Accept the problems in criminal justice

(Mians GS 2 : Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of various Constitutional Bodies.)

Context:

• India’s criminal justice regime is beset with problems which seem ingrained in not only the constitutive fabric of institutions, but also in the psyche of their functionaries.

Transcendental institutionalist approach:

• There are more than 4.4 crore cases pending before the judiciary and it is unlikely that this problem will go away any time soon. 
• Justice mechanisms will remain inaccessible to marginalised classes of citizens as Amartya Sen said, our justice system follows a transcendental institutionalist approach where the focus is on getting the institutional arrangements right without regard to the world that emerges from such arrangements. 
• In such a world, where the focus has been upon institution building rather than capacity building, marginalisation of vulnerable sections of society is inevitable.

Unattainable ideal:

• The colonial mindset with which the institution was created is not only persistent but also determines and governs the manner in which the police discharge their functions. 
• Crime prevention is a utopian goal of our criminal justice system as achieving a hundred per cent rate of success in crime prevention through either laws or policing is an unattainable ideal. 
• Successive empirical research studies have shown that higher punishment has little impact on lowering crime rates and initiatives such as community policing mechanisms and situational crime prevention do not deliver any concrete results.

Needs drastic changes:

• Several Law Commissions and committees have recommended non-custodial measures of punishment of offenders which are yet to translate into practice. 
• Even when we have a problem of overcrowding of prisons, custodial punishments are seen by the governments as a more effective measure.
• There is a dearth of reliable state-sponsored data collection, maintenance and analysis mechanisms and the methodologies adopted by the reports can be criticised on multiple grounds.
• Further, reforms in criminal laws and criminal justice seem to have been recommended and conducted with the assumption that these problems will go away with time and effort. 
• But our experience shows a contrary picture as these problems are here to stay unless drastic changes are made concurrently at the institutional, social and individual levels.

Accepting problems:

• Accepting problems in the system is likely to have a favourable impact on the way we plan our institutional reforms and responses.
• If we accept that our institutional arrangements cannot guarantee access to justice for the most vulnerable sections of society, our approach would automatically shift towards building the capacity of such sections to tap into the criminal justice system.
• Similarly, it is only when we assume that abuse of power by the police is not going anywhere and that imposing mere ethical obligations on police officers will not resolve the problem can we move into the realm of developing independent investigative procedures and stern punitive sanctions against errant police officers. 
• Further, if we accept that the problem of pendency of cases has acquired such huge proportions that we cannot dispose of all of these cases in 10 lifetimes, maybe we would be able to rein in our tendency to over-criminalise conduct.

Conclusion:

• Any project aimed at criminal justice reform must instead accept the problems, then only we can shift the discourse to bringing about holistic reforms in our criminal justice system.