just letting a person off, in order to reform and rehabilitate him. Section 3 of the Act provides that when any person is found guilty of having committed an offence-theft, dishonest misappropriation of property, cheating or any offence punishable with imprisonment for not more than two years, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him, the court may release him after due admonition. Section 4 of the Act empowers the court to release any person found guilty of having committed an offence not punishable with death or imprisonment for life on probation of good conduct. The person being released on probation has to enter into a bond to appear and receive sentence when called upon during such period, not exceeding three years, and in the meantime to keep the peace and be on good behaviour. As per the provisions of section 6 when any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4. If the court decides to pass any sentence of imprisonment on the offender, it shall have to record its reasons for doing so. Section 14 of the Act deals with the duties of the probation officers. It provides that a probation officer shall, subject to such conditions and restrictions, as may be prescribed(a) inquire, in accordance with any direction of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court; (b) supervise probationers and other persons placed under his supervision and where necessary, endeavour to find them suitable employment; (c) advise and assist offenders in the payment of compensation or costs ordered by the court; and (d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under section 4. The Supreme Court, in Rattan Lal v. State of Punjab,415 has observed that the Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the

Page 110 of 208 object of criminal law is more to reform the individual offender than to punish him. Parole Parole is an administrative scheme under which a convict is released after serving some part of the sentence awarded to him and the release is not the result of any court decision. If an offender released on parole is found to have improved and has abstained from criminal conduct, he gets remission of the rest of the sentence and for sometime at least a part of the sentence.416 Parole shares some of the characteristics of probation. Both have to be selective, based on a thorough study of the personality and environment factors of the offenders, and both envisage provision for guidance and supervision. However, there are basic differences between probation and parole. To release on probation is a judicial decision whereas parole is purely an administrative action. Another point of difference is that in probation, the offender, after being found guilty, is released without sending him to jail but in case of parole a convict is released after serving some part of the sentence awarded to him.417 The State Governments have their own rules on parole. However, with a view to preserving a basic uniformity of approach in the country a set of Model Parole Rules have been framed by the Central Advisory Board on Correctional Services.418 In the development of the scheme of parole in India, the Supreme Courts decision in the case of Md. Giasuddin v. State of Andhra Pradesh419 is a milestone. In this case the apex Court inter alia directed the Government to release the appellant on parole. The Court observed: We have given thought to another humanizing strategy, viz., a guarded parole release every three months for at least a week, punctuating the total prison term. We direct the State Government to extend this parole facility to the appellant, Jails Rules permitting, and the appellant submitting to conditions of discipline and initiation into an uplifting exercise during the parole interval. The State will not hesitate, we expect, to respect the personality in each convict in the spirit of the Preamble to the Constitution and will not permit the colonial hangover of putting people behind the bars and then forget about them. Thus, in post-independence period efforts have been made to bring about qualitative improvement in the working of correctional services. CONCLUSION The above description of various components of the present criminal justice system of India shows that most of the major criminal laws such as the Indian Penal Code of 1860, the Police Act of 1861, and the Indian Evidence Act of

Page 111 of 208 1872 are still in force with some peripheral amendments. Except some significant changes such as separation of the judiciary from the executive and abolition of jury system, even the new Code of Criminal Procedure of 1973 is a replica of the old Cr.P.C. of 1898. The structure of police and its working style has not changed much. However, establishment of police commissionerates in some of the States has certainly been a welcome development and has enhanced performance parameters. With the Constitution coming into force, the higher judiciary has taken a new role of interpreting the Constitution and declaring laws keeping the spirit of the Constitution in view. The constitutional provisions for appeal to the Supreme Court in certain criminal matters as of right is certainly an innovative reform introduced by the Constitution in the judicial system of India. Considerable developments have been made in the correctional services in post-independence period. The retributive theory of punishment has given way to reformative and rehabilitative theories. Separate prison establishments have been opened for women and young prisoners. Prison reforms have laid emphasis on improving the conditions in the jails. To sum up, even though efforts have been made to effect radical transformation, yet we find ourselves clogged in transition. Consequently, the indelible legacy of the British era sustains. Thus, most of the criminal laws, procedures, institutions, and principles evolved during the British period still govern the functioning of various components of the criminal justice system of India. oo()oo

Page 112 of 208 Chapter 6 RIGHTS AND DUTIES OF THE PEOPLE

The police are the public and the public are the police. Robert Peel The process of the criminal justice entails peoples cooperation at various stages such as crime prevention, crime reporting, investigation and trial. Without active participation of the people the criminal justice administration cannot function effectively to achieve desired results and thus its success largely depends upon the people. The criminal justice system prevalent during ancient and medieval India also had elements of peoples participation. The British rulers made elaborate provisions in various criminal laws to involve people in preventing and punishing crime. Though the laws in force during the British period contemplated peoples participation in the administration of criminal justice, the concept did not encourage desired public enthusiasm. In the preindependence period, high-handed manner of the functionaries of the criminal justice system, especially the police, generated a morose feeling in the mind of the people that the criminal justice administration was to subserve the interests of the colonial rule rather than to safeguard the rights of the common man. This feeling worked as the major impediment in the way of making the criminal justice administration a popular institution. After India became independent, it was expected that the people would change their attitude towards the criminal justice administration and would extend their wholehearted cooperation to make it more efficient and effective machinery. Similarly, an attitudinal change on the part of criminal justice functionaries towards the people and their problems was also desired. However, occurrences of many crimes which could have been prevented if the people around the scene of the crime had intervened or informed the police, hesitation on the part of many people to assist the police in investigation, and failure of the prosecution cases because of non-cooperation of the witnesses, reflect that the people are not helping the criminal justice administration in preventing and punishing the crime in a desired manner. Continuity of most of the criminal laws and procedures of the British era in post-independence period has not allowed any significant change in the working style of the functionaries of the criminal justice administration to win over full confidence of the people. The peoples apathy undermines the effectiveness of the criminal justice administration; and an ineffective criminal justice administration has a direct adverse impact on the functioning of constitutional democracy.

Page 113 of 208 The police plays the most important part in crime prevention and punishment and therefore, the success of the whole criminal justice administration largely depends upon its effectiveness. A direct and visible role in crime prevention is assigned to the police. As regards the investigation, if the police does not investigate the cases promptly and properly to collect all relevant and necessary evidence, the prosecutor or the trial judge will have little scope to punish the accused. However, to discharge its duty efficiently and effectively, the police cannot function in isolation. Its inter-dependence with other wings of criminal justice system and its interface with various sections and groups in the society have far reaching implications for its functioning. The police, being the first agency coming into direct contact with the people, need much more cooperation of the people than any other agency of the criminal justice system. The police cannot be omnipresent to watch all the time the activities of all the members of the society to prevent commission of offences whereas the people can play this role by keeping a vigil on their fellow citizens. If the people, aware of the designs of committing crime and hideouts of the criminals, timely pass on such information to the police, crimes may be prevented and criminals may be nabbed. The people by telling the truth during the investigation of criminal cases may not only make the police job easier in detecting the cases and arresting the criminals, but also, by standing to their say during trials help proving the case. Similarly, in maintaining law and order while handling various social and political protests or communal disturbances the police largely depend on the cooperation of the people. Social harmony is a precondition for smooth development of a citizen and for the unity and integrity of the nation. No State action can impose social harmony; it has to be created with the help of peace loving and law-abiding citizens. Creating social and communal harmony being the major duty of the police, it requires peoples cooperation constantly to discharge these duties effectively. Thus the people play a crucial role in leading the efforts of the police to fruition. The other agencies of the criminal justice system also depend on the cooperation of people for functioning effectively. The prosecution needs active support of the witnesses to present the evidence. The trial judge requires the help of the witnesses to reach to the truth. The correctional agencies also depend on the community in their reformative and rehabilitative activities. Not believing in the say hate the crime and not the criminal, if the people continue looking at a criminal with hatred even after he has undergone the punishment, the correctional staff may find it difficult to rehabilitate him to be a fit person for the civil society. To enable the people to play an active role in the administration of criminal justice, the law makers have created large number of rights and duties of the people under various laws. Armed with these legal rights and under obligation

Page 114 of 208 of legal duties, the people are expected to play a specific role under the criminal justice system of India. However, only the people, who are aware of their rights and duties towards their fellow citizens and the nation, can be a source of help for the criminal justice functionaries in their pursuit of preventing and punishing crime, maintaining law and order and securing the unity and integrity of the nation. The people ignorant of their rights and negligent of duties may, instead of helping the criminal justice agencies, create obstructions in their smooth functioning. With a view to making the innocent people aware and updating the knowledge of others, important rights and duties of the people under various criminal laws are delineated and examined below. CONSTITUTIONAL RIGHTS AND DUTIES The Constitution of India has recognized basic rights known as Fundamental Rights of the people to enable them to pursue a peaceful and dignified life. These rights are fundamental in the overall development of human personality. Though some of these rights were available in existing laws, yet they were put in the Constitution so that they are not interfered with by ordinary legislation. The Fundamental Rights make the Constitution different from other Government of India Acts enacted during the British rule in India. Originally, the Constitution did not prescribe Fundamental Duties of the people but subsequently, provisions were made in the Constitution in that regard. The constitutional rights and duties of the people, important from the criminal justice point of view, are discussed below. Right to Equality before Law The Constitution ensures equality before the law and equal protection of the laws. Equality before law means that no person is above the law of the land and that every person, whatever his rank or status, is subject to the ordinary law and amenable to the jurisdiction of the ordinary tribunals. All persons, officials and private, rich and poor and citizens as well as foreigners are equally responsible for every act done by them in the territories of India. It means that if any person commits any offence, a complaint under the existing law can be lodged against such a person and the functionaries are duty bound to take action in accordance with the law. However, the Constitution allows exceptions in the case of the President of India and the Governor of a State, as no criminal proceedings, whatsoever, can be instituted or continued against them in any court during their term of office. Right against Practice of Untouchability As per the provisions of article 17, untouchability has been removed and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. In

Page 115 of 208 pursuance of this provision, Parliament enacted the Protection of Civil Rights Act, 1955. The Act declares certain acts as offences, when done on the ground of untouchability and prescribes punishments thereof. Right against Retrospective Criminal Legislation According to article 20(1) a Legislature cannot make a criminal law retrospective so as to prejudicially affect the persons who have committed such acts prior to the enactment of that law. Right against Double Jeopardy As per the provisions of article 20(2) if a person has been prosecuted and punished in a previous proceeding of an offence, he cannot be prosecuted and punished for the same offence again in a subsequent proceeding. This rule was available under section 403 of the Code of Criminal Procedure of 1898 and is still available in the Cr.P.C. of 1973 under section 300. But, keeping in view the importance of the right against double jeopardy, it was included in the Constitution. The Supreme Court, in S.A. Venkataraman v. Union of India, has held that in order to enable a citizen to invoke the protection of clause (2) of article 20 there must have been prosecution and punishment in respect of the same offence. The words prosecuted and punished are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause is attracted. The apex Court has also observed that the article, however, does not give immunity from proceedings other than proceedings before a court of law or a judicial tribunal. Hence, a government servant who has been punished for an offence in a court of law may yet be subjected to departmental proceedings for the same offence, or conversely. Right of Immunity from Self-incrimination Clause (3) of article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. Section 315, Cr.P.C. of 1973 (sections 340 and 342A, Cr.P.C of 1898) also contains provisons to protect this right. The scope of this immunity has prima facie been widened by the Supreme Court by interpreting the word witness to comprise both oral and documentary evidence, so that no person can be compelled to furnish any kind of evidence which is likely to support prosecution against him. Such evidence must, however, be in the nature of communication. The prohibition is not attracted where any object or document is searched and seized from the possession of the accused. For the same reason, the clause does not bar medical examination of the accused or obtaining of thumb-impression or specimen signature from him. It has also been explained by the Supreme Court that in order to claim the immunity from being compelled to make a selfincriminating statement, it must appear that a formal accusation has been made

Page 116 of 208 against the person at the time when he is asked to make the incriminating statement. He cannot claim immunity from some general inquiry or investigation on the ground that his statement may at some later stage lead to an accusation. Right to Life and Personal Liberty Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It means that no man can be subjected to any physical coercion that does not admit of legal justification. It is worth mentioning here that our Constitution has adopted the scheme of procedure established by law and not the scheme of due process which is available in the U.S. Constitution. The main difference between these two phrases is that under the former the judiciary has power only to see whether the procedure prescribed by law has been strictly and scrupulously observed or not, whereas under the scheme of due process the judiciary has the power to declare a properly enacted law null and void if it is found not to be of utility to public. In other words the judiciary has limited power of judicial review under the Constitution. Right against Arbitrary Detention Sub clause (1) of article 22 of the Constitution provides that no person, who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his own choice. Sub clause (2) of the article makes it obligatory to produce the arrested person before a Magistrate within a period of twenty-four hours of such arrest excluding the period of journey from the place of arrest to the court of the Magistrate. No such arrested person shall be detained in custody beyond twenty-four hours without the authority of a Magistrate. But the protections given under sub clauses (1) and (2) are not applicable to any person who for the time being is an enemy alien; or to any person who is arrested or detained under any law providing for Preventive Detention. However, a person detained under the law of Preventive Detention also has certain rights: (a) such a person cannot be detained for more than three months without the approval of an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court; (b) the authority making the order shall, as soon as may be, communicate to such person the grounds of detention (except such facts considered to be against the public interest to disclose); and (c) the detainee shall be afforded the earliest opportunity of making a representation against the order.

Page 117 of 208 Right against Exploitation As an adjunct to the guarantee of personal liberty and the prohibition against discrimination, the Constitution lays down certain provisions to prevent exploitation of the weaker sections of the society by unscrupulous individuals or even by the State. Under article 23, the Constitution has provided safeguards against the exploitation of human beings. No person can compel any person to render gratuitous service where he was lawfully entitled either not to work or to receive remuneration. Any contravention of this provision has been made an offence punishable in accordance with law. In pursuance of the provisions of this article, Parliament has enacted the Bonded Labour System (Abolition) Act, 1976, which abolishes the system of bonded labour and prescribes punishments for the defaulters. Fundamental Duties Originally, the Constitution of India did not contain any specific provisions about the duties of the people whereas the Constitutions of Japan, China and the then Soviet Union contained such provisions for their citizens. In a case the Supreme Court, in 1970, observed as under: It is a fallacy to think that under our Constitution there are only rights and no duties. The provisions in Part IV enable the Legislature to impose various duties on the citizens. The mandate of our Constitution is to build a welfare society and the object may be achieved to the extent the Directive Principles are implemented by legislation. Subsequently, Parliament, by the Constitution (Forty-second Amendment) Act, 1976 added article 51A to the Constitution enumerating certain Fundamental Duties of the citizens. The Duties are addressed to the citizens without any legal sanction for their violation. There is no legal remedy for their enforcement. However, the Supreme Court has recognized the Fundamental Duties to some extent in its various decisions. In the case of Mumbai Kamgar Sabha, it was held that the courts might look at the Duties while interpreting equivocal statutes, which admit of two constructions. In another case the apex Court has held that the courts may uphold the constitutionality of a statute the object of which is in consonance with a provision in article 51A. It is expected that a citizen should be his own monitor and while exercising and enforcing his Fundamental Rights he should remember that he owes the duties specified in article 51A to the State and that if he does not care for the duties he should not deserve the rights. All these Duties are the noble ideals aimed at the well being of the citizens and the security and integrity of the nation. If the citizens behave in accordance with the expectations enshrined in this article, there will certainly be a qualitative improvement in the conditions, which are necessary for peaceful and good living.

Page 118 of 208 Out of the ten Duties, three which have a direct bearing on the criminal justice administration are: (i) To uphold and protect the sovereignty, unity and integrity of India; (ii) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; and (iii) To safeguard public property and to abjure violence. Thus, the Constitution has not only conferred certain Fundamental Rights on the people; it has also imposed certain Fundamental Duties on the citizens. If the functionaries of the criminal justice system give due regard to the Fundamental Rights of the people and avoid unnecessary hardships to them while exercising their powers, the people will certainly come forward willingly to discharge their duties and extend their cooperation for smooth functioning and success of the criminal justice administration. RIGHTS AND DUTIES UNDER I.P.C. Right of Private Defence The right of private defence is based on the cardinal principle that it is the first duty of man to protect himself. The police of the State are not ubiquitous, and a person may then strike out for himself, or for another. The law does not require a citizen, however law-abiding he may be, to behave like a rank coward on any occasion. The Supreme Court, in the case of Munshi Ram v. Delhi Administration, has also held that there is nothing more degrading to the human spirit than to run away in face of peril. Right of self-defence existed during ancient India and self-help was the first rule of criminal law. It still remains a rule under the criminal law of India. Explaining the genesis of the rule, the Supreme Court observed: It is important to bear in mind that self- preservation of ones life is the necessary concomitant of the right to life enshrined in article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to selfpreservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognized it. While enacting sections 96 to 106 of the Indian Penal Code, which deal with the right of private defence, the Legislature clearly intended to arouse and encourage in the man the spirit of self-defence when faced with grave danger. The right of self-defence contemplates that if a man is attacked he would be justified in the eye of law if he holds his ground and delivers a counter attack provided always that the injury he inflicts in self-defence is not out of all proportion to the injury with which he was threatened. However, it has to be

Page 119 of 208 kept in mind that the right of private defence is not a weapon for committing offence; it is for defence and therefore this important right has to be exercised cautiously and prudently. The Supreme Court has held, in Laxman Sahu v. State of Orissa, that the right of private defence is not available to one who resorts to retaliation for any past injury, but to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation; the necessity must be present, real or apparent. The right of private defence is preventive and not punitive. Since the Supreme Court has observed that in order to have a proper grasp of the scope and limitations of the right of private defence, all the sections 96 to 106, I.P.C. have to be read together, all these sections are examined below. According to section 96 nothing is an offence which is done in the exercise of the right of private defence. Under section 97, subject to restrictions contained in section 99, every person has a right to defend: (i) his own body and the body of any other person against any act which is an offence affecting the human body; and (ii) the property whether moveable or immovable of himself or of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. Section 98 deals with the right of private defence against the act of a child or a person of unsound mind, etc. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of the mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. Thus, there may not be a mens rea, i.e. criminal intention, in the acts of such persons, but this, in no way, reduces the danger to the body or property of the other person. Section 99 indicates the limits within which the right of private defence should be exercised. A person shall not be able to plead the right of private defence if he crosses any of the following limitations: (i) There is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. (ii) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

Page 120 of 208 (iii) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. (iv) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or any other harm to the assailants. They are: (i) if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof, and (ii) if such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release. However, as per section 101 any harm short of death can be inflicted in exercising the right of private defence in any other case which does not fall within the provisions of section 100. Section 102 provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension continues. Under section 103 the right of private defence of property extends, subject to section 99, to the voluntary causing death or any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house breaking by night, mischief by fire or any buliding, etc. Section 104 provides that any harm other than death can be caused by the person exercising the right to private defence if the case of defending property does not fall within the scope of section 103. Section 105 provides that the right of private defence of property commences when a reasonable apprehension of danger to the property commences and it continues till the offence or the danger to the property continues. Section 106 contains very important provisions regarding the right to private defence. Other sections allow a man to inflict injury or death on the attacker in certain circumstances while this section extends the right of private defence to even causing harm to innocent persons if the situation is such that he otherwise cannot defend himself. The section provides that if, in the exercise of the right of private defence against an assault which reasonably cause the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. The following illustration explains the provisions of section 106: A is attacked by a mob who attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he

Page 121 of 208 cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children. Duty to Defend Others The Indian Penal Code not only recognizes the right of private defence of every person but also imposes a duty on him to defend the body and property of others. A mere glance at the section 97 shows that the right of private defence includes a duty. The very purpose of authorizing a man under section 97 to defend the body and property of others is to cast a legal duty on him. However, the duty imposed by section 97 is voluntary and not obligatory attracting penalties. In ancient India also the law prescribed the duty of man to defend others. But it is pertinent to mention that the law during those days also imposed punishment on those who failed to discharge their duty of defending others. It was provided that any person who failed to render assistance according to his ability (in the prevention of crime) when a village was being plundered, a dike was being destroyed or a highway robbery was being committed, should be banished with all his goods and chattel. Double punishment was prescribed for those who failed to give assistance to one calling for help though they happen to be on the spot or who run away after being approached for help. RIGHTS AND DUTIES UNDER Cr.P.C. The Code of Criminal Procedure, 1973 is the major procedural law of India in criminal matters. Parliament enacted the present Cr.P.C. replacing old Code of Criminal Procedure, 1898 to streamline the criminal procedure introducing many reforms. The Cr.P.C. delineates various rights and duties of the people to enable them to participate in the administration of criminal justice. Duty to assist a Magistrate or Police Officer Section 37 of the Code of Criminal Procedure requires every person to assist a Magistrate or police officer. The members of the public are requitred to assist the police in preventing the escape of an offender; in the prevention or suppression of a breach of the peace; and in the prevention of injury to railway, canal, telegraph or public property. Instead of using the phrase every person should or any other advisory phrase calling upon the members to do this duty, the law has used the phrase every person is bound which makes the duty obligatory. Any person found to have intentionally omitted to give such assistance shall be punished under section 187 of I.P.C. which carries a punishment of simple imprisonment up to six months or fine or both. It is, however, to be noted that the assistance demanded by the Magistrate or police officer should be reasonable. The law does not intend that police officers should have a general power of calling upon members of the public to join them in doing the work for which they are paid, such as tracing out the

Page 122 of 208 whereabouts of an absconding criminal or collecting evidence to warrant his conviction. The duty of the members of public under this section is similar to the duty of private person under English law. In Reg. v. Sherlock, it was held: In case of a riot, if a constable sees a breach of the peace committed , he may call for anyone present for his assistance if there is a reasonable necessity therefor. If the person called upon refuses to assist, without any physical impossibility or lawful excuses to assist, he is liable to be indicted, and it is no defence to plead that in consequence of the number of rioters, the single aid of the person called upon would have been of no use. Aid to Person executing Warrant It is provided in section 38, Cr.P.C. that when a warrant is directed to a person other than a police officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant. The assistance to be rendered under this section is not obligatory. Duty to give Information of certain Offences Section 39 of Cr.P.C. imposes a duty on every person aware of the commission of, or of the intention of any other person to commit certain offences, such as murder, rioting, kidnapping for ransom, robbery, dacoity, criminal breach of trust by public servant, offences relating to currency notes and bank notes, as specified in the section itself to give information to the nearest Magistrate or police officer of such commission or intention. The person so aware, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon such person, is legally bound to do this duty failing which he shall be liable to penal action under sections 118, 176 and 202 of I.P.C. Duty to communicate information about certain things Section 40, Cr.P.C. casts a duty on village officers and persons residing in a village to immediately give information about certain offences and also about certain state of things to the nearest Magistrate or police officer. The information inter alia may be respecting notorious receiver of stolen property; resort of any person who is or is reasonably suspected to be a thug, robber, escaped convict or proclaimed offender; non-bailable offence or offence punishable under sections 143, 144, 145, 147 or 148 of I.P.C.; occurrence of any sudden or unnatural death; and any matter likely to affect the maintenance of the order or prevention of crime, etc. The duty cast under this section is obligatory and the person failing to discharge it properly shall be liable for penal action under section 176 of I.P.C.

Page 123 of 208 Right of private person to arrest The law gives extraordinary powers to a private person to arrest a person in certain circumstances. Section 43, Cr.P.C. empowers any private person to arrest or cause to be arrested any person who in his presence commits a nonbailable and cognizable offence, or who is a proclaimed offender. The person arrested must, without unnecessary delay, be made over to a police officer or be taken to the nearest police station. If such a person is liable to be arrested under section 41, he shall be re-arrested by the police officer. If there is reason to believe that such person has committed a non-cognizable offence, his name and residence are to be ascertained. If there is no sufficient reason to believe that he has committed any offence , he shall be at once released. The section is purely enabling and not in any sense obligatory. Further, it is the intention of the Legislature to prevent arrest by private persons on mere suspicion or information. The limitation put by the phrase in his presence commits a non-bailable and cognizable has to be kept in view while exercising this right. However, when a man is found committing a non-bailable and cognizable offence and then tries to escape, the whole is to be treated as one single transaction. When a dacoity is committed in a village, not only the persons who have actually seen the commission of the dacoity but also others whose assistance is summoned can arrest the dacoits. Section 46, Cr.P.C., while prescribing the procedure as to how the arrest be made, puts the private person on equal footing with police officer. It provides that the police officer or the person shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. The section further provides that if such a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or private person may use all means necessary to effect the arrest. A private person like that of a police officer is also empowered under section 46 to even cause death of a person who is accused of an offence punishable with death or with imprisonment for life. Section 60, Cr.P.C. provides that if a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. Under this section a private person is also authorized to exercise the powers of search given under section 47 to the persons acting under warrant. Section 50, Cr.P.C. requires a private person arresting any person without warrant to forthwith communicate him full particular of the offence for which he is arrested or other grounds for such arrest. The private person arresting any person may himself take him to police or cause him to be taken to the police. A person lawfully arresting another may make him over to his servant for delivery

Page 124 of 208 to the police. For in such case his original custody continues even whilst the person arrested is in charge of his servant. A private person is also empowered to arrest another without warrant under section 37, Cr.P.C. if demanded by a Magistrate or police officer and with warrant under sections 72 and 73, Cr.P.C. A private person acting under a warrant of arrest is also empowered under section 47, Cr.P.C. to enter any place and search if he has reason to believe that the person to be arrested has entered or is within such place. While exercising the powers to search under section 47, Cr.P.C. a private person is also authorized to break open any door to enter any place or to liberate himself or any other person if such entry or exit is not allowed by anybody. A private person making any arrest under any of the provisions of the Cr.P.C. is also authorized under section 52, Cr.P.C. to take from the person arrested any offensive weapons which he has about his person. All such weapons shall be delivered to the court or the police officer before which or whom the arrested person is to be produced. Law protects a private person, acting in good faith while arresting another person. Section 79, Cr.P.C. provides that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of mistake of law in good faith, believes himself to be justified by law, in doing it. The illustration in section 79, I.P.C. makes it clear that a private person arresting another under section 43 Cr.P.C. is fully protected by law. While exercising his right to arrest, a private person is also duty bound to obey certain procedure as prescribed under the Code of Criminal Procedure. It is the duty of the person exercising power of arrest under sections 43 and 47 to give notice to a female (not being the person to be arrested) to withdraw, if any such place is actually occupied by such a female. He is duty bound under section 50, Cr.P.C. to forthwith communicate to the person arrested the ground of his arrest. Section 49, Cr.P.C. requires that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Section 76, Cr.P.C. imposes a duty on the person arresting another with warrant to produce the arrested person before the court without unnecessary delay. Under the English law also a private person may arrest without a warrant any one who in his presence commits a breach of the peace. Under that law, a private person has the same right of arresting a felon as the police with the only difference between their rights being that while the police may justify a wrongful arrest upon a reasonable suspicion, a private person cannot do so but must show a felony committed. Duty to appear before the Court As per the provisions of section 311, Cr.P.C., any court may, at any stage of any inquiry, trial or other proceeding under the Cr.P.C., summon any person

Page 125 of 208 as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to be essential to the just decision of the case. It is the legal duty of every complainant, witness, accused or any other person to appear before the court whenever lawfully required to do so. If he, without just excuse, neglects or refuses to so appear, he may be punished under section 350, Cr.P.C. by a summary trial. With a view to ascertaining appearance of persons, accused as well as witnesses, the courts are empowered under the Cr.P.C. to issue summons under section 61, warrant of arrest under sections 70 and 87, and proclamation under section 82 for person absconding. Where a summons has failed to secure attendance, it is open to the court to issue a warrant. In case the person required to appear is bound by any bond taken under the Cr.P.C. to appear before a court, a warrant of his arrest may be issued. If any court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant can not be executed, such Court may publish a written proclamation under section 82, Cr.P.C. requiring him to appear before such court at a specified place and a specified time. If a person does not comply with the requirements of the proclamation he shall be liable(i) for attachment and subsequently, forfeiture of his property under section 83, Cr.P.C., and (ii) for penal action under section 174. Duty to produce documents or other things It is the duty of every person under section 91, Cr.P.C. to produce any document or other thing if it is considered necessary by any court or any officer-in-charge of a police station for the purpose of any investigation, inquiry, trial or other proceeding under the Cr.P.C. For this purpose the court may issue summons and the officer-in-charge may issue a written order. Intentional omission of this duty is punishable under section 175, I.P.C. However, person does not include an accused as held by the Supreme Court in the case of State of Gujarat v. Shyamlal Mohanlal. Duty to attend and witness search Every person is legally bound to attend and witness search under section 100, Cr.P.C. The section provides that any person who, without reasonable cause, refuses or neglects to attend and witness a search, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187, I.P.C. It is not usual to call every search-witness to depose before the court. However, as held in Mukh Ram v. State of Rajasthan, the court is bound to summon the search-witness if evidence of search is material.

Page 126 of 208 Lodging F.I.R. It is a right as well as duty of every person to give information to an officerin-charge of a police station about a cognizable offence. The information so given has to be registered under section 154, Cr.P.C. at the police station and is commonly known as first information report. As per subsection (2) of section 154, Cr.P.C. a copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. Sub-section (3) provides that any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to tin sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself, or direct an investigation to be made by an officer subordinate to him. However, if it appears to the officer-in-charge of a police station that there is no sufficient ground for investigation, he can refuse to investigate the case under section 157 (1) (b), Cr.P.C. But in case of a refusal for investigation by the police under section 157 (1) (b), Cr.P.C. a Magistrate may, under section 159, Cr.P.C. direct an investigation. In the case of State of Haryana v. Bhajan Lal, it has been held that when the petitioner approaches the police and prays for registration of F.I.R. police has no option but to register it. It has been held that information disclosing cognizable offence is sine qua non for recording F.I.R. and the police cannot refuse to register the case on the ground that it is either not reliable or credible. The Supreme Court, in State of Andhra Pradesh v. Punati Ramulu, has held that refusal to record an F.I.R. on the ground that concerned police station has no territorial jurisdiction over place of crime amounts to dereliction of duty, the proper course is to record the information and forward it to the police station having jurisdiction. Lodging a false F.I.R. amounts to giving false information to police, a public servant, and the person doing so is liable for penalty under sections 182 or 203 of I.P.C. Duty to Appear before the Police Officer It is the duty of every person to appear before a police officer whenever required by such officer who is making an investigation. The police officer may require such attendance under sections 160 and 175, Cr.P.C. or other provisions of the law. A person failing to attend before such police officer shall be liable for punishment under sections 174 and 179 of I.P.C. However, section 160, Cr.P.C. which gives powers to police to secure attendance of persons acquainted with the circumstances of the case, puts certain limitations on the authority of the police(i) the order requiring attendance must be in writing; (ii) only a person being within the limits of such

Page 127 of 208 police officers police station or any adjoining police station can be called under section 160; (iii) the person to be called should appear to be acquainted with the facts and circumstances of the case; and (iv) no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides. Duty to state the truth to police Any police officer making an investigation is empowered to examine orally any person under section 161 of the Cr.P.C. Every person is bound to answer truly all questions relating to the case other than questions the answers to which would have a tendency to expose him to a criminal charge or to penalty or forfeiture. A person who gives false information in answer to such questions can be prosecuted under sections 202 and 203 of the I.P.C. A police officer making an investigation and orally examining any person may reduce into writing any statement made to him by such person but he is prohibited by section 162, Cr.P.C. to obtain signature of the person examined on any statement made by such person. The policy underlying the rule, that the statement shall not be signed, was that witnesses at the trial should be free to make any statement in favour of the accused which they wish to make, unhampered by anything which they might have said or might have been made to say to the police. If their signatures are obtained, the result would be to give them an impression that they were not free to make a different statement. Violation of the provisions of section 162, in so far as asking the persons examined under section 161 to sign their statements, may sometimes diminish the value of the testimony of the witnesses when they come to the court. Similarly, the Kerala High Court has held that before a statement can be admitted in evidence the court should see that inter alia it is not barred by section 162 of the Cr.P.C. The Supreme Court, in State of U.P. v. M.K. Anthony, has observed that if an investigating officer obtains signature of a witness on his recorded statement, it puts the court on caution and may necessitate an in-depth scrutiny of such an evidence. The phrase in the course of an investigation under this chapter (Chapter XII, sections 154 to 176) makes it clear that the prohibition contained in the section includes the statements recorded under section 174, Cr.P.C. as held by the Supreme Court , in the case of Razik Ram v. J.S. Chouhan. Thus, obtaining signature of the witness on the statements recorded during investigation may not only tantamount to pressurizing the witness but it may also diminish the value of the evidence of such witness. Right against unnecessary restraint or inconvenience Section 171, Cr.P.C. provides that no complainant or witness on his way to any Court shall be required to accompany a police officer, or shall be subjected

Page 128 of 208 to unnecessary restraint or inconvenience. It has been further provided that such complainant or witness cannot be required to give security for his appearance other than his own bond. However, it is the duty of the complainant and witnesses under section 171(2), Cr.P.C. to execute a bond to appear before the Magistrate to give evidence. If such complainant or witness refuses to attend or execute a bond, he may be forwarded by the officer-in-charge to the Magistrate. The Magistrate may detain such person in custody until he executes such bond, or until the hearing of the case is completed. Right against double jeopardy Section 300, Cr.P.C. confers a right on every person against double jeopardy. This section enacts the rule of autrefois acquit and autrefois convict applicable to criminal trials. The rule is based on the maxim nemo debet bis vexari, which means that a person cannot be tried second time for an offence which is involved in the offence with which he was previously charged. There was no corresponding provision in the Government of India Act, 1935, itself; but the principle was recognized and adopted by the Indian Legislature and embodied in the provisions of section 26 of the General Clauses Act and section 403, Cr.P.C. of 1898 (section 300 of the Cr.P.C. of 1973) The principle has now been partly embodied in article 20(2) of the Constitution of India. Article 20(2) of the Constitution of India lays down that no person shall be prosecuted and punished for the same offence more than once. The principle underlying this clause is the same as underlies the section 300, namely, double jeopardy. The section 300 is nothing more than an elaboration of this principle in all its niceties and distinctions. The main distinction between article 20(2) and section 300 is that the article merely recognizes the principle of autrefois convict whereas the section recognizes autrefois convict as well as autrefois acquit. The Supreme Court in Venkataramans case observed: It seems that our Constitution makers did not think it necessary to raise one part of the common law rule to the level of a Fundamental Right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land. Right to compound offences The law gives the people the right to lodge complaints of offences with a view to set the State machinery in motion so that the offenders are apprehended, tried and punished in accordance with the law. However, if the concerned parties in a criminal offence desire to arrive at a compromise by patching up their differences, the law should not obstruct them unless the offences committed by the accused are such that have reference to the interest of the State. To facilitate desirable compromises, the law confers right on the people against whom certain offences have been committed to compound them.

Page 129 of 208 Section 320, Cr.P.C. contains the provisions relating to the compounding of the offences. The offences which may be compounded as a matter of right and by whom are given in sub-section (1) whereas the offences which can be compounded with permission of the concerned court are mentioned in subsection (2) of section 320 of the Cr.P.C. Right of the surety to get discharged from the bond Section 444, Cr.P.C. gives the sureties for the attendance and appearance of a person released on bail to apply to a Magistrate to cancel the bond. The Rajasthan High Court has held that the presentation of the application itself imposes upon the magistrate the duty of issuing a warrant for the arrest of the accused. The Supreme Court has held that the provisions of this section are meant for the continuity of the surety bond and enabling the accused to offer other surety bonds. Thus if a person, who has stood surety for another person and executed bond in that respect, feels at any stage that he is not able to exercise any control over such person; he has an option to get himself released from the responsibility of being a surety by exercising his right under section 444 of the Cr.P.C. In addition to the above rights and duties of the complainants, witnesses and the common people there are certain rights available to the accused also. Section 54, Cr.P.C confers a right on the accused to get his person medically examined, if(i) the examination of his body will afford evidence which will disprove the commission of any offence by him, or (ii) such examination will establish the commission by any other person of any offence against his body. The Supreme Court has issued directions requiring the Magistrate to inform the arrested person about his right of medical examination. Sections 207 and 208, Cr.P.C. entitle a person accused in a criminal offence to have, free of cost, copies of relevant documents or extracts from them. It is the duty of the Magistrate to furnish such copies. As per section 315, Cr.P.C. an accused can be a competent witness for defence. However, such a person shall not be called as a witness except at his own request. Section 436, Cr.P.C. confers a right on the person arrested in a bailable offence to be released on bail. However, as per sub-section (2) of section 436, where a person has failed to comply with the conditions of the bail-bonds regarding the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody. CONCLUSION The Constitution, the Indian Penal Code and the Code of Criminal Procedure prescribe certain rights and duties of the people to ensure their life, liberty and dignity, and to enable them to actively participate in the administration of criminal justice. With a view to securing justice to the people and punishing the offenders, the functionaries of the criminal justice system

Page 130 of 208 should strive to safeguard these rights of the people. They should also motivate the people to discharge their duties under various laws. Without being government servants, the people enjoy certain police powers and are also given certain police duties. They can defend their own body and property as well as the body and property of others, assist the execution of warrants, report the commission of crime, and even arrest any person who commits a cognizable and non-bailable offence in their presence. The people are bound to assist the Magistrates and the police; to appear before the courts and the police officers; to attend and witness searches; and to produce documents and other things. The people are also bound to answer truly all questions relating to a cognizable case being investigated by the police. However, the people do not seem to be enthusiastic about their rights and duties as contemplated under various criminal laws. Generally, they hesitate to come forward to assist the criminal justice authorities unless compelled by the circumstances or personal interests. Incidents of serious crimes taking place in public, but the people not extending their helping hand to prevent the crimes and arrest the criminals, indicate that either the people are not aware about their rights and duties or they are not motivated to participate in crime prevention activities. The incident of flinging a girl out of a running train by an unknown criminal, after scuffle to snatch her bag failed, in the presence of other women passengers who witnessed the incident but did not intervene to help her; and the incident of putting a woman on fire after pouring kerosene on her in the day light in a busy area of Mumbai, reveal peoples apathy. Alert citizenry is an asset to the nation and a source of inspiration to the criminal justice administration. Therefore, massive programmes should be evolved and implemented to educate and awaken the people about their responsibilities in preventing the crime and punishing the offenders. The Mumbai Police organized one such programme Crime Prevention Week-2000 in December 2000. The purpose behind this initiative, as disclosed by the Commissioner of Police, Mumbai, Shri M.N. Singh, was to establish a harmonious link between police and the people, in order to create a feeling of security among the people and to underscore the importance of being security conscious. The tremendous success of the programme was recognized by eminent persons who lauded the efforts of the Commissioner of Police to create awareness and alertness among the people of Mumbai. Shri G.D. Deshmukh, former Cabinet Secretary of India, in his letter to the Commissioner of Police, aptly described this week as a giant step taking the police closer to the people. Taking this programme as a model, such programmes should be organized in other parts of the country, especially in big cities, to create awareness and alertness among the people.

Page 131 of 208 In a democratic society where the people influence the formation and functioning of the governments in a big way, it may not be easy to force the people to exercise their legal rights and discharge their legal duties as was possible during the British rule. Therefore, efforts should be made to seek voluntary involvement of the people in various activities of the criminal justice administration. There is, thus, need for a more meaningful and healthy dialogue between the people and criminal justice functionaries, especially the police. Formation of voluntary schemes can help bring the people closer to the police. Many such schemes are functioning successfully in Maharashtra. Peace Committees, Mohalla Committees, Alert Citizen Programme and Gram Rakshak Dals are found to be the most effective popular programmes in various parts of the State. The Alert Citizen Programme, of the Mumbai Police is a unique scheme for the people which enables them to pass on information about designs to commit crime, hideouts of the criminals, suspicious movements, etc. to the police over phone without disclosing their identity. However, the efforts of the authorities may not yield desired results unless the people realize their responsibilities and come forward to share the powers and duties of the criminal justice functionaries. The people should not view the criminal justice administration as merely an administrative wing of the government; they should consider it as the lifeline of the civil society. For enjoying the fruits of the independence and enhancing the values of citizenship proper functioning of the criminal justice machinery is a must. They should also realize that today the criminal justice functionaries are not working to perpetuate any foreign rule or any reigning monarch in India. The agencies of the criminal justice administration are responsible to the Constitution which is adopted and enacted by the people of India themselves. People should appreciate that the police and other agencies are relentlessly striving to maintain public order so that the people can enjoy their constitutional and democratic rights freely. Therefore, the people, instead of indulging in indiscriminate criticism, should extend their whole hearted cooperation to the criminal justice administration in its pursuit of establishing a safer and just society in India. If the people and criminal justice functionaries join hands to fight crime and punish criminals, India will certainly move towards a just society, which is a precondition for all round development of the individual, nay, the nation. oo()oo

Page 132 of 208 Chapter 7 EVALUATION OF CRIMINAL JUSTICEADMINISTRATION

Injustice anywhere is threat to justice everywhere. Martin Luther King, Jr. The first and foremost objective of the criminal justice administration is to create an atmosphere of security by maintaining law and order. In pursuance of this objective the functionaries of the criminal justice system follow the principle protect the good and punish the wicked. Succinctly, the criminal justice administration attempts to decrease criminal behaviour. Like in every civilized country, the people of India are entitled to enjoy certain basic rights such as right to life, personal liberty, property and dignity of the individual. The Constitution and many criminal laws aim at securing these rights of the people. Criminal acts put these rights in jeopardy and thereby undermine the authority of the Constitution and other laws. Therefore, to keep crime under control and ensure swift and certain punishment to the criminals are the primary duties of various agencies of the criminal justice administration. To achieve the final goal of establishing a just society, various components of the criminal justice system, viz. the police, bar, judiciary and correctional services, are expected to work harmoniously and cohesively. Success of one component may not endure unless other components too achieve success of almost similar degree. For example, in a case, the police may succeed in arresting an accused and submitting a charge-sheet with sufficient evidence, however, if the prosecution is not able to present the case efficiently before the court, or if the court fails to assess the evidence in proper perspective, the accused will be set free and the efforts of the police will go in vain. Even if all these three components perform their parts well and the accused is convicted and sentenced to undergo imprisonment, it is not going to have a desired effect unless the sentence is executed properly. The jail authorities, instead of reforming the convict, may, unwittingly, aggravate the criminality in him by harassing him. They may also make the punishment ineffective by providing him such facilities and comforts to which he is not entitled. Thus, like in a relay race, all components of the criminal justice system have to play their role by supplementing the efforts of each other. Therefore, the criminal justice administration needs to be evaluated as a whole and not its components separately.

Page 133 of 208 CRIME TRENDS Any act or omission punishable by any existing law is called offence. Offences with element of force or moral turpitude are generally termed as crimes. Weaknesses such as greed, passion, envy, lust, vengeance, etc. compel the weak lot of the people to cross the moral and legal boundaries and commit crime. Unemployment, income disparities, inequality, poverty, decline in moral values, etc. are also important factors that cause increase in crime. Crime puts life, liberty, dignity and property of the people in danger and creates law and order problems. The law and order problem may spread its wings to disturb public peace and bring normal civic life to a grinding halt. This may, sometimes, pose a threat even to national security. Thus, crime is not just a concern of the victim or the criminal justice authorities; the hidden potential in it may harm the whole society or even the nation. In other words, crime undermines the rule of law and thus digs out the very root of democracy. This is the reason that in India, as in most of the democratic countries, crimes are considered as injuries to the State. With the growth in population, increase in the incidence of crime is a natural phenomenon. Population based crime ratewhich denotes incidence of offences per lakh population per yearis, therefore, considered as a more realistic indicator of crime situation in a particular area than the other methods. This method of calculating crime rate is universally recognized.472 Crimes in India are broadly divided into two categories, namely, cognizable offences and non-cognizable offences. Cognizable offence means an offence for which a police officer may, in accordance with the First Schedule of the Code of Criminal Procedure, 1973 or under any other law for the time being in force, arrest without warrant.473 Cognizable offences are further divided into two groups, namely, crimes under the Indian Penal Code and crimes under the Special and Local Laws. Crimes under the I.P.C. affect human body, property, security of the State, etc. and hence, they are considered more serious than the S.L.L. crimes. Offences under most of the Special and Local Laws are of regulatory nature. Therefore, an analysis of crime trends of only I.P.C. crimes, specially the heinous crimes of murder, rape, dacoity, etc. may give a fair idea of the criminal behaviour of the people and effectiveness of the criminal justice administration in controlling the crime.

Page 134 of 208 Table 1 TRENDS OF I.P.C. CRIMES IN INDIA SINCE 1961 Year Popul Total Murder Rape* Dacoity Other tion IPC and IPC (in Cogni Robbery Cogni lakhs) zable zable crimes crimes 1961 4377 625651 11188 10641 603822 1971 5512 952581 16180 2487 29595 904319 1981 6901 1385757 22727 5409 37622 1319999 1991 8496 1678375 39174 10410 37259 1591532 1994 8997 1635251 38577 13208 33204 1550262 1998 9709 1779111 38653 15031 31629 1693798 % Change 105.5 161.4 244.8 431.1 212.0 156.7 in 1994 over 1961 % Change 121.8 184.4 245.5 504.4 197.2 180.5 in 1998 over 1961 *Data about rape available from 1971 onwards; hence % change is over 1971 Source: Crime in India, 1961 to 1998, N.C.R.B., New Delhi. Chart 1
P E R C E N T A G E IN C R E A S E IN P O P U L A T IO N A N D IP C C R IM E S IN 1 99 8 O V E R 19 61 3 00 2 50 2 00 1 50 1 00 50 0 INCREASE (%)

246 184 122 180

P O PUL.

A LL IP C

MURDER

OTHERS

Source: Crime in India, 1961 to 1998, N.C.R.B., New Delhi.

Page 135 of 208 Table 2 CRIME RATE OF ALL I.P.C. CRIMES, VIOLENT AND PROPERTY CRIMES DURING 1961 TO 1998 Popu All I.P.C. Violent Year lation Crimes crimes in Inci Rate Incid Rate lakhs dence ence 1961 4377 625651 142.9 55726 12.7 1971 1981 1991 1994 1995* 1998 5512 6901 8496 8997 9160 9709 952581 172.8 124380 22.6 193224 28.0 246252 29.0 235228 26.1 249980 27.3 255710 26.3

1385757 200.8 1678375 197.5 1635251 181.8 1695696 185.1 1779111 183.2

% Change 121.8 184.4 358.9 in 1998 over 1961 *Arson and Dowry death cases included in violent Crimes since 1995; hence data before 1994 not comparable from 1995 onwards. Source: Crime in India, 1968, 1978, 1988, 1994 to 1998, N.C.R.B., New Delhi. Chart 2 SHARE OF VIOLENT AND PROPERTY CRIMES IN TOTAL I.P.C. CRIMES IN 1961 AND 1994 1961 1994
VIOLENT (8.9%) OTHERS (34.3%) PROPERTY (56.8%)
VIOLENT (14.4%)

Property crimes Incid Rate ence 35547 81.2 3 50101 90.9 1 57959 84.0 9 49501 58.3 5 42510 47.2 0 41081 44.8 3 40692 41.9 2 14.5

OTHERS (59.6%) PROPERTY (26.%)

Source: Crime in India, 1961 to 1998, N.C.R.B., New Delhi.

Page 136 of 208 Analysis of the statistics in tables 1 and 2, and charts 1 and 2 indicate that during the period 1961 to 1998 the population of India increased by 121.8 per cent while the annual I.P.C. crime increased by 184.4 per cent. The cases of murders have registered an increase of 245.5 per cent. Dacoities and robberies have also shown higher rate of increase than the population growth. As regards the rate of all I.P.C. crimes (number of crime cases per lakh population per year) in 1961 it was 142.9 but reached to 183.2 in 1998. The rate of murder cases which was 2.56 in 1961 increased to 3.98 in 1998. This shows that in comparison to 1961 the people in 1998 had 55.4 per cent higher risk of murder. However, the crime rate of property crimes has decreased remarkably. Thus, though the declining trend of property crimes is a satisfying manifestation, the increasing trend of violent crimes, especially murders and rapes, indicates that instead of establishing fraternity and maintaining social harmony India has become a more violent society which is certainly not a healthy sign for the well being of the nation. Therefore, the criminal justice administration needs to improve its effectiveness in keeping the crime specially the violent crime under control. PENDENCY AND DISPOSAL OF CASES After crime prevention efforts, the next important function of the criminal justice administration is the criminal justice process, i.e. investigation of crimes, filing charge-sheets in suitable cases, holding trials and executing punishments. Swift arrest, prompt trial, certain penalty and at some point finality of judgement deter the people from committing crime. On the other hand inordinate delay in disposal of the criminal cases and meagre chances of punishment embolden the criminals. The police register the cognizable offences which either come to their notice or are reported to them by members of the public. After registration, the police investigate the cases to collect evidence. Investigation of a case can be refused under section 157, Cr.P.C. if it appears to the officer-in-charge of the police station that there is no sufficient ground to entering on an investigation. In true and detected cases, the police, after completion of investigation, has two options, namely, (i) submit charge-sheet to the court if evidence is sufficient; and (ii) close the case if the evidence is not sufficient to prove the guilt of the accused.474 Unsolved cases are either closed or kept pending investigation for a certain period. In the event of any reliable evidence coming forward, a closed case can be opened at any time. In charge-sheeted cases, the court scrutinizes the police charge-sheet and papers annexed to it for framing the charge. At the time of framing charge, if the accused pleads guilty, the court may convict him without holding trial. However, where the accused pleads not-guilty, the court has to follow the procedure of holding a trial or

Page 137 of 208 summary proceedings to decide the case. In case the court feels that the charge-sheet does not disclose a cognizable case or the case is otherwise not fit475 for trial/summary proceedings, it can reject the charge-sheet. As the saying goes, justice delayed is justice denied, it is necessary that the cases are disposed of by the courts without delay. The right to speedy trial is properly reflected in section 309 of the Cr.P.C., 1973. The Supreme Court, while delivering its constitutional bench judgement in A.R. Antulay v. R.S. Nayak,476 declared that right to speedy trial is implicit in article 21 of the Constitution and thus constitutes a Fundamental Right of every person accused of a crime. While deciding this case the Supreme Court laid down a number of propositions meant to serve as guidelines. Similarly, in Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court observed: No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial is an integral and essential part of the Fundamental Right to life and liberty enshrined in article 21. 477 In another important case, Sheela Barse v. Union of India,478 wherein a petition was filed for the release of all children, below the age of 16 years detained in various jails in different States, the apex Court observed that the problem of children under detention would more easily be solved if the investigation and trial in respect of the charge against them could be expedited. The Court directed the State Government to take steps for completing the investigation within three months in cases lodged against children below the age of 16 years and to establish adequate number of courts to expedite trial of such cases. As regards delay in disposal of cases by courts, the Law Commission, in its 77th, 124th, 125th and 142nd Reports, showed grave concern and made detailed suggestions to face the challenge. The 124th Report of the Commission reveals that out of 4191 criminal appeals pending in the Supreme Court of India, as on 1st October 1987, more than half were pending for more than three years and over 500 appeals were more than seven years old. In case of the High Courts the situation was still worse as there were numerous cases more than five years old.479 The Commission in its 142nd Report observed: Grievances have been vented in public that disposal of criminal trials in the courts of the Magistrates and District and Sessions Judges takes considerable time. It is said that the criminal trials do not commence for as long a period as three to four years after the accused was remitted to judicial custody. It is said that in several cases the time spent by the accused in jails before the commencement of trials exceeds the maximum

Page 138 of 208 punishment which can be awarded to them if they are found guilty of offences charged against them. Despite the above observations of the Law Commission and directions of the Supreme Court, it was noticed that in 1994 over two crore cases, both civil and criminal, were pending all over India, tribunal cases excluded. High Courts had over 22 lakh cases on their rolls. Taking a serious view of delay in disposal of criminal cases, the Supreme Court in Rajdeo Sharma v. State of Bihar (1998) directed all High Courts in the country to decide criminal cases within 3 years.480 Again in November 2000 a three Judge Bench presided over by the Chief Justice of India voiced concern over huge pendency of cases, both on the civil and criminal side, in the subordinate courts of the country.481 The Rajya Sabha was informed in November 2000 that there were more than two crore cases pending in District/Subordinate Courts including 1,32,59,319 criminal cases. Rajya Sabha was also informed in April 2001 that there were 8,29,345 cases pending over 10 years in District/Subordinate Courts while in High Courts over five lakh cases were more than 10 years old.482 Huge pendency causing inordinate delay in disposal of criminal cases not only contravenes article 21 of the Constitution but also leads to failure of the cases in courts. During long period of waiting, the investigation officers get transferred and lose track of the pending cases. The memories of the witnesses fade and they are not able to recall the incident that they witnessed long back. Obviously, the witnesses are not able to depose properly before the trial court. In some cases even the complainants start showing lack of interest in pursuing the cases. In many cases they are compelled by various circumstances such as social interaction, business relations and political intermingling to compromise or compound the cases. Consequently, the accused are either acquitted or discharged. The following table confirms the view that with declining trial rate the conviction rate also declines. Table 3 TRIAL AND CONVICTION RATE OF I.P.C. CRIMES DURING 1961 TO 1998 Year No. of cases for trial during the year 1 2 1961 800784 1971 943394 Number Convicted of cases tried 3 4 242592 301869 157318 187072 Trial rate (col.3/ col.2) 5 30.3 32.0 Conviction rate (col.4/ col.3) 6 64.8 62.0

Page 139 of 208 1981 2111791 1991 3964610 505412 667340 265531 319157 23.9 16.8 52.5 47.8

1998 5660484 895414 335036 15.8 37.4 Source: Crime in India, 1961 to 1998, N.C.R.B., New Delhi. The data in the above table indicates more than six hundred per cent increase in the number of I.P.C. cases pending trial in courts during the period 1961 to 1998. Further analysis of the statistics483 indicates that the pendency of murder and rape cases is growing faster than the pendency of other I.P.C. crimes. This shows that the heinous offences of murder and rape are not getting due attention whereas such cases deserve priority over other offences. The undertrial rate (persons either in custody or on bail per lakh population) was 505.2 at the end of the year 1978 but by 1998 it reached to 1002.5.484 The gap between the number of cases disposed of and the number of new cases being filed every year has been continuously widening leading to addition of lakhs of cases to the dockets. As regards the position in other countries, the available statistics reveal that in most of the countries the criminal justice is delivered swiftly. It is worth mentioning that there is a Federal Act of 1974 in the U.S.A., which is called Speedy Trial Act. This Act establishes a set of time limits for carrying out the major events, e.g. information, indictment, arraignment, in prosecution of criminal cases. Similar provisions exist in Canadian Laws also. The right to speedy trial is also recognised as a common law right, flowing from the Magna Carta.485 The following are a few glaring instances of delay in disposal of criminal cases in India and speedy disposal in the United Kingdom: 1. In the Samba spying casein which over 20 army personnel including 9 officers were dismissed from service after found guilty of spying for Pakistan and seven of them awarded 6 to 14 years of imprisonment by the Court Martial in late 1970sthe Delhi High Court acquitted them after a period of over 20 years in December 2000. This is also not final disposal as the Supreme Court has stayed the order of the High Court and thus this abnormally delayed case is going to take still more time before the final verdict is announced.486 2. The Supreme Court acquitted an accused who was first put on trial 14 years ago for having taken a bribe of 20 rupees. The appellant, Meena Hemke, a revenue record keeper in a Collectorate of Maharashtra, was convicted by a Special Judge and the Bombay High Court had upheld the sentence under the Indian Penal Code and the Prevention of Corruption Act.487

Page 140 of 208 3. Bharat Bhushan, a 15 years old boy, was arrested in 1993 by the Akhnoor Police (Jammu & Kashmir) on charges of stealing Rs. 112.10 from a post office. He has nearly served the maximum term of seven years in jail, while he is yet to be found guilty.488 4. The Supreme Court acquitted an accused in February 14, 2001 convicted by the High Court under the Prevention of Corruption Act for an alleged offence committed in 1986. The accused, a talathi (a junior revenue official) in Maharashtra was trapped by Anti-corruption Bureau in 1986 for having accepted a bribe of Rs. 100. The Special Judge who tried the case acquitted the accused. But the Bombay High Court reversed the acquittal in an appeal filed by the State Government and convicted the accused in 1995.The accused challenged the conviction and the Supreme Court finally acquitted him setting aside the judgement of the High Court.489 5. The Bombay High Court, in April 2001, sentenced a 60 years old man to rigorous imprisonment for raping a minor girl 19 years ago. The High Court, while reversing a Sessions Court verdict which had acquitted the accused on March 25, 1985, held: A deterrent sentence is necessary to curb such cases and sustain the faith of common man in the court. In this case the accused, in March 1982, had raped a 9 year-old girl who used to attend tuition classes run by his wife. The Sessions Judge acquitted the accused in August 1985.490 6. An incident occurred one night at Cambridge University where some students were involved in riotous behaviour. They broke one street lamp and knocked down a Policemans helmet. By 10.30 next day, each of the student involved had been fined five pounds and the fine realized.491 7. An international smuggler known to the Interpol was arrested one day at London Airport. On the 4th day, the trial commenced. The delay was occasioned because an Indian Intelligence Officer had to fly London. Based primarily on his evidence, the smuggler that day was sentenced to seven years imprisonment.492 The above clearly indicates that the criminal justice administration of India has not been able to deliver speedy criminal justice to the people. CONVICTION RATE Fear of punishment is an effective deterrent to the people inclined to commit crime. It is only after conviction in a criminal case that the court sentences an accused with punishment in accordance with law. In some cases the court instead of sentencing punishment releases the accused after admonishing him and on executing a bond of good behaviour for a certain period commonly known as probation. However, in such cases also the

Page 141 of 208 concerned person stands convicted and the conviction in a criminal case is generally regarded as a blot on ones character. Hence, irrespective of the fact whether the accused is awarded a punishment or not, conviction itself is an effective instrument to deter people from committing crimes. India, in most of the trials, follows the adversarial system which requires the prosecution to prove the charge levelled against the accused beyond reasonable doubt. Conviction rate (number of criminal cases ending in conviction per hundred cases in which trials have been completed and judgements pronounced by the trial courts) indicates the efficiency of the criminal justice administration in general, and the police and the prosecution in particular. The statistics presented in table 3 indicates that in 1961 the conviction rate of I.P.C. cases was 64.8 but in 1998 it came down to 37.4. Analysis of the available data shows a significant decline in conviction rate during 1998 in comparison to the position of 1978.493 This reflects deteriorating performance of the agencies involved in crime punishment process. It is pertinent to note that while conviction rate has been declining since 1961, the crime rate of violent crimes is on the rise. It confirms the view that lesser chances of getting punished embolden the anti-social elements to indulge in criminal activities. It confirms the view that it is not the severity but the certainty of punishment that deters a crime. However, the acquittal is also justice to the innocent persons entangled falsely with malafide intentions of the opposite parties. But the police have the powers to close a false case and in suitable cases may also initiate action against those who lodged false F.I.R. The police are also authorized not to charge-sheet a cases if the evidence is not sufficient to prove the charge against the accused. Therefore, failure of charge-sheeted cases, which are contested by the prosecution for conviction, is a reflection on the ability of investigation as well as prosecution agency. However, it is a common experience that despite sufficient supporting evidence and all possible efforts of the police and prosecution to rove the charges the cases fail because the key witnesses turn hostile. Hence, the police and prosecution may not be responsible for failure of the cases. But, acquittals in true cases certainly indicate that the criminals have gone scot free. This causes frustration in the minds of the victims and erodes peoples faith in the whole criminal justice administration. Therefore, declining trend of conviction of I.P.C. cases reflects inability of the criminal justice administration in punishing the crime. OBSERVATIONS OF LAW COMMISSIONS The genesis leading to the appointment of the First Law Commission after India became independent lies in a non-official Resolution moved in the Lok

Page 142 of 208 Sabha on 19th November 1954.494 Pursuant to this Resolution the First Law Commission was appointed in 1955 under the chairmanship of Mr. M.C. Setalwad, retired Attorney General of India. The Commission not being a permanent body is reconstituted every three years and so far 15 Law Commissions have been constituted. The 15th Law Commission under the chairmanship of Justice B.P. Jeevan Reddy came into existence with effect from 1st September 1997.495 The Commission undertakes studies of the existing laws and justice delivery system, and submits its report to the Government of India. Since 1955 the Law Commissions have submitted 174 reports to the Government of India. Out of these, 71 reports have direct or indirect bearing on the criminal justice system.496 The reports of the Commission are recommendatory in nature and the Government of India is not bound to accept them and effect the recommended changes. However, the reports of the Commission are kept in view while formulating policies and enactment of new laws. The terms of references of many Law Commissions entailed review of various criminal laws and criminal justice system. The Commissions have evaluated the working of various components of the criminal justice administration and recorded the findings in their reports. Some of the reports are examined here to know how various Commissions have viewed the functioning of the criminal justice administration. The First Law Commission found flaws in the existing judicial system and recommended, in its 14th Report, large scale reforms in the judicial administration. The Fifth Law Commission, mainly concentrated on the matters relating to criminal justice system. The Commission noticed lacunae in substantive as well as procedural law of India and accordingly submitted its reports to the Government. In its 41st Report, the Commission recommended large scale changes in the Code of Criminal Procedure, 1898 pointing out various flaws in it. These two reports on Reforms in Judicial Administration and the Code of Criminal procedure, 1898, submitted to the Government in 1958 and 1968 respectively, led to the enactment of new Code of Criminal Procedure, 1973.497 The Eighth Law Commission, under the chairmanship of Khanna, in its 77th Report observed: Justice H.R.

(i) The problem of delay in law courts has of late assumed gigantic proportions. It has shaken the confidence of the public in the capacity of the courts to redress their grievances and to grant adequate and timely relief.498 (ii) The police quite often deliberately refrain from producing all material witnesses on one date, the object being to clear up the lacunae in the prosecution evidence after the defence case becomes manifest by cross-

Page 143 of 208 examination. This practice is unfair and not warranted by the Criminal Procedure Code, and results in prolongation of the trial.499 The Law Commission, in its 124th Report, observed: In an adversarial system, the legal profession has a vital role to play in the administration of justice. There is recurrent phenomenon of strike by the legal profession paralyzing the court work, heaping insufferable hardship on the litigating public. It appears as if the two limbs concerned with the administration of justice in an adversarial system have not only ceased to be partners sharing any joint responsibility or a common concern but they have almost developed a confrontation. 500 The Fourteenth Law commission under the chairmanship of Justice K.J. Reddy had undertaken the study of the comprehensive revision of the Code of Criminal Procedure, 1973 so as to remove the germane problems relating to delays in the disposal of criminal cases. The Commissions observations, in its 154th Report, include the following: (i) With the advent of the modern scientific gadgets and technology, accused are often using modern scientific techniques to commit crime as well as to avoid tracing out their involvement. In such a situation, outdated methods of investigation do not match the modern techniques of committing the crime. Consequently, new technology such as computers, photography/video-graphy, new methods of interrogation technology, new observation gadgets, highly sophisticated search equipment, etc. are essential for effective investigation of traditional and new type of organized crimes.501 (ii) Much delay in trial cases has been due to lack of coordination between investigating agency and the prosecuting agency.502 (iii) The plight of witnesses appearing on behalf of the State is pitiable. The allowances paid to them are very meagre. That apart, they are kept waiting for the whole day without being examined and the cases are adjourned at the last moment. Therefore, necessary steps have to be taken in the matter of paying allowances on realistic basis for all the days they attend. They should also be provided with adequate facilities for their stay in the court premises and they should be given necessary protection to instil confidence and faith in their minds so they can dutifully attend the courts.503 (iv) It is, however, unfortunate that despite the provision under section 309, Cr.P.C. which contemplates for holding the proceedings as expeditiously as possible and examination of witnesses day to day. Yet it is an open fact that on account of adjournments there is inordinate delay in disposal of criminal cases. Such adjournments often take place

Page 144 of 208 on unsound grounds at the instance of the accused and prosecution and also due to the laxity on the part of the court and the investigating agency.504 Having observed the above flaws in the justice delivery system, the Commission made specific recommendations to revise the Code of Criminal Procedure, 1973. The Commission also reviewed the Indian Penal Code and submitted its 156th report recommending many changes in various sections. The Commission gave special attention to the extent and nature of the punishments prescribed in the I.P.C. for various offences and suggested modifications to bring them in accord with modern notions of penology. The report inter alia contains the following observations and recommendations: 1. In the context of fast changes in the sociological scenario warranting application of the reformative theory of punishment, it is necessary to modify provisions of the Borstal School Act, 1970, Juvenile Justice Act, 1986 and Probation of Offenders Act, 1958 suitably.505 2. About 120 offences in the I.P.C. are non-cognizable. It is voiced that some trivial offences affecting public order also can lead to serious developments if they are not dealt with promptly and, therefore, it is desirable that such offences are made liable for public intervention. It is recommended that the offences punishable under sections 290, 298, 431, 432, 434, 504, 505 and 510 be made cognizable.506 3. The amount of the fine to be imposed should considerably be enhanced and it should, as far as possible, be substituted for short-term imprisonment. Further, the poor victims of uses and abuses of criminal law should be compensated by way of reparation and that the amounts of fine prescribed long ago have lost their relevance and impact in the present day and the fines imposed have no relation to the economic structure of society and necessary element of deterrence is generally absent. Therefore, a change regarding the quantum of fine should be made in all those sections correspondingly, at least by 20 times and make a provision in the Code of Criminal Procedure regarding the powers of the First Class Magistrate to impose such a fine.507 4. The offence of sexual assault to be added to the existing offence of outraging the modesty of women in section 354 and punishment be increased from two years to five years. Expanding the scope of section 354 would cover the varied forms of sexual violence other than rape on women and female children.508 5. Another Explanation, Explanation 3 be added to section 494 which reads as under:

Page 145 of 208 Explanation 3: The offence of bigamy is committed when any person converts himself or herself to another religion for the purpose of marrying again during the subsistence of the earlier marriage.509 To reflect the concept of equality between sexes section 497 be amended as under: Section 497. AdulteryWhoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse not amounting to the offence of rape, commits adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both. If section 497 is amended on the lines indicated above, sub-section (2) of section 198 of the Code of Criminal Procedure, 1973 would also need to be suitably amended. 510 Thus, the Law Commissions have time and again observed numerous lacunae in the existing criminal laws and procedures which obstruct speedy criminal justice to the people. The Commissions have also pointed out flaws in the working of different components of the criminal justice system that cause delay in justice delivery. VIEWS OF EMINENT PERSONS Many eminent persons, including senior functionaries of the criminal justice system, have expressed their views on the performance of the criminal justice administration in India. The excerpts from the published views of some of such persons are given below. Mr. K.R. Narayanan, President of India Addressing the golden jubilee function of the Supreme Court in January 2000, Mr. K.R. Narayanan, the President of India, stressed the need for an accountable judiciary in the country to dispense quick, affordable and incorruptible justice to the people to sustain their faith in the courts. The President hit out against the falling standards in the judiciary. Quoting a famous English saying, he said, Courts are no longer cathedrals. They have become casinos where the throw of the dice matters. He, quoting Mahatma Gandhi, said, Courts have become the saviours of the rich and joy of the gamblers. 511 Dr. A.S. Anand, former Chief Justice of India While speaking on Approaching the Twenty-first Century: The state of Indian Judiciary and the Future Challenge, Justice Anand said, One of the greatest challenges that stares in the face as we approach the 21st Century is the

Page 146 of 208 failure of judiciary to deliver justice expeditiously, which has brought about a sense of frustration amongst the litigants. Human hope has its limits and waiting endlessly is not possible in the current life style.512 Mr. Ranganath Mishra, former Chief Justice of India The Indian judicial system has failed to win confidence of the people in past 50 yearsIf some people remain above law, faith in the judiciary will naturally erode. Advocates seek frequent adjournments and oppose arbitration and Lok Adalat settlements. Instead of focusing only on making money, lawyers must have a clear understanding of their social role.513 Mr. M.N. Venkatchaliah, former Chief Justice of India The challenge to Rule of Law by the present criminal justice system is perilous. I am afraid, if something is not done by a determined and concerted effort immediately, the whole system might collapse. The administration of criminal justice in the adversarial mould depends entirely on evidence, and quite often on oral evidence of witnesses. Today, witnesses are intimidated, suborned, bribed and won over. The result is for all to see. It is not the severity of punishment but the certainty of punishment that deters crime. No amount of economic development or desired social change is ever possible or enduring without an efficient criminal justice system. An inefficient criminal justice system is the worst negation of the Rule of Law.514 Mr. H.R. Khanna, former Judge, Supreme Court The working of the judicial system has also suffered a severe setback by the tendency of the members of the Bar to frequently go on strike and for long periods. It is plain that the persons who suffer the most because of nonfunctioning of the Courts due to such strikes are the poor litigants who have to wait for long periods for the date of hearing and come from distant places to seek judicial redress. We must not forget that the system exists primarily for the people in distress seeking justice and not for the members of the Bar.515 Mr. V.R. Krishna Iyer, former Judge, Supreme Court The Courts in our country are on trial and robes of the Judges are losing halo. Today, litigative justice has come to a grinding halt, the court process has caricatured itself into a dinosaur and the Bench and the Bar, alas, have become a law unto themselves, Indian humanity having come to discard the judiciary as barred by limitation of time and paralysis of performance. If all the judges and the lawyers of India pull down the shutters of their law shops nationwide, injustice may not any more escalate. Indeed, around 80 to 90 per cent of crimes investigated end in discharge or acquittal. So much so, law is dead, and if the Bench and the Bar go on long holiday, litigative waste of human and material resources may be obviated.516

Page 147 of 208

Mr. J.F. Rebiero, former D.G.P., Punjab Police is an organisation of people entrusted with the investigation of crime. Dogged by constant interference by politicians and lack of expeditious trials in the present judicial system, the police can barely function freely.517 On an another occasion Mr. Rebiero said, There is no respect for law if people know that they can get off so easily, that there is no chance of their being convicted. Or the chances are very small. In murder cases, the chances now are 15 per cent. It used to be 86 per cent conviction rate.518 Mr. J.F. Rustomji, former D.G.P., and Member, National Police Commission The criminal justice system is in such a serious state of decay that even if the police were to prosecute, the decision in the case may take many years, during which the evidence even in good cases would become unreliable. Owing to the decay of the criminal justice system, we have ceased to deal with disorder in the normal, logical, legal manner. There is almost no dependence on punishment in a court of law. We depend only on police pressureby means of arrests, firing, detentions, even tortureand to such an extent that to the new generation of police officers the universal method of policing which excludes punishment seems antiquated and ineffective.519 Mr. Vijay Karan, former Commissioner of Police, Delhi Criminality is fast becoming a way of life and it has started appearing that crime does indeed pay. During the 40 years (1951-90) period, while Indias population increased by 127.6 per cent, crime went up by 146.9 per cent. If one presumes that about 50 per cent of the cases reported to the police are not registered, then it is obvious that crime has perhaps gone up by a frightening 300 per cent.520 He further says, The police point an accusing finger at the courts for indiscriminately giving both bail and anticipatory bail, for taking 10 to 15 years to decide even simple cases. The police also blame the prosecutors for their lethargy and de-motivated approach to criminal cases. Indias correctional system is also in shambles, doing anything but correction, with excessively populated jails, bursting at the seams, where ganglords live in style, bullying and bribing the jail staff and continuing with their criminal activities, their alibis intact. Everyone blames the lawyers too for their cynical and mercenary attitude towards crime and criminals, not to mention their ways with the courts, the manner in which they go on strike on the most frivolous grounds and bring

Page 148 of 208 the judicial process to a grinding halt for days together. Though the police thus blame everyone else, they are no better either, with their image so hopelessly negative and gross among the citizens. In this scenario, the victim is the nation, which of course means the citizen. The failure of the criminal justice system is perhaps the most manifest in the state of Indias judiciary, which is in a condition of terminal collapse. Irretrievable caught in the vortex of pendency, it does not even know where the tunnel is, leave alone looking for the light. Desultory procedures, myriad stages of appeals, the licentious scope for both filibustering and adjournments, and most sadly, erosion of its reputation for integrity, have all crippled the efficacy and fair name of the judiciary.521 Mr. M.N. Singh, Commissioner of Police, Mumbai On low conviction rate, he said: It is an accepted fact that conviction rates have declined over the years. But the police force alone is not responsible for it. There are several reasons behind poor conviction rates. The quality of police investigation has gone down. More over, our cumbersome legal system causes delays in judicial proceedings. Thirdly, public prosecutors are not part of the police department and we do not have any control over them. As a result, it becomes difficult to get convictions in criminal cases.522 Mr. S. S. Puri, Director General of Police and Managing Director, Maharashtra State Police Housing Corporation. On pendency in courts, he said, At present there is docket of explosion in the courts and far too many cases are coming in for adjudication that can be disposed of in a reasonable time frame only with the creation of more courts. In fact, the Law Commission should determine judge-case ratio, so that when cases exceed the ratio, more courts can be created. In order to have efficient functioning of C.J.S. all its components should become part of plan-subject.523 Mr. D. Sivanandhan, Inspector General of Police and Joint Director, C.B.I., Mumbai His views on the criminal laws are: It cannot be denied that some of the substantive and procedural laws are in crying need of change to make the process of investigation more logical, simple and effective. We are perhaps the only country in the world where the evidentiary law of the land is suspicious of its own law-enforcing agency! The criminals take advantage of the fact that old laws are applied in a changing social and economic milieu. The procedural law, i.e. the Cr.P.C. and the evidentiary law, i.e. the Evidence Act, need to be victimoriented rather than accused-oriented.524 CONCLUSION The crime trends disclose significant increase in I.P.C. crime rate, especially violent crime. The pendency of I.P.C. cases in courts has increased

Page 149 of 208 from 8,00,784 in 1961 to 56,60,484 cases in 1998. This indicates inability of the criminal justice machinery to deliver speedy justice. Drastically declined conviction rate of I.P.C. caseswhich has come down from 64.8 in 1961 to 37.4 in 1998shows that in most of the I.P.C. cases criminals go scot free. The Law Commissions have also pointed out flaws in the working of different agencies of the criminal justice administration. Eminent persons have also expressed their concern over deteriorating performance of the criminal justice administration. All these indicate that the criminal justice administration is found wanting to improve its efficacy in keeping crime under control, punishing the offenders and delivering speedy criminal justice to the people. The recent move of the Union and State Governments to set up Fast Track Courts to dispose of pending cases and special efforts made by the Supreme Court to reduce pendency are certainly welcome steps. Similarly, innovative measures taken by the police in many parts of the country, e.g. in Maharashtra and Delhi, to involve people in crime prevention activities, show the concern of the police leadership in reducing crime and creating social harmony. However, seeing the gigantic proportions of the problem, many more efforts are needed to be taken urgently by the criminal justice functionaries before the situation goes out of control eroding the common mans faith in the whole criminal justice administration. oo()oo

Page 150 of 208 Chapter 8 AGENDA FOR REFORMS

I like the dreams of the future better than the history of the past. Patrick Henry The foregoing chapters have discussed varied aspects of the Constitution and criminal justice administration. The evaluation of the performance of the criminal justice administration discloses deterioration in its ability of controlling and punishing crime. The observations of the Law Commissions and views of eminent persons have helped in identifying the areas of failure. It is now the turn of analyzing the reasons of failure and suggesting solutions thereof. The suggestions relating to various components of the criminal justice system are put in the same order in which the components are generally placed, i.e. the criminal law, police, bar, judiciary and prisons. Efforts are made to make empirical and practicable suggestions to improve the efficacy of the criminal justice administration rather than recommending radical changes and idealistic theories. Simplify Criminal Laws The main criminal lawsthe Indian Penal Code, 1860; the Indian Evidence Act, 1872 were enacted in the later half of the 19th Century and continue almost entirely in their original form, barring some peripheral changes. Even the Code of Criminal Procedure, 1973 is almost a replica of the earlier Code of 1898. In addition to these major criminal laws there are thousands of other Central and State criminal laws, mostly more than hundred years old. Since enactment of these laws, a sea change in socio-economic and political situation has taken place, many of them cry for changes. In the case of the I.P.C., there is a need to incorporate in it a number of newly emerged offences and elimination of some, which have lost their relevance. The punishment for many offences also deserves revision. Similarly the Cr.P.C., the Indian Evidence Act and many other laws need to be revised. The criminal procedures prescribed by the Cr.P.C. are found to be cumbersome and time consuming. The Evidence Act still continues the British legacy of distrusting the police treating most of the statements recorded before them inadmissible in evidence. The Law Commission also, in its 154th and 156th Reports, has recommended revision of the Cr.P.C. and the I.P.C. substantially. Therefore, a review of the existing criminal laws be taken to repeal those which have become obsolete, make amendments in those which need changes to cope with the present situation and enact new laws to cover newly emerged areas of criminal activity. The criminal laws and procedures need to be made simple so that a common man can easily understand and make effective use of them to protect his rights and liberties.

Page 151 of 208 Adopt Inquisitorial System for Trial of Heinous Offences India mostly follows the accusatorial or the Anglo-Saxon system of trial under which the burden of proof lies entirely on the prosecution, and an accused, even if he may have committed the most serious crime, is deemed innocent till proved guilty. Justice Bhagavati Commission observed: It is not unusual to find the Anglo-Saxon obsession with technical rules of evidence defeating the cause of truth and justice.525 The National Police Commission has also observed that, in the Indian System, the Judge is merely a neutral umpire between two contesting parties.526 On the other hand in many European countries, inquisitorial system is followed under which the judge literally searches for the truth, grilling the accused and even the witnesses.527 Since, in India, the existing accusatorial system of criminal justice has not been found effective enough and peoples faith in the whole criminal justice administration is eroding, it will be appropriate to consider the inquisitorial system. To begin with, this system may be introduced, by changing the procedural laws, for trial of heinous offences such as murder, rape, dacoity, robbery, etc., and gradually other offences may be brought under it. Punish Perjury Perjury is one of the main reasons of failures of prosecution cases in courts. Police during investigation examines witnesses and record their statements. All or some of such witnesses are called for deposing before the court during the trial. At the time of trial, in many cases, witnesses do not reveal the truth or turn hostile denying having ever made the statement to the police as recorded by them. This, instead of supporting the prosecution case, helps the accused. In some cases, even the complainants who lodged F.I.R. change their stand refusing to support the case. It is the requirement of law that the people who are acquainted with the facts and circumstances of the case give information to the police and depose before the court truly. Giving false information is an offence punishable under sections 182, 193 to 195, 203, etc. of the I.P.C. During a trial if the court is convinced that a witness or a complainant is intentionally giving false information concealing the facts, such court may record its findings and direct the prosecutor to initiate action against such perjurers. The following observations of an Additional Sessions Judge in Maharashtra reveal the seriousness of the problem of the perjury: In the instant case, the homicidal death of the deceased is proved by the prosecution but the murder is going to be unpunished only because the eyewitnesses have turned hostile. Now a days, it has become very easy to win over the eyewitnesses. In the instant case, the accused are on bail and almost all the witnesses have turned hostile. It is experienced that day by day the tendency of turning hostile is developed among the prosecution

Page 152 of 208 witnesses. The reason behind it may be that the action against such hostile witnesses is not being taken. In serious offences like murders, the witnesses use to turn hostile easily and they can change the fate of the case. Therefore, to my mind some stringent action is required to be taken against such prosecution witnesses with a view to eradicate such tendency.528 However, it is very rare that action is initiated for giving false evidence or information. Consequently, the evil of perjury has reached epidemic proportions. Therefore, with a view to curbing the tendency of perjury, it is necessary to take prompt and deterrent action against those who commit perjury. The police and the judiciary should not hesitate in initiating action against the perjurers. It should be made mandatory for the prosecution to point out instances of perjury noticed by them during trial of criminal cases. Even the people, who come across the cases of perjury, should be encouraged to lodge complaints. It is pertinent to note that perjury was considered a very serious offence in ancient India and punished severely.529 Introduce Plea Bargaining One of the reasons for pendency of criminal cases in courts is the lengthy procedure of trial. There are provisions under section 260, Cr.P.C. to try certain offences, in the discretion of trial Magistrate, in a summary way. There is also a provision under section 252, Cr.P.C. of conviction on plea of guilty in petty cases. Despite such clear provisions of law, trials are held in such cases, which consume a lot of time of the courts, and others concerned. The Law Commission of India, in its 142nd Report, emphasized introduction of plea bargaining in India. The Commission in its 154th report has recommended that plea bargaining concept may be introduced on experimental basis for offences which are liable for punishment with imprisonment of less than 7 years including the compoundable offences covered under section 320 of the Cr.P.C., 1973. This system is prevalent in the U.S.A. with commendable results. Nearly 75 per cent of the total convictions are secured there as a result of plea bargaining.530 In England, in Magistrates Courts where some ninety per cent of defendants are persuaded not to contest the charges, a guilty plea system, largely devoid of accusatorial safeguards, has come into being.531 In comparison to the prevailing system of Lok Adalats (in which the complainants are convinced to compromise or compound cases) the system of plea bargaining (in which the accused are convinced to accept slighter punishment) if introduced and implemented with necessary safeguards in India, may help reduce pendency and burden on criminal courts giving relief to all concerned including the victim and the accused.

Page 153 of 208 Substitute Fine for Imprisonment in Petty Offences Since most of the offences in I.P.C. carry imprisonment as punishment, it leads to undesirable incarceration of people in petty offences. This not only causes overcrowding of jails but also taxes the State, which has to bear the expenses for keeping them in jails. Therefore, it is suggested that most of the offences, which are punishable with imprisonment up to a period of two years, may be brought under the category of offences punishable with fine only. The amount of fine should also be reasonably revised upward to make the punishment effective. Compensate Victims Victims of crimes seem to be the most neglected lot under the criminal justice system in India. Though, there is a provision under section 357, Cr.P.C., 1973 to compensate the victims in certain circumstances, the practice of compensating the victim is not very much in prevalence. Once the amount of fine is enhanced significantly along with increase in number of offences punishable with fine, as suggested above, there will be enough scope for the courts to award fine as punishment and compensate the victims. Since compensating the victims would be an additional burden on the courts whose hands are already full, a separate Victims Compensation Authority may be established which can be funded partly through the fines collected and partly by the contributions from the State. If the amount of compensation to be paid to a victim is delinked from the fine to be collected from the accused who committed the crime against him, it would serve a double purpose. Firstly, prompt payment of compensation without waiting for the outcome of the case, which may take years; and secondly, the victim will get compensation irrespective of the fact whether the accused is convicted or not. Declare Discrimination an Offence Article 15 of the Constitution prohibits discrimination on grounds only of religion, race, caste, sex or place of birth. At present, the remedy for enforcement of this article is by approaching the High Court under article 226 or the Supreme Court under article 32. When this article was being considered in the Constituent Assembly, one of the distinguished members moved an amendment to add a penal clause in this article to declare discrimination an offence punishable under law. But the suggestion could not be accepted.532 As approaching the High Court or the Supreme Court is an expensive and lengthy procedure, a poor man, victim of discrimination, is not able to make effective use of this remedy. Therefore, it is suggested that article 15 of the Constitution should be amended to declare discrimination an offence punishable under law so that victims of discrimination can approach the police for registering their complaints against those who subjected them to discrimination. Since article 15 is a safeguard against the actions of private citizens as well as of the State,

Page 154 of 208 necessary safeguards such as prior permission of the Government before arresting or filing charge-sheets against public servants may be incorporated in the law to prevent possibility of misuse of the right. Amend the Police Act The Police Act of 1861 was enacted in the wake of the Revolt of 1857 to reorganize the police and to make it a more efficient instrument for the prevention and detection of crime.533 But the Indian Police Commission of 1902 found the police force far from efficient; defective in training and organization; inadequately supervised; and that it utterly failed to secure the confidence and cordial co-operation of the people.534 Despite these observations, the Police Act of 1861, which prescribes structures, functioning and powers of the police, was continued to be in force without any significant change. It still continues in India without any significant changes. After India became republic, enormous changes have occurred in socioeconomic and political spheres which cast a paramount obligation and duty on the police to function in accordance with the objectives of the Constitution. The police being an agency to help people in distress, it is a must that the people have faith in its working and judgements. Therefore, it is necessary that the role and functions of the police are re-defined and suitable mechanism devised to ensure that it functions independently and objectively in the best interest of the people as well as the nation. Increase Strength of Police Though the police strength in India has been proportionately increasing with the population growth since 1968, yet the rate of I.P.C. crimes has gone up from 164.6 in 1968 to 183.2 in 1998.535 This shows that either the quality of policing for crime prevention has deteriorated or the manpower for actual crime prevention work has not increased. Assassination of some prominent leaders such as Smt. Indira Gandhi, Shri Rajiv Gandhi, and Shri Beant Singh forced the authorities to augment the security of V.I.P.s categorizing them under Z special, Z, Y, X, etc., according to the threat perception.536 Large number of private persons including businessmen, film personalities, etc. have also been provided with police protection because of threats from criminal gangs, especially in big cities. Gruesome murders of some famous persons in many parts of the country have compelled the authorities to provide special police protection to many such persons. For example, at one time in Mumbai city about 4,000 policemen (out of total strength of 38,000) were deployed to protect large number of private individuals who were under threat.537 Had there been no such deployment for individual security, these policemen could have been utilized for normal duties of crime prevention and investigation.

Page 155 of 208 Insurgency and terrorist activities seem to have increased in postindependence period requiring a large number of policemen to check them. Terrorism in Punjab; naxalite movement in Andhra Pradesh, Maharashtra, Bihar and Madhya Pradesh; L.T.T.E. activities in Tamil Nadu; and U.L.F.A. in Assam posed new threats to the security of the State. Constant operations to keep watch and control such terrorist activities have stressed the manpower of the police. In 1971, there were 18,65,000 registered motor vehicles in India while in 1996 the number of registered motor vehicles reached to 3,35,58,000 and in 1997 the number was estimated to be 3,75,81,000, i.e. more then 20 times of the number in 1971.538 This alarming increase in the number of vehicles without proportionate increase in availability of road length539 also required more number of policemen for traffic management duties. In post-independence period, erection of large number of statues of national leaders and frequent incidents of their desecration result in law and order problems. This forces the authorities to deploy a large number of police force to guard such places or patrol such areas to prevent such incidents. In addition to the above, enforcement of many newly enacted social laws, security of vital installations, law and order duties for processions, morchas, strikes, bandhs, etc. consume large number of police personnel who could otherwise be deployed in crime prevention work. Consequently, the actual availability of police for crime prevention and investigation work appears to have decreased and therefore, shortage of manpower is one of the major factors responsible for increase in crime rate. Therefore, it is necessary to take a review of the police manpower actually available for crime prevention and investigation and augment the same taking a realistic view. While doing so, the utility of traditional methods of policing by deploying policemen for night rounds and day patrolling should be kept in mind. At the same time, the State should devise a system of more effective supervision over private security agencies so that they employ able bodied and trained guards to provide quality service to the needy people. It will ease the pressure on the police to provide police personnel for protection of private individuals and for guarding buildings, banks, offices, etc. Give Special Emphasis on Police Training Policing is a skilled job requiring certain degree of training of the policemen and officers doing various duties. In the context of the Constitutions commitment for social, economic and political justice, the policemen are to be moulded and trained to fulfill their role expectations. Constant developments in socio-economic, legal, technological and scientific fields necessitate not only the basic training at the beginning of ones job in the police but also refresher

Page 156 of 208 courses at short intervals to keep his body fit and update his knowledge. Therefore, special emphasis be given on training of all ranks of the police. Make Available Residential Accommodation to Police The police being an emergency force, it is necessary that the police personnel are provided with suitable residential accommodation near their place of duty so that they are available for any exigency. If the force is readily available on short notice, field level officers such as the officers-incharge of police stations, can make its optimum utilization by organizing sudden nakabandhis, combing operations, night patrolling, etc. which can help keep crime under control. As on 1st January 1999, only 27.4 per cent police personnel in India were provided with family quarters. As it is difficult for police personnel with meagre salary to purchase or arrange rental houses in central and commercial localities, especially in big citieswhile such areas require their services more than the other areasthey have to stay far away from their place of work. Thus a substantial part of their time is wasted in commuting. This not only affects their effectiveness but also demoralizes them, especially those who have to stay in slums with unhealthy environment and inadequate amenities because of unaffordable rents in good localities. Therefore, the State Governments should consider allocation of more funds for construction of police quarters to fill the gap, and for future expansion. If police personnel stay in police colonies (known as police lines) near their place of work, they will be able to pay more attention and spend more time on police duties. This will certainly bring about a positive change in police effectiveness. Improve Police of Image In pre-independence period, the police, in addition to its normal work of crime prevention, investigation and maintenance of order, was used by the rulers to collect Government dues by adopting coercive and subjugating methods. With India becoming independent, it was expected that there would be a significant change in the policy and attitude of police in India. But continuity of old laws and rules governing police structure and procedures could not allow any significant change in the working style of the police. As a result, the police could not give up completely its ruler-friendly and anti-people image. Besides, even negative depiction of police in films or fictions showing scenes of police highhandedness, torture in lock-ups, nexus with unscrupulous politicians, helping people indulging in illegal activities, and underworld criminals also create bad impression among the people, especially the young and innocent people. The performance of police should not always be judged by their failure in controlling crime and arresting criminals. The people should

Page 157 of 208 also appreciate the police for their relentless pursuit for creating social harmony and maintaining public order and regulating ever increasing traffic. The untiring efforts of the police in safeguarding the unity of the country should also be kept in view before indulging in mindless criticism of the police. The following observation of Charles E. McCarthy may help people change their attitude towards police: You cant measure what a patrolman standing on a cover has prevented. There is no product at the end of a policemans day.540 With a view to improving their image, the police personnel should also enhance their professional qualities, display transparency in their working, improve their behaviour and change their attitude towards common people. Setting examples of extraordinary courage and honesty can play crucial role in improving the image of the police. Special emphasis should be given on training of policemen to keep them physically and mentally fit. Good service conditions including provision for residential accommodation and reasonable salary to lead a dignified life can prevent policemen from adopting partisan and corrupt methods. Measures such as holding regular dialogue with the people and regular briefing of the media about the crime and law and order situations to avoid adverse publicity on the basis of distorted facts can also help the police improve its image. Media, especially the film producers, should also be impressed upon to exercise restrain in projecting negative roles of the police and whenever feasible, action for defamation be taken promptly. Insulate Police from Undue Interference In the United Kingdom, every policeman has an original power vested in him. Once a law is passed by Parliament, no one can tell him how he should act in upholding it. The policeman is no ones servant, a principle most clearly stated in the case of Fisher v. Oldham Corporation (1930), and he must use his own discretion in carrying out the law. Lord Denning observed in 1968: I hold it to be the duty of the Commissioner of Police as it is of every Chief Constable to enforce the law of the land. he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must or must not prosecute this man or that one. He is answerable to the law and the law alone.541 In Japan, there is a National Public Safety Commission which is the apex body. It is insulated from political pressures and even the Prime Minister is not empowered to give it any directions. In the U.S., following the reforms carried out in the seventies political machines can no longer control American police department nor can they protect police departments from public scrutiny.542 However, as regards the state of affairs in India, three former Chief Justices of India have observed undue political interference in police working and

Page 158 of 208 spoken in favour of police reforms.543 Justice M.N. Venkatachaliah said that insulating the police from unlawful political interference required serious and immediate attention. Justice A.M. Ahmadi also said that the investigating agency needs to be relieved of extraneous pressures and that the time was ripe to set up an independent agency which would be free of internal and external pressures. Justice J. S. Verma observed that the recommendations of the Police Reforms Commission need serious considerations and early implementation to create conditions conducive to the independent functioning of the police force. The National Human Rights Commission has also urged the insulation of the investigative functions of the police from political and other extraneous pressures as essential to restoring confidence in the police and reducing of complaints of human rights violations by the members of the force.544 Therefore, with a view to devising a police system free from undue extraneous interference, the recommendations of the National Police Commission of 1977 should be considered and implemented. Maintain Coordination Between Police and Prosecution The quality of criminal justice is closely linked to the efficiency of the prosecution agency. Howsoever sound a case may be prepared by the police, its success depends upon its presentation in the court of law in an effective and efficient manner by the prosecutor. Many of the failures of criminal cases in courts can be ascribed not only to poor investigations, but also to poor quality of presentation by the prosecution. Increasing rate of acquittals mainly reflects poor performance of the police as well as the prosecutors. Before the enactment of the Cr.P.C. of 1973, the prosecution agency formed part of the police department. Most of the prosecution work in magisterial courts was conducted by Prosecuting Inspectors and Prosecuting Sub-inspectors of police.545 But section 25 of the Cr.P.C., 1973 imposed a statutory obligation on the State or the Union Government to create a separate cadre of assistant public prosecutors independent of the police department. In Maharashtra, the Police Prosecutors, who were appearing in Judicial Magistrates courts as Assistant Public Prosecutors, were under the administrative control of police department till 1995. But the Supreme Court in S.B. Sahane v. State of Maharashtra has freed them from the control of police department and directed the Government of Maharashtra to constitute a separate cadre of Assistant Public Prosecutors independent from police department.546 The Law Commission, in its 14th Report, pointed out that one of the causes of defective investigation, often resulting in acquittal, was lack of legal assistance at the stage of investigation. The National Police Commission dealt with the matter and came to the conclusion that in the interests of good criminal justice administration, it was necessary to mesh the prosecuting agency with the police setup to ensure active cooperation and coordinated functioning.

Page 159 of 208 Since the prosecutors are not under the control of police department, legal advice to the investigating officers at various stages of the investigation of cases is not available. Of course, behind the principle of separating the prosecution agency from the investigation agency there is a sound objective of enabling them to work independently and honestly while discharging their obligations of pursuing the criminal cases. But, it is generally observed that both these agencies blame each other for failures in prosecution cases ignoring their joint responsibility of punishing the criminals. If both the agencies are under the control of police department, instead of passing the buck to each other, they will work in close coordination to collect and present the evidence properly so that criminals do not go scot-free. Keeping in view the fact that the conviction rate of I.P.C. crimes declined from 62 in 1971 to 52.5 in 1981 and in the following years further declined to come to as low as 37.4 in 1998, the lack of coordination between the investigation agency and the prosecution agency in the post Cr.P.C.,1973 period seems to be one of the probable causes for decreasing rate of conviction. In Maharashtra, the conviction rate in I.P.C. cases in 1994 and 1995 was 34.5 and 32.9 respectively, but it declined sharply in 1996 coming to as low as 18.8 and during the years 1997 and 1998 it further came down to 18.1 and 16.3 respectively.547 Since the case of S.B. Sahane v. State of Maharashtra was decided in the year 1995, it appears that one of the reasons of sharp decline in conviction rate in Maharashtra during 1996, 1997 and 1998 was lack of coordination between the police and the Assistant Public Prosecutors after the latter were freed from the control of the former. Recently, the Supreme Court in R. Sarala v. T.S. Velu548 has observed as under: Investigation and prosecution are two facets in the administration of criminal justice. The role of Public Prosecutor is inside the Court, whereas investigation is outside the Court. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. Keeping in view the principle of prevailing law and the views of the Supreme Court in the above described cases, it is suggested that either law should be changed to combine the investigation and prosecution agencies or a separate cadre of legal advisors be created under the control of police department to provide legal assistance to investigating officers and maintain close coordination between the investigation agency and the prosecution agency. The legal advisors may be associated with the investigation of serious cases from the very beginning so that they are well acquainted with the cases and brief the Public Prosecutors on certain vital points at the time of trial. They may also be assigned the job of keeping track of the cases in courts and assist

Page 160 of 208 the police officers in investigation as well as in other legal matters to improve the efficiency and effectiveness of the police. Organize Training for Prosecutors and Legal Advisors In view of the instrumental role of prosecutors in achieving success in criminal cases, it is of paramount importance that they are expert and efficient in their work. Increasing rate of failure of prosecution cases inter alia reflect inefficiency of the prosecutors. Therefore, it is necessary to organize specialized training for prosecutors to sharpen their legal knowledge and teaching them how to present the cases effectively and efficiently and face trained and experienced defence advocates during the trials. Enforce Professional Conduct of Advocates Legal profession is supposed to shoulder serious responsibilities of helping the judiciary in reaching to the truth. This calls for not merely a high level of learning but also good conduct. The profession of a lawyer should be considered more as an act of public service than as a business to make profits. It imposes a stringent code of ethics and a moral obligation on the members of the profession to behave in a decent and honest manner. However, with the growth of complexity of laws, opportunities and temptationswhere a lawyer can depart from the path of right conductalso increase. Therefore, there must be an ethical code which draws the attention of the members of the profession and prevent them from being distracted. The Bar Council of India has laid down a code of conduct and rules governing various aspects of the legal profession. These include duties of an advocate to his clients, the obligations of the lawyer to other lawyers and public. But, it is very often observed that many lawyers do not observe the guidelines laid down by the Bar Council of India and behave in a manner detrimental to the standards and decorum of the profession. For example, the Bar Council rules say that an advocate shall not solicit work, but many members of the Bar can be seen at the gates of many subordinate courts openly soliciting work. There may be compelling circumstances to earn livelihood, but such conduct of the lawyers which affects the status and dignity of the whole legal profession and erodes faith of public should not be allowed. Charging exorbitant fees549 making the profession highly commercialised diminishes the profession to the level of a business as observed by the famous jurist Nani Palkhivala: The Bar is more commercialised than ever before. Today the law is looked upon, not as a learned profession but as a lucrative one.550 At present the code of ethics or rules laid down by the Bar Council seem to work more as guidelines then compelling means to direct the conduct of the lawyers. Therefore, it is suggested that serious efforts be made to enforce these ethical rules. A vigilance committees may be formed to observe the conduct of lawyers.

Page 161 of 208 Improve Standard of Legal Education While speaking on the occasion of 125th Anniversary of the Bombay High Court in 1987 Nani Palkhivala said: We must educate our lawyers better. We produce ethical illiterates in our law colleges, who have no notion of what public good is. In India the number of advocates today is about three lakhs. We have the second highest number of lawyers in the world, the first being the United States which has seven lakh legal practitioners. These large numbers result in a lot of lawyer-stimulated litigation in the two countries. By contrast, the number of practising lawyers in Japan is less than 14,000. About 30,000 students appear for law examinations in Japan and only about 475 succeed, i.e. less than two per cent.551 Since then the condition does not seem to have improved. To maintain the standard of the legal profession it is necessary to ensure that people with good knowledge of law are called to the Bar. Therefore, it is suggested that law examinations be made stiff like that of chartered accountants and high percentage of marks in the law degree be prescribed to enrol as advocate. Fill in the Vacancies of Judges One of the causes of mounting arrears of cases resulting in inordinate delay in disposal by courts is large number of vacancies of judges remaining unfilled for a long time. The First Law Commission (1955-58) had observed that the delay in filling vacancies in the High Courts was found to be responsible in a considerable measure for accumulation of arrears in the High Courts. But, it seems, the point was not well taken as since then large number of vacancies have always remained unfilled for long time in various High Courts.552 As on 1st February 1999 out of the total strength of 587 Judges (492 permanent and 95 Additional Judges) there were 169 vacancies of Judges (110 permanent and 59 Additional Judges) in various High Courts in India. The High Courts of Allahabad, Andhra Pradesh, Calcutta and Bombay were working with 58 per cent, 61 per cent, 61 per cent and 74 per cent respectively of the total strength. Justice A.S. Anand, the then Chief Justice of India, also showed grave concern on unfilled vacancies of Judges in the High Court disclosing that of the 587 posts of High Court Judges in the country, 160 have remained vacant for 8 months to 3 years.553 In the case of the Supreme Court, the Law Commission, in its 120th Report, found that during the period of 1960 to 1986 unfilled vacancies of Judges caused loss of 9479 mandays.554 The Commission observed that if the vacancies were filled without delay disposal of 54,660 cases would have been possible and that would have reduced the then prevailing pendency by 67 per cent. Even in the subordinate courts, for which the power of appointment of Judges is vested in the State Government, a large number of vacancies remain unfilled for a long time. The then Chief Justice of India, Dr. A.S. Anand, said

Page 162 of 208 in January 1999 that the number of vacancies in the subordinate judiciary were so large that it would do nothing else but to add to the piling up of cases.555 Therefore, it is suggested that the vacancies of Judges without any delay. Increase Judges Strength The number of criminal cases pending trial in courts increased from 54,26,426 in 1978 to 1,35,70,895 in 1998, i.e. 2.5 times, but the disposal rate instead of increasing, has shown constant declining trend.556 It clearly indicates that there are no sufficient number of Judges to cope with the increasing workload. This view is confirmed by the fact that during the period 1985 to 1995 the pendency of cases in the subordinate courts in India increased by 62.12 per cent while the judges strength increased by only 15.38 per cent.557 As regards the High Courts during the period 1987 to 1997 the pendency increased from 14,82,400 to 31,85,768, i.e. 2.15 times, whereas the number of Judges increased from 431 to 503, i.e 1.25 times.558 In the case of Supreme Court, there were 586 cases pending at the end of 1951 when the strength of Judges was 8 but by 1986 the pendency reached to 80,837, i.e. 137.94 times while the strength of Judges increased to 18, i.e. 2.25 times.559 The Supreme Court had made a poignant observation: Large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges, it may take more than 15 years to dispose of all the pending cases.560 Thus, inadequate number of Judges in different courts is one of the major causes of mounting arrears and inordinate delay in disposal of the cases. Since the present strength of Judges in courts, including the High Courts and the Supreme Court, does not commensurate with the workload, it is absolutely imperative to augment the strength of Judges in the various courts so that each court is not only able to stop further increase of arrears but also dispose of the pending cases in a reasonable time. Any delay in providing adequate number of judges is going to further deteriorate the situation leading towards collapse of the whole justice delivery system. Coming to the point as to what should be the strength of Judges, it is necessary to take a realistic view, keeping all relevant factors in mind. During the year 1990 there were 13 Judges per million population in India while most of the other countries, whose data could become available, had about 100 Judges per million population.561 Even China having a population of 1133.68 millions had 122 Judges per million population. Dr. A.S. Anand, the then Chief Justice of India, had also emphasised: In European countries like the U.K. the number of Judges per million people varied from 90 to 100 but in India it is only 11.562 The Law Commission, in its 120th Report (1987), had also recommended that over a period of ten years the strength of Judges in should be filled

Page 163 of 208 India be increased five fold so that by the year 2000 India commands at least the ratio that the U.S.A. had in 1981.563 The Union Government has reportedly declared that implementation of the Law Commissions report will need for a billion population, 50,000 judges against the present 13,415mainly in the district courts.564 India, thus, needs Judges four times the present strength of about 14000 to ensure that the justice delivery system functions smoothly and the people get speedy justice as envisaged in article 21 of the Constitution. However, once the backlog is cleared, there may not be a need of such an augmented strength and therefore, it is suggested that the strength of permanent Judges be increased three times the present strength and the remaining requirement may be met with temporary appointments of Judges from amongst practising lawyers, prosecutors and retired judicial officers and Judges. While considering augmentation of Judges strength, in addition to the expenditure on Judges, other ancillary requirements such as official staff, buildings for holding more courts, etc. will pose serious challenges involving large financial implications. But, such problems can be handled by optimum utilization of existing resources of the Government without incurring much additional expenditure. Stoppage of developmental works in the Public Works Departments in most of the States and introduction of computers in Universities, Banks, and other Government offices have rendered large number of employees idle. Such extra staff may be diverted to the courts on deputation or permanent transfer basis. Similarly, the existing buildings and other infrastructure may be utilized in two shifts. Since, the suggestion includes appointment of temporary Judges from amongst serving lawyers, prosecutors and retired judicial officers/Judges, they, being already settled, will not require government accommodation and may make use of their own vehicles and thus, the expenses may be reduced significantly. Notwithstanding such problems, India, being proud of her democracy, should not allow the consideration of cost on administration of justice to prevail upon the need of discharging her constitutional obligation of imparting speedy justice to the people. Establish Indian Judicial Service The Law Commission, in its 14th (1958), 77th (1978) and 116th (1986) Reports, have opined that in order to improve, tone up and raise the level, it is in the interest of the system that an all-India judicial service, called the Indian Judicial Service, be established.565 Recommending the formation of the Indian Judicial Service the Commission in its 116th Report observed: Having regard to the present state of the judicial service below the High Court, the malaise that has set in, the inadequacy of the talent being attracted, varying conditions of service from State to State, unattractive conditions of service and ineffective voice of the High Court in the matter of

Page 164 of 208 recruitment, failure of Public Service Commissions on this front, utter and total antipathy of State Governments have contributed in no uncertain measure to the falling standards in the State Judicial Service. Available evidence shows that they are totally dissatisfied with the existing situation. Silent march of Civil Judges and Metropolitan Magistrates in the capital not long ago is a grim reminder of the situation. Occasionally one hears of strike by them also. How do you repair or improve the situation? If the situation is allowed to stagnate, as the law stands today, States alone will be competent to repair or improve the rot. They are shown to be indifferent. Any expense on State Judicial Service will be classified as non-plan, non-productive expense even though millions are collected as court fees. Law and justice project into the lives of all segments of society from bottom to top. Therefore, a national approach and perspective is a must. Futile litigation is time consuming and an unproductive expenditure luxury. The structure of judiciary has to some extent contributed to this undesirable situation. A fresh look from broader national perspective is pre-eminently necessary. If other services were organized on all-India basis for acquiring definite improvement in efficiency and productivity of service, why not judiciary by which every one is vitally affected.566 Having regard to all the aspects of the present situation it is suggested that the Indian Judicial Service, as delineated in 116th Report of the Law Commission should be established at the earliest before the situation further deteriorates. It is pertinent to mention here that the Constitution (42nd Amendment) Act, 1976 amended article 312 of the Constitution to incorporate provisions for creation of All India Judicial Service. Parliament was to make law to give effect to these provisions. The Supreme Court in the All India Judges Case (1993) also emphasized the need of setting up of an All India Judicial Service. However, no law has been passed by Parliament till so far to give effect to the provisions of article 312. The First National Judicial Pay Commission, in its survey of the subordinate courts, has found that there is a large scale dissatisfaction in the subordinate judiciary all over the country.567 Justice, being the top among the aims and objectives of the Constitution of India, its administration should not be left in the hands of dissatisfied Judges and therefore, steps should be taken to create All India Judicial Service, i.e. Indian Judicial Service, by making law in pursuance of article 312 of the Constitution. Organize Training for Subordinate Judiciary The Law Commission, in its 14th Report, observed: Delays in the disposal of cases and the accumulation of arrears are in a great measure due to the inability of the judicial officers to arrange their work methodically and to appreciate and apply the provisions of the Procedural Codes.568 The

Page 165 of 208 Commission, in its 117th Report, concluded that the updating of the knowledge and skill can hardly be left to the voluntary effort of individual judges. It is conceded that training can significantly upgrade the capability of everyone called upon to perform a duty. It is all the more so in the case of judicial officers, because sociology of law is acquiring new and added significance in the development of the society.569 The Supreme Court has also suggested that the Union Government could consider devising a policy of post-recruitment training to judicial officers, on the lines of that imparted to Indian Administrative Service officers to improve the quality of the lower judiciary.570 It is, therefore, need of the time that training institutes are set up for Judicial Magistrates and Sub-Judges. Basic training to new entrants and in-service courses should be organized in such institutes. Maintain Image of Judiciary It is of utmost importance that the judiciary, being protector of the Constitution, should carry a very high image to maintain the faith of the people in it. However, of late, instances which undermine the dignity and image of the judiciary have started coming to light. The incidents of impeachment of a Supreme Court Judge on the charges of corruption;571 arrest of a Sessions Judge allegedly having links with underworld criminals;572 stopping a train and holding open court at railway platform by a sitting High Court Judge for being denied a berth and thereby making use of his high office for satisfaction of his ego;573 and suspension of an Additional District and Sessions Judge for ticketless travelling574 mar the image of the judiciary reflecting that the decay has already crept in. Compulsory retirement of 26 judges in Rajasthan and suspension of 11 judges in Gujarat in the year 2000 on various charges including corruption, inefficiency and allegations relating to conduct also show declining standards of the judiciary.575 The people have very high expectations from the judiciary. Any instance of deviation from ethical and moral behaviour may tarnish its delicate image and therefore, a scheme should be devised to ensure that the Judges remain free from any temptation and personal vengeance. Discourage Adjournments in Criminal Cases One of the causes of delay in disposal of cases is repeated adjournments on the request of either of the parties. Sometime the adjournment may be necessary for want of a particular document, witness, expert opinion but adjournments on issues such as non-availability of advocate, non-attendance of police officers, non-service of summons to witnesses, etc. are not justified. In many cases the courts grant unwarranted adjournments on trivial grounds or on mere request of either of the parties. Justice Anand, the then Chief Justice of India, also criticized the tendency of some of the Judges to grant adjournments at the drop of a hat.576 The Supreme Court has ruled that a lawyer will be held guilty of

Page 166 of 208 committing professional misconduct if he seeks repeated adjournments of the examination of witnesses present for the hearing.577 Since the adjournment not only causes delay in disposal but also financial loss and harassment to the party who remains present on the appointed date for the hearing, the party seeking adjournment should be asked to make good at least the loss which can be calculated in terms of money. If the amount of wages and travelling expenses of the investigating officers; the remuneration of the prosecutors; daily allowances of prosecution witnesses; and the expenses incurred on serving summons, execution of warrants and producing accused, etc. are to be paid by the accused, it will certainly discourage them from seeking adjournments. Similarly, on the other side, in addition to bearing the expenses on its staff and witnesses if the Government is asked to recover the expenditure spent by the accused in engaging private advocates, the prosecution will not seek adjournments in normal course. If such a scheme is devised, it will not only avoid delay in disposal but also ensure timely service of summons, preparing of briefs and thus improve over all efficiency of the criminal justice administration. Prevent Over-crowding of Jails As the retributive theory and the deterrence theory of punishment have given way to reformative theory, it is the obligation of the State to organize the prisons and other correctional services in such a way that they reform the offenders. One of the most important requirement towards reforming the prison system is to make available adequate prisons to house the increasing number of prisoners. Overcrowding of jails not only causes congestion and paucity of basic amenities but also overburdens the jail staff resulting in poor supervision. The statistics of jail occupancy during the year 1997 shows that in many of the states the inmates population was more than the capacity of the jails. The gravity of the problem can be gauged from the remarks of Justice M.N. Venkatachaliah, the former Chief Justice of India, who said, Indian prisons are reduced to being penal dustbins.578 Paucity of funds to construct new jails and large number of undertrials languishing in jails for very long periods because of inordinate delay in disposal of the cases appear to be the major causes of over occupancy. For example, in Tihar Jail in Delhi, at least 73 per cent of the 9,000 odd inmates were involved in petty offences. Therefore, it is suggested that the cases involving undertrial prisoners should be taken on priority basis and available capacity of jails should be enhanced by constructing more jails. Deferring arrests and granting bail in less serious offences, liberal use of probation in suitable cases to avoid incarceration, releasing the prisoners on parole to ease out the congestion, and the concept of Open Prison, may also be considered to

Page 167 of 208 ensure that prisons remain reformative houses for convicted and hardened criminals. Organize Specialized Training for Jail Staff. Since the prison staff are expected to play an important role of reforming offenders, it is essential that they are well trained to discharge their responsibilities. In pre-independence period the jails were the dumping yards where criminals suffered all sort of miseries. But today, the situation has totally changed; the jails are supposed to be so organized that the inmates receive human treatment and proper training to become better citizens. Therefore, specialized training programmes, including session on understanding human psychology, behaviouralism, human rights, yoga and spiritual development, etc. should be organized to enhance the capabilities of the jail staff. Bring Criminal Justice System under Plan Budget At present the expenditure on the criminal justice administration is borne under the non-plan budget head which suffers from various constraints. Analysis of budgetary allocations during the period 1951-52 to 1983-84 shows a declining trend in the share of the three main components of the criminal justice administration, viz. the police, judiciary and the prisons, in the total revenue expenditure of the Union and State governments. In the year 1951-52 the share of the criminal justice administration in total revenue expenditure was 8.79 per cent but in 198384 it came down to 3.73 per cent.579 The First National Judicial Pay Commission has observed that in India the expenditure on judiciary is relatively low in terms of G.N.P. , i.e. 0.2 per cent while in Singapore it is 1.2 per cent; in the U.K. 4.3 per cent; and in the U.S.A. 1.4 per cent.580 Since declining financial resources have a direct impact on the planning and development of various agencies of the criminal justice administration, there is a need of bringing its expenditure under plan-budget so that long term planning for development and modernization of various agencies of the criminal justice system can be done in advance. However, merely bringing the criminal justice system expenditure under plan-budget will not serve the intended purpose unless sufficient funds are allocated on regular basis. Financial allocations are the main stumbling block in the smooth functioning of any system and in any process of reforms. This block has to be removed so that the criminal justice system receives its due share in revenue expenditure of the State to run its various agencies smoothly and face the emerging challenges effectively. It should be done at the earliest before the system totally collapses and becomes irreparable. Involve People in Administration of Criminal Justice

Page 168 of 208 In India, one of the reasons of crime remaining unreported, undetected and unpunished is the apathy of the people towards their legal obligations to report crime, assist the police in investigation and depose truly before the trial courts. It is of utmost importance that the people cooperate with the criminal justice system authorities to achieve success in arresting and punishing criminals. Therefore, efforts should be made to encourage peoples participation in the administration of criminal justice. Police can play a lead role in providing people various opportunities by way of voluntary schemes such as Mohalla Committees, Peace Committees, Mahila Dakshta Samitis, Village Defence Parties, etc. For winning the faith and loyalty of the people it is absolutely necessary to display total impartiality while selecting members of such schemes. In addition to the above described causes of failure of the criminal justice administration there are some other factors, beyond the control of the criminal justice system functionaries, that have a direct or indirect bearing on the working of the criminal justice administration. The problem of unemployment render large number of educated youths idle. Some of them being frustrated by uncertainty in life or compelled by circumstances adopt crime as their field of activity to earn money.581 Being undeterred by weak criminal justice administration with meagre chances of punishment, they carry on their criminal activities with impunity. Therefore, socio-economic development should be so organized that it generates more jobs or provide better facilities for self-employment to large number of educated youths. With the revolutionary progress in communication and information technology the people have access to all sorts of means such as television, films, and a few even to internet. Exciting programmes available to the people from these easily available channels arouse their feelings and passions and lead the weaker ones to indulge in committing violent crimes, especially sexual crimes against women and children. It is, therefore, imperative, to formulate an effective policy to check such activities of the media. Persisting law and order problems have a direct adverse impact on the working of the criminal justice administration, especially the police. Among the most common causes for law and order problems are communal disharmony, caste conflicts, desecration of religious places and labour unrests. Immediately after independence, India faced unprecedented communal riots. Since then the venom of communal hatred has been showing its effect leading to frequent communal riots in many parts of the country. With a view to preventing communal disturbances, large number of policemen are deployed in communally affected pockets withdrawing them from normal crime prevention and investigation duties. As a result, the normal crime prevention work and

Page 169 of 208 quality of investigation suffer leading to rise in crime and failure of prosecution cases. Therefore, creating social harmony, and handling communal issues should be the priorities of the State authorities. Deterioration in the efficiency and effectiveness of the criminal justice administration not only endangers the life, liberty and property of the people but also poses a serious threat to the very survival of the Constitution, nay, the whole civilized society. Unpunished crime and prevalence of injustice are the root causes of all evils in the society. It would be befitting to remember Aristotle who said: Man, when perfected, is the best of animals, but if he is isolated from law and justice, he is the worst of all It is, therefore, hoped that the State, the criminal justice functionaries and the people will take the above suggestions in right spirit and resolve to improve the efficacy of the criminal justice administration. A sound criminal justice machinery is not only necessary for preventing and punishing crime but also to pave the way for achieving the aims and objectives of the Constitution as enshrined in the Preamble. oo()oo

Page 170 of 208 NOTES AND REFERENCES

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1.Records of the Lok Sabha Secretariat, New Delhi. 2.Article 38 of the Constitution of India which inter alia provides: The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life." 3. Seervai, H.M., Constitutional Law of India, Vol. I, p. 280. 4. Babu v. Raghunathji, A.I.R. 1976 S.C. 1734. 5.Anand, Dr. A.S., Indian Judiciary and Challenges of 21st Century, Indian Journal of Public Administration, JulySeptember 1999, p. 299. 6. Peak, Kenneth J., Justice Administration, p.2. 1.Choudhuri, Dr. Mrinmaya, Languishing for Justice, p. 4. 2.Ibid., (quoting Keith, A. Berriedale: The Age of the Rig Veda in The Cambridge History of India, edited by J. Rapson, Vol. I, p. 87). 3.Ibid., pp. 4-5. 4.Jois, M. Rama., Legal and Constitutional History of India, Vol.I, pp. 575-76. 5.Choudhuri, op. cit., p. 5 (quoting Alfred Russel Wallace as quoted by Durant, Will: The Story of Civilization (Part I) Our Oriental Heritage, p. 27.) 6.Jois, op. cit., p.576,quoting Mahabharata, Shanti Parva, 59-14: Naiv rajyam na raja-assinnh dando na cha dandikah; Dharmenaiv parjah sarva rakshanti sma parsparam.). 7.Ibid. 8.The Gazetteer of India, Vol. II, pp. 145-46; 9.Ibid. 10.Kulshreshtha, V.D., Landmarks in Indian Legal And Constitutional History, pp. 4-6.. 11.The Gazetteer ,op. cit., p. 135. 12.Ibid., p.152. 13.Smith, op. cit., pp. 97-98. Megasthenes came to Patliputra during the period of Chandragupta Maurya about the year 302 B.C. as an ambassador of Seleukos following the peace between Syria and India. 14.Ibid. 15.Ibid. 16.The Gazetteer, op. cit., pp 153-54.. 17.Smith, op. cit. 18.Ibid. 19.Ibid., p.156. 20.Kulshreshtha, op. cit., p. 4. 21.Jois, op. cit., p. 8, quoting Manu VIII-15: Dharma ev hato hanti dharmo rakshti rakshita, Tasmadharmo na hantvyo ma no dharmo hato-avdheet.. 22.Ibid., p. 10. 23.Ibid., p. 14 (quoting Manu II-6). 24.Ibid., pp. 23.24. 25.Jois, op. cit., pp. 15 (quoting Vyasa 1-V-4). 26.Ibid., p.19. 27.Wilkins, op. cit., Part I, pp. 4-8. 28.Ibid., The Samhitas of three of the Vedas are said to have some peculiarity. If a mantra is metrical, and intended for loud recitation, it is called Rich (from rich, praise) whence the name Rig-Veda; i.e the Veda containing such praises. If it is prose (and then it must be muttered inaudibly), it is called Yajus (yaj, sacrifice, hence, literally, the means by which sacrifice is effected); therefore Yajur-Veda signifies the Veda containing such yajus. And if it is metrical, and intended for chanting, it is called saman (equal); hence Sama-Veda means the Veda containing such samans. The Upanishads, exceeding a hundred in number, are philosophical tracts or books. 29.Jois., op. cit., p.22. 30.Ibid., pp. 27-28.

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31.Kumar, Dr. Surendra, Manu Smriti, published by Arsh Sahitya Prachar Trust, 455, Khari Baoli, Delhi110 006, pp. 6-7. 32.Wilkin, W.J., Hindu Mythology, Part II, pp. 90-91. 33.Ibid. 34.Smith, op. cit., pp.94, 141. 35.Rangarajan, L.R.(ed.), Kautilya-The Arthashastra, p. 377. 36.Ibid., P.47 quoting J.J.Meyer as cited by R.P.Kangale in The Kautilya- Arthashastra, Part II, Vol.III, p. 191). 37.Jois, op. cit., pp. 46-48. 38.Ibid., pp. 10-13. 39.Ibid, quoting Brihadaranakopanishat: Tadetat-kshtrsya kshtram yaddharmah; Tasmadharmatatpram nasti. Atho abliyan baliyansmashanste dharmen; Yatha rajnya evam. 40.The Gazetteer, op. cit., Vol. IV, p. 380. 41.Jois, op. cit., p. 14. 42.Ibid., pp.13,16. (quoting Katyayana. 45; Yjnavalkya. II 21-1; and Narada p.15-39-40). 43.Jois, op. cit., p.17 (quoting Brishpatii). 44.The Gazetteer, op. cit., Vol.IV, p.380.(quoting Mayne J.D.Hindu Law and Usage, Madras, 1900, pp.7-8. 45.Jois, op. cit., p. 489. 46.Ibid., pp. 490-93. 47.The Gazetteer , Vol.II, p.153. 48.Kulshreshtha, op. cit., p. 6. (quoting S. Varadachariar,The Hindu Judicial System,p.88). 49.Jois, op. cit., pp. 676-78. (quoting an inscription of King Parantaka, found at Uttaramerur, and Annual Reports of Archaeological Survey of India 1904-5 p.131). 50.Ibid., pp. 6-7. 51.Ibid., pp.320-21. 52.Ibid., pp. 318-23 (quoting Manu IX 264-67, Katyana 33-34). 53.Ibid., p. 343. 54.Ibid., pp.149-150; Rangarajan, op. cit., pp. 57-58. 55.Ibid., p. 318. 56.Ibid., p.320 (quoting Katyana 33). 57.Ibid., (quoting Katyana 34). 58.Ibid., p. 321 (quoting Manu IX, 264-267). 59.Ibid., pp. 324-25 (quoting Manu VII 19). 60.Kulshreshtha, op. cit, pp. 10-13; Jois, op. cit., p.330. 61.Jois, op. cit., p. 328-29. 62.Ibid., p. 11 (quoting Kautilyas Arthashashtra, Vol. IV, p. 10). 63.Ibid., (quotingYajnavalkya, II, p. 243). 64.Ibid. 65.Manu Smriti, op. cit., VIII 377-86. 66.Kulshreshtha, op. cit., pp. 11-12 (quoting Gautama-Dharma sutra, Vol. XII, p. 43; Kautilya;s Arthashastra, Vol. IV, p. 8-11; Manu Smriti, Vol. VIII, pp. 125, 380-81; Yajnavalkya Smriti, Vol. II, p. 270; Katyana Smriti, p. 806. 67.Ibid., p. 341 (quoting Katyana 806). 68.Ibid., p. 342 (quoting Kautilya p. 259-60 (239 S). 69.Ibid., (quoting Kanes History of Dharmashastras, Vol. III, p. 399). 70.Ibid., p.341. 71.Ibid., (quoting Manu, VIII 337-38). 72.Ibid., p. 544 (quoting Katyana 339-340). 73.Ibid.,p. 542 (quoting Manu VIII-107 and Yaj. II-77). 74.Ibid., pp 385-86. 75.Ibid., p. 388 (quoting Katyana 407). 76.Ibid., p. 550. 77.Ibid., p.380 (quoting Manu IX-274).

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84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100

101 102

103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118

119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136

78.Ibid. 79.Ibid., p. 381 (quoting Vishnu p.31-74). 80.Ibid., pp. 371-372 (quoting Manu VIII 350-351). 81.Ibid., (quoting Katyana 800). 82.Ibid., pp. 389-390. 83.Ibid., p. 382. 84.Kulshreshtha, op. cit., p.14. 85.Smith, op. cit., pp. 197-99. 86.Kulshreshtha, op. cit., p.14. 87.Ibid. 88.The Gazetteer, op. cit.,Vol. II, p. 325. 89.Jois, op. cit., Vol. II, pp.3-21. 90.Kulshreshtha, op. cit., (quoting Quran, III,192; XLII). 91.Ibid. 92.Ibid., pp18-20. 93.Ibid., p.21. 94.Singh, Dr. D.R., Evolution of Criminal Justice, Indian Journal of Public Administration, July-Sep. 1994, p. 385. 95.Jois, op. cit., pp.10. 96.Smith, op. cit., Part II, pp. 311-17. Nuniz, a Portuguese visitor, mentioning about the punishments inflicted in the Vijyanagar Kingdom states, For a thief, whatever theft he commits, howsoever little it be, they forthwith cut off a foot and a hand; and if his theft be a great one he is hanged with a hook under his chin. The extreme ferocity of the punishments inflicted for the offences against property was well designed to protect the rich against the poor. 97.Singh , op. cit., I.J.P.A., July-Sep.1994, p.383. 98.Choudhuri, op.cit., p.61. 99.Kulshreshtha, op. cit., p.28. 100.Jois, op.cit., pp. 12-13. 101.Ibid., pp.9-10. 102Choudhuri, op. cit., p.67. 103.Ibid. 104.The Gazetteer, pp.457-58. 105.Choudhuri, op. cit., pp.69-70. 106.Kulshreshtha, op. cit., p. 21 (quoting W. Erskine, History of India, Vol. P. 443). 107.The Gazetteer, pp.464-65. 108.Kulshreshtha., op. cit., pp.22-23. 109.Ibid. 110.Ibid., pp. 23-24. 111.Ibid. 112.Ibid., p. 24 (quoting Sir Charles Metcalfe in the Report of the Select Committee of the House of Commons, Vol. III, p.331). 113.Ibid. 114.Jois, op. cit., pp. 18-19. 115.The Gazetteer, op. cit., pp. 457-58. 116.Kulshreshtha, op. cit., p.23; Choudhuri, op.cit., pp. 69-70. 117.Choudhuri, op. cit., pp.148-49. 118.Kulshreshtha, op. cit., pp. 24-25. 119.Choudhuri, op. cit., p. 65 120.Kulshreshtha, op. cit., p.25. 121.Ibid. 122.Jois, op. cit., P. 10. 123.The Gazetteer, op. cit., p.464. 124.Jois., op. cit., pp.12- 15. 125.Ibid. 126.Kulshreshtha, op. cit., pp. 24-26. 127.Ibid. 128.Ibid. 129.The Gazetteer, loc. cit. 130.Kulshreshtha, loc. cit.

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137 138 139 140 141 142 143

144 145 146 147 148 149 150 151 152 153

154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184

131.Ibid., pp, 30-31. 132.Jois, op. cit., p. 27. 133.Ibid. 134.Ibid., p.26. 135.Kulshreshtha, op. cit., pp. 33-34. 136.Ibid. 137.Smith, op. cit., pp. 672-73. The Company itself was formally dissolved from 1st January 1874 by Act of Parliament. 138.Ibid. 139.Choudhuri, op. cit., p.73. 140.Jois, op. cit., pp. 53-54. 141.Choudhuri, op. cit., p. 73. 142.Kulshreshtha, op. cit., pp. 136-37. 143.Ibid., p. 137. 144.Ibid. 145.Jois., op. cit., pp.153-54. 146.Ibid., pp. 154-57. 147.Ibid.,p. 157 (quoting the minute of Cornwallis dated February 11, 1793). 148.Ibid., pp.160-161. 149.Ibid., p.169. 150.Kulshreshtha, op. cit., p. 146. 151.Ibid., p.147-48. 152.Ibid., pp.149-52. 153.Ibid., .p.152. 154.Ibid., pp.152-55. 155.Ibid. 156.Ibid. 157.Jois., op. cit., pp. 144-45. 158.Kulshreshtha, op. cit., p. 160. 159.Ibid., p174. 160.Ibid., pp. 161-62. 161.Ibid., p.162. 162.Jois, op. cit., pp. 65-66. 163.Ibid., p. 72. 164.Kulshreshtha, op. cit., p. 254. 165.Ibid., p. 251. 166.Jois, op. cit., pp. 53-54 .(quoting Illbert, pp354-55). 167.Choudhuri, op. cit., pp. 110-112. 168.Ibid. 169,Ibid., pp. 112-13. 170.Ibid., p. 157. 171.Ibid., pp.158-59. 172.Ibid., pp. 159-60, 163-64. 173.Ibid., pp. 164-65. 174.Kulshreshtha, op. cit., pp. 164-66. 175.Ibid. 176.Jois, op cit., p. 190. 177.Ibid., p. 183. 178.Ibid., (citing section 411-A of the Code of Criminal Procedure, 1898).
185

179.Ibid., pp. 189-90. Shri. K.M. Munshi, an eminent member of the Constituent Assembly, speaking on the occasion of the abolition of the Privy Councils jurisdiction over India in 1949, said:
The British Parliament and the Privy Council are the two great institutions which the Anglo-Saxon race has given to mankind. The Privy Council during the last few centuries has not only laid down law, but co-ordinated the concept of right and obligation throughout all the Dominions and the Colonies in the British

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Commonwealth. So far as India is concerned the role of the Privy Council has been one of the most important one. It has been a great unifying force and for us Indians it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our 185 Constitution. 186 181.Kulshreshtha, op. cit., pp. 192-93. 187 182.Ibid., pp. 194-98. 188 1. Basu, Durga Das, Introduction to the Constitution of India, p. 3. 189 2. Ibid. 190 3. Ibid., p.4. 191 4. Ibid., p.5. 192 5. Kulshreshtha, V.D., Landmarks in Indian Legal and Constitutional History, p. 328-29. 193 6. Jois, M. Rama, Legal and Constitutional History of India, Vol. II, pp. 297-98. 194 7. Ibid. 195 8. Basu, op. cit., 18. 196 9. Basu, op. cit., pp. 14-16. 197 10. Ibid. 198 11. Ibid. 199 12. Kulshreshtha, op.cit., 339-40. 200 13. C.A.D., Vol. VII, pp. 31-44. 201 14. C.A.D., Vol. XI, p. 978. 202 15. Ibid., p. 994. 203 1. Sathe, S.P., Review of the Constitution: Need to Keep an Open Mind, Economic and Political Weekly, September 16, 2000, p. 3395. 204 2. Austin, Granville, The Indian Constitution:Cornerstone of a Nation, p. xvii. 205 3. Sathe, loc.cit. 206 4. Ibid. 207 5. C.A.D., Vol.VII, pp. 608-610. 208 6. Ibid., p. 610. 209 7. The Constitution (First Amendment) Act, 1951, section 2. 210 8. C.A.D., pp.654-55. 211 9. Ibid., pp. 660-61 212 10. The Protection of Civil Rights Act, 1955 (Act 22 of 1955) Originally the Untouchability (Offences) Act, 1955 which came into effect on 8th May 1955. 213 11. C.A.D., Vol. VII, p. 665. 214 12. Ibid., Vol. VII, pp. 666-67. 215 13. Ganpat v. Returning Officer, A.I.R. 1975 S.C. 420. 216 14. C.A.D., Vol. VII, pp. 738-40. 217 15. Ibid., pp. 754-56. 218 16. Ibid. , p. 779. 219 17. Austin, op. cit., p. 74 (quoting Alexandrowicz, Constitutional Development of India, p.46). 220 18. C.A.D., Vol. VII, p. 794. 221 19. Ibid., p. 794. 222 20. Ibid., p. 796. 223 21. Ibid., pp. 797, 840-42. 224 22. Ibid., p.841. 225 23. C.A.D., Vol. III, P. 328. The Honourable Sardar Vallabhbhai Patel, Chairman of the Committee submitted interim report on Fundamental Rights. The Right at Sr. No. 9 reads as under: No person shall be deprived of his life, or liberty, without due process of law, nor shall any person be denied the equal treatment of the laws within the territories of the Union. 226 24. Ibid., Vol. VII, pp. 842-43. 227 25. Ibid., pp 843-57. 228 26. Ibid., pp.999-1001. 229 27. Ibid., Vol. IX, pp. 1531. Early in 1947 Dr. Ambedkar submitted a note to the Advisory Committee in the form of a book styled, States and MinoritiesWhat are their rights and how to secure them in the Constitution of Free India. Among other things he suggested the following Fundamental Right:

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No State shall make or enforce any law or custom which shall abridge the privileges or immunities of citizens. Nor shall any State deprive any person of life, liberty and property without due process of law, nor deny to any person within its jurisdiction equal protection of law. 28. Ibid., Vol. IX, pp. 1498-1500. 29. Maneka v. Union of India, A.I.R. 1978 S.C. 597. 30. Francis v. Union Territory, A.I.R. 1981 S.C. 746 (para 3). 31. Ibid. 32. C.A.D., op. cit., Vol. IX, pp. 1498-1501. 33. Ibid. 34. Ibid. 35. Ibid., Vol. IX, pp. 1503-17. 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. 40. Ibid. 41. The Constitution of India, VII Schedule, Entry 3. 42. The Constitution, op. cit., article 22 and Appendix III. Clause (2) of section 1 of the Constitution (44th Amendment) Act, 1978, appended to the Constitution, mentions: It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act. 43. A.K. Roy v. Union of India A.I.R. 1982 S.C. 710 (paras. 52, 113). 44. C.A.D., Vol.VII, p. 953. 45. Seervai, H.M., Constitutional Law of India, Vol. 2, p. 2108. 46. C.A.D., Vol. VII, pp. 1118-19. 47. Ibid., p. 1119. 48. Ibid., pp. 1119-20. 49. Kuljit v. Lt Governor, A.I.R. 1982 S.C. 774. 50. Maru v. Union of India, A.I.R. 1980 S.C. 2147. 51. Kehar Singh v. Union of India, A.I.R. 1989 S.C. 653. 52. Maru v. Union of India, loc. cit. 53. Kehar Singh v. Union of India, loc. cit. 54. Maru v. Union of India, loc. cit. 55. Kehar Singh v. Union of India, loc. cit. 56. Maru v. Union of India, loc. cit. 57. Jumman v. State of U.P., (1991) 1 S.C.C. 752. 58. Harbans v. State of U.P., A.I.R. 1982 S.C. 849. 59. State of Bombay v. Nanavati, (1960) 62 Bom. L.R. 383. 60. Hukam Singh v. State of Punjab, A.I.R. 1975 P.&H. 902. 61. Seervai, op. cit., p.2093. 62. C.A.D., Vol. VIII, pp. 596-98. 63. Ibid., pp.598-99. 64. Ibid., pp. 600-01. 65. Ibid., p. 840. 66. Articles 132 to 134 of the Constitution of India. 67. D.T.C v. D.T.C. Mazdoor, (1991) Supp. (1) S.C.C. 600 (para 134) C.B. 68. Sachdev v. Union of India, A.I.R. 1991 S.C. 311. 69. Mahal v. Union of India, A.I.R. 1984 S.C. 1291. 70. Sachdev v. Union of India, loc. cit. 71. Mohd. Aslam v. Union of India, A.I.R. 1991 S.C. 548. 72. T.R. Dhananjaya v. J. Vasudevan , A.I.R.1996 S.C. 302. 73. Shri S. Swatantra Rao. 74. J Vasudevan v. T.R. Dhananjaya, A.I.R. 1996 S.C. 137. 75. State of Orissa v. Madangopal, (1952) S.C.R. 28. 76. Waryam v. Amar, A.I.R. 1954 SC 215. 77. State of Haryana v. Inder, A.I.R.1976 S.C. 1841 (para 12). 78. C.A.D., Vol. VII, p. 582. 79. Ibid.

230 231 232 233 234 235 236 237 238 239 240 241 242 243 244

245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269

270 271 272 273 274 275 276 277 278 279 280 281

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282 283 284 285 286 287 288 289 290 291 292 293 294 295 296

297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323

324 325 326 327 328 329 330 331 332

333 334 335 336 337

80. Ibid., pp. 582-84. 81. Ibid., p. 584. 82. Ibid., pp. 586-87. 83. Ibid., pp. 588-90. 84. Ibid., pp. 590-91. 85. Ibid. 86. Ibid., Vol. IX, pp.1572-79.. 87. Ibid. 88. Ibid. 89. Ibid. 90. Cr.P.C., Act 5 of 1898, sections 10, 12-14. 91. Ibid., Act 2 of 1974, section 12. 92. Ibid., section 17(5). 93. Ibid., sections 18-21. 94. Basu, Durga Das., Shorter Constitution of India, pp. 75253. 95. Ibid. 96. Ibid., p. 993. 1. Samaha, Joel, Criminal Justice, p. 6. 2. The Constitution of India, article 254. 3. Ibid., Seventh Schedule, List I, entry 8. 4. Ibid., entry 9. 5. Ibid., entry 77. 6. Ibid., entry 78. 7. Ibid., entry 79. 8. Ibid., entry 80. 9. Ibid., entry 93. 10. Ibid., entry 95. 11. Ibid., List II, entry 1. 12. Ibid., entry 2. 13. Ibid., entry 3. 14. Ibid., entry 4. 15. Ibid., entry 64. 16. Ibid., entry 65. 17. Ibid., List III, entry 1. 18. Ibid., entry 2. 19. Ibid., entry 3. 20. Ibid., entry 4. 21. Ibid., entry 11A. 22. Ibid., entry 12. 23. Ibid., entry 26. 24. Ibid., entry 46. 25. Choudhury, Dr. Mrinmaya., Languishing for Justice, pp. 91-92. 26. Ratanlal and Dhirajlal, The Indian Penal Code, 28th Ed., p. iv. 27. Choudhury, op. cit., p. 92. 28. Ibid., pp. 93-94. 29. Ratanlal and Dhirajlal, loc. cit. 30. Ibid., Appendices A and C. 31. The Constitution, op. cit., List III, entry 1. 32. Ibid. 33. Ratanlal and Dhirajlal, loc. cit. 34. Rattanlal and Dhirajlal, The Code of Criminal Procedure, 15th Ed., pp.1-4. 35. Ibid. 36. The Constitution, op. cit., List III, entry 2. 37. Ratanlal and Dhirajlals The Law of Evidence, 19th Ed. p. 1. 38. Ibid. 39. State of Punjab v. S. S. Singh, A.I.R. 1961S.C. 493.

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338 339 340

341 342 343 344 345 346 347 348 349 350 351 352

353 354 355 356 357

358 359 360 361 362 363 364 365 366 367 368 369

370

371 372 373 374 375 376 377 378 379 380 381 382

383 384 385 386 387 388 389 390

40. H.H Advani v. State of Maharashtra, A.I.R. 1971 S.C. 44. 41. The Constitution, op. cit., List III, entry 12. 42. Sharma, op. cit., (quoting Presidents Commission on Law Enforcement and Administration of Justice, Task force Report (The Police), G.P.O., Washington, D.C. 19657, pp. 3-7. 43. The Gazetteer of India, Vol. IV, pp. 424-28. 44. The Constitution, op. cit., Seventh Schedule, List I-Union List, entries 8,9 and 65. 45. Ibid. 46. The All India Services Act, 1951, Section 3; Constitution of India, Article 312. 47. The Indian Police Service (Recruitment) Rules, 1954, Rule 4. 48. Mathur, Dr Krishna Mohan., Administration of Police Training in India, pp.63-65. 49. The Gazetteer., loc. cit. 50. Ibid. 51. India 1999, Publications Division, Government of India, pp. 541-46. 52. India 1999, loc. cit. 53. Bar Council of Maharashtra v. M.V. Dabholkar, A.I.R. 1976 S.C. 242. 54. Judges of the Supreme Court and the High Courts 1999, Department of Justice, Ministry of Law and Justice, Government of India, New Delhi. 55. Ibid. 56. Ibid. 57. Ibid.,p. 149. 58. The Gazetteer, Vol. IV, pp. 416-17. 59. Mann, Administration of Justice in India, pp. 149-50; Advocates Act, 1961. 60. Ibid. 61. Ibid. 62. Jhabvala, Noshirvan.H., Drafting, Pleading, Conveying & Professional Ethics, pp. 6-14. 63. Bar Council of Maharashtra, loc. cit. 64. Sections 24 and 25, Cr.P.C., 1973. 65. Chunchun v. State of U.P., (1983) Crimes 818. 66. Roop K. Shorey v. State, A.I.R. 1967 Punj 42. 67. Ahmed, (1950) Kar 482. 68. Immadi Suryanarayana Rao v. State, 1982 Mad. L.J.(Cr.) 445 (A.P.). 69. Ibid. 70. Maan, op. cit., p. 152. 71. Choudhary, Pawan Manmauji, Indian Judicial System: Its Nature and Structure and Distinction between Law and Justice, The Indian Journal of Public Administration, July-Sep. 1999, p.304. 72. The Constitution, op. cit., article 124. Initially, in 1950, the Supreme Court consisted of seven Judges; the number was raised to ten in 1956; 13 in 1960; 17 in 1981 and 25 in 1986. 73. Ibid., articles 129-44. 74. Ibid., article 124. 75. Ibid., article 138(2). 76. Seervai, H.M., Constitutional Law of India, Vol. 3, p. 2646. 77. Ibid. 78. Basu, Durga Das, Introduction to the Constitution of India, p. 291. 79. C.A.D., Vol. VII, pp. 596-601, 840. 80. The Constitution, op. cit., article 225. 81. Ibid., articles 216-17, 224, 224A. 82. Kautilaya, The Legal History of India, p. 83. 83. Jain,U.C., and Nair, Jeevan, Judiciary in India, pp. 132-38. 84. Har Vishnu Kamath v. Ahmad Ishaque, A.I.R. 1955 S.C. 233; Nibaran Chandr Bag v. Mahendra Nath Ghughu, A.I.R. 1963 S.C 1895. 85. Cr.P.C.,1973, Schedule I. 86. The Constitution, loc. cit. 87. Cr.P.C.,op. cit., Section 28. 88. Ibid., section 11(3). 89. Ibid., section 12. 90. Ibid.,section 29. 91. Ibid., sections 16-18. 92. Ibid., section 29(4).

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391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419

93. Ibid., sections 13 and 18. 94. The Constitution, op. cit., Ninth Schedule, List-II, entry 4. 95. Choudhury, op. cit. , pp. 177-78. 96. Ibid. 97. Ibid. 98. Prison Statistics 1997, National Crime Records Bureau, pp.1-9. 99. Sirohi, op.cit., pp.122-23 100. Mathew, P.D., The Rights of Prisoners, , p. 46. 101. Ibid. 102. Ibid. 103. Ibid. 104. Ibid., pp. 441-43. 105. Sunil Batra v. Delhi Administration, A.I.R. 1980 S.C. 1579. 106. Ibid. para 60. 107. Ibid. 108. Ibid. 109. Ibid. 110. Ibid. 111. Ibid. 112. The Gazetteer, op. cit., p.458. 113. Ibid., pp. 438-39. 114. Ibid. 115. Sirohi, op. cit., pp. 231-39. 116. Ibid. 117. Rattan Lal v. State of Punjab, A.I.R. 1965 S.C. 444. 118. Sirohi, op. cit., pp. 264-73. 119. Ibid. 120. Ibid. 121. Md. Giasuddin v. State of Andhra Pradesh, A.I.R. 1977 S.C. 1926.

1. The Constitution of India, article14. 2. Ibid., article 17. 3. Originally, Untouchability (Offences) Act,1955. It was amended and renamed in 1976 as Protection of Civil Rights Act. 4. Basu, Durgadas, Introducion to Constitution of India, p.103. 5. Venkataraman v. Union of India, A.I.R. 1954 S.C. 375. 6. Ibid. 7. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300. 8. State of Bombay v. Kathi Kalu, A.I.R.1961 S.C. 1808. 9. Narayanlal v. Maneck, A.I.R. 1961 S.C. 29 (38-39). 10. Basu, op. cit., pp.110-111. 11. Chandra Bhavan v. State of Mysore, A.I.R.1970 S.C. 2042. 12. Mumbai Kamgar Sabha v. Abdulbhai, A.I.R. 1976 S.C. 1455 (para 29). 13. Mohan v.Union of India, (1992) Supp. (1) S.C.C. 594 (paras 41,42). 14. Constitution of India, article 51A 15. Gour, Dr. Hari Singh, Penal Law of India, Vol. I, p. 797. 16. Munshi Ram v. Delhi Administration, A.I.R. 1968 S.C. 702. 17. Jois, M.Rama, Legal and Constitutional History of India, Vol. 1, pp. 371-72. Manu Smriti provided that any person can slay without hesitation an assassin who approaches him with murderous intent, whether the assassin is ones own teacher, minor, an aged man or a Brahmana.

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By killing an assassin the slayer commits no offence (Manu VIII 350-51). According to Katyayana Smriti that no blame is attached to one who kills wicked men who are about to kill a person (Katyayana 800). 18. Surjit Singh v. State of Punjab, 1966 S.C.C. 336. 19. Gour,op. cit., pp. 797-99 20. Rahmat Ali v. State, A.I.R. 1953 All. 338; Gour, loc. cit. 21. Laxman Sahu v. State of Orissa, A.I.R. 1988 S.C. 83. 22. Munney Khan v. State, A.I.R. 1971 S.C. 1491. 23. Jois, op. cit., pp. 380-81 (quoting Manu IX 274). 24. Ibid., (quoting Vishnu p. 31-74). 25. Joti Prasad, (1920) 42 All 314-316. 26. Reg.v. Sherlock, (1966) L.R.I.C. 20; Sohonis Cr.P.C. Vo. 1, p. 227.. 27. Nazir v. Rex, A.I.R., 1951 All. 3(F.B.); Sohonis Cr.P.C, loc. cit. 28. Fakira, I.L.R. 17 Mad. 130 29.. The illustration reads as under: A sees Z commit what appears to A to be a murder. A, in the exercise to the best of his judgement exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence. 30. 30. Samuel v. Payne, I Dougl. 359; Beckwith v. Philby, 6 B & C. 637; Davis v. Russel, 5 Bing. 344; Gours I.P.C. Vol. 1, p. 583. 31. State of Gujarat v. Shyamlal Mohan Lal, A.I.R., 1965 S.C. 1251. 32. Mukh Ram v. State, I.L.R. 1952 Raj. 887. 33. S.N. Sharma v. Bipen Kumar, A.I.R. 1970 S.C. 786. 34. State of Haryana v. Bhajan lal, 1992 Cr. L. J. 527 (P.&H.). 35. Gurmito v. State of Punjab, 1996 Cr. L. J. 1254 (P.&H.). 36. State of Andhra Pradesh v. Punati Ramulu, A.I.R. 1993 S.C. 2644. 37. Shankralinga Kone, (1900) 23 Mad. 37 38. G.D. Chadha v. State of Rajasthan, 1972 W.L.J. 224; Bhikarilal v. Emperor, A.I.R. 1945 Nag. 217; Sohonis Cr.P.C. p. 1643. 39. Narpal Singh v. State of Haryana, A.I.R. 1977 S.C. 1066. 40. Md. Ismail v. State of Kerala, 1982 Cr.L.J. 2102 (Ker.). 41. State of U.P. v. M.K. Anthony, A.I.R. 1985 S.C. 48. 42. Razik Ram v. J.S. Chouhan, A.I.R. 1975 S.C. 667. 43. State v. Mansha Singh, A.I.R. 1958 Punj. 233 at 240 (F.B.). 44. Ibid.; S.A. Venkataraman v. Union of India, A.I.R.1954 S.C. 375. 45. C. Devanugraham, A.I.R. 1952 Madras. 725. 46. Venkataraman, loc. cit., 47. Bekaru Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 430. 48. Sheela Barse v. State of Maharashtra, A.I.R. 1983 S.C. 378. 51. Mumbai Central Railway Police Station, Mumbai, F.I.R. No. 708/98 dated 26.10.98 lodged by the victim, Miss Jaybala Chandrakant Ashar. 52. Agripada Police Station (Mumbai) F.I.R. No. 115 dated 23.6.2000 lodged by the victim Smt. Vidya Prabhu Desai. 53. Mumbai Police, Crime Prevention Week-2000, p. 5. 54. Ibid., p. 63. 472 UNCJIN, loc.cit. 473 Section 2(c) of the Cr. P.C., 1973. 474 Section 169 of the Cr.P.C., 1973. The accused, if in the custody, shall be released on executing a bond, with or without sureties. 475 For example, a case of time bar under section 468, Cr.P.C., 1973. 476 A.R.Antulay v. R.S.Nayak, A.I.R. 1988 S.C. 1531. 477 Hussainara Khatoon v. Home Secretary, State of Bihar, A.I.R. 1979 S.C. 1377. 478 Sheela Barse v. Union of India, (1986) 3 S.C.C. 632. 479 Law Commission of India, 124th Report, pp. 10-19.

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480 481

Rajdeo Sharma v. State of Bihar, A.I.R. 1998 S.C. 3281. Rajya Sabha Secretariat, reply to Rajya Sabha Starred Question No. 34, dated 21.2.2000 quoting the order dated November 1, 2000 in R.D. Upadhyay v.State of Andhra Pradesh in Writ Petition (C) No. 554/1994. 482 Rajya Sabhha, op. cit., Reply to Rajya Sabha Unstarred Qestion No. 4042 dated, 23.4.2001. 483 Crime in India, 1978 and 1998; Also see appendix.. 484 Ibid.; Also see appendix.. 485 Sharma, D.P., Speedy Justice and Indian Criminal Justice System, I.J.P.A., July-Sep.1999, p. 356. 486 The Times of India, dated 25.12.2000, 26.12.2000; The Indian Express, dated 28.12.2000; The Times of India, dated 27.4.2001. 487 Ibid, dated 19.4.2000. 488 Ibid., dated 13.4.2000. 489 Punjab Rao v. State of Maharashtra, decided by a division bench of the Supreme Court, headed by Justice G.B. Pattanaik, on 14.2.2001. The author personally witnessed the hearing. 490 State of Maharashtra v. Dudang, reported in the Indian Express, dated April 9, 2001. 491 Mathur, B.C., Central Administrative Tribunals, I.J.P.A., July-Sep.1999. p. 506. 492 Ibid. 493 Crimes in India,1978 to 1998; Also see appendix. 494 Law Commission of India, 124th Report, p. 8. 495 India 2001, Publications Division, Government of India, pp. 627-28. 496 Law Commission of India, List of Reports Forwarded (1955 2000). 497 Sharma, D.P., Speedy Justice and Indian Criminal Justice System, I.J.P.A., July-Sep.1999, pp. 356-57. 498 Law Commission of India, 77th Report, p. 49. 499 Ibid., p. 56. 500 Ibid., 124th Report, p. 20. 501 Ibid., 154th Report, p. 100. 502 Ibid. 503 Ibid., p. 102. 504 Ibid., pp. 106-07. 505 Ibid., 156th Report, p. 341. 506 Ibid., pp. 341-42. 507 Ibid., 342-43. 508 Ibid., p. 356. 509 Ibid., 357-58. 510 Ibid., 358-59. 511 The Indian Express, dated 30.1.2000; Afternoon, Mumbai, dated 29.1.2000. 512 Anand, op. cit., pp. 299. 513 The Times of India, dated 7.3.99. 514 Venkatachaliah, M.N., Rule of Law: Contemporary Challenge, I.J.P.A., July-Sep. 1999, pp. 327. 515 Ibid. 516 Krishna Iyer, V.R., Access to Justice, p. vii. 517 The Times of India, dated 29.1.1999; The Indian Express, dated 2.2.1999. 518 Interview with Pritish Nandy published in the Times of India (Bombay Times), dated 9.2.1999. 519 Rustomji, K.F., The Need for Police Reform in Chaturvedi, S.K. (ed.), Role of Police in Criminal Justice System, p. 83. 520 Karan, loc. cit. 521 Ibid. 522 The Times of India, dated 3.7.2000. 523 Ibid., dated 2.1.2000.

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524

525

526 527 528

529 530

531

532 533 534

535

536

537 538

539

540 541

542 543 544 545

546 547

548 549

550 551 552

553

554 555 556 557

Sivanandhan, D., The State of Crime Investigation, Prosecution etc. and some Remedial Measure, in Souvenir , brought out on the occasion of Crime Prevention Week-2000, Mumbai, p.36. 1. Karan, Vijay, Moribund Criminal Justice System, Indian Journal of Public Administration, July-Sep. 1994, pp. 375-76. 2. Ibid. 3. Ibid. 4. State of Maharashtra v. Deorao Hirasman Sawale, Sessions Trial No. 148/89, decided by Shri S.K. Binwade, 2nd Additional Sessions Judge, Yavatmal on 30.3.1994. 5. Manu Smriti, VIII 118, 122,124. 6. Sharma, M.L., Towards Speedy Justice, C.B.I. Bulletin, August 1999, pp. 4-16. 7. Mike, Brogden, Stopping the People-Crime Control versus social Control, in Baxter, John and Laurence Koffman (eds), Police :The Constitution and the Community, p. 105-06. 8. C.A.D. ,Vol. VII, pp. 654-55; Also see Chapter 3. 9. The objective clause of the Police Act, 1861. 10. Joshi, G.P., Insulating Police from Political Control-A critical Review, Indian Police Journal, Jan-March 1999, p. 45. 11. During this period the strength of civil police (all States and U.T.s) increased from 6.17 lakhs to 13.15 lakhs, i.e. 113.19 per cent, while the population increased from 5235.12 lakhs to 9709.33 lakhs in 1998, i.e. 85.46 per cent, (Crime in India 1968 p. 52 and Crime in India 1998, p. 351, N.C.R.B.). 12. Records of Ministry of Home Affairs, New Delhi. The actual number and names of the persons are not being disclosed for security reasons. 13. Records of the office of the Commissioner of Police, Mumbai. 14. Statistical Out Line of India 1998-99, Tata Services Limited, Department of Economics and Statistics, Mumbai, pp. 96-97. 15. Ibid., Road length increased from 12,49,000 kms. in 1975 to 30,15,000 kms. In 1994, i.e. 2.41 times. 18. Inciardi, James A., Criminal Justice, p.187. 19. Singh, Prakash, Police Reforms-Their Raison Detre, I.P.J., Jan-March 1999, pp. 3-8. 20. Ibid. (quoting Jerome H. Skolnick and Candace McCoy). 21. Ibid. 22. Ibid. 23. Singhvi, G.C., Rule of Law Warrants Engaging Practising Advocates as A.P.P.s. I.P.J., Jan-June 1995, pp. 24. 24. S.B. Sahane v. State of Maharashtra, A.I.R. 1995 S.C. 282. 25. Crimes in India, 1884,1995,1996,1997,and 1998, N.C.R.B., New Delhi. 26. R. Sarala v. T.S. Velu, A.I.R. 2000 S.C. 1731. 27. Mitta, Manoj, Pricing out justice, The Indian Express, Mumbai, dated 25.1.2001. The author has described as how private advocates of the Supreme Court charge exorbitant fee from their clients. As per his knowledge senior advocates at the apex court charge anywhere between Rs. 40,000 and Rs. 1 lakh per appearance at the stage of admission. After admission, the seniors are engaged for regular hearing at the equally exorbitant rate of Rs. 50,000 to Rs. 1 lakh per hearing. In criminal cases, the accused seeking bail from the court of last resort will have to cough up as much as Rs. 50,000 to Rs. 1 lakh. 28. Palkhivala, Nani. A., We, the Nation, pp. 205-18. 29. Ibid. 30. There were 69 vacancies of Judges in various High Courts as on 3.2.1986 as mentioned in the Law Commission s 124th report, p. 3. 31. The Indian Express, dated 20.3.1999 at www.expressindia.com. 32. Also see Appendix XI. 33. The Times of India, Mumbai, dated 23.1.1999. 34. Crime in India, 1978 and 1998. 35. Ministry of Law and Justice (Dept. of Justice), Government of India, vide letter No. 13011/33/98-Jus(M), dted 19.5.1999.

Page 182 of 208

558

559

560

561

562 563

564 565 566 567

568 569 570

571

572

573

574

575 576 577 578 579

580

581

36. Law Commission, 124th Report, pp. 2-3; 120th Report, pp. 14-22; 125th Report, 7-12, 29- 32; Project Report Towards a more people friendly and economic court procedure, Centre for the Study of Developing Societies, 29, Rajpur Road, Delhi. 37. Law Commission, op. cit., 125th Report, pp. 14 and 32. The strength of the Judges of Supreme Court was enhanced from 18 to 26 w.e.f. 9th may 1986 but for a period of nearly two years, not a single post from the additional strength was filled. 38. Law Commission, op. cit., 125th report p. 11 (quoting the Law Commissions 79th Report (1979) on delay and arrears in High Courts and other appellate courts. 39. United Nations Crime and Justice Information Network at www.uncjin.txt; Sourcebook of Criminal Justice statistics online at www.albany.edu/sourcebook/1995; the Cambridge Encyclopaedia. 40. The Indian Express, dated 19.10.1998. 41. The Times of India, dated 18.5.2000.(an article by Krishan Mahajan, Judging the right number, quoting the Law Commission of Indias 120th Report). 42. Ibid. 43. Law Commission, op. cit., 116th Report, p.18. 44. Ibid. 45. A Hand Book of Salient Extracts from First National Judicial ay Commission (Bangalore), Reports-Volume 1 to 3,circulated by all India Judges Association, 1229/1, King Kothi, Hyderabad-500 001. Justice K. Jagannatha Shetty, former Judge of Supreme Court of India chaired the Commission. 46. Law Commission, op. cit., 14th Report, p. 161. 47. Ibid., 117th Report, p. 2. 48. The Times of India, dated 5.1.2001 quoting the Supreme Courts ruling in the case of Delhi Bar Association. 49. Unsuccessful impeachment of Justice V.Ramaswamy on charges of corruption. 50. Arrest of Mr. J.W. Singh, Sessions Judge, Mumbai for having links with underworld. 51. A sitting Judge of the Allahabad High Court stopped an Orissa bound train on March 8, 2000 and held open court at the platform to proceed against the Deputy Station Superintendent on having denied a berth, and made the railway official to tender an apology. 52. The additional District and Sessions Judge of Palamu, Mr. Ganesh Dutt was suspended for ticketless travelling in March 2001, as reported by the Indian Express dated 28.3.2001. 53. The Indian Express, dated 17.11.2000 and 7.7.2000. 54. The Times of India, Mumbai, dated 23.1.1999. 55. The Times of India, Mumbai, dated 5.5.2001. 56. The Times of India, dated 21.8.2000. 57. Cost of Criminal Justice System in India, B.P.R. & D., New Delhi, 99. 3-18. 58. A Hand Book of Salient Extracts from First National Judicial Pay Commission, op. cit., pp. vii-viii. 59. The Times of India, dated 21.12.2000. Analysis of the records of criminals arrested by Mumbai Police in extortion cases in the year 2000 indicate that out of 492 accused, 7 were post-graduates, 27 graduates and 114 were senior secondary and above, and 183 had studied from VII to X standard while remaining 161 were below class VII as reported in the Times of India, dated 21.12.2000.

Page 183 of 208

Bibliography
PRIMARY SOURCES
A Handbook of Salient Extracts from First National Judicial Pay Commission (Bangalore), Reports-Volume 1 to 3, 1999, circulated by All India Judges Association, 1229/1, King Kothi, Hyderabad-500 001, 1999. Annual Report 1998-99, Ministry of Home Affairs, Government of India, New Delhi, 2000. Constituent Assembly Debates (Official Report), Volume 1 to 12, Loksabha Secretariat , New Delhi, 1999. Cost of Criminal Justice System in India, Bureau of Police Research & Development, Ministry of Home Affairs, Government of India, New Delhi, 1981, 1989. Crime in India in 2000 A.D: Some Projections, Bureau of Police Research & Development, Ministry of Home Affairs, Government of India, New Delhi, 1989. Crime in India, National Crime Records Bureau, Ministry of Home Affairs, Government of India, New Delhi, 1958, 1968, 1978, 1988, 1994-98. D.O. No. 276011/13/99 PE. III, dated 3. 4. 2000, of the Home Secretary, Government of India, New Delhi. India, 1988, 1999, 2000 and 2001, Publications Division, Ministry of Information and Broadcasting, Government of India, Patiala House, New Delhi 110 001, 1989, 1999.2000, 2001. Judges of the Supreme Court and the High Court, Department of Justice, Ministry of Law and Justice, Government of India, New Delhi,1999.

Letter No. 3389-3430, dated 13.6.2000 of the Director General of Police, Rajasthan, Jaipur.
Manual for the Handling of Civil Disturbances, Maharashtra Police, Bombay, 1991. Mumbai Police Manual, Volume 1 to 3. Director General of Police, Maharashtra, Mumbai (1999). Police Housing in the States, Bureau of Police Research & Development, Ministry of Home Affairs, Government of India, New Delhi, 1997.

Page 184 of 208

Prison Statistics 1997, National Crime Records Bureau, Ministry of Home Affairs, Government of India, R.K. Puram, New Delhi, 1999. Records in the office of the Directorate of Public Prosecutions, Maharashtra, Mumbai. Records of the Lok Sabha Secretariat, New Delhi. Records of the Ministry of Home Affairs, New Delhi. Records of the office of the Additional Director General of Police (Crime), Maharashtra, Pune. Records of the office of the Commissioner of Police, Mumbai. Records of the office of the Director General of Police, Maharashtra, Mumbai. Records of the office of the Director, Maharashtra, Mumbai. Public Prosecution,

Records of the Rajya Sabha Secretariat, New Delhi. Report of the Justice Srikrishna Commission (on Communal riots in Mumbai during December 1992 and January 1993) by Justice B.N. Srikrishna, Judge, High Court, Mumbai. Report of the Justice Verma Commission (on assassination of Mr. Rajiv Gandhi) by Justice J.S. Verma, retired Chief Justice of India, New Delhi, 1991. Reports of the First, Second, Third, Fourth and Fifth Commissions, Government of India, New Delhi. Pay

Reports of the Law Commissions of India, Ministry of Law, Justice and Company Affairs, Government of India, New Delhi, 1956 to 2000. Reports of the National Police Commission, Ministry of Home Affairs, Government of India, New Delhi, 1977. The All India Services Act, 1951 (Act 61 of 1951). The Bombay Police Act, 1951 (Bombay Act No. XXII of 1951), Director, Government of Maharashtra, Mumbai, 1992. The Code of Criminal Procedure, 1898 (Act 5 of 1898). The Constitution of India, Government of India, Ministry of Law, Justice and Company Affairs, New Delhi, 2000.

Page 185 of 208

The Constitution of United States of America, Consulate General of U.S.A. at Mumbai. The Gazetteer of India, Volume 4, Ministry of Education and Social Welfare, Government of India, New Delhi, 1978. The Gazetteer of India, Volume 1-2, Publications Division, Ministry of Information and Broadcasting, Government of India, Patiala House, New Delhi- 110 001, 1997. The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998 (No. 7 of 1999). The High Court Judges (Conditions of Service) Act, 1954 (28 of 1954). The Protection of Civil Rights, 1955 (Act 22 of 1955). Towards a More People Friendly and Economic Court Procedure, a Project Report of Centre for the Study of Developing Societies, 29, Rajpur Road, Delhi-110 054, sponsored by Bureau of Police Research and Development, Ministry of Home Affairs, Government of India , New Delhi. United Nations Crime and Justice Information Network, United Nations Economic and Social Council at www.uncjin.org. World Factbook of Criminal Justice Systems, United States Department of Justice at www.usdoj.gov/bjs.

SECONDARY SOURCES

Books
Alexandrowicz, Charles Henry, Constitutional Development in India, Oxford University Press, Bombay, 1957. Austin, Granville, The Indian Constitution Cornerstone of A Nation, Oxford University Press, Delhi, 1996, 2000. Austin, Granville, Working a Democratic Constitution:The Indian Experience, Oxford University Press, New Delhi, 2000. Awasthi, S.K., The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Premier Publishing Co., Bangalore, 1992. Bag, R.K., Compendium of Supreme Court Rulings on Criminal Law and Police Work, Vol.1, Sardar Vallabhbhai Patel National Police Academy, Hyderabad, 1997. Basu, Durga Das, Commentary on the Constitution of India, Vol. A, S.C.Sarkar and Sons (Pvt.) Ltd., Calcutta, 1973.

Page 186 of 208

Basu, Durga Das, Introduction to the Constitution of India, Prentice Hall of India Private Limited, New Delhi, 1995. Basu, Durga Das, Shorter Constitution of India, Company, Nagpur, 1999. Wadhwa and

Bawa, P.S., Policing For People, Rupa & Co., Calcutta, 1989. Baxi, Upendra, The Crisis of the Indian Legal System, Vikas Publishing House, New Delhi, 1982. Baxter John & Laurence Koffman, Police : The Constitution And The Community, D.K. Agencies (P) Ltd., New Delhi, 1985. Bhardwaj, H.R., Law Lawyers And Judges, Konark Publishers Pvt. Ltd.,Delhi, 1997. Chaturvedi, S.K., Police and Emerging Challenges, Publishing Corporation, Delhi, 1988. B.R.

Chaturvedi, S.K., Role of Police in Criminal Justice System, B.R. Publishing Corporation, Delhi, 1996. Chaturvedi, S.K., Rural Policing In India, B.R. Publishing Corporation, Delhi, 1988. Chaturvedi, T.N., Fifty Years of Indian Administration: Retrosespect and Prospects, Indian Institute of Public Administration, New Delhi, 1998.

Choudhuri, Mrinmaya, Languishing Nagpur, 1995.

for Justice,

Dattsons,

Cohn, Alvin W., (ed), Criminal Justice Planning and Development, SAGE Publication, London, 1977. Craford, Adam, Crime Prevention and Community Safety, Longman, London, 1998. Deb, R., Principles of Criminology, Criminal Law and Investigation, S.C. Sarkar and Sons, Calcutta, 1958. Dhavan, Rajeev, The Supreme Court of India, N.M. Tripathi, Bombay, 1077. Dhavan, Rajeev, The Supreme Court under Strain: The Challenge of Arrears, N.M. Tripathi, Bombay, 1978. Edinburgh, Walker N., Crime and Punishment in Britain, University Press, Edinburg, 1969.

Page 187 of 208

Gautam, D.N., What is Wrong with Indian Police ?, NBO Publishers, New Delhi, 1984. Gibbs, J.P., Crime Punishment & Deterrence, Elsevier, New York, 1975. Gour, Dr. Hari Singh, The Penal Law of India, Vol. 1-4, Law Publishers (India) Pvt. Ltd., Allahabad-211 001, 1999. Gupta, A.S., Crime and Police in India, Sahitya Bhavan, Agra, 1974. Gupta, Anandswarup, The Police in British India, 1861-1947, Concept Publishing Company, Delhi, 1978.

Hagan, Frank E., Research Methodos in Criminal Justice and Criminology, Prentice Hall, Englewood Cliffs, New Jersey, 1993. Hansaria, B.L., Does India Need a New Constitution ?, Eastern Law House, Calcutta, 1998. Harris, Robert, Crime Criminal Justice and the Probation Service, Tavistock/Routledge, London, 1992. Inciardi, James A., Criminal Justice, Harcourt Brace Jovanovich Publishers, London, 1987. Jain, Subhash C., The Constitution of India: Select Issues & Perceptions, Taxmann Publication (P) Ltd., New Delhi, 2000. Jain, U.C., Nair, Jeevan, Judiciary In India, Pointer Publishers, Jaipur, 2000. Jhabvala, H. Noshirvan, Drafting, Pleading, Conveyancing & Professional Ethics, C. Jamna Das & Co., Mumbai, 1996. Jois, M.Rama, Legal And Constitutional History of India, Vol 12, N.M. Tripathi Private Ltd., Bombay, 1990. Joshi, G.P. and Bajpai, G.S., Community Policing: Concepts and Applications, Bureau of Police Research and Development, Ministry of Home Affairs, Government of India, New Delhi, 1995. K. Mahesh & Bishwajit Bhattacharyya, Judging the Judges, Gyan Publishing House, New Delhi, 1999. Kapse, Dr S.R., Police Administration In Bombay 1600-1865, Himalaya Publishing House, Bombay, 1987.

Page 188 of 208

Kapse, Dr. S.R., Modernisation of the Police for the Twenty First Century, Popular Book Service, Bombay, 1989. Kautilaya, The Legal History of India, C. Jamnadas & Co. Educational & Law Publishers,Bombay, 1984. Krishna Iyer, V.R., Access to Justice, B.R. Publishing Corporation, Delhi, 1993. Krishna Iyer, V.R., Justice at Crossroads, Deep & Deep Publications, New Delhi, 1994. Krishna Iyer, V.R., Our Court on Trials, Corporation, Delhi, 1987. B.R. Publishing

Krishnaswami, Dr. O.R., Methodology of Research in Social Sciences, Himalaya Publishing House, Mumbai, 1999. Krishnaswamy, P., Justice V.R.Krishna Iyer: A living Legend, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2000. Kulshreshtha, V.D., Landmarks in Indian Legal and Constitutional History, Eastern Book Company, Lucknow, 1995. Kumar, Dr. Surendra, Manusmriti, Arsh Sahitya Prachar Trust, 455, Khari Baoli, Delhi-110 006,1991. Laski, Harold J., A Grammer of Politics, George Allen and Unwin, London, 1955. Malik, B., Criminal Trials, Law Publishers, Allahabad, 1985. Mann, T.K., Administration of Justice in India, Concept Publishing Company, New Delhi, 1979. Manohar, V.R. and Chitaley, W.W., The AIR Manual, Vol. 1-40. All India Reporter Pvt. Ltd., Nagpur-440 012, 1989. Mathew, P.D., The Rights of Prisoners, Indian Social Institute, New Delhi. Mathur, Dr. Krishna Mohan, Administration of Police Training in India, Gian Publishing House, Shakti Nagar, Delhi, 1987. Mathur, K.M., Problems of Police in a Democratic Society, RBSA Publishers, Jaipur, 1987. Misra, S.C., Police Administration in India, National Police Academy, Hyderabad, 1972. Mookerji, Dr. Radha Kumud, Hindu Civilization, Bharatiya Vidya Bhawan, Bombay, 1977.

Page 189 of 208

Narayan, Jitendra, Communal Riots in India, Ashish Publishing House, New Delhi, 1992. Nath, Trilok, Police in Action, B.R. Publishing Corporation, Delhi, 1997. Nehru, Jawaharlal, The Discovery of India, Oxford University Press, New Delhi, 1993. Pachauri, S.K., Prisoners And Human Rights, Publishing Corporation, New Delhi, 1999. A.P.H.

Palkhivala, Nani A., We the Nation: The Lost Decades, UBS Publishers Distributors Ltd., New Delhi,1994. Palkhivala, Nani A., We the people, T.N. Shanbhag, Bombay, 1984. Patra, La J.W., Analyzing the Criminal Justice System, Lexiton Books, Lexiton, 1978. Peak, J. Kenneth, Justice Administration, Prentice Hall, Englewood Cliffs, New Jersey, 1995.

Price, B.R. & Phyllis, Baunach, (eds.), Criminal Justice Research-New Models and Findings, SAGE Publication, London, 1980. Puranik, A.B., The Bombay Police Act, 1951, CTJ Publications, Pune, 1998. Pylee, M.V., Constitutions of the World, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2000. Rajan, V.N., Victimology in India, Allied, Delhi, 1981. Rajan, V.N., Whither Criminal Justice Policy, Publication, New Delhi, 1983. Sagar

Raman, Kannamma S., Universality of the Human Rights DiscourseAn Overview, Department of Civics and Politics, University of Mumbai, Mumbai, 1998. Ramsay, Clark, Crime in America, Simon and Selmuster, New York, 1970. Ranganathan, S., Constitution of India Five Decades ( 19501999), Bharat Publishing House, New Delhi, 1999.

Page 190 of 208

Rangarajan, L.N., Kautilya: The Arthashastra, Penguin Books India (P) Ltd., Delhi, 1987. Rao, S. Venugopal, Facets Publishers, New Delhi,1967. of Crime in India, Allied

Rao, S. Venugopal, Criminal Justice Problem and Perspectives in India, Konark Publishers Pvt. Ltd., Delhi, 1991. Rao, V.K.R.V., Swami Vivekananda, Publications Division, Ministry of Information and Broadcasting, Government of India, New Delhi, 1979. Ratanlal & Dhirajlal, The Code of Criminal Procedure, Wadhwa & Company, Nagpur, 1997. Ratanlal & Dhirajlal, The Indian Penal Code, Company, Nagpur, 1997. Wadhwa &

Ratanlal & Dhirajlal, The Law of Evidence, Wadhwa and Company, Delhi, 1997. Ray, Amal & Bhattacharya, Mohit, Political Theory : Ideas and Institutions, World Press Private Ltd., Calcutta, 1994. Ray, Surette, Media, Crime West/Wadsworth, London, 1998. and Criminal Justice,

Reddy, P. Jaganmohan, The Judiciary I Served, Longman Ltd., Hyderbad, 1999.

Orient

Ribeiro, Julio, Bullet for Bullet, Viking Penguin Books India (P) Ltd., New Delhi, 1998. Roy, Jaytilak Guha, Policing in Twentyfirst Century, Indian Institute of Public Administration,Delhi,1999. Saha, B.P., The Police in free India, Konark Publishers, Delhi, 1989. Samra, A.S., Police & its Management in Modern India, Police Training College, Nasik, 1982. Samaha, Joal, Criminal Justice, West Publishing Co., 1st Paul (U.S.A.), 1995. Sarkar, S.C., The Law of Criminal Procedure, S.C. Sarkar & Sons (Private) Ltd., 1/C, College Square, Calcutta, 1960. Schmidhauser, John R., Comparative Butterworths I, London, 1987. Judicial System,

Page 191 of 208

Schmidhauser, John R., Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis, Butterworths, London, 1987. Seervai, H.M., Constitutional Law of India, Vol. 1 To 3, N.M. Tripathi Private Ltd., Bombay, 1996. Seervai, H.M., The Position of the Judiciary Under the Constitutuon of India, Bombay University Press, Bombay, 1978. Sen, D.N., Criminal Major Acts, Bharat Law House, New Delhi, 1997. Sen, Mala, Indias Bandit Queen, Indus An imprint of Harper Collins Publishers, India, 1991. Sharma, P.D., Police Polity and People in India, Publishing House, New Delhi, 1981. Uppal

Sharma, P.D., Police and Criminal Justice Administration in India, Uppal Publishing House, New Delhi, 1985. Sharma, Ram Avtar, Justice And Social Order in India, Intellectual Publishing House, New Delhi, 1984 Siddiqui, Ahmed, Criminology Problems and Perspectives, Eastern Book Co., Lucknow, 1976. Singh, N.K., The Plain Truth, Konark Publishers Pvt. Ltd., Delhi, 1996. Singhvi, L.M., Pai, and M.R., Ramakrishnan, S., Nani Palkhivala: Selected Writings, Viking Penguin India (P) Ltd., New Delhi, 1999. Sinha, Hari Mohan & Narula, Dheeraj, Legal Dictionary, Pioneer Publications, Delhi, 1993. Sirohi, J.P.S., Criminology And Criminal Administration, Allahabad Law Agency, Allahabad, 1995. Smith, Vincent A., The Oxford History of India, Oxford University Press, Delhi,1998. Sohoni, The Code of Criminal Procedure, 1973, Volume 1-5, The Law Book Company (P) Ltd., Allahabad-211 001, 1998. Srivastava, S.P., Public Participation in Social Defence, B.R. Publishing Corporation, Delhi, 1981.

Page 192 of 208

Thilagaraj, Dr. R, (ed.), Human Rights and Criminal Justice Administration, A.P.H. Publishing Corporation, New Delhi, 2002. Trivedi, Kshemkarandas, Rig Veda, Yajur Veda, Sam Veda and Atharva Veda, Mandal 1-10, Sarvadeshik Arya Pritinidhi Sabha, Ramlila Maidan, New Delhi-1, 1992. Vadackumchery, James, Third Millennium Police Take off Trends in India, A.P.H. Publishing Corporation, New Delhi, 1999. Veeraswami, K., The Perils to Justice, Eastern Law House, Calcutta, 1996. Wilkins, W.J., Hindu Mythology :Vedic and Puranic, Rupa & Co., 7/16, Ansari road, New Delhi, 2000. Wilkins, W.J., Hindu Mythology, Rupa & Co. New Delhi, 2000. Zakaria, Rafiq, A Study of Nehru, Times of India Publication, Bombay, 1960.

Articles Alexander, P.J., Reforming Indian Judicial System : The Common Mans Perspective, I.J.P.A., July-Sep.,1999. Anand, A.S., Indian Judiciary and Challenges of 21st Century, I.J.P.A., July-Sep., 1999. Ananthachari, T., Police and Criminal Administration in IndiaNeed for a Systems Approach, I.J.P.A., Jan.-March 1989. Ananthachari, T., Police ReformNew Imperatives, I.J.P.A., July-Sep., 1999. Avasathi, Prahladrai L., March Towards Realising Need of Justice, I.J.P.A., Jul.-Sep. 1999. Bakshi, P.M., Criminal Law Under Stress, I.J.P.A., JulySep., 1994. Barik, R.K., Politics of Judicial Administration, I.J.P.A., July-Sep., 1999. Bhambhri, C.P., Max Weber and the Indian Social Context, I.J.P.A., July-Sep., 1998.

Page 193 of 208

Chaudhary, Pawan (Manmauji), Indian Judiciary System : Its Nature & Structure and Distinction Between Law and Justice, I.J.P.A., July-Sep. 1999. Das, P.M., Humanising the Police, I.P.J., Jan.-Dec.,1991. Date, Sadanand, Reforms in Police Stations, I.P.J., Jan.March, 1999. Dey, Bata K., Defining Good Governance, I.J.P.A., July-Sep., 1998. Dey, Bata K., Judicial Activism as Constitutional Panacea : an Appraisal, I.J.P.A., July-Sep., 1999. Dhanoa, S.S., Police AdministrationIts Challenges and Prospects, I.J.P.A., Jan.-March, 1989. Dhawan, Rajeev, The least expensive branch, The Hindu, dated 20.11.1998. Dhillon, K.S., Police Reforms-An Alternative Approach, I.P.J., Jan.-March, 1999. Diaz, Dr. S.M., Police Reforms to Meet the Challenge of 21st Century, I.P.J., Jan.-March, 1999. Dikshit, R.C., Indian Police: A study in democratic policing, I.P.J., Oct.-Dec., 1998. Gadbois, Jr., George H., The Institutionalization of the Supreme Court of India, in Schmidhauser, John R., Comparative Judicial Systems: Challenging Frontiers in Conceptual and Empirical Analysis, Butterworths, London, 1987. Gehlot, N.S., Threats to Independence of Judiciary : Need for Reforms, I.J.P.A., July-Sep., 1999. Ghosh, S.K., Law Enforcement in Retrospect, I.J.P.A., Jan.March, 1978. Gupta, Anandswarup, Police Reform in Retrospect, I.J.P.A., Jan.-March, 1989. Jeevan Reddy, B.P., Judiciary and Its Accountability, The Hindu, June 22 and 23, 1998. Joshi, G.P., Insulating Police From Political Control-A Critical Review, I.P.J., Jan.-March, 1999. Kamta, Prasad, Future Role of Planning Under New Perspectives, I.J.P.A., July-Sep., 1999.

Page 194 of 208

Kanetkar, V.G., Our PoliceNeed for Drastic Reforms, I.J.P.A., Jan.-March, 1978. Karan, Vijay, Moribund State of Criminal Justice System and Urgency of Total Reform, I.J.P.A., July-Sep. 1994. Kashyap, Subhash C., Towards Good Governance: Need for Political Reforms, I.J.P.A. Khanna, H.R., The Judicial System, Indian Institute of Public Administration, New Delhi, 1980. Khanna, R.S., Governor and State Administration, I.J.P.A., July-Sep., 1999. Kumar, Akshya, Police Response as a Catalyst in PoliceCommunity Relations, I.P.J., Jan.-March, 1989. Malaviya, P.D., Police, Politics and Citizens Rights, I.J.P.A., July-Sep., 1994. Malviya, P.D., What is the Police for?, I.J.P.A., Jan.-March 1989. Marwah, Ved, Police and Good Governance : Promotion of Human Rights, I.J.P.A., July-Sep., 1998. Mathur, B.C., Administration of Justice : Administrative Tribunals and Criminal Justice System, I.J.P.A., July-Sep, 1999. Mike, Brogden, Stopping the People-Crime Control versus Social Control in Baxter John & Laurence Koffman (ed.)Police: The Constitution and the Community, D.K. Agencies (P) Ltd., New Delhi, 1985. Mishra, S.N. and Mishra, Sweta, Good Governance, Peoples Participation and N.G.O.s, I.J.P.A., July-Sep., 1998. Mitra, Sumit, Delayed Justice is Indian Justice, India Today, January 31, 2000. Motiwal, O.P., Alternative Dispute Resolution, I.J.P.A., JulySep., 1999. Mukhopadhyay, Asok, Indias Grassroots Judiciary, I.J.P.A., July-Sep., 1999. Narayan, Jayaprakash, Judicial Reforms Need of the Hour, I.J.P.A., July-Sep. 1999.

Page 195 of 208

Nath, D.C., The Basis of Police Authority cannot be mere Law: It has to be public trust too, Essays on Police Community Relations, Sardar Vallabhbhai Patel National Police Academy, Hyderabad, 1985. Pachpuri, S.K., Administration of Justice in Indian Administration Role of Committees and Commissions, I.J.P.A., July-Sep., 1994. Philip, Prateep V., Friends of Police, I.P.J., Jan.-June, 1995. Prasad, Sharda, Crime Scenario in India: A Survey, C.B.I. Bulletin, February, 2000. Qureshi, J.M., Leadership in application to police and bureaucracy, I.P.J., Oct-Dec., 1998. Raghavulu, C.V., Indian Constitution and Public Administration: An Analysis of Their Reciprocal Relationship, I.J.P.A., July-Sep., 1994. Rajeswar, T.V., Police Reforms, I.P.J., Jan.-March, 1999. Rao, S.Venugopal, The Police Service: Some Compulsions and Contradictions, I.J.P.A., Jan.-March, 1978. Roy, Jaytilak Ghua and Mishra, Yatish, Criminal Justice System and its Administration : Agenda for Reform, I.J.P.A., July-Sep., 1999. Roy, Jaytilak Guha, Using Liberalisation for Effective Administration of Justice, I.J.P.A., July-Sep., 1994. Rustomji, K.F., Police Reform-A Distant dream, I.P.J., Jan.March, 1999. Rustomji, K.F., The Rule of Law, I.P.J., Oct.-Dec., 1998. Rustomji, K.F., We need an Iron-willed Judiciary, I.P.J., Jan.June, 1995. Sachar, Rajinder, Judicial Reforms in India : Some Aspects, I.J.P.A., July-Sep., 1999. Sahay, S., Judicial Accountability : Issues, I.J.P.A., JulySep., 1999. Saksena, J.N., Police Reforms, I.P.J., Jan.-March, 1999. Saksena, N.S., Reforms in the Police:What to reform First?, I.P.J., Jan.-March, 1999.

Page 196 of 208

Sathe, S.P., Judicial Power: Scope and Legitimacy, I.J.P.A., July-Sep., 1994. Sathe, S.P., Review of The Constitution: Need to Keep an Open Mind, Economic and Political Weekly, Mumbai, September 16, 2000. Saxena, N.S., Police: Introspection of 50 years, I.P.J., Oct.Dec., 1998. Sen, Sankar, Police Training in India, C.B.I. Bulletin, September, 1999. Sen, Sankar, Zero Tolerance Policing in New York, C.B.I. Bulletin, August, 1999. Sharma, D.P., Speedy Justice and Indian Criminal Justice System, I.J.P.A., July-Sep., 1999. Sharma, L.N. and Sharma, Susmita, Kautilyan Indicators of Good Governance, I.J.P.A., July-Sep., 1998. Sharma, M.L., Need for Strengthening Criminal Laws, C.B.I. Bulletin, February, 2000. Sharma, M.L., Towards Speedy Justice, C.B.I. Bulletin, August, 1999. Sharma, P.D., Effectiveness of the Police, I.J.P.A., Jan.March, 1978. Singh, D.R. , Evolution of Indian Criminal Justice System: Influence of Political and Economic Factor, I.J.P.A., July-Sep., 1994. Singh, D.R., Surveying Victims:Bombay, Tata Institute of Social Sciences, Mumbai, 1998. Singh, Prakash, Police Reforms-Their Raison detre, I.P.J., Jan.-March, 1999. Singh, Sudhir Pratap and Jain, Dharm Chand, Community PolicingNeed of the Hour, C.B.I. Bulletin, October, 1999. Singhvi, A.M., Judicial Independence and AccountabilityWho Should Adorn the Bench?, I.J.P.A., July-Sep., 1999.

Singhvi, G.C., To Whom should the Police be responsible ?, I.J.P.A., Jan.-March, 1989. Singhvi, G.C., Rule of Law Warrants Engaging Practising Advocates as APPs, I.P.J., Jan.-June, 1995.

Page 197 of 208

Sivanandhan, D., The State of Crime Investigation, Prosecution, etc. and Some Remedial Measures, Crime Prevention Week-2000, Mumbai Police Commissionerate, Mumbai. Subramanian, Dr. S., Police Reforms, I.P.J., 1999. Jan.-March

Tandon, O.P. , Law and Order: A Precondition for Good Governance, I.J.P.A., July-Sep., 1998. Tripathi, S.V.M., Problem and Prspectives in Police Training, I.P.J., Jan.-March, 1999. Tripathi, S.V.M., Problems and Perspectives in Police Training, I.P.J., Jan.-March, 1999. Vajpeyi, S.C., Supreme Court Condemning the Contemptner, I.J.P.A., July-Sep., 1999. Venkatachaliah, Justice M.N., Human Rights and the Judicial System, The Radical Humanist, Sassoon Building, M.G. Road, Fort, Mumbai, January 2000. Venkatachaliah, M.N., Rule of Challenges, I.J.P.A., July-Sep., 1999. Law: Contemporary

Journals, Newspapers, etc. All India Reporter, All India Reporter Pvt. Ltd., Congress Nagar, Nagpur-440 012, 1950 to 2000. Constitution and Socio-Economic Changes, a lecture by Justice H.R. Khanna, Patel Memorial Lectures-1977. Publications Division, Ministry of Information and Broadcasting, Government of India, New Delhi, 1990.

Page 198 of 208

Daily Lokmat, Aurangabad. Economic and Political Weekly, Mumbai. I.I.P.A. News Letter, Indian Institute of Public Administration New Delhi. India Today, Connought Place, New Delhi 110 001. Justice Information Centre, A service of the National Criminal Justice Reference Service, P.O. Box 6000, Rockville, MD 20849-6000 at www.ncjrs.org Law Information Centre, New Delhi at www.lawinc.com. Manorama Year Book 1999, Kottayam,-686 001, Kerala, 1999. Sourcebook of Criminal Justice www.albany.edu/sourcebook. Statistics online at

Souvenir, on the occasion of 50th Anniversary of Sardar Vallabhbhai Patel National Police Academy, Hyderabad, 1998. Statistical Outline of India 1998-99, Tata services Limited, Department of Economics and Statistics, Bombay House, Mumbai-400 001, 1998. The Hindu, Chennai. The Hindustan Times, Delhi. The Indian Express, Mumbai, Delhi, Chandigarh. The Indian Police Journal, Bureau of Police Research and Development, CGO Complex, Lodi Road, New Delhi, 19952000. The Times of India, Mumbai, Delhi., Bangalore, Pune. The Tribune, Chandigarh.

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Additional Commisioner of Police, 143 Additional District Magistrate, 171 Adiministration of Justice, 69, 108, 133, 241, 271 Administraiton of criminal justice, 83 Administration of Prisons, 173, 175-177 Adultery, 244 Advocate General, 109, 153 Advocates Act, 150 Advocates on record, 159 Ahmadi, A.M., 268 Alert Citizen Programme, 220 Ambedkar, Dr. B.R. 72, 77-78, 85-86, 88, 90-91, 95, 100, 101, 103, 105, 106, 112, 116, 117, 19 Anand, A.S., 3, 246, 276 Arth Shastra, 11, 17, 20, 21, 26 Ashoka, 12 Assistant Comissioner of Police, 143 Assistant Commissioner of Police, 171 Assistant Public Prosecutor, 153, 156, 269 Assistant Sub-Inspector, 144 Atharv Veda, 15 Attorney General, 109, 153 B.S.F. 147 Bakshi, Dr. Tekchand 117 Bar Council 151, 272 Bar, 1, 149, 225 Begar 104 Bhargava, Thakur Das 89, 95, 100, 110, 118, 119 Bigamy 244 Bihar 263 Bombay Police Act, 85 Borstal Schools 175 Brahmana, 23, 25 Brihaspati, 23 British Crown, 40, 69 British India, 74 Buddhism, 12 C.B.I. 146 C.R.P.F 147

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Cabinet Mission 74 Caste conflicts 286 Central Bureau of Correctional Services 178 Central Jail 174 Central Police Organistaions 146 Chalukyas 13 Chandragupta 12 Chaudhary, Rohini Kumar 110 Chief Judicial Magistrate 169 Chief Minister 114 China 276 Civil Judges 168 Civil justice 39, 78 Civil Rights 110 Civil Society 1 Civilized Society 9 Code of criminal procedure 53, 78, 91, 99, 102, 118, 129, 136, 218, 241, 244 Codification of laws 53, 60 Cognizable offences 227 Collector 43, 45, 46, 48, 50 Commissioner of Police 143, 171, 219 Communal Award 71 Communal disturbances 286 Communal Harmony 191 Congress 71, 73, 116 Congress Government 104 Constable 144 Constituent Assembly 1, 2, 58, 73, 74, 75, 76, 77, 85, 109, 110, 119, 122, 261 Constituent Assembly Debates 84 Constitution 1, 75, 76, 81, 106, 113 Constitution of India 58, 82, 83, 85, 86, 95, 98, 112, 119, 122, 129, 130, 149, 218, 225, 261, 276, 286 Constitutional Rights 192 Contempt of Court 114 Conurrent List 133 Conviction Rate 237-39 Corporal punishment 23

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Correctional Services 172, 225 Council of States 71 Court 19, 31, 49, 50, 51 Crime prevention 25 Crime Prevention Week 219 Crime Trends 226-230 Criminal Court 168, 170 Criminal judicature 44 Criminal justice administration, 1, 26, 60, 83, 84, 110, 112, 190, 198, 219-221, 251, 285, 286 Criminal justice system 11, 14, 26, 59, 60, 44, 109, 127, 128, 189, 191, 225, 283 Criminal law 78, 128, 133 Criminal procedure 34 Cripps Proposal 74 Das, Dr. Monomohan 87 Defence 149, 158 Delhi 143 Delhi 251 Deputy Commissioner of Police 171 Deputy Inspector General of Police 141 Desecration of religions places 286 Deshmukh, Dr. P.S. 102 Deshmukh, G.D 220 Dharamshastras 15, 18 Dharma 9, 10, 14, 59 Directive PRinciples 82, 116, 121 Director General of Police 141 Discrimination 85, 86, 261 District Magistrate 117, 120, 155, 171 Double jeopardy 194, 215 Draft Constitution 77, 78, 89, 99, 103, 105, 109, 110, 119 Drafting Committee 119 Due process of Law 90, 94, 95, 96, 98, 103 Dy. S. P. 143 Dyarchy 70, 73 East India Company 38, 41, 129 Emergency 104 England 259

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Evidence Act 53, 129, 137 Executive Magistrates 85, 171 F.I.R. 212, 257 False information 257 Federal Court 58 Films 285 First National Judicial Pay Commission 279, 283 Forced Labour 105 Fundamental Duties 197 Fundamnetal Rights 82, 83, 84, 85, 96, 105, 115, 192 Gandhi Irwin Pact 71 Gandhi, Indira 262 Gandhi, Rajiv 262 Gautum Smriti 24 God 10, 29, 34 Gore Committee 145 Government of India Act 1919, 70, 71 Government of India Act 1935, 72 Government of India Act, 1915, 70 Governor 106, 119 Gram Rakshak Dal 220 Gujarat 143, 280 Guptas 13 Hanumanthaiya, K 89 Harsh Vardhan 13 High Courts 55, 78, 82, 87, 112, 115, 164-167 Hindu kingdoms 26 Hindu law 40 Hindu Rule 26 Hinen Trang 13 I.B. 146 Imprisonment 260 Indian Administrative Service 280 Indian Councils Acts 69-70 Indian Independence Act. 1947, 73 Indian Judicial Service 277, 279 Indian Penal Code 52, 129, 134, 135, 218 Indian Police Service 144 Indian States 75, 81

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Indus Valley Civilization 11 Information Technology 285 Inspector 156 Inspector General of Police 54 Insurgency and terrorist activities 263 Internet 285 Investigation 21 Jahir, Mohammad 86 Jail Administration 21 Jail authorities 226 Jail Court 55 Jail Reforms 55 Jail Superintendent 25 Jails 21, 34, 175 Janata Government 104 Joint Commissioner of Police 144 Judges 38 Judicial Magistrate 121, 169 Judiciary 1, 60, 225 Just society 83 Justice 1, 2, 45, 46, 53, 56, 111, 122 Karan, Vijay 248 Karimuddin, Syed 90, 91, 94 Karnatka 114, 115, 143 Katyayana 25 Katyayana Smriti 16, 18, 23 Kautilya 17, 23 Kerala 143 Keshkar, Dr. B.V. 93 Khalifa 27 Khanna, H.R. 247 King 10, 14, 19, 21, 22, 23, 24, 31, 39 Krishna Iyer, V.R. 247 Krishnamchari, T.T, 92, 117 Kshtriya 24 Kushanas 13 Labour Unrest Lari, Z. H. 95 Law and Order Problem 285

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Law Commission 52, 239-245, 269, 276, 277, 279 Lawyers, 37 Legal Advisors 271 Legal Education 273 Legal Justice 2 Legal Profession 150 Legislative Assembly 71 Life and Personal Liberty 195 Lok Adalats 259 Macaulay 52, 69, 134 Madhya Pradesh 263 Magistrate 117 Maharashtra, 143, 144, 251, 258, 263 Mahila Dakshata Smities 220, 284-85 Mahmud Ghazni 26 Manu 12, 22, 13 Manu Smriti 16, 21, 24 Mauryas 12 Metropolitan Magistrates 170 Mimansa 14, 17 Mishra, Ranganaths 246 Mohalla Committes 220, 284 Montague Chelsford report 70 Mookherjee, Dr. H.C. 92, 93 Morley Mento Reforms 70 Motor vehicles in India 263 Mughal rule 32 Mumbai 263 Mumbai Police 219 Munsi, K.M. 95 Munsifs 168 Muslim criminal law 37, 60, 39, 44 Muslim law 30 Muslim League 71, 74, 75 Muslim rule 59 Narada Smriti 16, 18 Narayanan, K.R. 245 National Human Rights Commission 268 National Institute of Social Defence 178

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National Police Commission 268, 269 Nazruddin, Ahmed 93, 102 Nehru, Jawahar Lal 73, 77, 93, 117 Nibandas 14, 17 Non-cognizable offences 227 Open Prisons 174 Pakistan 74, 76 Palkhivala, Nani, 272-273 Panchayat 12, 20, 33 Parashara Smriti 16 Parliament, 130, 131, 162, 198, 279 Parole 182 Parsad, Dr. Rajendra 122 Partition of India 76 Pataskar, H.V. 95 Patel, Vallabhbhai, 123 Peace Committee 220, 284 Pendency 83, 230-237 Perjury 24, 258 Personal liberty 94 Pillai, V.I. Muniswamy 87 Plan Budget 283 Plea bargaing 259 Police 1, 20, 34, 54, 132, 138, 225 Police Act, 54, 139, 140, 141, 261, 262 Police commissionerates 143 Police Naik 144 Police strength 262 Power to pardon 106, 107 Preamble 2, 286 Pregventive detention 133 Presidency towns 165 President of India 104, 106, 107 Prision mannual 173 Prison Act. 55, 174 Prison reforms 173 Prisons 1, 132, 172, 173, 174 Private defence 19-205 Privy Council 56, 58, 110, 112, 163

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Probation 179 Probation of Offenders Act. 180 Procedure according to law 95 Procedure established by law 94 Professional conduct 152, 271 Prohibition of traffic in human beings 104 Prosecution 149 Prosecution by private person 156 Protection against arest and detention 98 Protection of life 94 Public order 83, 132, 221 Public Prosecutor 35, 153, 155, 271 Public Service Commission 278 Punishment 22, 36, 37, 45, 260 Puranas 14, 257 Puri, S.S, 250 Quran 29, 30 Rajasthan, 280 Ramaswamy, K. 115 Rebiero, J.F. 248 Recruitment 144, 148 Reddy, K.J. 241 Reformatory Schools Act. 55 Revolt of 1857, 54 Right of self-defence 25 Rig-Vedic 9 Round Table Conference 71, 72 Roy, Raja Ram Mohan 87 Rule of law, 128 Rustomji, J.F. 248 Saksena, Shibban Lal, 111, 120 Samba, Spying Case, 235 Self incrimination 196 Senior Advocates 159 Separation of judiciary 1176 Sessions court 165, 168 Sessions Judge 49, 155, 167 Setalwad, M.C. 239 Shah, Chiman Lal, 95

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Sharma, Dr. Shanker Dayal 1-2 Sharma, Krishan Chander, 95 Shruti 18 Shyam Veda 15 Sidhwa, R.K. 106, 117 Simla Conference 74 Simon Commission 71 Singapore 283 Singh, Beant 262 Singh, M.N. 219, 249 Single judiciary 78 Sivanandhan, D., 250 Smritis 14, 59 Social revolution 81 Socio-economic development 285 Socitor General 154 State Judicial Service 278 State Legislature 130 State List 130-131 Statues of national leaders 263 Sub-divisional Magistrate 171 Sub-Inspector 145 Sub-Judge 168 Subordinate Courts 118, 167 Sudra 24 Superintendent of Police 54 Supreme Court 2, 51, 78, 82, 87, 108, 109, 111, 112, 113, 114, 115, 132, 153, 160-63 Tagore, Rabindra Nath 87 Tamil Nadu 143 Television 285 Tihar jail 282 Training 145, 148, 177, 264, 279, 283 Tyagi, Mahavir 92 Tyranny 10 U.K. 267, 276, 284 U.S.A, 268, 276, 284 Unemployment 285 Uniformity in fundamental laws 78

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Union List 130, 131 Untouchability 86, 87, 88 Vacancy of judges 273-276 Vaisya 24 Vakils 47 Varna 24, 59, 60 Vedangas 18 Vedas 10, 14, 18, 59 Venkatchaliah, M.N. 246, 268, 282 Verma, J.S. 268 Victim 9 Victims 260 Village Council 12, 20, 33 Village Defence Parties 285 Villages 20, 33 Violent Crimes 285 Violent crimes 83 Vivekanand, Swami 87 Wavell Plan 74 World War II 73 Writs 105, 115 Yajahavalkya Smriti 16, 18, 24 Yajnavalkya 23 Yajur Veda 15