India is the largest and probably the greatest functioning democracy in the world today and every Indian should derive legitimate pride and satisfaction from such a situation.
The Indian citizen votes typically every five years. Candidates are elected as lawmakers, and lawmakers from the political party getting higher votes occupy the executive positions. The judiciary is independent from the executive and legislature and the Supreme Court does a neat job of upholding Fundamental Rights guaranteed by the Constitution.
Despite the structural sophistication and robustness of the Indian state, the citizen’s daily experience of the Law is not so happy.
The principal code of criminal legislation in India is the Indian Penal Code of 1860. This code listed all possible criminal offences which could be committed in British India, in the years following the abortive First War of Independence. The punishment for petty theft is imprisonment for three years. This was probably an improvement over whipping, which was common at that time, but definitely too strict in these times. Laws that seek retribution rather than correction, and impose harsh punishment, force the accused to fight tooth and nail for acquittal. The jails today, which incidentally have been renamed Correction Centres in different Indian states, are full of under-trials and a few unfortunate members of the weaker sections, who did not possess the knowledge or funds to escape conviction.
The legislation which provides the police forces its power and organization is the Indian Police Act of 1861. The aim of this act was to empower a limited constabulary to control a large and potentially restive native population. The colonial police had carried out some of the harshest attacks on civil liberties at that time. Independent India has retained this piece of legislation, which defines policing today. The police infrastructure envisaged under this act has absolutely failed to keep up with growing population and changing crime brought about by economic growth, technological change, urbanization and internal migration. Both individual police officers and other stakeholders are unable to bridge the gaps in internal security and law and order which results from such strain. Growing insurgency in different parts of India forces the central government to provide paramilitary support to the state police. It is probably an easier solution to empower and strengthen the police to an extent that they can effectively ensure the citizen’s access to criminal justice and also effectively ensure internal security.
The criminal justice system of the country is dependent on the Criminal Procedure Code of 1898 for the administration of criminal justice. This nineteenth century dinosaur was supposedly substantially revised in 1973, but the author doubts if it has fully metamorphosed into a creature of the twenty first century. The CrPC 1973 empowers the Station House Officer (SHO) of each Police Station with draconian powers of search and arrest and expects the SHO to be an avatar of Solomon in terms of his discretion in ensuring justice and fair play. Prior to independence, per chance if the SHO fell short of such expectation, surely the colonial rulers were not too perturbed with resultant human rights violations and injustice meted out to the colonized. In independent India, the public continues to fear and misunderstand the SHO, while the SHO, in spite of best efforts, often falls short of expectations owing to constraint of resources and the bindings of archaic procedures. The author feels that free citizens of India do not require such a situation to continue.
The Indian Evidence Act of 1872 provides the legal background for acceptance of evidence. Since there was no e-mail, facsimile, world wide web, X-rays, scanners or cameras... still and video, in 1878, this act is technologically obsolete. This obsolescence has led to the Indian law courts being the most congested in the world. Justice delayed is justice denied... that’s the reality of the justice system of India today.
The civil courts depend on the Civil Procedure Code of 1908 to administer civil justice. The Constitution of India enjoins the courts and law enforcement officers to follow the “procedure as laid down by law” and not “due process of the law” as is the case in the United States. The complicated procedures make Indian civil justice one of the weakest in the world. The judge may also intuitively know that the accused is innocent, but has to pass a sentence of conviction, because as per the procedure laid down by the law the accused is guilty.
The above are the five pillars of the civil and criminal justice system of India, as well as the basis for the enforcement of law and maintenance of internal security. Combined with such systemic weakness, is the lack of effort in educating the citizen about the law. An Indian school child’s education starts and stops with a study of the hallowed tenets of the Constitution. However the citizen is impacted by the important pieces of legislation in daily life, which is not part of the educational curriculum of the ordinary citizen. Highly educated people in India are completely ignorant and confused about how the law works for or against them in daily life.
Unless the pivotal pieces of legislation are reframed and reshaped in keeping with the requirements of a free people of the twenty first century, “rule of law” will continue to be compromised in India. The Constitution of India will remain the palatable icing on a cake whose crust comprising of five principal pieces of legislation has gone bad a long time back. Important twentieth century developments such as the “Universal Declaration of Human Rights” of 1948 have bypassed India, since the most important pieces of legislation were drafted before the enlightened proclamations of the last century.
It is time that just, good, clear and well publicized laws are crafted through the democratic process. Only then will Indians truly enjoy the Indian state’s contract with its people as promised and envisioned by the founding fathers of the Constituent Assembly of 1949.
(Originally published in "The Broad Mind - Opinions from the Takshashila Community on 10.02.2011)
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