Justice without investigation?
The gang rape case of the 23-year old girl is already being heard in a Delhi fast-track court. A charge-sheet has been filed and the accused presented in court. Delhi is not the only state which has announced establishment of fast-track courts for cases of crime against women. Nationwide public outrage and sustained media coverage has led other states like Tamil Nadu, Jharkhand, Odisha, Bihar and Madhya Pradesh to follow suit.
But fast-track courts are not a panacea for our broken criminal justice system. They raise three fundamental questions. First, how long will these fast-track courts remain fast-track? After all, even today, more than six lakh cases are pending in nearly 1,200 fast-track courts across the country. Second, the cases decided in fast-track courts will be challenged in the High Courts.
They will thus end up in the same queue of pending cases - 43 lakh cases are pending in various High Courts - which these fast-track courts are designed to avoid. Third, fast-track courts merely suck judicial resources away from the system. Without a concomitant increase in judicial officers, staff and infrastructure, establishment of fast-track courts pushes all the other cases on an even slower track.
While delayed justice is a serious lacunae, it cannot mask the other major problem with the system - low rate of conviction in rape cases. Conviction in rape cases is not easy to achieve globally but the Indian record of 26 per cent convictions is particularly poor. The courts, whether fast-track or not, can only convict on the basis of case prepared by investigating and prosecuting agencies.
The prosecutor takes over only after the chargesheet has been filed in the court. The starting point of the case is the investigation carried out by the police. And this is arguably the weakest link. Police is often handicapped in undertaking effective investigation for want of basic gadgets such as video cameras.
Forensic science laboratories are scarce and there is a severe dearth of forensic and cyber experts in police departments in all states. Reliable medico-legal services are not available to the investigating officer. As a result, police lean heavily on oral evidence, instead of concentrating on scientific and circumstantial evidence.
The chargesheet, a critical document for prosecution, is normally prepared by a ‘Writer’ at the police station, who is always overworked. The Station House Officer, who is supposed to carefully scrutinise the chargesheet, rarely has the time to do so. Thus, chargesheets and arrest memos without the photographs and identification marks of accused, not to speak of witnesses, are a common sight.
In any case, investigations are mostly handled at the level of head constables and assistant sub-inspectors. Because there are not enough inspectors and sub-inspectors to carry out investigations. As a former Commissioner of Mumbai Police reminded us on these pages (‘The death sentence won’t prevent or deter such crimes’, December 20, 2012), currently we have a two-third vacancy of sub-inspectors in Mumbai.
With law and order always needing urgent attention, investigations often take a backseat to other policing duties. In 2000, the Committee on Internal Security constituted by the Group of Ministers on National Security was informed by the DGP of Uttar Pradesh that UP police devotes only 13 per cent of its time on investigations.
In 2003, Malimath Committee, found that an investigating officer on an average across India, investigates 45 cases in a year. In comparison, the prevailing norms for investigational workload in the CBI are two cases per year in its central units, and four in the territorial units.
Inadequate number of investigating officers, coupled with low percentage of their time being devoted to investigational work and poor technical support results in perfunctory and half-baked investigations and low rates of conviction. And this poor quality of investigation is not a recent malaise.
In 1961, the Bihar Police Commission noted with dismay that “during the course of tours and examination of witnesses, no complaint has been so universally made before the Commission as that regarding the poor quality of police investigation”. The Law Commission of India discussed this issue threadbare in its 154th report and categorically recommended separating the investigating agency from the law and order police.
The same recommendation was made by the Padmanabhaiah Committee, the Malimath Committee and in Supreme Court’s directions on police reforms but to little avail. It is not that we don’t know what needs to be done. It is that we just don’t have the will and the willingness to do that.
Sushant K Singh is a Fellow for National Security at the Takshashila Institution and editor of Pragati-The Indian National Interest Review