It is not the severity of punishment, which acts as a deterrent, but the certainty of it and a quick trial.
Anyone watching the widely circulated recent video clip of a girl being molested and beaten up would have been truly shocked. The brazen manner in which this horrendous crime was committed and also videographed, suggests a manifestation of not only depravity but also scant respect for, and virtually no fear of law. The increasing number of molestation and rape cases being reported, even after the Nirbhaya judgement, is also indicative of a similar mindset. On account of their very nature, even if the police is unable to prevent all such crimes, the required degree of sensitivity to address the post crime scenario in all its facets appears to be missing. Growing awareness may be responsible to some extent for better reporting of such cases, but the type of impact that was expected after this judgement appears to be just not there.
We have read numerous articles, seen several seminars being organised on police reforms, but surely, a large number of crimes which shock society and several acts of commission or omission on the part of the police, cannot be simply blamed on the tardy implementation of such reforms. Being overly sensitive to such situations is only a matter of positive attitude amongst policemen, besides their training, the absence of which shows up at times, glaringly. Why the criminals are able to operate with impunity in certain cases and in a brazenly defiant manner, may be having something more to do than simply the implementation of police reforms. The punishment of a death penalty has not proven to be a deterrent in quite a few cases. It has to be understood that it is not the severity of punishment on the statute book, which acts as a deterrent, but the certainty of the punishment and the dispatch of its award. This is where the broad contours of our criminal justice system figure.
Almost all the actions of police have to be ultimately placed before the judicial officers, as required by the criminal procedure code and the state police rules. As the number of registered cases goes up, not only the workload of investigating officers increases, it also adds to the pendency in the courts and the overall time spent on each case, before its final disposal, leading to even more delays. No doubt, for certain types of cases, special courts have been constituted, but these have not entirely come up to expectations, particularly as the procedural aspects continue to be more or less the same as followed in regular courts.
In order to address all these issues in a comprehensive manner, roughly 20 years ago, the Ministry of Home Affairs had constituted a committee to go into all aspects of criminal justice system. This committee chaired by Hon’ble Justice Malimath submitted a very meaningful and a path breaking report in 2003. The recommendations were not only to expedite the delivery of justice, but also emphasised upon greater involvement of judicial officers at the time of trial to ascertain the truth.
At present we follow the adversarial system, which gives a very fair trial. In the inquisitorial system, which is followed in most of the European countries including France and Germany, the supervision of the investigation is done more closely by the judicial officers giving a better rate of conviction. The Malimath committee recommended that in our prevailing social conditions an adversarial system with certain good features of inquisitorial system could still be adopted. A useful recommendation was to introduce a provision next to Section 311 of the Code where any court shall at any stage of inquiry or trial under this Code, have such power to issue directions to the investigating officer to make further investigation or to direct the supervisory officer to take appropriate action for proper or adequate investigation so as to assist the court in search for truth. It was also suggested that courts could be constituted under the Arrears Eradication Scheme. Some changes in the nature of burden of proof beyond reasonable doubt were also suggested. For some reason, this very useful report was shelved after 2004. While we observe police reforms day on 22 September, I think it is high time that we also moved towards reforms in our criminal justice system, so as to deal with the criminals effectively and expeditiously. Certainty of punishment and a quick trial would perhaps be stronger deterrents.
Dr K.K. Paul served as Governor of several states after retiring from the IPS as Delhi Police Commissioner.