• – Sankalp Dubey

• 

In the United Kingdom, a well-known textbook on the foundations of criminal law methodically develops numerous theoretical basis for explaining what should be a crime – that it should include some harm, must be of a particular degree of gravity, and so on. But then, in a single passage, it deconstructs this structure by reminding us that, at the end of the day, criminal law and crimes are whatever the state says they are. This political linkage is probably more pronounced in India: A majority government creates the laws and controls the investigative apparatus, which means it may not only define what constitutes a criminal but also selectively pursue just those offences that it is concerned about, forgetting the rest.

Across India, chaos reigns.

To what end should those offences be pursued, you could wonder. In the end, the concept of “crime” is meaningless without the associated penalty. We are all trained to fear losing our liberty when we are imprisoned. However, it is sometimes overlooked that this punishment may only be imposed upon a conviction at the conclusion of a trial. As a result, there is a synergy between the crime, the investigation, and the accountability of those found guilty, which is referred to as the criminal justice system. And everywhere you turn in India, it’s in chaos.

The heinous events in the Indian state of Uttar Pradesh are only one illustration of how awful things may become. After a confrontation with police, a prominent mobster fled and was subsequently apprehended in another state. Meanwhile, the news was saturated with tales suggesting the accused’s corrupt ties to public officials. An “encounter” occurred when his party was returning to Uttar Pradesh, and the accused was shot and killed.

There had been a crime, perhaps multiple crimes. It was determined to pursue it by the State Police. However, there was no need to wait for a trial to convict and sentence the guilty; punishment was immediately administered by the police. So much so that one ex-Supreme Court Judge said the State’s version of events made it look as though it didn’t care whether or not the encounter account was believed.

The extremities in Uttar Pradesh

If the death of Vikas Dubey indicated a readiness to punish without a trial, Uttar Pradesh has also shown a readiness to condemn without a trial. It enacted a legislation allowing the publication of enormous hoardings including the names and personal information of anyone accused of destroying property during the anti-Citizenship Act rallies. But here’s the thing: all of this happened before a court found them guilty of their crimes. Rather than a judicial ruling, the authority to condemn was derived from the ability to make claims, which is entirely executive in nature. In this way, the cops took on the roles of judge, jury, and executioner.

Of course, there are cases when the state has chosen to pursue alleged criminal activity. Many times, it turns a blind eye to acts of violence, either indefinitely or for a lengthy period of time. When her relatives discovered her on September 14 in the hamlet of Hathras, Uttar Pradesh, she had been viciously abused and left to die. The same family did what any reasonable person would do: they called the cops and took their daughter to the hospital. Despite the obvious injuries, the police did not file a report for many hours, and even then did not mention the major crime of rape. Naturally, when the police refused to file this one instance of rape, they quickly recorded at least 19 cases involving an alleged conspiracy to utilise the incident for political objectives in order to cast the State in a negative light.

Disconnect between the government and the judiciary.

These examples from Uttar Pradesh merely help to highlight that there are definite, obvious patterns. The first is the widening chasm between the government and the judiciary in questions of criminal justice; the second is the boosting of executive authority as a result of this chasm; and the third is the judiciary’s predictable copying of executive-mindedness. As a result, I suggest, the criminal justice system will be transformed into a problem-solving system.

The 2019 Crime in India numbers reinforce a trend that has been seen for decades: our police appear to be super-efficient, but our courts appear to be super-slow. Let’s stick with Uttar Pradesh for a while. Its police have a case pending rate of just over 15%, whereas its courts have a case pending rate of just over 90%. (for IPC crimes). Worryingly, they aren’t the worst data available. This implies that, as police departments continue to add cases to their dockets year after year, the courts’ capacity to conduct trials and make judgements is deteriorating.

The inherent time gap between the incident and any potential punishment is exacerbated, and the role of courts in the criminal justice system is diminished. This gap, among other things, undermines the significance of any conviction based on a trial, since individuals move on and life moves on in virtually all circumstances. It’s impossible to say how much this inclination is amplified in an era dominated by the 24-hour news cycle.

How can a system bridge the gap between an incidence and a final decision? By gradually legitimising the concept of penalties without repercussions or accountability. All that counts is that the situation is solved and that we move on.

The president obtains more authority in this system where judges have less authority. The arrest, not the conviction, is the turning point in the criminal justice system. At times, victims do not even consider proving anything in court; all that counts is arrest and indefinite imprisonment, or even an encounter if the charge is serious enough. At the same time, the government wants to legalise pre-trial detention and incarceration while simultaneously granting itself new powers to punish without conviction, including asset forfeiture.

The presumption of innocence.

When judges attempt to reclaim some of their lost ground by imitating the suddenly popular branch, the transition is complete. At the time of bail, courts are more than willing to examine the facts in great detail. Furthermore, by utilising jail as a negotiating weapon to push wrongly accused individuals to pay amends, judges become more ready to assist in reaching settlements during this stage. Because even courts no longer have the time for the procedure, courts deliberately replace facts established during cross-examination of a witness with her unproven charges that the police opted to pursue. So long as the problem is fixed and a victim is pleased, the assumption of innocence can be ignored.

There has been a soothing background tune playing steadily throughout this outbreak and the spiralling devastation it has caused. This is the systematic disintegration of any criminal justice system worth its name across India, and its gradual replacement with a problem-solving system in which initial accusations and their handling by the executive branch become most important, and values like presumption of innocence and establishing truth through trials have long vanished. The fact that certain states are in the forefront of this growth may be viewed cynically as another indicator of their success that makes many others envy.