India's Crying Need for a Robust Criminal Justice System

(This is edited version of a piece written for Asian Affairs, UK)

A deficient criminal justice system not only hinders rule of law but also impedes internal security and social harmony, which are critical for economic development and national security

Supreme Court's decision on November 26 to dismiss a minority government in the India's commercially powerful state of Maharashtra underlined the significance of an independent judiciary for the health of the world's biggest democracy. Raising hopes of a smooth governance, at least for sometime, it brought to an end weeks of uncertainty and political squabbles, involving multiple machinations and counter-machinations, that had followed the fractured mandate in the state.

However, all is still not well with the India's criminal justice system. It was a high-stake political dispute that drew immediate response from the top court. And the court acted swiftly and decisively, living up to its reputation of impartiality and integrity, to reassert its credibility. But a large number of matters that profoundly impact the course of democracy, and lives of the citizens, fail to even reach the courts. Even this verdict, with all its virtues, only pronounces who will rule. It is no guarantee that such a rule shall be free of corruption and in accordance with the rule of law to uphold larger interests of the people and the country.

Not too long ago, early this month on November 02, streets of national capital witnessed an ugly fracas between members of two crucial wings of criminal justice system of the country. Policemen in uniform were assaulted and chased by groups of lawyers around various court complexes in the city.

The provocation was an illegal arrest and custodial beating of a young lawyer over a petty dispute in a district court complex. A spokesman for the lawyers alleged that the police opened fire, injuring scores of them. The police, however, denied any firing from their side.

Over 20 policemen were injured and dozens of their vehicles torched by the protesting lawyers. Clashes continued even on the subsequent day and similar number of lawyers too were reported injured. In an unprecedented protest, members of the junior ranks of Delhi Police staged a massive demonstration in front of their HQ on November 5, booing their Chief, who sought to pacify them.  Lawyers too boycotted work for nearly a week, dislocating the judicial process in the city. However, sustained efforts by senior lawyers and police officers eventually restored peace and both sides resumed their respective duties.

The episode may pass off as an aberration in India’s sustained pursuit of a credible criminal justice mechanism. Nevertheless, it was a shocking spectacle in the national capital of the world's biggest democracy, where members of neither the police force nor the legal profession showed any respect for the due processes of law, something that they are expected to uphold and protect for the entire citizenry. The incident, no doubt, exposed a deeper underlying ailment afflicting the entire criminal justice system of the country.

By any global standard, the Indian police has produced some first-rate professionals and leaders. Almost every year, a significant number of men and women from police agencies lay down their lives in the call of duty. But India’s police forces, especially the lower rungs, have a longstanding record of notoriety.

Last year, the National Human Rights Commission (NHRC) of India recalled an observation, made half a century ago by Justice A N Mullah of Allahabad High Court, describing the police force of India’s biggest state, Uttar Pradesh, as ‘an organized gang of criminals’. Dealing with complaints of extra-judicial killings, wrongful detentions, custodial murders, sexual assaults, false implication of innocents and cover-ups, the apex human rights body of the country observed: ‘There is not a single lawless group in the whole of country whose record of crime comes anywhere near… that of the single organised unit which is known as the Indian police force…’

The Indian police has retained many of its colonial features, even after seven decades of independence. It continues to be governed largely by an archaic 1860 Act, with only minor modifications, and remains more a tool in the hands of the executive, lacking the autonomy and accountability necessary to serve as an instrument of the rule of law to protect citizens. A large number of retired police officers with strong professional credentials have beseeched successive governments for comprehensive police reforms to align the country’s police forces with the requirements of a modern representative democracy.

Flawed induction, deficient training, seniority- and loyalty-based promotions, which often disregard professional and leadership attributes, have crippled the capacity of Indian states to administer laws efficiently and impartially. Malevolent sections of police agencies are suspected of patronising, abetting and colluding in virtually all shades of crime. Similar sections in the political and corporate worlds, the legal profession and media have emerged as their partners to create a powerful nexus. In recent years, even the top officers of the country’s most credible investigative agency, the Central Bureau of Investigation (CBI), have come under the scanner on charges varying from graft to collusion with high-profile law-breakers.

There is conflicting data on the total number of complaints registered against police personnel in India; they vary anywhere between 50,000 to half a million or more. The National Crime Record Bureau placed the figure at 54,916 for the year 2015, while one media report quotes that in 2018 alone there were 1.1 lakh complaints against Delhi police personnel. Yet only one out of every 400 was investigated. Most state police agencies lack an effective independent police complaint commission, which one finds in developed democracies, to rein in erring police personnel. A protracted judicial process ensures that most crimes committed by men and women in police uniform go unreported.

Such a scenario must be demoralising for the large number of police men and women who do their duty diligently. Recent years have witnessed a spurt in assaults on working police personnel. Several entities, including Human Rights Watch (HRW), have recorded inhuman working conditions among lower rung police forces. These utterly desensitise them, often inducing brutal responses in their dealings with the public. Indeed, multiple videos doing the rounds on social media show policemen abusing and assaulting unarmed people, including one involving a blind student on the streets of New Delhi.

A cop in uniform is the most direct symbol of the state. Any assault on such a person is an assault on the sovereignty of that state. In a democratic state, the police is expected to protect citizens and command their trust through exemplary conduct and integrity. India needs to build a larger ecosystem that fosters such a relationship between the police and the public.

As for India’s legal community, although it too boasts some of the most brilliant minds observing the highest levels of scruples, in practice, the entire profession lacks well-defined yardsticks, including transparent fee structures, hourly working mechanisms or professional specialisations. High quality legal services are virtually unaffordable, not only for the masses but even for most of the middle classes, with competent lawyers on an average charging fees in the range of $5000 to $50,000 per appearance in cases that involve multiple hearings.

Perjury by lawyers or even state functionaries is rampant as there exists no effective deterrent in this direction. Many who have earned a degree from some of the law colleges in hinterland, lack even a passing familiarity with the basics of law. Many legal practitioners, especially in the lower courts, are known for their own criminal records, which was amply manifest during their clashes with the police.

Nevertheless, there are still some good lawyers– though too few – who remain committed to the pursuit of justice even under the most adverse circumstances. They take on a significant number of pro-bono cases to help the poor and needy in a system that lacks effective legal aid by the state.  Such sections certainly need support and encouragement from both the state and the society.

The Indian judiciary, especially the apex court, has traditionally been known for consistently delivering exemplary judgements on some of the most complex issues in the public domain. Even now, the top court comes out with judicious interpretations of the most vexed issues of law that are part of public discourse. But judges and lawyers are overworked in virtually all Indian courts.

India’s Law Minister recently disclosed on the floor of the parliament that as on June 1 this year, 43.55 lakh cases were pending in various High Courts, including 8.35 lakhs that were older than a decade. Such pendency in the Supreme Court was nearly 60,000, while in the lower courts it could be much higher. Very often judges hear 60 to 70 or even 100 or more matters in the course of a single day spanning a duration of five to six hours. It is not humanly possible to comprehend complex issues in two to five minutes and then pronounce a fair verdict. Hence, miscarriages of justice are quite common unless a matter is too high-profile.

Such deficiencies within the criminal-justice system not only deny citizens fair and consistent access to rights guaranteed by the constitution, but also retard national security by breeding avoidable internal conflicts. These nullify Indian democracy’s promise of the rule of law and discourage economic enterprise and industry, crippling the collective output of India as a nation. A weak criminal justice system also cedes a bigger space to subversive forces, which thrive at the cost of the country.

India’s quest for stronger national security warrants greater professionalism, innovation and integrity in the entire criminal justice system. It must prevent, preempt and deter internal conflicts to build an ambience that fosters healthy competition and collaboration among citizens. 

FROM HOUSTON TO MAMALLAPURAM AND BEYOND

Diplomatic successes are no substitute for efficient governance, observes Jitendra Kumar Ojha, who believes India needs sustained reforms in this regard if it is to pursue its aspirations as a great global power.

  (This is a piece written for Asian Affairs, UK on October 23, 2019 for November issue of the Magazine)

     Prime Minister Modi’s grand spectacle in Houston on September 22 and his informal summit with President Xi Jinping at Mamallapuram on October 12 symbolise India’s global influence as well as his own stature as leader. Both events, but particularly the latter, signified India’s ability to transcend differences, as emphasised by the Chinese media, and to optimise convergence of interests. However, there is merit in the argument that favourable geopolitics and smart diplomacy are no substitute for good governance in India’s quest for great power status.

   The head of the world’s most powerful nation played second fiddle in his own country when 70,000-strong crowds – the biggest ever to assemble in the US for a visiting dignitary other than the Pope – cheered and listened to Modi at Houston’s NRG stadium. The US decision to hike duties on Indian steel and aluminium and withdraw GSP for Indian exports did not appear to have affected the personal bonhomie between the leaders of the world’s two largest democracies. Showering the Indian-American community with effusive praise for their positive contribution to US society, President Trump emphasised his own endeavours to boost Indo-US trade and defence ties. He specifically highlighted US support for the Indian space programme and mutual efforts to curb terror, to the delight of the Indian audience.

   Local media reported that President Trump made good political capital out of the event, which could shore up his support within the Indian-American community int he upcoming presidential polls. His quip ‘Abki baar Trump Sarkar’ (‘This time Trump Government’) summed up this underlying sentiment and his eagerness to borrow Modi’s winning formula.

Details of the outcome of the Mamallapuram summit can never be known, although Foreign Secretary Gokhale assured the media that Kashmir, as an internal matter for India, was not discussed. This was significant,given President Xi’s meeting with Pakistani PM Imran Khan in Beijing hours before embarking on his India tour. Military-backed Khan, who emerged victorious following a dubious 2018 poll, has been seeking to exploit unease in the Kashmir Valley. By projecting the abrogation of Jammu and Kashmir’s special status as an assault on Muslims, he has not only attempted to whip up nationalist sentiment at home but also sought, albeit with negligible success, to make common cause with Muslim nations.

The Chinese media hailed the Xi-Modi summit as a ‘new beginning in bilateral cooperation’ that would provide ‘stability and positive energy to the current world, full of uncertainties’. Many among them appreciated India’s decision to consolidate trade and other ties,despite choosing to stay away from China’s Belt and Road Initiative (BRI).

A closer look, however, suggests that India’s ability to garner dividends from such diplomatic successes and geopolitical influence remains limited. India has continued to slide over the past decade or so on most governance parameters. What started with the exposure of corruption and scams in the UPA era has now taken the form of serious all-round economic decline and uncertainty. The gap between India’s potential and its actual progress towards great power status has never appeared wider.

Despite promising to be in the same league as China until a decade ago, India now looks a minnow by comparison. China’s five times bigger economy (nearly US $14 trillion, compared to less than $3 trillion for India) does not adequately sum up its superiority in technological excellence and innovations. Chinese R&D investments are gradually getting closer to those of the United States, with many of its institutions of excellence pushing frontiers of knowledge. Its advances in artificial intelligence, space technologies and 5G internet services, and its rapid strides in human development, public infrastructure, fin-tech and military modernisation have taken it on a different trajectory. Comparable figures of India’s economic growth do not tell the real story.

India, accounting for barely over 2 per cent of total world trade, with a significant deficit and a high share of primary products in its exports, is nowhere close to the 12.5 per cent share of China, with a considerable surplus of exports dominated by manufactured goods. The volume of Indo-US trade in 2018-19, amounting to US$86.9 billion,with a surplus of $16.9 billion in India’s favour, pales into insignificance when compared to US-China trade of $737.1 billion,with $378.6 billion surplus for China. For the US, India is hardly a serious trade partner, given that the volume of its trade with Canada, the EU and Japan stands at $627.8 billion, $575 billion and $217 billion respectively. Similarly, Sino-Indian bilateral trade of around $95 billion, which is heavily skewed in favour of the former, is much smaller compared to that of China’s own trade with Germany, Japan,Hong-Kong and others. That said, India still remains a profitable market for China.

The rise of India as a bigger stakeholder in the global order will have a stabilising impact in the context of Chinese expansionism

China may not be able to surpass the economic, military and technological might of the US in the foreseeable future. But it has increasingly carved out, and continues to expand, much larger domains of influence.These are manifest in its rising global footprints from Oceania, the Far-East to the West of Asia, almost all of Africa and South America, and parts of Europe. Its initiatives, varying from the BRI, Asia Infrastructure & Investment Bank (AIIB) and the Shanghai Cooperation Organisation, have registered significant global influence.

Many in American policy establishments, who in the past pushed for deeper strategic ties with India, insist that US commitment to India must go beyond reciprocity in tactical matters.India is in no position to act as a countervailing influence on China, nor should US policy aim at that. The rise of a democratic India as a bigger stakeholder in the global order will have a stabilising impact in the context of China’s aggressive expansionism.In this context, the US establishment shows greater understanding towards India’s freedom to conduct its relations with others, including its traditional friend Russia or others in Asia and beyond.

Simultaneously, there are elements in the US, albeit smaller in number, who do not favour any accommodation to the world’s biggest democracy in matters of trade. India, however, appears confident dealing with such duality. At the India-US Strategic Partnership Forum in New Delhi on October 21, Foreign Minister Jaishankar gave assurances that Indo-US ties were strong enough to resolve differences on trade.

There has been considerable discussion in the Indian media,as well as efforts on the part of the government, to de-hyphenate India from Pakistan. This is not possible without destroying the Pakistani capacity for covert and proxy war by invoking Islam. Pakistan is probably a unique territory whose state power, including the armed forces, is controlled by syndicates who have little commitment to their own people. They have been privately thriving on all shades of transnational crime,from money laundering to illicit trade in narcotics, arms and fake currencies, among others. Jihad and Kashmir provide a strong smokescreen for pursuing such activities. The integrity and professionalism of India’s governance institutions are prerequisites for destroying the space for covert war.

Chinese support for Pakistan, to pre-empt any possible – but currently non-existent –competition from India could potentially backfire quite severely in the long run. Radicalisation and subversion in the name of Islam may hit well beyond Uyghur-dominated Xinjiang if these build a strong momentum. The CCP’s pursuit of the resurrection of the glorious civilisational state of China certainly requires it to oppose radicalism at a global stage.

India has to go beyond minor tweaks in policies or tactical initiatives to bolster its institutional capacity of governance. Sustained and comprehensive reforms are compulsory if enduring solutions are to be found to the fledgling economy, rising unemployment, deficient human capital, poor infrastructure and technological stagnation, or even the larger menace of corruption that has been eating away at Indian society and the economy like termites.

India’s status-driven generalist civil service may have multiple examples of individual brilliance. But it is ill-equipped to translate policy visions into reality. Tortuously slow and highly unpredictable judicial processes can neither ensure observance of the rule of law nor promote trust in contracts. Advancement of knowledge and technological innovation require an ambience of congeniality within institutions of excellence rather than obtrusive control. The most serious structural reforms are probably required in India’s corporate sector,to optimally generate wealth and create jobs.

This is simply not possible if political parties do not transition into credible platforms for right talent and instruments to aggregate powerful ideas for better governance. A free media is useful only if it throws up facts and enlightened perspectives impartially and with integrity. The current dynamics of market and democratic instruments appear incapable of making any headway in this direction. Nevertheless, Prime Minister Modi has the mandate and global standing to script a newer history beyond text books by pushing for radical reforms in governance structures and processes.

India’s governance challenges are unique, as is its wider social and economic context.It has to explore a model of democratic governance beyond what is known in the West,but Chinese authoritarianism simply goes against the grain of Indianism.

The resurrection of a civilisational state of India along modern scientific lines, but incorporating some of the essential ingredients of ‘Dharma’ – right selfless conduct or integrity – is critical, not only to address the aspirations of 1.3 billion Indians. It is also indispensable for the stability of a wider global equilibrium. History rarely offers such opportunities for human ingenuity and initiatives that are available to India at this juncture.

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Jitendra Kumar Ojha, a former Joint Secretary in Government of India and an alumnus of National Defence College, with research degrees in Diplomacy and Defence and Strategic Studies, has specialised in various dimensions of national security