A critique of recent changes in Criminal Procedure

An article by Colin Gonsalves published recently in India Together argues strongly against a number of changes brought about by the Criminal Procedure (Amendment) Act, 2005, which was passed in May 2005. The full text of the Amendment Act , references to which may be necessary to appreciate Gonsalves’ argument, is available at the website of PRS Legislative Research, and can be accessed here.

In his article Gonsalves argues as follows:

“The Code of Criminal Procedure (Amendment) Act, 2005 has been welcomed in the national media as heralding the release of 50,000 undertrials many of whom have been languishing in jails for years without their trials even beginning. Nothing could be farther from the truth. The amendment is, in fact, a reversal of the Supreme Court decisions from 1996 onwards in the Common Cause and the Raj Deo Sharma cases.”

After explaining the facts and ruling in the applicable Supreme Court cases, Gonsalves explains his central argument:

“The present criminal amendment is a reversal of the guidelines laid down in the Common Cause and the Raj Deo Sharma cases, first of all because they do not lay down any time limit for a criminal trial to end. Secondly, whereas in the earlier decision an accused was entitled to be released on bail or personal bond after being in jail for six months to a year depending upon the seriousness of the crime alleged, now that has been enhanced to half the period of possible incarceration i.e. one-and-a-half to three-and-a-half years. If under the earlier decisions of the Supreme Court undertrials were not released there is no reason for us to believe that under a more stringent regime, justice will be done.

There are over 250,000 undertrials languishing in jails even though the law presumes them innocent unless convicted. In many cases despite years going by the trials have not begun. Seven out of every ten persons in jail are in this situation. Overcrowding in jails is routine, in some jails as high as 300 percent. Inmates sleep in shifts. Possibly no country in the democratic world keeps its people behind bars in the manner India does. The overwhelming majority of those incarcerated are poor, Dalits, Adivasis and Muslims. That the system operates harshly against these sections is an understatement. It operates only against these people. The reluctance of the State to clear the jails of the poor is more by design rather than accident. The arbitrary powers to keep a person confined without a guilty verdict is necessary for a State and its police that rules by terror. The Criminal justice system is not really interested in the determination of truth ensconced in the final verdict, rather it is a massive arbitrary system of preventive detention where the ultimate verdict is of no concern as long as the accused picked up by the police languish many years in jail prior to acquittal. Those who criticise the State for the low rate of conviction miss this point; that conviction was never the intention of the police in the first place. This accounts for the sloppy state of forensic investigation and the reliance placed on the lathi over the law.”
In the rest of the piece, Gonsalves points to other provisions of the same Amendment Act which are also problematic for other reasons.
I cannot claim any expertise on the issues that Gonsalves addresses, and I hope someone more familiar with this area of law will comment upon Gonsalves’ critique. Focusing on the critique is important because of the implications that Gonsalves draws attention towards. This is also important because another wide-ranging round of amendments is under consideration by Parliament, in the form of this draft Bill.

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