The Criminal Justice System being controlled by the Media and Public further fueled by the political interest has become the new normal in India. The situation which people are propelled to conceive to be a common belief is in fact a scenario painted by the Media. Although in a democracy the majority decision builds the government, the governance cannot be assumed to be by the absolute majority affecting every step the government takes. An angry crowd flooded on roads with placards and slogans does certainly have democratic attainment; however, a legal discourse taking a direction as a result of a public outrage accentuates the inefficiency of the legal system. And the government is not perturbed by public outrage because they failed the public in a but the fear lies in the fact that it invites more number to it, more attention and more questions. As it is said that, “since the earliest days of our youth, we have been conditioned to accept the direction of the herd, and authority anywhere is always right.”
The shortcomings whether of legal Significance
We come across the plain findings in debates and discussions with respect to the crime growth suggesting the overpopulation, the rampant poverty growth, lack of education and character nurturing in a developing country like India to be the reason. While these findings are rationale enough, the role of the justice delivery system and the implementation of law here cannot be over-sighted. It remains a question whether the public outrage in some criminal cases is only because the Media propounded it to be. While there lies no doubt in the fact that people move in the direction of majority and absorb what is repeatedly proposed, and they think very less on their own, it is also true that people have been in many instances seeing and experiencing what the media might exaggerate but not create. People might absorb illusions but they have also witnessed the inefficiency of the justice delivery system. Many cases piled up for decades, and many offenders set free without any deterrence.
The downsides of a legal system if any could be analyzed through the trial processes in cases which involve more social despair and psychological distress, hence the sexual assault cases serve as a perfect exemplar to closely study and look into the functioning of legal system. A sexual assault case begins with a pre-trial stage which includes registration of FIR, medical examination of the victim and the accused. Such process of investigation is carried out by the public authorities empowered by law, thus giving a scope of exploitation and discretion. Here the not so privileged encounter the dark side and the inefficiency of the judicial system as several instances suggest the process is not swift and smooth in every case. In some cases the police discourage the complainant from filing an FIR and further suggest a compromise and the in some other cases the complainants do not receive a copy of the FIR which is their statutory right. Although the matter cited above is not technically a failure of the legal system but turning around all the way back once again, this being a democracy, failure on part of any executive or failure at any stage is conspicuously the failure of the legal system.
Public as the driving force behind justice
Some more issues of concern to be pointed out and cautiously analyzed as the executive failures and also some as lacunae in the law. It doesn’t strictly suggest it to be the inefficiency or flaws in law, but the way it is manipulated and the matter of concern that the law so propounded leaves a room for manipulation. As in the case of Nirbhaya, that took more than seven years for justice to prevail, which compels us to question that after such delayed action, testing the patience of the victim’s family, could justice really be said to have prevailed. Fast track court was set up, but in view of the period of time it consumed it could be understood that the fast track court is the same court under a different banner. The four convicts had a right under the Supreme Court rules, 1966 to file a review petition within “30 days” of the Supreme Court order provided that the delay can be condoned if there is a convincing reason. Examining the way the defendants resorted to delaying tactics, it could be construed that the exception provided under the rules should have been cautiously scrutinized to not have it led to a manipulation, which lied in the discretion of the judiciary.
The force that is behind a swift action is the same force that leads to inaction in a democratic state. People do have a right to get on the streets and question. As in the case of Nirbhaya again which will remain an exemplar for many legal turnings of history, the role of people has been significant, but little do they pay heed to the fact that conviction rate of sexual offences in India is at its lowest, at 27.2%. The outraging crowd that leads to setting up a fast track court, is the one responsible for inaction as well, for its lack of ignorance, rationality, and courage to question in an individual capacity and not only when in a herd.
Method of penal sanction and Right to Equality
There is another zone of concern that requires attention in a democratic state, which is the method of penal sanction. The Criminal Law in India has Indian Penal Code, which prescribes punishments for various offences recognized and defined under different sections. Indian Penal Code prescribes maximum and minimum punishments for some crimes, and only minimum punishment for some other crimes, death sentence is prescribed for some offences brutal and inhuman in nature causing irreparable loss to life and dignity and some other offences which pose a threat to the security of the state. The recent execution of a death sentence witnessed in India was of the Nirbhaya case convicts, the December 2012 Gang Rape and Murder case. The four convicts on the death row were hanged to death on 20th of March 2020 when the apex court upheld the death penalty despite attempts to turn the decision through various petitions and also mercy plea by one of the convicts which was rejected by the president. The other execution of capital punishment in India prior to the Nirbhaya convicts being hanged to death had been of Yakub Memon convicted in 1993 Mumbai blasts case, on 30th July, 2015.
A study reveals 755 people have been hanged to death since independence, in India. However, the figure revealed doesn’t lead to a reckoning that only these cases have been exceptionally heinous in nature hence meeting out the extreme stage of sanction in Indian Judicial system, neither are these executions picked and chosen as a result of judicial discretion. It being a democracy a matter of deliberate observing lies not in the question as to why only 755 people faced an execution of the death sentence they were sanctioned, but how these 755 cases reached the table and achieved an uncompromising implementation. Let us say the gravity of crimes though belonging to same category, differs from crime to crime, as has been laid down by the Supreme Court in Bachan Singh vs State of Punjab with respects to the death penalty that offences resulting in death are punishable by death only when they meet “rarest of rare” standard.
Whatsoever, it is uncertain if in every case the judiciary makes a measured comparison of the degrees of gravity of the crime between different crimes of the same category. And it is all the more debatable that this has been the practice of the judiciary in each of those 755 cases. Hence, this “rarest of rare” standard prescribed is undoubtedly an appropriate technical approach to deciding a death sentence, but the practicality of this approach, along with the evident executive failures and political lusts cannot be ignored.
The punishments have been quantified under the Indian Penal Code whereas there does not exist any definite law or guidelines for sentencing, this results in lack of uniformity in sentencing. Since, there is no guidance to the judge with respect to selecting the appropriate sentence; the judges exercise discretion according to his own conscience. It causes a menace that the decision being made might be a reflection of one’s personal values rather than being based on scientific considerations. In a democracy, where every matter of public concern is at the prudence of constitutional values and legislative forces, this prominent process of sentencing, in a justice delivery system has to be guided by a legislature within the constitutional concurrence under the review and assessment of judiciary. And to achieve the stature of a liberal democracy which grants reasonable rights to the criminals under the law, it is high time that there be an eye on and a heed at the matter of the lack of uniformity in penal sentencing which gives rise to an apprehension of the Fundamental Rights being impeded. For the purpose, in March 2003, the Malimath Committee, Affairs, issued a report that emphasized the need to introduce sentencing guidelines in order to minimize uncertainty in awarding sentences. Hence an expeditious introduction of such guidelines under the law for a structured guidance of penal sanction is looked forward to, in view of the rampant growth in lack of uniformity in penal sanction, which could even fall under the contemplation that it violates the right to equality.
The justice rendered and the justice delivery system has to resonate with the democratic values, in a democracy. The rights that are granted to the criminal and a strict enforcement of law against a crime committed as such, in a democracy go hand-in-hand. The matter of concern rises when the rights of a criminal are either misused in some cases while in the other cases the enforcement of law is seen to have an iron clutch, which leads to miscarriage of justice. In a democracy, it is difficult to achieve a balance between rendering justice to the wrong done and attempting to be so rational that it might sometimes require the society to approve for a relief to the criminal. But this stability of approach towards a justice delivery system, executed by the legal system and approved by the people is key to the existence of a democracy which is liberal in nature.
Taking to roads in behest of a capital punishment to a criminal, certainly cannot be the face of a democracy. The people’s say in a democracy is ineludible, and is the strength of democracy, whereas, it also shall be observed that a strong legal system under a committed executive body could be the greatest endeavor towards achieving a better disposal of justice. The judicial body along with the other organs of legal system in the country has to earn the faith of people in it. And upon the citizens of this country rests the obligation to think and not just head in the zone of the herd, a thoughtless society is an advantage to the male fide political empires that form a government and reflects the same on the executive and judicial organs of it, the refuge of democratic values is in the hands of people and can be protected when people start to think. In the words of Adolf Hitler, “How fortunate for the governments that the people they administer don’t think.”
About the authors
Hajra Kulsum is a student at University College of Law, Osmania University. A spirit and passion towards Law endeavouring to serve the legal world through my pen.
Vaishnavi Navgire is a student at University College of Law, Osmania University. Finds fervor and joy exploring the legal world in an attempt to contribute to it through new outlooks.