ANNUAL CONFERENCE SERIES
SECOND EDITION on RULE OF LAW
20-28 FEBRUARY 2021
Contents
ABOUT THE CONFERENCE 2
CONFERENCE PROGRAM OVERVIEW 8
SPEAKER BIOGRAPHIES 14 SESSION BRIEFS 44 THEMATIC SESSIONS 44 TOPICAL CONVERSATIONS 63 CURTAIN-RAISER WEBINAR REPORT 74 NOTES FROM THE DESK 86 ORGANIZING TEAM 119
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ABOUT THE CONFERENCE
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About the Conference
Indian Democracy at Work Annual Conference
Democracy is self-correcting and demands constant vigilance. As a relatively young democracy, India has much to celebrate. Judged by Myron Weiner's postulates of a functional democracy, we as a nation have stood the test of times. However, over the years, many of the institutions critical to the functioning of democracy are weakening. Skewed priorities, lack of accountability, diminished rule of law, centralisation of power, and many more deleterious afflictions dominate the democratic discourse threatening the long-term progress of our country. In an effort to contribute and to shape the democratic discourse, Foundation of Democratic Reforms (FDR), Bharti Institute Of Public Policy (Indian School of Business) and Department of Political Science (University of Hyderabad) have come together form a platform named “Indian Democracy at work”. Amongst other things, an annual conference series is organized on pressing issues facing the nation. The first of the series was conducted in January 2020 on "Money Power in Politics’ inviting eminent people from spheres of politics, administration, academia, media, civil society, etc to deliberate and bring forth plausible solutions to curb the influence of money power in politics. The first conference was a resounding success with wide and diverse participation that culminated into the ‘Hyderabad Declaration’.
Theme 2021: Rule of Law
The theme for the second edition of the Indian Democracy at Work annual conference is ‘Rule of Law’. Rule of law is the bedrock of constitutional governance and democratic society. Maintenance of public order while preserving constitutional liberties is at the heart of a harmonious society and democratic system. Fair, speedy and efficient settlement of disputes at an affordable cost is critical for mutual trust and economic
3 growth. In a rapidly urbanizing society, control of crime and maintenance of public order are critical. The social controls that regulated human behavior in small rural communities become weak and ineffective in urban communities with impersonal lives. Increasing urbanization will inevitably lead to more civil disputes and crime. If might becomes right and crime and a “grammar of anarchy” dominate, economic activity and wealth creation will be undermined. Protection of individual property rights, fair and equitable contract enforcement, creation and enforcement of just labour laws and provision of access to opportunity for all sections of society, creates a culture where commerce and business can flourish and grow. Rule of law and economic growth are strongly interrelated and mutually reinforcing.
While we have normative rule of law in India, in practice there are serious, and often crippling distortions. Independent, accountable and efficient crime investigation unaffected by partisan pressures and populist impulses is a critical requirement in ensuring justice. Strong, independent and efficient prosecution driving investigation and securing just punishment of wrongdoers is vital for the criminal justice system to act as a deterrent. Speedy, accessible, efficient trials in courts – both civil and criminal – are the foundations of rule of law. In all these critical areas, our institutions of rule of law are deficient in a variety of ways.
The police forces have multifarious duties and are stretched to the limit. The number of policemen per unit population remains low by global standards despite rapid urbanisation and rise in crime. Political control of police personnel undermines credibility of crime investigation and erodes public trust. The high degree of centralization of functions in a single police force is a serious impediment to the efficient discharge of their duties. Public pressure and political control sometimes compel the police to resort to unwholesome methods like third degree and extra-judicial punishments to produce short term results to appease the public sentiment.
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The brutal torture and murder of a father and son in Tamil Nadu by the police for violating the lockdown restrictions a few months ago is a horrific example of the arbitrary use of force and torture by the police forces in India. Given the poor delivery of services at the cutting edge level in government and the polarized and contentious public discourse, often the governance and political failures are converted into law and order problems imposing enormous burden on the police. Those in power relish the power over the police forces and often use it for partisan ends. Police are perceived often as tools of those in power, rather than the instrument of law enforcement.
Delays have compounded the challenges to rule of law. When heinous crimes occur, public pressure and political diktats are making police resort to extra judicial killings of the suspects. This culture of mob justice needs to be countered by an efficient and credible system of crime investigation, prosecution and trial in a court of law. Or else, there is a danger that we will degenerate into a society in which might is right.
Alarmingly, there are fewer prosecutors in India than judges. This clearly reflects the fact that despite the separation of prosecution from the police, the prosecution wing is still unable to drive the investigation. This, coupled with the many inadequacies of functioning of the police and courts has undermined the credibility of our rule of law institutions.
As Nani Palkhiwala observed once, the progress of a civil suit in our courts of law is the closest thing to eternity we can experience. An independent and impartial judiciary, and a speedy and efficient justice system are the very essence of civilization. However, our judiciary, by its very nature, has become ponderous, excruciatingly slow and inefficient. The only sanction to ensure good conduct and to prevent bad behavior in society is swift punishment. In the absence of the state’s capacity to enforce law and to mete out justice, rule of law has all but collapsed.
Our laws and their interpretation and adjudication led to enormous misery for the litigants and forced people to look for extra-legal alternatives, in the process, giving rise
5 to a private industry for administering rough and ready justice. Local hoodlums using strong-arm tactics to achieve the desired goals in almost all of our cities and towns have been increasingly gaining political legitimacy. In addition, the courts have tended to condone delays and encourage litigation and a spate of appeals even on relatively minor matters. Delays, procedural complexity, and use of English as the language of the courts escalate the costs of litigation enormously for most people, deterring them from seeking intervention of courts. Largely, there is a lack of trust in the efficacy of the judicial system in delivering justice.
As a result of the enormous delays in courts, the prisons are overcrowded, with more than half of the prisoners being poor people incarcerated as under trial prisoners. Basic liberty being denied to the poor due to inefficiencies within the justice system is a fundamental failing of our democratic polity.
This disconcerting situation calls for speedy remedial measures. These measures should be practical and effective while they are in consonance with the basic features of the Constitution. Reports of the Law Commission, Police Commission and Administrative Reforms Commission have eloquently made out a case for many specific and practical reforms to strengthen rule of law. However, little effort has been made to implement these recommendations. The second edition of the annual conference aims to delve deep into the challenges plaguing our judicial system with the hope of converting meaningful conversations into definitive action.
A centralized and partisan police force, a feeble and inadequate prosecution, a slow and inefficient judiciary, and archaic and complex procedural laws that have collectively led to the failure of the Indian justice system will be the central themes to deliberate on in the conference.
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Sub-Themes:
1. POLICE a. Separation of crime investigation from political interference b. Improvements in technology - mobility, communications, computerization, and forensics and training c. Recruitment and capacity building i. Improving morale, competence and public image of police d. Community policing
2. PROSECUTION a. Capacity enhancement of prosecution b. Independence of prosecution with competence c. Empowering the prosecution to drive investigation
3. PROCEDURAL LAW a. Code of Criminal Procedure, 1973 b. Code of Civil Procedure, 1908 c. The Indian Evidence Act, 1872
4. JUDICIARY a. Establishment of local courts to reduce the burden of trial courts b. Capacity enhancement i. Strength of judges ii. Physical infrastructure and technology iii. Court administration - support staff, case management system c. Clearing Pendency d. Indian Judicial Service e. National Judicial Standards and Accountability for higher judiciary f. Permanent Constitutional Bench
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CONFERENCE PROGRAM OVERVIEW
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Conference Program Overview
Session Theme & Time Speakers WEEKEND 1
Day 1 - 20th February, 2021 Shri Justice M.N. Venkatachaliah, Former Chief Justice of India
Dr. Duvvuri Subbarao, Former Governor, Reserve Bank of India Inaugural Ceremony & Dr. Jayaprakash Narayan, General Secretary, Foundation for Keynote Address Democratic Reforms 9:00 AM - 10:30 AM Prof. B. Raja Shekhar, Pro Vice-Chancellor, University of Hyderabad
Prof. Rajendra Srivastava, Dean, Indian School of Business Chair - Shri K. Padmanabhaiah, Chairman, Administrative Staff College of India
Shri Kamal Kumar, Former Director, SVP National Police Academy Session 1A: Addressing Mr. Raj S. Kohli, Chief Superintendent, Metropolitan Police, Challenges of London Modern Policing 11:00 AM - 1:30 PM Smt. Maja Daruwala, Sr. Advisor, Commonwealth Human Rights Initiative
Shri Jacob Punnoose, IPS (Retd.)
Shri Vibhuti Narain Rai, IPS (Retd.)
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Chair - Smt. Aruna Bahuguna, Former Director, SVP National Police Academy
Session 1B: Dr. Vipul Mudgal, Director, Common Cause Addressing Challenges of Shri Mohit Rao, Journalist Modern Policing 5:00 PM - 7:30 PM Dr. Gandhi P.C. Kaza, Founder Chairman, Truth Labs
Shri M. Mahender Reddy, Director General of Police, Telangana
Day 2 - 21st February, 2021 Chair - Justice B.S. Chauhan, Chairman, 21st Law Commission of India
Dr. Jayaprakash Narayan, General Secretary, Foundation for Session 2: Democratic Reforms Strengthening
Investigation and Shri C. Anjaneya Reddy, IPS (Retd.) Prosecution
9:00 AM - 11:00 AM Shri D. R. Kaarthikeyan, Former Director, Central Bureau of
Investigation
Shri Justice M.L. Tahaliyani, Former Judge, Bombay High Court
Chair - Shri P. S. Ramamohan Rao, IPS (Retd.), Former Governor, Tamil Nadu
Session 3: Criminal Shri G. Kishan Reddy, Minister of State for Home Affairs, Procedural Government of India Reforms
5:00 PM - 7:00 PM Dr. Ranbir Singh, Founder and former Vice-Chancellor,
NALSAR Hyderabad and NLU Delhi
Dr. MR Ahmed, Former Inspector General of Prisons, Andhra
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Pradesh
WEEKDAYS Day 3 - 22nd February, 2021
Chair - Prof Kham Khan Suan Hausing, Professor, University of Hyderabad Conversation on
Extraordinary Law Prof. Ujjwal Kumar Singh, University of Delhi 7:00 PM - 8:00 PM
Shri Karnam Aravinda Rao, IPS (Retd.) Day 4 - 23rd February, 2021
Moderator - Mr. Abhinandan Sekhri, Co-founder, Conversation on Newslaundry.com Weaponization of
Fake News: A Smt. Rema Rajeshwari, IPS Threat to
Democracy? Mr. Carlos Hernández-Echevarría Head of Public Policy & 6:00 PM - 7:00 PM Institutional Development, Maldita.es
Day 5 - 24th February, 2021
Conversation on Women's Safety 6:00 PM - 7:00 PM Day 6 - 25th February, 2021
Conversation on Setting up Systems to deal with Cybercrime 6:00 PM - 7:00 PM Day 7 - 26th February, 2021
Rule of Law & Chair - Shri R.N. Bhaskar, Senior Business Journalist Economic Growth 5:30 PM - 7:30 PM Dr. Montek Singh Ahluwalia, Former Deputy Chairman,
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Planning Commission of India
Dr. Arvind Virmani, Chairman, Foundation for Economic Growth and Welfare
Shri Pradeep S. Mehta, Founder Secretary General, Consumer Unity & Trust Society
WEEKEND 2 Day 8 - 27 February, 2021
Chair - Shri N. L. Rajah, Senior Advocate, Madras High Court
Dr. Sudhir Krishnaswamy, Vice-Chancellor, NLSIU, Session 4: Bengaluru Civil Procedural Reforms Smt. Justice Shalini Phansalkar-Joshi, 9:00 AM - 11:00 AM Former Judge, Bombay High Court
Mr. Hiram E. Chodosh, President, Claremont McKenna College, USA
Chair - Justice G. Raghuram, Director, National Judicial Academy
Session 5: Speedy Dr. Jayaprakash Narayan, General Secretary, Foundation for Justice in Trial Democratic Reforms Courts 5:00 PM - 7:00 PM Shri Justice R. C. Chavan, Vice Chairman, E-Committee of Supreme Court
Shri Atul Kaushik, Chief of Party, Asia Foundation
Day 9 - 28 February, 2021
Session 6: Chair - Shri Justice Madan B. Lokur, Former Judge, Supreme Strengthening the Court of India Role of
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Constitutional Shri V. Sudhish Pai, Advocate and Author Courts 9:00 AM - 11:00 AM Shri Alok Prassana Kumar, Co-Founder, Vidhi Legal Policy, Karnataka
Ms. Cathy Catterson, Former Clerk of Court of Appeals, Ninth Circuit, USA
Chair - Shri Justice B. N. Srikrishna, Former Judge, Supreme Court of India
Session 7: Judicial Shri Justice Jasti Chelameswar, Former Judge, Supreme Standards and Court of India Accountability 12:00 PM - 2:00 PM Dr. G. Mohan Gopal, Former Director, National Judicial Academy
Shri Harish Narasappa, Co-founder, Daksh
Chair - Shri Justice Kurian Joseph, Former Judge, Supreme Court of India
Dr. Jayaprakash Narayan, General Secretary, Foundation for Rule of Law for the Democratic Reforms 21st Century - Conclusion Shri Prithviraj Chavan, Former Chief Minister, Maharashtra 5:00 PM - 7:00 PM Prof. K.C. Suri, Professor, University of Hyderabad
Prof. Ashwini Chhatre, Associate Professor of Public Policy, Indian School of Business
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SPEAKER BIOGRAPHIES
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Speaker Biographies
Shri Abhinandan Sekhri, Co-founder, Newslaundry.com
Abhinandan is the co-founder of Newslaundry.com. He has also co-founded a production house, Small Screen. Before founding Newslaundry, he worked as a producer, director and writer in various television and film projects, including the award-winning food and travel show Highway on my Plate, and news-satire shows such as Gustaakhi Maaf and The Great Indian Tamasha.
Shri Alok Prasanna Kumar Co-Founder, Vidhi Legal Policy, Karnataka
Alok Prasanna Kumar is co-Founder and Lead, Vidhi Centre for Legal Policy, Karnataka. His areas of research include judicial reforms, constitutional law, urban development, and law and technology. He graduated with a B.A. LL.B. (Hons) from the NALSAR University in 2008 and obtained the BCL from the University of Oxford in 2009. He writes a monthly column for the Economic and Political Weekly and has published in the Indian Journal of Constitutional Law and National Law School of India Review apart from media outlets such as The Hindu, Indian Express, Scroll, Quint and Caravan. He has practiced in the Supreme Court and Delhi High Court from the chambers of Mr. Mohan Parasaran, and currently also co-hosts the Ganatantra podcast on IVM Podcasts.
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Shri C. Anjaneya Reddy Former Director General of Police, Andhra Pradesh
A former IPS officer, C. Anjaneya Reddy has held several salient positions including Director General of Vigilance and Enforcement and Chairman and Managing Director of Andhra Pradesh Tourism Development Corporation. Post his retirement, he has been a social activist standing up for issues involving public interest. He is associated with Mahabodhi Buddha Vihara at Secunderabad and takes a keen interest in reviving, preserving and propagating Buddhist tradition and culture.
Dr. K. Aravinda Rao Former Director General of Police, Andhra Pradesh
Dr. K. Aravinda Rao joined the Indian Police Service in June 1977 and completed thirty-four years of service in the Indian Police Service in various capacities, and earned the Indian Police Medal and the President’s Medal for Distinguished Service. He worked as Superintendent of Police in five districts – Medak, DCP East Zone, Hyd., Warangal, Krishna, Cuddapah, and as Commissioner of Police, Vijayawada, as the Deputy Inspector General, Guntur, DIG, Special Intelligence Branch, Inspector General, Greyhounds (anti- naxal commando wing), & IG, CID. He also served as Addl DG, Training, DG, Vigilance, Addl.DG, Intelligence, DG, ACB. He retired from service as Director General of Police of the erstwhile AP, on 30 th June 2011. He
16 published a book entitled ‘Naxalite Terrorism: Social and Legal Issues’ in English, published by East West Publishers, Hyderabad, in 1996.
Smt. Aruna M. Bahuguna Former Director, SVP National Police Academy
From being the first lady IPS officer of Andhra Pradesh to being the first Special Director General of Police in Central Reserve Police Force (CRPF), Aruna Bahuguna has various distinctions attached to her name. She has held many notable positions and portfolios including DIG Intelligence, ADGP Training & Coordination and IGP Police Computer Services & Human Rights Cell. She also served as the Director of SVP National Police Academy from 2014-2017.
Dr. Arvind Virmani Chairman, Foundation for Economic Growth and Welfare
Dr. Arvind Virmani is the Chairman, Foundation for Economic Growth and Welfare (EGROW). He is also the President of the non-profit organisation China and the Forum for Strategic Initiative. He served as a member of the Technical Advisory Committee of RBI on Monetary Policy from February 2013 to August 2016, as Mentor (Public Policy) to FICCI during 2015-16 and 2016-17. He was till end-2012, Executive Director at the International Monetary Fund (IMF), Washington DC, representing India (as its Ambassador to IMF), Bangladesh, Sri Lanka and Bhutan.
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He has been an adviser to the Indian Government at the highest levels for 25 years, including as Chief Economic Adviser, Ministry of Finance and Principal Adviser, Planning Commission. He also served as Member, Telecom Regulatory Authority of India (TRAI) and the Appellate Tribunal for SEBI Act, Chairman, Board of Trustees of SBI Mutual Fund, and Director on the Boards of several financial institutions. In between, he directed the Indian Council for Research on International Economic Relations (ICRIER) as its Chief Executive and was Affiliate Professor, George Mason University (and Distinguished Senior Fellow, School of Public Policy - CEMP, GMU).
Prof. Ashwini Chhatre Associate Professor of Public Policy, Indian School of Business
Ashwini Chhatre served as the Editor-in-Chief of World Development Perspectives during 2015-18, as Senior Editor of Conservation Letters during 2009-14, and has co-authored one book besides publishing articles in the world’s leading journals. Ashwini Chhatre has a PhD in Political Science from Duke University. He is currently Associate Professor of Public Policy at ISB.
Shri Atul Kaushik Chief of Party, Asia Foundation
Atul Kaushik retired in 2018 as Additional Secretary, Lok Sabha. Before that, he spent five years in the Ministry of Law and Justice, Department of Justice, as Joint Secretary. His key assignments in that Department
18 included being the Mission Leader of the e-Courts Mission Mode Project and two Access to Justice Projects. His other key government assignments include export promotion; bilateral and multilateral trade policy; drafting India’s intellectual property rights (IPRs) laws and getting them approved by the Parliament after India joined the WTO; petroleum and natural gas; and climate change. He has been India’s lawyer to the World Trade Organisation (WTO) and India’s negotiator for IPRs and dispute settlement in the Permanent Mission of India in Geneva. At present, he is leading an Indo-US program on delivering development cooperation assistance from India to countries in the Indo-Pacific region.
Shri R. N. Bhaskar Senior Business Journalist
R.N. Bhaskar is a senior business journalist with over thirty years of news experience. He has been executive editor, Financial Express, and founder and COO of the information company of the Indian Express Group. In 1998, he gave up full-time journalism to work with the corporate sector. After heading a listed company, he set up his own satellite broadcast company to promote distance learning. Since 2008, he has opted to be consulting editor with various publications-including Log.in (part of the German Log.de), Forbes India, DNA, Firstpost.com, Free Press Journal and Moneycontrol.com. He was also an adviser with the Observer Research Foundation (ORF) for a couple of years. He is currently a Consulting Editor with the Free Press Journal and mentor with asiaconverge.com.
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Shri Justice B. S. Chauhan Chairman, 21st Law Commission of India
Dr. Justice B.S. Chauhan achieved par excellence in the academic field throughout. He received LL.B. degree from the Banaras Hindu University in 1974. Thereafter, with foreign scholarship he was awarded Ph.D. Degree from the Victoria University, Manchester (U.K.) in 1979. He practiced law in Delhi High Court and Supreme Court. He was appointed as a judge on April 5, 1995, and served Allahabad High Court and Rajasthan High Court. He was elevated as the Chief Justice of Orissa High Court on 16.07.2008 and Judge of Supreme Court of India on 10.05.2009. After demitting the office from the Supreme Court, he served as Chairman, Cauvery Water Disputes Tribunal, till joining the Law Commission of India as its Chairman on 15.03.2016. Served as such up to 30.08.2018. Currently, he is involved in arbitration proceedings, legal consultancy and heads the Commission of Enquiry in Kanpur Police Officers Murder case.
Mr. Carlos Hernández-Echevarría Head of Public Policy & Institutional Development, Maldita.es
Carlos Hernández-Echevarría (Madrid, 1983) joined Maldita.es last year to oversee its public policy and advocacy operation. Before that, he worked in TV news for 15 years as a reporter, correspondent and executive producer. He has a BA in Journalism (Universidad San Pablo CEU, Madrid, 2006) and a
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MA in Elections and Campaign Management (Fordham University-Fulbright Program, New York, 2014). He is a regular contributor in several Spanish media.
Ms. Cathy Catterson Former Clerk of Court of Appeals, Ninth Circuit
Cathy Catterson is the former Circuit Executive of the Ninth Circuit, USA. Previously, she held the post of Clerk of Court as well as Court of Appeals Executive of the Ninth Circuit.
Shri Justice Jasti Chelameswar Former Judge, Supreme Court of India
Jasti Chelameswar is a former Judge of the Supreme Court of India, who declared the Freedom of Speech - a fundamental right. Notably, he spoke in favour of the National Judicial Appointments Commission (NJAC). He retired on 22 June 2018 as the second most senior Supreme Court judge. Earlier, he was the Chief Justice of the High Court of Kerala and Gauhati High Court.
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Dr. Gandhi P. C. Kaza Founder Chairman, Truth Labs
Dr. Gandhi P. C. Kaza is the Founder Chairman of Truth Labs, the first independent forensic science laboratory in India, and also the Managing Director of Genome Foundation, a non-profit dedicated to providing diagnostic services and counselling for genetic disorders at affordable costs. He is a former Advisor, IGP and Director of the Andhra Pradesh Forensic Science Laboratory (APFSL).
Shri Harish Narasappa Co-founder, Daksh
Harish Narasappa is a lawyer, co-founder of Daksh, a leading civil society organisation working extensively on judicial reforms among other key areas and founding partner of the law firm, Samvad Partners, headquartered in Bengaluru. He has extensive experience in advising on cross-border mergers and acquisitions, banking, corporate financing, private equity, projects, regulatory, and dispute resolution matters. Harish Narasappa is a trustee of the Singamma Sreenivasan Foundation and the Punarchith Collective. He is also a member of the Karnataka Election Watch and National Election Watch.
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Mr. Hiram E. Chodosh President, Claremont McKenna College
Hiram E. Chodosh is the president of Claremont McKenna College, one of the top liberal arts colleges in the USA. An accomplished leader in several domains, he is widely recognized for his innovations in higher education, scholarship in comparative law, and expertise in international justice reform. He has worked on projects or studies in more than a dozen countries. He has played a central role in the growth of mediation in India, where he was a Fulbright Senior Scholar in 2003. He founded and directed Global Justice Project: Iraq under a $10.4 million grant (2008–10) from the U.S. Department of State. He has served in advisory positions on justice reform for the World Bank Justice Reform Group, the International Monetary Fund Legal Department, and many court systems, non-profit organizations, and national commissions.
Shri Jacob Punnoose Former Director General of Police, Kerala
Jacob Punnoose is the former Director General of Police and the State Police Chief of Kerala. He has held several notable positions and portfolios including City Police Commissioner and Zonal IG of Trivandrum and Kozhikode; Joint Excise Commissioner; Training Additional DGP; Intelligence DGP and Law and Order DGP, Kerala. He was also the Chairman Kerala Police Act Review Committee.
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Dr. Jayaprakash Narayan General Secretary, Foundation for Democratic Reforms
Dr. Jayaprakash Narayan, former MLA, former member of National Advisory Council and Second Administrative Reforms Commission, is currently the General Secretary of Foundation for Democratic Reforms. He is a physician by training, a public servant by choice, and a democrat by conviction. He played a key administrative role in Andhra Pradesh as the Secretary to the Governor and to the Chief Minister.
Shri Kamal Kumar Former Director, SVP National Police Academy
Kamal Kumar is the former Director of SVP National Police Academy, Hyderabad. Prior to his retirement from the IPS as the DGP, he held several senior positions in Andhra Pradesh Police including DIG (Intelligence), IG (Armed Police), and Additional DGP (Coordination and Police Reforms). He has also held the elected position of Vice Chairman, United Nations Commission on Crime Prevention and Criminal Justice, Vienna, in (1998-99). He has been associated with various government efforts in the field of Police Reforms as the Member-Secretary, Review Committee on Police Reforms and Member of the Committee to Draft a National Policy on Criminal Justice.
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Shri D. R. Kaarthikeyan Former Director, Central Bureau of Investigation
D.R Kaarthikeyan is a former Director of the Central Bureau of Investigation; Director General of the National Human Rights Commission and Special Director General of the Central Reserve Police Force (CRPF). He received the prestigious Padma Shri award in 2010 for his contribution to the Indian Civil Service. During his long career, he served in a number of important positions including as Deputy Commissioner of Police (Law & Order), Bangalore; Deputy Inspector General of Police, Karnataka State Intelligence Department and Head of Karnataka State Police Academy. He was the chief of the SIT, CBI, which successfully investigated and prosecuted former Prime Minister Rajiv Gandhi’s assassination case. He served as First Secretary in the Embassy of India, Moscow, Russia from 1974-1977. He has visited over 120 countries participating in and addressing conferences relating to various subjects of human welfare including fighting violence, crime and terrorism, and promoting environment, human rights and inter-faith harmony.
Prof. Kham Khan Suan Hausing Professor, Department of Political Science, University of Hyderabad
Kham Khan Suan Hausing is Professor of Political Science at the University of Hyderabad, India. He earned his Master, MPhil and PhD degrees from the Centre for
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Political Studies, Jawaharlal Nehru University, New Delhi. Hausing previously taught Political Science at the Banaras Hindu University, Varanasi for over eight years. He was a Fulbright-Nehru Postdoctoral Research Fellow, 2012-13 at the Department of Political Science, University of Pennsylvania, Philadelphia.
Shri G. Kishan Reddy Minister of State for Home Affairs
Gangapuram Kishan Reddy is an Indian politician who currently serves as Minister of State for Home Affairs (MoS). He is a senior member of the Bharatiya Janata Party (BJP). He has been a Member of Parliament (MP) representing Secunderabad constituency since 2019. He served as the floor leader of BJP in the Telangana Legislative Assembly from 2016 to 2018 and also held the position of BJP State President of Telangana for 2014 to 2016.
Shri Justice Kurian Joseph Former Judge, Supreme Court of India
Justice Kurian Joseph is a retired Judge of the Supreme Court of India, known for his humane and compassionate approach to law. Since retirement, Justice Joseph has been focused on using ADR processes such as mediation, arbitration and conciliation to support parties to find sustainable, long lasting solutions. He is routinely appointed by the Supreme Court of India and the various High Courts to act as a Mediator and Arbitrator. Justice Joseph is
26 also on the panel of Mediators at Singapore International Mediation Centre (SIMC). Having enrolled as an Advocate at the Kerala Bar Council in 1979, he became a High Court Judge in the year 2000 and was elevated as Judge of the Supreme Court of India in 2013. As Judge of the Supreme Court of India, Justice Joseph was involved in landmark cases like Constitutional Amendment of NJAC (National Judicial Appointments Commission) and in striking down the practice of Triple Talaq.
Prof. K.C. Suri Professor, Department of Political Science, University of Hyderabad Prof. K.C. Suri is currently a Political Science Professor at the University of Hyderabad. His areas of specializations include Indian Democracy, Public Policies, State Politics, Political Parties and Election Studies.
Shri Justice Madan B. Lokur Former Judge, Supreme Court of India Justice Madan B. Lokur is currently a Judge of the Supreme Court of Fiji and a former Judge of the Supreme Court of India. He is also the former Chief Justice of the Andhra Pradesh High Court and the Gauhati High Court and has been a Judge of the Delhi High Court. He also served as the editor of the Indian Law Review (Delhi Series). He is known for presiding over matters of social justice, earning his Bench the "social justice bench" moniker. Over the years, he has authored landmark judgments in various constitutional cases and social justice issues.
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Shri M. Mahender Reddy Director General of Police, Telangana Mudireddy Mahender Reddy is an Indian police officer, who is currently the Director General of Police of Telangana. Earlier, he served as the first Police Commissioner of Hyderabad after the formation of Telangana. He also held the position of Head of Police, Computer Services and Standardization; Chief of Greyhounds and Chief of Intelligence. He has been awarded Indian Police Medal for Meritorious Services in the year 2002 and President Police Medal for Distinguished Services in the year 2010 in recognition of his Outstanding Services. He has undertaken various technology, process, people and leadership related innovations in the state of Telangana.
Smt. Maja Daruwala Sr. Advisor, Commonwealth Human Rights Initiative
A barrister by training, Maja Daruwala has been working to advocate for rights and social justice for over 35 years. She served as Director of CHRI, an international non-governmental organisation headquartered in New Delhi with offices in London, UK and Accra, Ghana, for 20 years. She concentrates on issues relating to civil liberties including police reform, prison reform, right to information, legal empowerment, non-discrimination, women's rights and freedom of expression. She is currently Senior Advisor at CHRI, focusing on the Access to Justice Program. She is also a consultant to Tata Trusts.
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Dr. M. R. Ahmed Former Inspector General of Prisons, AP
Dr. M. R. Ahmed, formerly Inspector General of Prisons, Andhra Pradesh and Director of Academy of Prisons and Correctional Administration Vellore (APCA), has more than 37 years of outstanding service in prison administration. He was a consultant to UNODC, Commonwealth, Penal Reform International, Bureau of Police Research and Development and Penal Reform and Justice Association. He holds vast and insightful experience in law enforcement, human rights and correctional administration at national and international level. He is recipient of President’s Distinguished Service Medal (Correctional Service), KLN Reddy Memorial Award (Best in Correctional Services) and Prof. Srivastava Award of Indian Society of Criminology. He is responsible for the concept of video linkage between Courts and Prisons, a landmark measure in harnessing technology for speedier justice. He is also responsible for the "AP Release of offenders on Community Service Act 2010”.
Dr. G. Mohan Gopal Former Director, National Judicial Academy
Dr. Gopal was the Director of the National Judicial Academy (NJA) of the Supreme Court of India from 2006 to 2011. In that capacity, he pioneered new approaches to judicial education and judicial reform. He was the founder head of the National Court Management Systems Committee of the Supreme Court from 2012-2019. He is currently a member of the
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National Judicial Academic Council of the Supreme Court of India. Dr. Gopal has also served as member of an inquiry committee appointed by Parliament in impeachment proceedings against a High Court judge under the Judges Inquiry Act. A former Vice-Chancellor of the National Law School of India, Bangalore, Prof Gopal is also a former member of various national regulatory bodies including the Law Commission of India, the Securities and Exchange Board of India, the University Grants Commission, the Copyright Law Board of India and the News Broadcasting Standards Authority. Dr. Gopal also served as Director of the Rajiv Gandhi Institute for Contemporary Studies (RGICS) from 2011-2017. He worked at the World Bank in Washington, DC for over two decades, where he became Chief Counsel in the Legal Department. He taught law at Georgetown University Law School, Washington, as an adjunct professor (1991-2000); and at the Faculty of Law, National University of Singapore, as a lecturer in law (1980-83). Dr. Gopal has also worked as legal counsel in the Office of the General Counsel of the Asian Development Bank, Manila (1983-86). He holds a doctoral degree in law (SJD) from Harvard Law School where he also obtained a Master’s Degree in Law.
Shri Mohit Rao Journalist
Mohit Rao has earlier worked with The Hindu as a principal correspondent. His works appear across various platforms including CNN, The Wire, Firstpost and Clayton News, on matters of various pressing issues in today’s times. He is a fellow of the Young Connectors of the Future program, conducted by the Swedish Institute, in 2014; and, an India-Germany Media Ambassador fellow in 2016.
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Dr. Montek Singh Ahluwalia Former Deputy Chairman, Planning Commission of India
An economist and former Indian civil servant, Mr. Ahluwalia is currently a Distinguished Fellow at the Centre for Social and Economic Progress. He was a Distinguished Visiting Professor at the Stern School of Management, NYU for one term in 2015. He served as the Deputy Chairman of the Planning Commission of the Government of India from 2004 to 2014. A key figure in India’s economic reforms from the early 1980s onwards, he has held several important positions including Special Secretary to the Indian Prime Minister (1988–90); Commerce Secretary (1990–91); Secretary, Department of Economic Affairs, Ministry of Finance (1991–93); and Finance Secretary, Ministry of Finance (1993–98). He was also Member of the Planning Commission, Government of India and Member of the Economic Advisory Council to the Prime Minister (1998–2001). From 2001 to 2004, Mr. Ahluwalia worked as Director of the Independent Evaluation Office, International Monetary Fund.
Shri Justice M. L. Tahaliyani Former Judge, Bombay High Court M. L. Tahaliyani is a former Lokayukta of Maharashtra and a retired Judge of the Bombay High Court. He presided over the 2008 Mumbai attacks case, pronouncing the death penalty to Ajmal Kasab on terrorism related charges. After spending several years as a public prosecutor, he was appointed as a Metropolitan
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Magistrate in 1987. He became the Additional Chief Metropolitan Magistrate in 1994 and the Chief Metropolitan Magistrate in 1997.
Shri K. Padmanabhaiah Chairman, Administrative Staff College of India K. Padmanabhaiah is a retired Indian civil servant and a former Home Secretary of India. He is the chairman of the Court of Governors of the Administrative Staff College of India (ASCI), and has headed many government committees such as the Committee on Police reforms (2000), the Committee on Reorganization of Seema Suraksha Bal, and the Committee to Review the working of National Institute of Urban Management. In 2008, he was awarded the third highest civilian honor of the Padma Bhushan for his contributions to the Indian Civil Service.
Shri Pradeep S. Mehta Founder Secretary General, Consumer Unity & Trust Society (CUTS) Pradeep S Mehta is the founder secretary general of the Consumer Unity & Trust Society (CUTS International), one of the largest consumer groups in India. He has served on several policy making bodies of the Government of India, related to trade, environment and consumer affairs, including the National Advisory Committee on International Trade of the Ministry of Commerce and its working groups. He chairs the Advisory Board of the South Asia Network on Trade, Economics and Environment, Kathmandu.
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Shri Prithviraj Chavan Former Chief Minister, Maharashtra Prithviraj Chavan is an Indian politician who served as the 17th Chief Minister of Maharashtra. He has also served as the Minister of State for the ministries of Ministry of Science and Technology, Ministry of Earth Sciences, Ministry of Personnel, Public Grievances and Pensions, Ministry of Parliamentary Affairs and in charge of Prime Minister's Office. He was also General Secretary of the All-India Congress Committee (AICC), in-charge of many states, including Jammu and Kashmir, Karnataka, Haryana, Gujarat, Tripura, and Arunachal Pradesh.
Shri Justice G. Raghuram Director, National Judicial Academy Justice G. Raghuram is currently the Director of the National Judicial Academy, Bhopal and former Judge of the High Court of Andhra Pradesh. He was also the President of The Customs Excise and Service Tax Appellate Tribunal (CESTAT) from 2013 to 2016. A recognized expert in constitutional law, he represented the State of Andhra Pradesh in the interstate water disputes case relating to the Krishna waters, in the Supreme Court of India.
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Mr. Raj S. Kohli Chief Superintendent, Metropolitan Police, London Raj S. Kohli joined the Metropolitan Police Service in 1992. In 2006, Raj was promoted to Chief Inspector and was made the operational lead for the policing of South Brent. Shortly after, he moved into a central policy unit before being promoted to Superintendent and moving to Camden, where he oversaw significant reduction in gang crime, youth crime and gang-related violence. In 2012, he played a key role in helping deliver the London Olympics, being in charge of policing all parallel events across the 16 Boroughs south of the River Thames. In 2015, he became Chief Superintendent and Borough Commander for Hounslow. He won the British Indian Award 2014 in the Civil Services & Armed Forces category. He is the highest-ranking Sikh officer in the Metropolitan Police.
Prof. B. Raja Shekhar Pro Vice-Chancellor, University of Hyderabad Prof. B. Raja Shekhar is currently Pro Vice-Chancellor of the University of Hyderabad. He has a commendable track record in the field of higher education as an academician and academic administrator. Prof. Shekhar has been associated with the School of Management Studies since its inception in 1999 and is also coordinating a Post Graduate Diploma in Business Management offered by the Center for Distance Education and Virtual Learning, University of Hyderabad. He was also associated with the Telangana State Public Service Commission as one of the members of the committee for formulation of scheme and syllabus. As the Dean of the School of
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Management Studies, University of Hyderabad, Prof. Shekhar has played a significant role in launching a unique MBA program in Business Analytics at University of Hyderabad. Prof. Shekhar’s primary areas of interest include Service Quality, Quantitative Techniques, Operations Management, Industrial & Organizational Psychology and Research Methodology.
Shri N. L. Rajah Sr. Advocate, Madras High Court N.L. Rajah is currently a Senior Advocate at Madras High Court. He was a Committee Member of the Law Commission to suggest changes to the Arbitration and Conciliation Act and also as a Consultee to the Law Commission on the Commercial Courts Act. He is also the founder Director of Justact, a company that focuses on alternate dispute resolution through technology. He is currently the trustee of Palkhivala Foundation and Founding Director of Nani Palkhivala Arbitration Centre.
Prof. Rajendra Srivastava Dean, Indian School of Business Prof. Rajendra Srivastava is the Dean of the Indian School of Business and the Novartis Professor of Marketing strategy and Innovation. He comes with an experience of over 30 years as an academic and administrator. He has held several tenured faculty and administrative positions during his career. Before joining the ISB, he was Provost and Deputy President of Academic Affairs at Singapore Management University. His research interests include Marketing Strategy, Marketing Metrics, and Brand/Customer Management. He has
35 been actively involved in setting up several new postgraduate and doctoral programs as well as research centres and initiatives in close collaboration with industry. He has also been involved in consulting and senior management training with global MNCs and brings a unique blend of experiences integrating academic and business perspectives from the west and the east. His current work focuses on Business Model Innovations, especially in Services, B2B, Technology and Emerging Markets. His latest research and teaching interests also include Strategic Performance Management, Marketing Accountability and Driving Growth and Shareholder Value.
Shri P.S. Ramamohan Rao Former Governor, Tamil Nadu A former Indian Civil Servant, P.S. Ramamohan Rao retired as the Director General of Police, Andhra Pradesh. He also served as Governor of Tamil Nadu from January 2002 to 4 November 2004. He has been conferred with the Indian Police Medal in 1974 and the President's Police Medal in 1982.
Dr. Ranbir Singh Founder and former Vice-Chancellor, NALSAR Hyderabad and NLU Delhi Professor Ranbir Singh has been the founder Vice-Chancellor of NALSAR, University of Law, Hyderabad (from 1998 to 2008). He has also been the founder Vice-Chancellor for NLU Delhi from 2008 to 2020. Professor Singh served as the Chairperson of the Committee for Reforms in Criminal Laws constituted by the Union Ministry of Home
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Affairs. He was also a Member of the Soli Sorabjee Committee on Police Reforms. He is Member, Board of Management, International Association of Universities (IAU), Paris, Member Council, The Association of Commonwealth Universities (ACU), London and also Past-President of the Association of Indian Universities (AIU) and SICI. His legal writings span the areas of Jurisprudence, Human Rights, Legal Education, Legal Aid, Personal Laws and Justice Education, and has more than 50 research publications to his credit.
Smt. Rema Rajeshwari Superintendent of Police, Mahabubnagar District, Telangana
Rema Rajeshwari, currently serving as the District Police Chief, is an Indian Police Service officer with a distinguished career of integrity, courage and passion spanning over 11 years. She has held various responsible and dynamic law enforcement positions since her first assignment in the Police service as an Assault Commander with the ‘Greyhounds’, an elite special force, which undertakes high risk operations through jungle warfare against left-wing extremists. Working for people who are at the fault lines of the lethal intersection of society and violence, she has been instrumental in running successful operations against extremists, a women- and child-trafficking nexus, organised gangs, and other criminal activities. She has won accolades as the topper of the Indian Police Service class of 2009. Yale University selected her as the 'Yale World Fellow' in 2017. The International Association of Women Police (IAWP) featured her work under 'Leading Change' in 2018. Through her collaborative policing efforts, she encourages women to break gender stereotypes and empower them to emerge as leaders. Her research and experience has resulted in publishing articles in major news papers and presenting conference papers in numerous
37 organizations about citizen-oriented policing, influence operations, narrative warfare, misinformation, new age crimes and gender based violence. Currently she is working on design thinking and social innovation to fight the menace of misinformation, fake news and malicious social media rumours that lead to violent crimes in peaceful communities.
Shri Justice R. C. Chavan Vice Chairman, E-Committee of Supreme Court A former Judge of the Bombay High Court, Justice Chavan takes a keen interest in academic activities. He participated in conferences and seminars on environmental law, environmental economics, AIDS, gender justice and arbitration. He worked as guest faculty at the Institute of Military Law and served as the president of the Maharashtra State Judges Association from 1990 to 1994. He joined as the Vice Chairman of the Supreme Court’s E-Committee on March 2, 2020.
Smt. Justice Shalini Phansalkar-Joshi Former Judge, Bombay High Court Justice Shalini Phansalkar-Joshi enrolled as an Advocate in 1980 dealing with both civil and criminal matters. She has the distinction of being the first lady Advocate and the first lady Judge from Karad. From having worked as a Civil Judge, Junior Division and Judicial Magistrate, First Class, in 2016, she became a permanent Judge in Bombay High Court. She also served as Joint Director of Maharashtra Judicial Academy since its inception in 2009 for four years, training more than 450 judicial officers. She also
38 conducted several in-service training programs, seminars, workshops, judicial colloquia and national and regional conferences.
Shri Justice B.N. Srikrishna Former Judge, Supreme Court of India B. N. Srikrishna is a former judge of the Supreme Court of India. From 1993–98, he headed the Srikrishna Commission that investigated causes and apportioned blame for the Bombay riots of 1992–93. In 2017, he headed a ten-member committee to study and identify key data protection issues and recommended methods to address them. The Committee drafted the Personal Data Protection Bill, 2019. He is currently the chairman of the Financial Sector Legislative Reforms Commission (FSLRC) and also works as an independent arbitrator. He is a connoisseur of art, culture, drama, and classical music.
Dr. Duvvuri Subbarao Former Governor, Reserve Bank of India
Dr. Duvvuri Subbarao is an Indian economist, central banker and former civil servant. He was the 22nd Governor of Reserve Bank of India, serving under Prime Minister Dr. Manmohan Singh. He has previously worked as the joint secretary in the Department of Economic Affairs, Ministry of Finance, Government of India between 1988 and 1993. Subsequently, he became the Finance Secretary to the Government of Andhra Pradesh between 1993 and 1998. On completion of his term, he was deputed as lead economist in
39 the World Bank from 1999 to 2004. On completion of his term, he was appointed to the Prime Ministers’ Economic Advisory Council from 2005 to 2007 before he was elevated as the Finance Secretary in 2007. He is currently a distinguished visiting faculty at the National University of Singapore.
Dr. Sudhir Krishnaswamy Vice-Chancellor, NLSIU, Bengaluru Sudhir Krishnaswamy is currently the Vice-Chancellor of National Law School of India University (NLSIU), Bengaluru. Previously, he was a professor at the Azim Premji University. He was also the Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law at Columbia Law School. He graduated from the National Law School of India University (NLSIU), Bangalore. He read the BCL and obtained a D.Phil. from Oxford University. He has been a Teaching Fellow in Law at the Pembroke College at Oxford University, an Assistant Professor at NLSIU and a Professor at the West Bengal National University of Juridical Sciences, Kolkata. He has authored a book titled ‘Democracy and Constitutionalism in India’ which was published by the Oxford University Press in 2009.
Shri V. Sudhish Pai Advocate and author V. Sudhish Pai is a distinguished lawyer, jurist, and an acclaimed author. His contribution to academics, particularly in the area of critical constitutional analysis, has been substantial and significant. He was a Visiting Chair Professor, Ashutosh Mookerjee Chair in West
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Bengal National University of Juridical Sciences (WBNUJS), Kolkata and is a resource person at the National Judicial Academy, Bhopal for continuing legal education for judges. He has also been a Senior Research Scholar at the Karnataka Law Commission.
Prof. Ujjwal Kumar Singh Professor, University of Delhi
Ujjwal Kumar Singh is Professor in the Department of Political Science in the University of Delhi. He obtained his Masters degree from Delhi University, and PhD from School of Oriental and African Studies, University of London. He was earlier a Fellow at the Centre for Contemporary Studies, Nehru Memorial Museum and Library in Delhi. He is the author of the books Political Prisoners in India (Oxford University Press, 1998, paperback 2001) and The State, Democracy and Anti-Terror Laws in India (Sage, 2007). He has co-edited Towards Legal Literacy: An Introduction to Law in India (Oxford University Press, 2008, paperback 2015) and is the editor of the book Human Rights and Peace: Ideas, Laws, Institution and Movements (Sage, 2009). His co-authored book The Election Commission of India: Institutionalising Democratic Uncertainties has been published by OUP in October 2019. His articles have appeared in several national and international journals. He has been a visiting fellow in universities in India and abroad. He was the ICCR Rajeev Gandhi Visiting Chair Professor in Contemporary Indian Studies at University of Technology, Sydney, Australia in 2012.
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Shri Justice M. N. Venkatachaliah Former Chief Justice of India Former Chief Justice of India, Justice Venkatachaliah has also held other noteworthy positions such as the Chairman of the National Human Rights Commission. He also headed the National Commission for reviewing the Constitution of India, and has served as the Chancellor of Sri Sathya Sai Institute of Higher Learning, Prasanthi Nilayam (Deemed University). He is a recipient of the prestigious Padma Vibhushan, one of India’s highest Civilian Awards. He has been on the Advisory Board of Foundation for Restoration of National Values, a society that strives to restore national and cultural values of the country.
Shri Vibhuti Narain Rai IPS (Retd.) A former IPS officer and an acclaimed writer, VN Rai retired as DGP of Uttar Pradesh. Having administered many communally sensitive districts as SP, he has authored a legion of books and novels on communal tensions and the role of police. He was a former Vice-Chancellor of Mahatma Gandhi Antarrashtriya Hindi Vishwavidyalaya, Wardha, Maharashtra. A renowned figure in the world of Hindi literature, he founded the leading literary Hindi monthly magazine Vartman Sahitya. He has been conferred with several accolades throughout his career which include Indian Police Medal for Meritorious Services, President’s Police Medal for Distinguished Services and a fellowship by National Police Academy, Hyderabad.
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Dr. Vipul Mudgal Director, Common Cause Director and Chief Executive at Common Cause, Vipul Mudgal has been a journalist and an academic in India, the UK, and South-East Asia. Having worked at the intersection of media, democracy and political violence, he has held senior editorial positions at Hindustan Times, India Today, BBC World Service and Asia Times. He is credited for being a New Delhi–based civil society watchdog who promotes democracy, the rule of law, and good governance through legal interventions, advocacy, research, and policy engagement.
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SESSION BRIEFS
THEMATIC SESSIONS
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Session Briefs
Thematic Sessions
Session 1A: Addressing Challenges of Modern Policing
Context:
Our police forces are overburdened with a plethora of tasks and a shortage of personnel. At 152 police per 100,000 population, the number of policemen per unit population remains low by global standards despite rapid urbanization and rise in crime. With increased urbanization, the social controls that checked unruly behaviour and crime are weakening. Impersonal lives, high density of population and weak social controls will inevitably lead to more violence and crime.
We are in an era of political polarization. Far too often, policy issues are not debated on merits, but are viewed through the prism of partisan politics and power struggle. As a result, governance problems often morph into public order problems. Our forms of protest are still guided by our past experience during the national movement for independence waged against alien rulers when we had no voice in governance and no constitutional rights. Dr Ambedkar warned us that the obstructionist and, on occasion, violent forms of protest have no place in a constitutional democracy. However, obstructionist forms of protest – rasta roko, bandh, rail roko, etc – continue to be a part of our political culture at enormous cost to the economy and inconvenience and hardship to ordinary citizens. In these conditions, the police have a difficult task of maintaining order without resorting to excessive force or stifling legitimate protest in a democracy.
The police force, today, is faced with multifarious challenges impinging on their effectiveness. The perception of policemen as symbols of state power and agents of
45 coercion and retribution rather than as friends and protectors of people, has continued from the colonial era. The high degree of centralization of functions in a single police force is acting as a serious impediment to the efficient discharge of their duties. Since police functioning has become increasingly complicated and highly specialized, each function requires a certain degree of training, infrastructure, knowledge base, skill, and sophistication, which are not possible to sustain when many functions are concentrated in the same force. When crime investigation and prosecution are inadequate, public pressure and political control sometimes compel the police to resort to unwholesome methods like third degree and extra-judicial punishments to produce short term results to appease the public sentiment.
In this backdrop, we need to address three challenges: improving infrastructure and resources; making investigation of serious crime efficient and independent; and ensuring effective accountability in keeping with democratic norms.
The police forces need to be adequately strengthened and equipped to be able to maintain public order in a democratic milieu, and to prevent crime in a growing economy and more and more impersonal society. Enhancing the strength of police forces is necessary so that growing challenges can be met effectively. Even more important is the quality of police personnel, which is a function of recruitment and training. Finally, in a democratic society there should be constant communication and a bond of trust between the society at large and the police force that serves it. Alienation of the police force from the public, or adversarial relationship is detrimental to good policing and undermines democracy. Also, as far as practicable, there should be proactive policing, instead of merely reacting to situations and crime after the event. Embedding police personnel in the community and ensuring close interaction and trust through some form of community policing as an integral part of the overall policing will greatly enhance public trust, communication and effectiveness of policing.
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This session focuses on enhancing the strength of police forces, improving recruitment and training, and adopting community policing to improve police performance in the wake of growing challenges to rule of law.
Discussion Points:
1. Enhancing the strength of police force and quality of police recruitment and training. 2. Reducing the burden on police force and improving professionalism through specialization of functions. 3. Institutionalizing community policing.
Expected Outcomes:
1. Roadmap to improve capacity of police force - strength and training. 2. Strategy for specialized police force equipped to perform modern day functions. 3. Outlines of community policing with accountability mechanisms.
Session 1B: Addressing Challenges of Modern Policing
Context:
Any effort in improving the functioning of the police force must look into the aspect of technology. The most significant component of technology that requires immediate attention is the status of forensic infrastructure in the country. There are currently 7 central forensic labs that are well equipped in the country. In comparison, the US is equipped with 409 publicly-funded forensic labs. There are around 30,000 murders alone in India, and over 6 lakh serious crimes and accidental deaths in the country every year. However, only 20,000 samples were tested for DNA analysis in 2019, a paltry
47 number compared to the 1.2 million samples tested in the US in 2014. In order to strengthen crime investigation and improve conviction rates, the forensic infrastructure in the country needs a significant upgrade. In addition to scaling up the lab infrastructure, it is also necessary to empower investigating officers with forensic kits and mobile forensic vans that can reach the scene of the crime and collect evidence appropriately.
Moreover, the existing technology, weapons, resources and procedures available to the police have not kept pace with our ever evolving society and the nature of crimes we are witnessing today. Presently, criminals and crime syndicates have access to much greater firepower, faster transport, better communications, and in general, far superior technology and speed in decision making. Surprisingly, in the year 2018-2019, out of the combined state plus union grant of Rs. 1,937 crores for the modernization of police force, only Rs. 802 crores has been utilized. This is a worrisome trend as police stations do not seem to be properly equipped with the latest technology such as weapons, communications systems including wireless devices and satellite networks, which would enable efficient tackling of crimes.
Owing to a shortage of technology and manpower, police are compelled to resort to obsolete methods of force. While the Bureau of Police Research and Development (BPRD) has come out with its use of force continuum in 2016, prescribing mechanisms including psychological methods preceding the use of non-lethal force such as tear gas, cane charge, and pellet guns and the use of firearms. These recommendations need to be internalized in police forces and incorporated in police manuals. The high number of deaths and injuries caused by the lethal and non-lethal use of force by the police is indicative of failure of the constitutional and legislative safeguards existing in India. About 140 deaths in police custody have been recorded by the National Human Rights Commission each year from 2013-2018. The human cost of public order can be omitted by upgrading technology at the disposal of local law enforcement agencies.
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This session focuses on enhancing the technology at the disposal of police; improving communications, mobility, and computerization for efficient discharge of their duties, enhancing forensic infrastructure to strengthen crime investigation, and minimizing the use of force.
Discussion Points: 1. Improving forensic infrastructure for crime investigation. 2. Strengthening police mobility, communications and enhancing computerization in policing functions. 3. Minimizing the use of force in crowd control.
Expected Outcomes:
1. Roadmap to improve forensic infrastructure - physical infrastructure and manpower. 2. Framework to strengthen use of technology and computerization in police mobility, communications, and discharge of functions. 3. Roadmap to improve non-lethal technologies for crowd control.
Session 2: Strengthening Investigation and Prosecution
Context:
The combination of several functions including crime investigation, riot control, intelligence gathering, security of state properties and protection of important citizens – all in a single police force – has had a devastating effect on the criminal justice system. The police forces have become inefficient and increasingly partisan. As the government of the day has complete powers over the crime investigation machinery as well as the
49 legal authority to drop criminal charges against the accused, crime investigation has become a play thing of partisan politics. Crime investigation is a quasi-judicial function.
Public order has to be monitored and controlled by the elected government in a democracy. Political judgement is necessary in dealing with protests and agitations, particularly in a milieu in which many policy and governance issues result in agitations and law and order problems. Therefore the police force dealing with public order and minor crime should remain under political supervision and control. Law and order functions requiring political oversight must therefore be separated from investigation of serious crimes, even as effective coordination between various wings is assured.
However investigation of serious crime should be independent of partisan or political considerations. The job of the investigation wing is to collect evidence, identify the culprit, and present admissible evidence to the court of law. This function is vital in administration of justice. Equal treatment of all citizens, application of law to all irrespective of rank, and impartial, honest, and efficient crime investigation are possible only when the investigation wing is strong, independent, well-trained, impartial, and yet accountable and transparent in its functioning.
Prosecution acts as the essential bridge between the police and the court, and therefore is an integral part of justice delivery. In fact, given the adversarial nature of our justice system, the outcome of the final judgement depends largely on the prosecutor’s competence. In India, prosecution acts subordinate to the police and plays a marginal role in the investigation process. Worse still, the number of prosecutors in the country is less than the number of judges. As a result, the justice system fails to prosecute criminals effectively as evidenced by the low conviction rates of 50.4% in India, compared to the 92% of the US.
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An independent and effective crime investigation agency, guided by a competent and independent prosecution wing, is essential for effective functioning of the criminal justice system. Having such an independent investigation agency to tackle crimes of a serious nature, equipped with specialized personnel and legal counsel, will improve professionalism in discharge of functions. Autonomy has to be accompanied by strong, credible accountability mechanisms, and practical institutional linkages for effective coordination.
This session focuses on creating mechanisms for the separation of investigation of crimes above a certain threshold from law and order functions, while ensuring coordination and accountability, and enabling an independent, competent, and accountable prosecution to guide the investigation.
Discussion Points:
1. Separating investigation of crimes above a threshold from law and order functions 2. Empowering Prosecution to drive the investigation a. Increasing the number of prosecutors b. Establishing independence and competence of prosecution
Expected Outcomes:
1. Institutional mechanism for an independent crime investigation wing with latest technology and specialized personnel. 2. Framework for an empowered prosecution with increased capacity and independence.
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Session 3: Criminal Procedural Reforms
Context:
The Indian judiciary is encumbered by the burden of a huge backlog of cases, many of which are pending for a decade or more as per the data on the National Judicial Data Grid. Currently, there are 26 million criminal cases pending before the subordinate judiciary alone. One of the major reasons for this is the archaic and complex procedures which guide the way that the courts function.
The Malimath Committee for Reforms in the Criminal Justice System appointed by the Vajpayee government proposed 158 comprehensive, critical, and practical recommendations in 2003 for reforming the criminal justice system. However, most of these recommendations are yet to be implemented.
The Indian legal system’s adversarial nature places a high standard of proof on the prosecution and precludes the judge from playing any active role in the trial of an accused, meaning that deficiency in the investigation or in the prosecution cannot be rectified by the judge. The underutilization of provisions that empower judges to order the production of any document or examine any person, and pre-trial procedures, arbitrary classification of offences, delays caused by the absence of accused, and the preclusion of any statement/confession made to a police officer from being proved against the accused in a trial are some of the procedural complexities that hamper the speedy and efficient disposal of criminal cases.
Empowering the courts to steer the trial proceedings, increasing the number of offences that can be tried summarily, empowering all Magistrates of the First Class to try minor offences summarily, enhancing fine amounts periodically, enhancing the rights of the victims, harsher punishments and effective trial process for perjury are some necessary amendments needed to be made in the criminal procedural law.
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The arduous trial process extending over the years has resulted in overburdened prisons, which are at 118% capacity. Of those in prison, almost 70% are undertrial prisoners. Most of the undertrial prisoners are poor and cannot afford to hire a lawyer or post bail. Several of them spend months and years in prison for relatively minor offences. Such clear violation of principles of equity and natural justice in a nation with large segments of population mired in poverty underlines the need for urgency of reforms.
This session focuses on laying out a robust set of procedural rules, keeping pace with the ever-changing societies and nature of crime, which is a prerequisite for an efficient and effective justice system.
Discussion Points:
1. Implementing recommendations of the ‘Committee on Reforms of Criminal Justice System’ (Malimath Committee). 2. Removing procedural constraints on investigating officers. 3. Reforming prisons - processing of under trial prisoners and enhancing prison infrastructure.
Expected Outcomes:
1. Amendments to appropriate sections of the CrPC and the Indian Evidence Act to ensure speedy trial. 2. Framework for processing of under trial prisoners and enhancing prison infrastructure.
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Session 4: Civil Procedural Reforms
Context:
India stands out as the country among all major democracies where the criminal caseload significantly outnumbers the civil caseload, by a ratio of approximately 4:1. The per capita filing of civil cases in India is at 257 per 100,000 population, as opposed to around 4000 per 100,000 population in the UK and US. Per capita crime rate in India is much less than all other democracies and yet, criminal cases far outnumber civil cases in our country. This clearly elucidates the fact that people do not seek the intervention of the courts to settle their civil disputes. As a result, many people suffer silently or resort to extra-judicial methods for settling disputes giving rise increased corruption, violence, and organized crime, further undermining the rule of law.
Speedy and fair dispute resolution, and efficient enforcement of contracts without delay are critical for economic growth and investment. India ranks very low among significant economies in enforcement of contracts and dispute resolution. The World Bank notes that on an average it takes 1,445 days to enforce a contract in India, while it is around 400 days in most other countries. This weakness is deterring investment and risk taking, costing our economy dearly.
This situation is a consequence of the length of civil suits, some of which go on for decades. Currently, there are 9.9 million civil cases pending in the trial courts alone. Excessive adjournments, multiplicity of appeals, underutilization of existing provisions (for instance Orders 10, 11, 12 dealing with pre-trial procedure), poor classification and monitoring of cases are some of the reasons for the enormous delays and backlogs.
There have been several provisions made for limiting the number of adjournments, setting up of special courts and utilizing alternate dispute resolution mechanisms for swiftly disposing of civil matters. However, these provisions are not implemented
54 uniformly. Moreover, an expanding economy, and increased property transactions and contracts will naturally result in a significant rise in the number of civil disputes reaching the courts.
Therefore, it is imperative to establish a system which allows for prioritizing of contentious cases that require to be tried in a court of law and simultaneously provides a mechanism for the rest of the cases to be dealt with in other appropriate ways. A case management system, which provides for different tracks for cases based on their nature and complexity, will ensure a more efficient disposal of civil disputes. Additionally, as trade and commerce continue to expand, the existing commercial courts system must be equipped to optimally deal with complex and economically consequential commercial disputes. Furthermore, the limits of the pecuniary jurisdiction of the civil courts needs to be revised and must be periodically reviewed, keeping in mind the growth in economy and inflation.
This session focuses on creating a resilient civil justice system via streamlining the civil trial procedure, improving dispute resolution in commercial matters, and revising pecuniary jurisdiction of civil courts.
Discussion Points:
1. Institutionalizing case management in civil courts. 2. Mitigating challenges in the functioning of Commercial Courts. 3. Updating pecuniary jurisdictions of civil courts.
Expected Outcomes:
1. Template for the incorporation of Case Management Framework into the CPC. 2. Measures to ensure effective functioning of Commercial Courts. 3. Mechanism to update pecuniary jurisdictions of courts.
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Session 5: Speedy Justice in Trial Courts
Context:
Procedural complexities, excessive delays, use of English language etc. drive up the cost of litigation and act as barriers to justice for many of the poor and illiterate. Gram Nyayalayas Act of 2008 called for the setting up of rural courts with summary procedures to swiftly dispose of minor offences. However, of the proposed 5000 rural courts, only 395 have been sanctioned, out of which 221 are operational across the country. Moreover, the law does not provide for setting up local courts in urban areas. Cities see higher instances of crime due to greater anonymity and diminishing social controls. Further, as the centers of economic activity in the country, cities also see a higher instance of simple civil disputes. Swift justice at the grassroots level, particularly in the urban centers is imperative, now more than ever.
In the UK, local courts called Magistrates Courts (Justices of the Peace) for criminal matters and the small claims track for civil matters deal with a majority of the court caseload. The Justices of the Peace deal with offences involving minor violations of law. They constitute nearly 83% of the total judiciary and dispose of 93% of the criminal caseload. The small claims system has the pecuniary jurisdiction of upto £10,000 and accounts for nearly 73% of the total trials conducted in the civil courts. Using informal procedures, these courts are popular and effective in dispensing speedy justice.
Rule of law is gradually whittled away due to a culture of lawlessness in the society. In the absence of local courts to quickly dispose of petty issues, the trial courts are weighed down by minor matters, hampering their ability to mete out swift justice. This inability to render justice will ultimately lead to the complete breakdown of rule of law in the country. Therefore, setting up an accessible and efficient system of local courts is the need of the hour.
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Another major challenge confronting the judiciary is the dire shortage of personnel. The sanctioned strength of judges in India, at 21 per million population, is far below the recommended ratio of 50 per million. Worse still, a fifth of these posts are vacant. Compounding this shortage, judges’ time is wasted in archaic and unnecessary procedures such as call work and evidence recording. Furthermore, cases are posted in an arbitrary and inefficient manner resulting in excessive adjournments and delays. Updating the courts with the latest technology, administration and management practices is imperative to improve the efficiency of courts. This would ensure better utilization of judicial time and resources, thereby enhancing the quality of justice delivery.
Any attempt to strengthen the trial courts must also address the issues of perjury and contempt of court. On one hand, perjury law is not enforced effectively and a system of false witnesses perjuring themselves for a price has been established as a profession in most of our courts. On the other hand, the subordinate court judges do not have the authority to penalize those in contempt of court and must rely on the High Courts to enforce discipline and compliance in their courtrooms. These issues undermine the integrity of the judicial process in the trial courts, which constitute the foundation of the judiciary. Therefore, empowering the judicial officers of the trial courts to punish for contempt of court and making perjury laws more stringent is critical to reinforce the authority of the lower judiciary.
While long term measures to facilitate the courts to speedily deal with the incoming caseload are much-needed, the huge existing backlog is a constraint on the system that needs to be addressed through a one-time mechanism. Once the challenges of reduced faith in courts and the growth of dispute resolution through rough and ready settlements are addressed, and the efficiency of the justice system is restored, more people will rely on the system to solve their disputes. For the courts to be able to handle
57 this incoming caseload effectively, it is necessary that the arrears are cleared on a fast-track basis.
This session focuses on making justice delivery simple, accessible, affordable and efficient, in the form of local courts, better infrastructure, technology in court administration, and clearing the backlog.
Discussion Points:
1. Establishing local courts in rural and urban areas. 2. Building capacity - Increasing the judge to population ratio and strengthening use of technology and court administration. 3. Eradicating arrears in trial courts through local courts and fast-track courts. 4. Reinforcing the authority of the trial courts - contempt of court and perjury provisions.
Expected Outcomes:
1. Amendments to the Gram Nyayalayas Act to mandate establishment of local courts in rural and urban areas. 2. Architecture for enhancing strength of judges and use of technology in court administration practices. 3. Framework for clearing arrears through summary procedure.
Session 6: Strengthening the Role of Constitutional Courts
Context:
The higher judiciary - the High Courts and the Supreme Court - was established according to the Constitution of India as Constitutional Courts, bestowed with the
58 responsibility of adjudicating on important matters involving the interpretation of the Constitution and substantial questions of law. It is, therefore, shocking that there are 5.6 million cases pending before the state High Courts, 75% of which have been pending for over a year! Worse still, 80,000 cases have been pending for over 30 years. This is very alarming because there are over 5000 cases pending per judge at the sanctioned strength, nearly 4 times more than the cases pending per judge in the trial courts. Moreover, there are 404 vacancies in the High Courts. The fact that the higher judiciary, which is a sentinel of our democracy, is struggling to render justice, is unsettling.
The reason for this is that the High Courts and the Supreme Court have been burdened with an increasing number of appellate cases, which reduce the time and resources available for the more pertinent questions of constitutional interpretation. As a result, constitutional matters form a small percentage of their annual caseload. According to a study, constitutional matters comprised only 7% of the judgments delivered by the Supreme Court in 2014 and the number of matters heard by constitutional benches (i.e. of five or more judges) has reduced from 15.5% in the 1950s to 0.12% in the 2000s. Moreover, constitutional benches are formed on an ad-hoc basis. As a result, there are discrepancies in the judgements on the same constitutional matters produced by different benches, sometimes even within the same court.
Clearing this pendency before the High Courts is a priority for the well-being of the country. The criteria for the admission of cases to the High Courts must be more stringent and number of appeals must be curtailed. The vacancies in these courts must be filled urgently to reach the sanctioned strength of judges. Article 224A of the Constitution, which provides for the recruitment of retired High Court judges, ought to be utilized to quickly dispose of the backlog. Permanent constitutional benches must be established in the High Courts and the Supreme Court in order to solidify their role as the ultimate authority on matters pertaining to the Constitution of India.
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This session focuses on reinforcing the role of the High Courts and the Supreme Court as Constitutional Courts.
Discussion Points:
1. Clearing pendency in the High Courts. 2. Establishing permanent Constitutional Benches.
Expected Outcomes:
1. Mechanisms to reduce the pendency in High Courts. 2. Architecture for strengthening Constitutional Courts in dealing with substantial questions of law.
Session 7: Judicial Standards and Accountability
Context:
The quality of justice administered depends on the quality of those who administer it. Highly competent and successful lawyers are rarely willing to give up their lucrative practice and become judges. As a result, the quality of subordinate judges is often suspect. Article 312 of the Constitution provides for the creation of an all-India Judicial Service common to the Union and the states, to improve the quality of judges, enhance the prestige and dignity of judicial service, and promote competition for recruitment. Creation of such a meritocratic service is essential to enhance the quality of judges in trial courts, and eventually in the higher courts.
Accountability of the recruited judicial officers is another vital component of quality justice delivery. Article 235 of the Constitution provides complete authority over the functioning of the judicial officers of the Subordinate Courts to the respective state High
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Courts. There is a need to strengthen the utilization of this authority by the High Courts as an instrument to ensure judicial standards in the lower courts.
Standards in the higher judiciary are not ensured by any constitutional apparatus, other than the process of impeachment, which is rather extreme and often not practicable. The Judicial Standards and Accountability Bill tabled in 2010 was an attempt at laying down certain judicial standards of conduct and introducing accountability mechanisms by establishing a National Judicial Oversight Committee for overseeing matters related to misconduct of judges. The Bill was passed by the Lok Sabha in 2012, after undergoing some revisions through the scrutiny of a Standing Committee. However, it eventually lapsed with the dissolution of the 15th Lok Sabha. The contents of the Bill need to be revisited and a statutory mechanism must be established to enforce accountability in the higher judiciary.
This session focuses on enforcing judicial standards and accountability at all levels of the judiciary to improve the quality of justice delivery.
Discussion Points:
1. Creating an All-India Judicial Service. 2. Utilising Article 235 effectively to ensure quality of the subordinate judiciary. 3. Outlining national judicial standards and accountability mechanisms for the higher judiciary.
Expected Outcomes:
1. Model for the creation of an All India Judicial Service for the recruitment of judges to the subordinate judiciary. 2. Mechanism to strengthen the role of the High Courts in ensuring accountability in the subordinate judiciary.
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3. Legal framework ensuring standards of judicial conduct and accountability in the higher judiciary.
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SESSION BRIEFS
TOPICAL CONVERSATIONS
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Session Briefs
Topical Conversations
Extraordinary Laws
The Indian State over the decades has enacted several laws to deal with extraordinary situations such as the breakdown of law and order, armed insurgency and threats to territorial integrity. They include the Armed Forces (Special Powers) Act, 1958, Maintenance of Internal Security Act, 1971 (MISA), The National Security Act, 1980, and the Unlawful Activities (Prevention) Amendment Act, 2019, and state legislations such as the Maharashtra Control of Organised Crime Act, 1999. Such extraordinary laws carve out certain exceptions to the ordinary legal and judicial procedures, particularly in the deployment of rapid response force and in the investigation and trial process. For instance, these laws allow arrests without warrant, and provide scope for longer detention by extending the time limits for police and judicial custody as well as the time limit for filing of the chargesheet. Directly affecting citizens’ liberties, these exceptions have a considerable bearing on the enforcement of rule of law. Furthermore, these laws bestow the State with significant powers by empowering it to determine the contours of a ‘normal’ situation and the existence of an ‘exceptional’ situation. Given the expansive nature of these powers, the importance of strong accountability mechanisms for the authorities so empowered cannot be overemphasised.
These extraordinary laws have helped the State in containing armed insurgency and maintain ‘public order’ at various times in the past. However, allowing these laws to become a permanent feature of the legal framework and the manner in which different regimes have employed these laws have adversely impacted the rule of laws and the nature of democracy in the country. Therefore, there is a need to strengthen the institutional framework to ensure accountability and responsibility in the
64 implementation of such laws and at the same time to devise alternative ways to effectively manage violent and disruptive forms of protests and conflicts.
Discussion points: 1. Relationship between the Extraordinary Laws and the Rule of Law 2. Implications of Extraordinary Laws on citizens’ liberties and democracy 3. Current systems of accountability under such laws and suggested improvements.
Expected outcomes: 1. Recommendations to strengthen accountability mechanisms under these laws 2. Roadmap to effectively manage violent and disruptive forms of protests and conflicts.
Weaponization of Fake News: A Threat to Democracy?
Fake news and disinformation encompass fabricated, misrepresented and inaccurate information that is coloured with sensationalism and broadcasted on different media. Such disinformation is released to increase viewership, spread calumnies, alter the narrative on issues and discredit public figures, communities, institutions and movements. Individual instances of disingenuous and damaging information may be successfully challenged and fact-checked, but if such information gains traction and persists on various public platforms, it leads to a more serious and lasting damage.
According to a POLITICO survey, 70% of Republican supporters in the United States believe that President Donald Trump was defeated in an unfair or fraudulent election. This highlights the fact that such claims have greater impact to persuade ordinary citizens when they are made by high-profile figures. A Pew Research Center survey indicated that the number of Americans who view the other party as ‘a threat to the nation’s well being’ has doubled since 1994. The extreme polarization of the American
65 populace has been attributed to fake news spread on social media platforms by several studies. The fact that the most mature democracy could be disrupted by disinformation on social media platforms is a serious cause for concern for the rest of the democratic world.
With the increase in internet penetration and widespread access to smartphones and social media platforms, the menace of fake news is growing in India as well. What could be easily brushed off as seemingly innocuous but fake news on social media sometimes creates unwanted hysteria disturbing social harmony and peace. Gruesome incidents such as the inhumane mob lynchings at Dadri in 2015 and Palghar in 2020 were triggered by fake news. According to IndiaSpend, between January 2017 and July 2018, 33 were killed in 69 incidents of mob violence that were directly fuelled by the rumours of child-lifting circulated on social media. During the lockdown, social media platforms were used as channels to circulate a plethora of rumours pertaining to COVID-19. An obscure piece of information that poultry can cause and transfer COVID-19 had a highly deleterious effect on the poultry industry in India, leading to staggering losses of Rs 1500-2000 crores a day.
While the procedures on self-regulation have not been successful, the laws regulating social media and fake news are either absent or ambiguous. Laws and regulations that not only concretely define the terms fake news and disinformation but also impose penalties for the spread of malicious and manipulative content must be put in place. These laws must balance the individual’s right to freedom of speech without stifling dissent under the pretext of quelling fake news. Any information put in the public domain that's manifestly untrue, superstitious, and unscientific and causes harm to public health, public order or public interest must be a punishable offence. However, in an expanding global digital space, with almost 5 lakh tweets and over 3 million Facebook shares per minute, it becomes increasingly difficult to check the veracity of the content of these posts. Besides, the problem transcends national boundaries, creating
66 challenges in the enforcement of law. It is necessary to scale down the scope of the problem, perhaps by monitoring those influencers with a large following, and facilitate transnational cooperation to try and solve a problem that is global in nature.
Discussion Points:
1. Role and responsibility of big tech in managing this weaponization of fake news. 2. Best practices and policies adopted by governments, law enforcement, and private entities in checking this weaponization. 3. How news media organizations can keep up with the spread of fake news, and strategies it needs to adopt to counter it.
Expected Outcomes:
1. Clearly defined distinction between fake news and disinformation that causes harm to the society versus opinions protected under freedom of expression. 2. Legal provisions and best practices delineating the definitions of and punishments for the spread of fake news and disinformation on social media platforms. 3. Collaboration avenues for big tech and media companies to curb fake news and disinformation on social media.
Women’s safety
We routinely encounter news reports of numerous instances of crimes against women which only seem to be rising in India. The Nirbhaya incident shook the conscience of the country and brought women’s safety to the forefront of public discourse. Ever since, various legislations such as the Protection of Children from Sexual Offences Act (POCSO) in 2012, the Criminal Law Amendment Acts in 2013 & 2018 and the Sexual Harassment of Women at Workplace (POSH) Act in 2013 have been enacted. However,
67 our systems haven’t succeeded in preventing such crimes or punishing the perpetrators. The rate of crimes against women has increased by nearly 50% over the past 8 years, although the total cognizable crime rate has reduced by 14%. The conviction rate for crimes against women is as low as 23.7% as opposed to the average criminal conviction rate of 49%. The Disha incident of 2019 is a prime example of the failure of the due process of law. The recent Hathras incident also highlights the fact that such cruelties are not confined to just cities, but also occur in rural areas.
While grievous crimes garner the attention of the entire country, there is increasing petty crime, especially in urban areas, including the harassment of women and eve-teasing, which is overlooked. Growing urbanization and impersonal lives are eroding social and family controls. Young men who behave obediently at home often become a menace to women in public places. Daily harassment, eve teasing, inappropriate remarks, touching without permission in public transport vehicles - all these have become increasingly common. For women to be safe, it is not enough to impose severe punishment for serious sexual offences; we need to create a culture and climate of complete safety from daily taunts and humiliation. When routine daily insults and humiliation go unchecked, serious crime against women becomes much more likely. We need adequate systems to punish culprits early on and nip smaller crimes in the bud.
There are many state government initiatives that are implemented to ensure better policing of smaller crimes against women, training and awareness campaigns to promote gender sensitization and technological innovations to increase visibility and provide assistance to women. However, such initiatives have not been sufficient in effectively preventing crimes and ensuring women’s safety.
It is important to recognize the impact of an unsafe environment for women, not just on their personal liberty, but also on the economy. Due to the general perception that society is dangerous for women, the anxiety to protect the women in the family hinders the active participation of women in society, especially the workforce. Female
68 participation in the labor force has seen a steep decline from 26.5% in 2005 to 19.9% in 2020, unlike the trend in other parts of the world. Creating a safe climate for women is imperative for the growth and productivity of the country.
Discussion Points:
1. What are the best practices for making neighbourhoods safe for women? 2. How do we nip smaller crimes against women in the bud? 3. How do we equip the police to effectively respond to crimes against women?
Expected Outcomes:
1. Mechanisms to make neighbourhoods safe for women. 2. Framework to enable swift punishment for eve teasing and other minor offences against women. 3. System to enable effective police response to crimes against women.
Setting up systems to deal with cyber crimes
Cybercrime ranges from online stalking and cyberbullying to stealing confidential data, hacking and attacking control systems of critical infrastructure. In 2019, 14.4 million consumers became victims of identity fraud — that’s about 1 in 15 people. A study conducted by the University of Maryland states that hackers attack every 39 seconds, on average 2,244 times a day. The impact of cybercrimes cannot be understated as a cyberattack could potentially disable the economy of a city, state or our entire country. According to a Cybersecurity Venture report, ‘If it were measured as a country, then cybercrime — which is predicted to inflict damages totaling $6 trillion USD globally in 2021 — would be the world’s third-largest economy after the U.S. and China’.
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With deeper internet penetration and access to smartphones, more people in India are online than ever before, making them vulnerable to cyber attacks. According to NCRB data, between the years 2016 to 2019, cyber crimes in India increased by 361%. According to RBI, the total number of digital transactions in India that are processed via any electronic mode, be it UPI, IMPS, debit and credit cards, etc., is expected to reach a daily average of 1.5 billion in the next 5 years, further increasing the threat of cyber attacks. Moreover, government data shows that in 2019 alone, India witnessed 3.94 lakh instances of cybersecurity breaches. In terms of hacking of state and central government websites, Indian Computer Emergency Response Team data shows that a total of 336 websites belonging to central ministries, departments, and state governments were hacked between 2017 and 2019.
Cybercrime, being a relatively recent occurrence is not well-understood. As per 2019 NortonLifeLock Cyber Safety Insights Report, 63% of Indians do not understand the concept of identity theft. Moreover, the infrastructure in India is not adequate to effectively deal with the ever-growing and rapidly evolving forms of cyber attacks. Presently, only 20 cities in India have a cyber cell, while states like Rajasthan, with a high cybercrime rate, are completely omitted. There is one Cyber Forensic Lab in Delhi that deals with the scientific dissemination of cyber crimes. State cyber cells are often unequipped to scientifically gather and analyse time-sensitive evidence. While cases of cybercrime can also be reported to the nearest police stations, the disposal rate of cyber crimes is quite low. Approximately 30-40% of the registered cyber crime cases are disposed of by the police every year and whereas the average disposal rate for cognizable crimes is around 75%. Additionally, cases of cybercrime are tried in the Telecom Disputes Settlement and Appellate Tribunal with no separate court for them, creating a backlog of cases over the years.
Data is now the new oil for all businesses to grow. Any disruption to the digital space can have far reaching consequences. In this context, it is imperative that we deliberate
70 on how to ensure the world, including India, has a robust system to tackle this new form of crime. It is important to discuss how to equip and train our police force to defend against cyber attacks, define legal provisions to deter and punish those who commit such crimes and build awareness and capabilities of our growing digital technology user base to ensure that our cyber systems are well protected.
Discussion points:
1. How do we equip and train our police force to defend against cyber attacks? 2. How do we strengthen the legal framework to deter cyber crime? 3. What do we need to do to make the growing digital space safe for its users?
Expected Outcomes:
1. Roadmap for strengthening cyber crime infrastructure, including physical and manpower, in India. 2. Legal framework to effectively deter and punish those who commit cyber crimes. 3. Mechanisms to make digital interactions safer.
Rule of Law and Economic Growth
Economic success and prosperity are closely linked to the ability to enforce contracts and resolve disputes. An efficient judiciary stimulates economic growth by aiding market development, facilitates foreign investment, enforces property rights and most importantly helps in poverty alleviation. Establishing a negative correlation between pending court cases and the performance of firms in India, a London School of Economics study says 60 per cent firms are less likely to expand their business in states
71 which are slow in settling court suits. A weak judiciary has a negative effect on capital formation and on per capita income.
It is often believed that India’s regulatory problems are due to the lack of regulatory standards and poor compliance to process. International comparisons, however, show that India ranks better than its peers on having regulatory standards in place and compliance to process. The real issue seems to be effectiveness of regulations caused by undue delays, rent seeking, complex regulations and quality of regulation. India is placed better than other BRICS countries (barring South Africa) in terms of respecting due process, but worse than them in the effectiveness of those standards.
The next frontier on the ease of doing business is addressing pendency, delays and backlogs in the appellate and judicial arenas. These are hampering dispute resolution and contract enforcement, discouraging investment, stalling projects, hampering tax collections but also stressing tax payers, and escalating legal costs. Coordinated action between government and the judiciary- a kind of horizontal Cooperative Separation of powers to complement vertical Cooperative Federalism between the central and state governments-- would address the “Law’s delay” and boost economic activity. A clear and certain legislative and executive regime backed by an efficient judiciary that fairly and punctually protects property rights, preserves sanctity of contracts, and enforces the rights and liabilities of parties is a prerequisite for business and commerce. Further, economic and commercial cases are usually complex, require economic expertise in their handling and disposal, and hence, require more judicial time. The judicial system is not equipped enough to legally enforce such contracts. Hence, there is an urgent need for specialisation in this area. Given the potential economic and social multipliers of a well-functioning legal system, this may well be the best investment India can make.
Large scale reforms and incremental improvements are needed to combat a problem that is exacting a large toll from the economy. Fair, speedy and efficient settlement of disputes at an affordable cost is critical for mutual trust and economic growth.
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Protection of individual property rights, fair and equitable contract enforcement, creation and enforcement of just labour laws and provision of access to opportunity for all sections of society, will ensure a culture where commerce and business can flourish and grow.
Discussion Points:
1. Implications of regulations on investments and economic growth 2. Efficacy of the reform measures being taken by the government 3. Strengthening judicial capacity and capability to deal with the evolving nature of civil disputes
Expected Outcomes:
1. Roadmap vis-a-vis contract enforcement and speedy adjudication of civil disputes
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CURTAIN-RAISER WEBINAR REPORT
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Curtain Raiser Webinar Report
RULE OF LAW FOR THE 21ST CENTURY
2 JANUARY 2021 | 4 PM- 6 PM
PANELISTS:
1. Dr. Jayaprakash Narayan (General Secretary, Foundation for Democratic Reforms)
2. Shri Kamal Kumar (Former Director, SVP National Police Academy)
3. Shri K.Padmanabhaiah (Former Union Home Secretary)
4. Justice Jasti Chelameswar (Former Judge, Supreme Court of India)
ABSTRACT
The webinar was a curtain-raiser for the ‘Indian Democracy at Work’ conference and set the stage for a thought-provoking discussion on the rule of law. The session touched upon the various ways in which targeted and pragmatic reforms could be brought in the functioning of the institutions like the police, prosecution and the judiciary in order to strengthen the rule of law in India. The panel pointed out the need for institutions to have functional autonomy that is not divorced from accountability to function fearlessly in a free and fair manner. By enabling the people to understand the link between the rule of law and their lives, a public opinion to build pressure on the political leadership to bring in necessary changes can be shaped.
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INTRODUCTION BY DR JAYAPRAKASH NARAYAN
Dr Jayaprakash Narayan started the discussion by stating that the most important purpose of a government is ensuring effective justice delivery in civil and criminal, the two limbs of rule of law. He observed that unfortunately governments now forsake the rule of law in their clamour to be populist for short term gains.
The speaker went on to draw a comparison between India and the rest of the major democracies in the world to highlight 3 major shortcomings of the rule of law in India:
1. Large pendency and long delays in courts. 2. Significantly higher criminal caseload than civil caseload in a relatively crime free country, indicating that civil disputes are not resolved in courts. 3. Dismal conviction rates.
Dr Jayaprakash Narayan pointed out that India is undergoing rapid urbanization, with cities projected to contribute 70% of the GDP by 2030. Owing to increasingly impersonal lives in cities, the social controls that once existed are disappearing, resulting in higher crime rates. Moreover, with increase in economic activity, there is an inevitable rise in civil disputes. If these are not resolved by the due process of law, this will ultimately undermine economic growth by either inducing people to suffer injustice in silence or resulting in a rise in corruption, violence and organized crime.
Dr Jayaprakash Narayan went on to highlight the severe shortage in police personnel, further compounded by a woefully inadequate forensic infrastructure. He illustrated this with an example of India’s capacity for testing DNA samples for approximately 3000 cases in a year, when Delhi alone saw more than 11,000 violent crimes in 2019. In relation to crime investigation and prosecution, he highlighted the low strength both in terms of per unit population as well as caseload per investigating officer and prosecutor.
In his recommendations, Dr. Jayaprakash Narayan advocated for a restructuring of the police force to improve professionalism and efficient functioning. The speaker was of the
76 opinion that it is neither feasible nor desirable to make the entire police force autonomous from political control in one stroke in the Indian milieu. Investigative and prosecutorial functions, being quasi-judicial in nature, must not be partisan affairs, but independent and autonomous. A separate crime investigation agency with 15% of the police force must investigate 20% of the total criminal caseload comprising serious crimes above a certain threshold. An independent Crime Investigation and Prosecution Board must oversee crime investigation and prosecution in the country. Its composition should include members of the elected legislature, the executive and the judiciary. The crime investigation police must work in harmony with the law and order police, which ought to remain under political oversight, comprising 85% of the workforce and handling 80% of the caseload.
The prosecution wing must take charge of the investigation and provide legal counsel to the crime investigation agency. In order to effectuate greater coordination between the judiciary and the prosecution, the speaker suggested the appointment of a District Judge as a District Attorney for a period of 5 years on a deputation basis. The said District Attorney shall head the prosecution at the district level. He further stated that such an appointment of a District Judge is not unusual in light of the practice of many such judges being appointed as law secretaries in state governments. The prosecution body must also be made accountable to the Investigation and Prosecution Board, along with the independent crime investigation agency.
Speaking on the challenges of the judiciary, the speaker pointed out the low judge to population ratio of 21 judges per million population in India, the high number of vacancies and a poor state of infrastructure owing to minimal budgetary allocation to the judiciary. Dr Jayaprakash Narayan advocated for the establishment of local courts as one of the pragmatic steps to strengthen rule of law at the grassroots level. The speaker highlighted the UK example of Magistrates Courts for criminal matters and the small claims track for civil matters that deal with 93% of the criminal caseload and nearly 73% of the civil caseload, dispensing speedy justice. Since the law for the establishment of
77 gram nyayalayas hasn’t been operationalised, the speaker strongly emphasised the need to persuade the public, the government and the civil society to bring these courts into effect.
The purpose of reform is not to overhaul the existing system but to work in harmony with the elected officials to improve it. Dr Narayan also emphasized the need to rectify institutional inadequacies and stressed on how the short term economic burden of his recommendations will serve the society in the long haul, in terms of lasting public order and economic growth.
PRESENTATIONS BY THE PANELISTS
Shri Kamal Kumar, Former Director, SVP National Police Academy
Shri Kamal Kumar began his address by simply defining rule of law as the principle that no one is above the law. He quoted the five basic elements of rule of law as identified by noted jurist A.V. Dicey; supremacy of law, equality under law, accountability to law, clear and fair processes for law enforcement and total absence of arbitrariness in law enforcement.
Shri Kamal Kumar emphasised that apart from an efficient and independent judiciary, the rule of law also requires an efficient, fearless, accountable, impartial and committed police force. He noted that political and bureaucratic interference in police functioning is rampant in India, often resulting in the denial of justice. The speaker identified the fear of transfer as one of the instruments of wielding control by the political masters. He stressed on the necessity of institutional safeguards to forestall any political interference and for the protection to upright police officers.
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Shri Kamal Kumar spoke in detail about the saga of police reforms in India, which has largely been a futile endeavour with numerous committees and commissions appointed to study the system and recommend reforms but with no real change in the system. He mentioned the crusade of Mr. Prakash Singh, a retired police officer, to bring about constructive changes in police structure resulting in the 6 directives of the Supreme Court in 2006. These directives called for functional autonomy of the police and the separation of crime investigation functions of the police. However, these reforms are yet to be operationalised. The speaker emphasised the need for achievable targets, with the contribution of an informed citizenry and political leadership being crucial.
Shri Kamal Kumar stated that the goal should not be to completely insulate policing from political leadership. Professional autonomy to the police must be duly tempered with accountability mechanisms. According to the speaker, an appropriate regime for the police for effective rule of law shall entail -
1. Full functional autonomy to the police, particularly the crime investigation branch 2. Upgradation of training and increased resources 3. Accountability mechanisms for both misconduct as well as performance 4. Strengthening of the prosecution system 5. Campaign to generate favourable public opinion for promotion of rule of law 6. Well-structured effort to persuade the political leadership of the urgency and significance of rule of law.
Shri K. Padmanabhaiah, Former Union Home Secretary
Shri K. Padmanabhaiah began his address by acknowledging that India has been walking the tightrope between a failed state and a police state in the past few years by virtue of its inability to effectively enforce law and order. He noted that all the four limbs
79 of the rule of law in a society, viz. police, prosecution, judiciary, and jails have been largely neglected by the elected governments in the past as they are not directly associated with electoral gains.
The speaker highlighted the dismal position of India in the global rule of law ranking, at 69 out of 128 countries. According to him, the performance of the police in the country, measured as the average chargesheeting rate, varied widely across states. He called for the release of a detailed annual report to facilitate assessment of police performance.
Shri K. Padmanabhaiah stated that there is a mismatch between the recruitment and training procedure and the onerous responsibilities thrusted upon the police. They are expected to be well-versed with innumerable laws, and are designated as the investigating officers under numerous special statutes. In this backdrop, the existing training system is inadequate. The speaker suggested the recruitment of cadets immediately following school education. The cadets must complete a 3 year degree course in police training. Following an additional specialised training of about 6 months if required, the cadets can be posted to various positions.
The speaker mentioned the five factors that determine police performance, namely, police leadership, political ethos in the state, proper system of recruitment, need based training to both new recruits and existing officers, and extent of interaction with and support of the community. With respect to the fifth factor, the speaker emphasised on the importance of imbibing the philosophy of community policing.
Speaking on police training, the speaker stated that there are two essential elements of police training -
1. Motivational and behavioural training 2. Domain-specific knowledge training.
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He suggested linking promotions to specialised police training. He further felt that joint training programmes for police, prosecution, and judges will facilitate better coordination amongst them.
In order to reduce the burden on the police, the speaker suggested the creation of a State Security Force to provide escort services. Prosecution of cases by the respective departmental officers in case of special acts and by executive magistrates in case of social legislations, in lieu of the police. The speaker further called for a reclassification of cognizable and non-cognizable offences in light of the changing nature of crime, the latter being investigated by local courts or executive magistrates. He recommended the creation of an Indian Forensic Service to strengthen forensics in the country. He felt the need for the establishment of a Directorate of Prosecution in every state, cadre-based prosecutors for all courts, and a prosecution advisor for every District Superintendent of Police. Finally, the speaker commented that increased use of perjury provisions by the magistrates will improve outcomes for prosecution in trials.
Justice Jasti Chelameswar, Former Judge, Supreme Court of India
Justice Chelameshwar began by commenting that rule of law is not respected by the Indian society in practice. He cited the many legal defects in the establishment of the High Court of Andhra Pradesh to illustrate the extent of callousness towards the rule of law in India.
The speaker bemoaned the lack of sincerity of all functionaries of the criminal justice system - investigating agency, prosecution, and the judiciary. He illustrated the extent of inefficiency through an example of a criminal appeal that he presided over in the Supreme Court where the accused was convicted for murder in the absence of a
81 post-mortem report. He attributed such lapses to the absence of a periodic audit of performance.
Despite agreeing with the need for a separate investigating agency, he was doubtful as to the possibility of its creation, given the political indifference to rule of law. However, he proposed imparting specialized education for the police similar to the recommendation made by Shri K. Padmanabhaiah, as well as a scientific method of recruitment to the force. Such a recruitment and training process should be based on an assessment of required personnel and projections of the requirement for the following 10 years. The speaker further proposed the creation of a legal framework for the prosecution to supervise the investigation process, and thereby be made accountable for any lapses in the process. In agreement with Shri K Padmanabhaiah, he added that promotions must be based on careful assessment of performance.
QUESTIONS AND COMMENTS
The question and answer session began with a question on the increasing number of vacancies and the gap between actual and sanctioned figures of personnel in the police and the courts. Shri K. Padmanabhaiah stated that it was primarily due to the lack of leadership and effort among the police authorities, as well as the lack of political will. Justice Chelameshwar added to the discussion stating that the current political process and vested interests are the reasons why vacancies are not filled. Moreover, many talented people are not opting for the judicial service. Citing examples from Andhra Pradesh and Bihar, the speaker made the point that unwarranted litigation has also served as a hurdle towards creating a standardized and consistent recruitment process for personnel in the judiciary.
The second question was related to the extrajudicial killings of suspects by police officers in order to please the public and what needs to be done to tackle this. Shri
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Kamal Kumar cited the example of the L.N. Mishra case, which took 39 years to be decided and the accused had died before the conclusion of the case, noting that because of the inefficiencies and delays in the due process of law, such extrajudicial killings are celebrated as ‘speedy justice’. Shri Kamal Kumar asserted that public pressure is key in effecting change. Dr. Jayaprakash Narayan noted that the general public must be made aware that such extrajudicial killings have bigger repercussions such as tyranny, coercion, and suppression of the rights of vulnerable communities than merely being a violation of rule of law.
The next question was centred on the need to make the selection process open and transparent for public prosecutors. Justice Chelameshwar, concurring with this view, said that public pressure on the elected representatives is required to bring in this change. Shri Padmanabhaiah suggested that an All-India Service of public prosecutors at the national level or at the state-level must be constituted to recruit a cadre of public prosecutors in a transparent manner.
To a question on whether the Indian system could emulate the Singapore model of plea bargaining to solve the problem of the huge number of undertrial prisoners, Shri Padmanabhaiah responded by saying that while the plea bargaining system was already in place in India, it is under-utilized. On the issue of almost 70% of prisoners currently being undertrial, most of them poor and unable to afford legal representation, Shri Kamal Kumar remarked that a 2005 amendment of the CrPC simplified a provision for undertrial prisoners to be set free if they served more than half of the prescribed sentence for the offence which they were to be tried for. It is the duty of the Legal Service Authority to help them get the required legal aid, which is currently inadequate.
The last question, addressed to Dr. Jayaprakash Narayan, inquired whether the failure of the Indian institutions in upholding the rule of law has created an unwarranted perception around the globe that India is an unsafe country, despite its crime rate being
83 low. Putting the issue in perspective, the speaker drew comparisons with other countries such as the United States and the United Kingdom, stating that India has significantly lower number of rape cases compared to these developed countries. Despite this, India is portrayed as the rape capital of the world because, owing to our culture and societal traditions, we are relatively more sensitive towards crimes against women. Shri K. Padmanabhaiah added that the violent and heinous manner in which these crimes are carried out also plays a role in building such negative perception. Dr. Narayan added that it would be more productive if we could channelise the emotions towards finding possible solutions to these issues instead of merely exhibiting outrage.
CONCLUSION
The panelists, with their overarching experience and immense erudition, shed light upon the significance of rule of law for the 21st century. The webinar dissected the existing institutional inconsistencies that are hampering the implementation of rule of law in the country. The real issue is the lack of seriousness of purpose rather than design or intent.
It is time to recognise the potential economic and social dangers of undermining the rule of law in the country for both the citizens as well as the political leadership. Public opinion and political will are key ingredients to reform. Upgrading the current forensic infrastructure, specialized training for police forces, adopting the philosophy of community policing, creating an independent crime investigation agency, strengthening the supervisory role of the prosecution in crime investigation, proving adequate judicial resources and manpower, and the establishment of local courts are some measures urgently called for.
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The webinar marked the contours of the rule of law reform, which will be deliberated at a granular level during the second edition of the Indian Democracy at Work conference in February, 2021.
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NOTES FROM THE DESK
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Notes from the Desk
Shri Kamal Kumar
Rule of Law and Police Functioning
The rule of law requires, in addition to an efficient, fearless, and independent judiciary, an efficient body of policemen that is free from extraneous influences of any kind; is capable and willing to carry out the behest of the law, and is conscious of its accountability to the law and the law alone. Indeed, in a democracy, every organ of the state must be accountable to the law; but this applies more particularly to the police since they are the main instrument of law enforcement in an organized society. Further, the Indian Constitution and laws are based on the principle of decency of state behavior. Indeed, the Constitution, in its Preamble itself, highlights our commitment to assure the dignity of the individual. It guarantees basic human rights to all—even to those accused of serious crime. But such rights of citizens cannot be preserved and upheld unless we have a law-abiding and humane police force whose members are determined to act fairly and within the bounds of the law, under all circumstances.
Even so, the ground situation in this regard in our country is fairly dismal today. Equality before law is abundantly professed but often given a go-by in actual practice. There is a wide public perception that money, muscle, and influence play an important role in the entire justice process; further, that there are two different standards of justice in the country—one for the rich and the powerful, and the other for the poor and the underprivileged. It is a common experience that in the event of a crime, even the FIR (first information report) is not registered if the offender enjoys affluence or influence. Political and bureaucratic interference in law enforcement has become a fact of life, often resulting in a denial of justice to the aggrieved. Due process of law is too slow, even distorted, to provide equal justice to all. The main issues of life are often settled not by
87 the due and impartial process of law but by the discretion of officials and political leaders in power.
To forestall any political or other extraneous interference in the discharge of statutory functions and duties by the police, and to afford protection to upright officers against victimization, institutional safeguards are required to be provided in the system. The Government of India too, concerned about the need for improving the effectiveness of the police in the performance of its crucial role in a democratic polity governed by the rule of law, appointed several commissions and committees from time to time to go into the issues relating to police reforms. These were:
• Gore Committee on Police Training (1971–73) • National Police Commission (1977–81) • Ribeiro Committee on Police Reforms (1998) • Padmanabhaiah Committee on Police Reforms (2000) • Group of Ministers on National Security (2000–2001) • Malimath Committee on Reform of the Criminal Justice System (2002– 03) • Review Committee on Police Reforms (2005) • Soli Sorabjee Committee to draft a Model Police Act (2006).
These commissions and committees, both at the state and national levels, made elaborate recommendations on police reform, however, a sincere and holistic approach to the implementation of these recommendations has, all along, been glaringly lacking.
The functioning of the police affects every member of society. Even though police reform is a subject in which society has high stakes, our society has hardly ever staked out its own stand on the issue and how being a vital component of the criminal justice system, the police are the primary institution to defend, uphold and preserve the rule of law. It is an instrument of law enforcement and order maintenance, a conflict resolving
88 machinery, a punitive force, a crime controlling agency, and a social service organization, all at the same time, to deal with all types of individual and corporate crisis situations.
Therefore, we need to put pressure on our ruling classes to create the structures while undertaking police reforms, that will reinforce professionalism, responsiveness, transparency, functional autonomy, and accountability in police functioning. Police reforms should not be restricted to functional autonomy and accountability mechanisms alone. They must also touch upon the day-to-day functioning of the police at the police station level. A lot, for instance, needs to be done to improve the accessibility of the police to the public, particularly those aggrieved and belonging to the vulnerable and underprivileged sections. Much more perhaps is needed to improve the training, equipment, and service conditions of the police—all of which leave much to be desired. The police organization in our country has suffered neglect for far too long.
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Shri P.S. Ramamohan Rao
Reforms in the Criminal Justice System
Democracy depends for its survival and success on law and order. Law connotes the rule of law under which the vast majority of people comply with the laws of the land; rules and regulations which flow from them and customs, traditions and usage which have the sanction of law. Order denotes peace and tranquility as consequences of the rule of law.The administration of law is done by the judiciary and the enforcement of order by
89 the police. The legal fraternity, called the bar , act as the bridge between the two, by assisting both.
Law has two components viz civil law and criminal law. The former deals essentially with disputes which are not criminal in nature, relating to property, contracts, social relations and so on. They arise between individuals, groups of individuals, citizens and the State, and between States. The latter covers transgressions and violations of moral and ethical mores and principles codified into law.
For consistent and equitable dispensation of justice, the State brought on the statute book, way back in the second half of the 19th century, three enactments viz Civil Procedure Code, Criminal Procedure Code and Evidence Act. These were drafted, keeping in view the then existing societal conditions with regard to education, social awareness, modes of transportation, means of communication et al. Having been designed by the British, they embody the British concepts of dispensation of justice. Made for a different age, they have become conducive to inordinate delays in dispensation of justice, thereby proving the adage “ justice delayed is justice denied.
Unlike in civil law, dispensation of justice in criminal law is mainly a transaction between the State, represented by the judge, the prosecutor and the police,on the one side and the criminal offender, on the other.The victim of the crime, who has the most stakes in the matter, has virtually no role beyond tendering his part of the evidence.This makes it an unequal contest.
The adversarial concept of British Criminal Justice System places the presumption of innocence of the offender at the centre of the criminal trial and not the quest for the truth. As a result, the standard of proof does not admit even the slightest doubt about the guilt of the offender even in ordinary cases. In Civil cases preponderance of probability is enough to deliver a verdict. While the offender has, if convicted, three
90 stages of review of his conviction, appeal against acquittal has been rendered so difficult that the trial judge finds it easier and more advantageous to acquit than to deliver a verdict of guilt. Thereby, he escapes any worthwhile scrutiny of his jurisprudential learning and judicial balance.
The efficient and effective functioning of the criminal justice system is the collective responsibility of the police, prosecutors and the judiciary. Proper coordination, mutual understanding and cooperation are essential for fair, speedy and hassle free dispensation of justice. Jointly , they need to function as instruments of law.
Law and Order being in the State list, the superintendence of the Police is vested in the State Government unlike the Magistracy which is supervised by the High Court. Though the day to day administration of the Police is vested in a Police officer, now designated as Director General of Police, from the manner in which Indian Democracy has evolved and the power of superintendence has been exercised by State Governments, Police has virtually ceased to be an instrument of Law. It has become an instrument of the Political Executive of the day. Worse, every holder of an elected office or Party functionary, belonging to the Ruling Political Dispensation, throws his weight about to blackmail the Police. No reform of the Criminal justice system will succeed in its objectives unless this basic and deep rooted malaise is addressed. The Supreme Court called for the separation of the investigation function from mainstream policing in the genuine expectation that it will improve the speed and quality of investigation. Such separation already exists at the State level and can be extended to the districts, but it will not deliver better results as long as the incubus of politicisation sits on the Police.The bulk of police cases for investigation are registered at the Police Stations. The initial steps in investigation, starting with the recording of the First Information Report, are taken at that level. A Police Officer, handling the case at that stage, can make or mar the case depending on his political loyalty. It will be impossible for the professional investigating agency to repair the initial damage.
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The Prosecuting Agency is nobody's baby. The Public Prosecutors at the State and District levels are political appointees with a limited tenure and , therefore , out of the pale of either the Judiciary or the Police. At the lower levels, Prosecutors constitute a cadre of service professionals recruited by the Government through the customary route. Their supervision was taken away , sometime ago , from the District Magistrate and entrusted to a Directorate of Prosecution. Based on the utopian but impractical principle of jurisprudence that an investigator can’t be a prosecutor, the supervision of the Director is vested in the Government and not the Director General of Police . There is an umbilical cord between investigation and prosecution. The guidance of the Prosecutor, at least in important cases , can be of invaluable help in shaping the investigation and collecting the right evidence for successful prosecution. This can be secured only if the Prosecution wing is an adjunct of the Police. On the other hand it is expedient to have a Judicial Officer of the rank of a senior Sessions Judge at the helm of the Directorate of Prosecution instead of a senior Police officer as is the practice in most States. It makes for easier and smoother liaison with the Magistracy and Higher Judiciary. When two judicial officers meet, all inhibitions are dissolved, whereas a police officer as Director of Prosecution will find it difficult to strike rapport with the Judiciary, because of time worn impressions and beliefs.
The Magistracy which tries the bulk of criminal cases is recruited from the Bar. The practical experience of Munsif-Magistrates, so recruited, would be entirely in defending the accused persons. Consequently , they start with an inherent bias against the prosecution. This factor coupled with the three biases against the prosecution, inherited from the British jurisprudence, cited earlier, lead to acquittal of bulk of the cases though poor and shoddy investigation by the police would be adduced as the main reason for acquittal. A partial solution to this lies in lateral recruitment of magistrates entirely from the cadre of prosecutors and also a significant percentage of sessions judges in the direct recruitment Quota.
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Acute shortage of Judges and Magistrates is cited in defence of Judiciary for the huge and growing pendency of cases. This is only partially true. The Criminal Procedure Code is as dilatory as it is antiquated. It is a lawyer’s Paradise. After Independence, it underwent two major amendments; once in 1955 and again in 1973. These changes have rendered the task of the prosecution even more difficult and afforded more loopholes to the magistracy to get away with their leisurely ways. The irony is that while societal respect for the rule of law has been steadily on the descent, changes in law have been only facilitating such decline. In a way, Law has been evolving against Order.
Case management in magistrate courts is astonishingly unimaginative and time honoured. Little thought and even less attention have ever been given to its improvement. The concept of judicial independence operates not only in relation to other branches of government but within the judiciary, across its three tiers. Administrative oversight and inspections at each level are at best superficial. In contrast. Inspections of police stations are frequent and detailed .Dozens of cases are posted for hearing each day. Those cases will be spread over a number of police stations, requiring the presence of police officers from all those police stations. The whole forenoon is wasted in merely calling these cases to ascertain if police officers and witnesses connected with the cases are present in the court. In the remaining work hours in the afternoon, a few witnesses are examined in one or two cases and the rest are adjourned for another day to repeat the drill. Witnesses who are brought to the court lose interest after a couple of such futile visits. They are paid no allowance because the 1955 amendment to CrPC dispensed with the obligation of the court to issue summons and, consequently, their presence in the court, which has become the responsibility of the police, is not officially acknowledged by the court. As for the police, they have no financial provision to pay such an allowance. Whoever pays the allowance, one can’t be paying for unproductive visits endlessly. The Government can’t be increasing the number of judges and courts to support such unproductive and fossilised court
93 procedures. If bureaucracy grinds, judiciary does no less, but blames everybody but itself. Case trials and Court hearings at all levels, right up to the top portray the same picture
With a little application of mind these archaic and dilatory procedures can be transformed to make for speedy disposal without affecting the quality of justice. Apart from resort to I T and digitisation, cases of each police station can be listed only on a particular week day and the number of cases posted for hearing be limited to what is practical from experience.The statutory requirement of posting a case every fortnight or so can be dispensed with. Adjournments need not be announced only in court. They can be intimated to the concerned in advance. These will obviate the need to waste half a day in unproductive call work. This is only illustrative and many such administrative changes can be introduced.
On the jurisprudential front, root and branch reforms are imperative not only with regard to the trial procedure but also the substantial Penal law and the Evidence Act. The Justice Malimath Committee did seminal work in this regard and proposed wide ranging recommendations. There is no need for repeating the exercise. But the strange irony is that the fiercest opposition to their implementation comes from the Bar who have deep stakes in the status quo. It may not be surprising if similar opposition emanates from the magistracy also.Police welcome judicial reform , but the bigger elephant in their case is the stranglehold of politicisation which will render any internal reform nugatory.
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Shri C. Anjaneya Reddy
Rule of Law
In most democratic countries, Police is an autonomous civilian institution accountable to Law. In India, Police started as an adjunct to the revenue department charged with tax collection responsibilities. Though in the order-keeping functions, the Police was subjected to the general control of the executive, in the matter of investigation of crime, the police were left alone before Independence. It was well established that the investigation was within the realm of the Police and the executive should keep out of it. This practice continued till the notorious Emergency of 1975 when things changed drastically. The concept of committed bureaucracy and judiciary was promoted and this extended to the Police also. The ‘general control’ clause incorporated in the Act before long extended to crime investigation also. Brazen interference in the investigation started with the police being forced to register cases of conspiracy against political adversaries during emergency and the law of conspiracy which was sparingly used by the British earlier has come to be liberally used by successive governments. The law of conspiracy is so freely used these days, it has become a tool to harass political adversaries.
If the Rule of Law is to be established, we need to have an autonomous and accountable justice system. We have a peculiar situation in our country. Of the three components of the Criminal Justice System – the Police, the Prosecution and the Judiciary – the first two do not have any autonomy worth the name and the third one, judiciary, is a law unto itself without any accountability! For the Rule of law is to be truly established, all these three wings should be autonomous and accountable to neutral agencies outside the Government. The process of appointments to these agencies should be so transparent and so well secured procedurally, they would be truly neutral! As the police is a ‘State’ subject, the police forces in the States have become private armies of those in
95 power and the process of appointment of judges leaves much to be desired. Even worse, Judges seem to be shamelessly hankering after post-retirement sinecures! As was famously mentioned by a prominent politician who was himself an eminent lawyer, most pre-retirement judgments are given with an eye on post-retirement rehabilitation of judicial officers! Those keenly watching developments in the area of Rule of Law, have no reason to be optimistic as we seem to be moving away from it. We have all the trappings of democracy without the spirit of it!
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Smt. Maja Daruwala
Excerpt from India Justice Report 2020
It is as well to remind ourselves then, that justice is a heart dwelling belief and its delivery is not a pity-plea but a right—and there is manifest duty to deliver it.
The role the justice system has to play in the coming time will be of even greater significance. The elongating COVID era, beyond creating additional internal strains for the delivery of justice, will be asked to respond to acute societal challenges. Widening income disparities, competition for scarce resources, broken social cohesion, contended space for civic participation, the asymmetries of power between individual communities and the state, and individual desperation, will all create ever more demand for adjudication, compensation, restitution, and speedy processes and fair civil and criminal outcomes. In building back better, not only must the entire system be people-centric and ensure that basic human rights and justice for all are upheld, but design itself as an enabler: to restore social cohesion, political and public morality, and economic equity in
96 the context of this enormous disruption. Keeping equality, empathy and humanitarianism at its core, it must act now to anticipate the consequences of the virus and adapt itself to the needs of individuals, communities, and businesses.
Finding the way forward from a past of inadequate capacity and performance, accumulated caseload, and mounting backlog at a time of increased financial stringency and competition will not be easy. Yet moving with honest speed, the justice system must remedy old malaise and embrace bold innovations. Doing more with less, it will have to: prioritize available spends towards the localization of justice so that resources go first to the lower courts, police stations, and taluka legal aid desks rather than to headquarters; invest in filling vacancies at these levels; rapidly skill up magistrates, constables, panel lawyers, paralegals and jailors who are first responders; ensure reliable timely data is widely available and affords a firm basis for fashioning future solutions; embrace technology—not as a product that glosses over the cracks to provide second-class solutions, but as a means of maximizing transparency, accountability, inclusion, and service delivery that can, through its induction reorient internal cultures; redouble efforts to build infrastructure that supports trustworthy mediation and conflict resolution; codify and monitor the role of paralegals and train and incentive them to partner with civil society and people to create widespread knowledge of rights and duties; and demonstrate its commitment to equity and equality by being representative of the population it serves.
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Smt. Aruna Bahuguna
Technology and the Future of Policing
Based on my observations of key technology trends the two key trends of IoT and AI will combine to reshape the future of law enforcement. 1. Internet of Things (IoT)- With the internet being embedded in device such as phones, smartwatches, drones, satellites, chips, sensors etc, our ability to collect data and act on the data will be beyond anyone’s imagination 2. Artificial Intelligence- Advances in machine learning algorithms and our ability to process the data will make regular human analysis seem quaint.
Here are three examples on how both these technologies will shape law enforcement.
● Remote Location Law Enforcement: During my days as a police officer, left wing insurgents or dacoits would often commit crimes and disappear into the jungle. Officers chasing down these targets in these thick jungles would be a risk prone affair. With today’s technology, either a satellite or drone (part of the IoT) can capture video of a large part of the jungle using video cameras. This video feed can then be analyzed in real time by AI technologies to identify where humans are moving around and the results can be beamed to the smart watches of law enforcement officials for better guidance.
● Urban Policing: A lot of the challenges in urban policing is about effectively managing the limited resources to solve a seemingly unlimited set of problems. In the future, a paper based FIR system will be replaced by a digital system submitted over the cellphone. The text of the FIR and the key personnel will be automatically analyzed to identify key red flags and patterns. For e.g. if there are 10 FIRs with picture evidence from people, the AI can automatically
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analyze the images, the locations and the patterns to suggest patterns to see if it is the work of a common gang. This information can be fed to the field police officers who can use local knowledge to effectively solve problems faster.
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Dr. Gandhi P.C. Kaza
Current Status of Forensic Science & Technologies in India
Forensic Science is the application of scientific knowledge to legal problems or proceedings. Largely it is concerned with identification and collection of physical or material evidence in a criminal, civil or regulatory dispute and linking the results of scientific analysis with the people or things associated with a crime scene or victim or suspect or others to determine the objective facts about what happened, who did it, when, where, how various events have taken place. As a result, the role of forensic science was proven to be enormous in the recent past because it is accurate, precise, reliable and more dependable than eyewitness testimony or even confessions. Such information was therefore proven to increase the success of both investigations and trials which led to speedy justice, the ultimate goal of the criminal justice system.
In India, forensic science institutions were established during British rule in all major colonial cities and towns, and in the post-independence era, both the State and Central Governments have started establishing forensic science laboratories across the country. Today we have 7 Central Labs and about 30 State Labs in each State, either large/medium or small, catering to the needs of the respective population. Some States have also set up Regional and District level labs as a part of decentralisation. The
99 current status of forensic services in terms of fulfilling the actual requirements of the Police and Justice system who are the primary users and also the people who are the end users is quite inadequate to meet the ends of justice.
No systematic study has been done in recent times quantifying the actual requirements and the total demand for such services in India. The overall status of forensic science is however not much different in comparison with the situation in the UK and US. The RAND Corporation, a globally reputed research organisation that develops solutions to public policy challenges to help make communities throughout the world safer and more secure has recently conducted a survey on Forensic Science and Technologies in these countries and the results indicate that there is a pressing need for - (a) More and better forensic science technologies and (b) Well-trained scientific personnel to use it and present its results in order to enhance the quality of Law Enforcement and Justice Administration.
The key findings which closely reflect the state of affairs in India also include;
● Many Forensic Laboratories have substantial backlogs of cases for evidence examination and the delayed reports have denied justice both to the victims of crime as well as the criminals. ● While attempting to keep pace with the demands of forensic services, laboratories tend to expedite the analytical processes leading to reduced quality of the outputs. ● Most laboratories struggle to obtain funding to replace and modernise laboratory equipment and to recruit, train and retain qualified staff but with a little success. ● Recent Court decisions are forcing scientists to improve both the science upon which the technology is based and the competence of testifying scientists to enhance the quality of work.
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● Given the constraints in man-power, equipment and funding under which forensic science laboratories currently operate, inadequate time was spent on R&D activities which are integral to improve the quality of output and operational efficiency. ● DNA and Digital Forensic evidence analysis being the most crucial service in demand in the current situation, the existing capabilities are barely adequate to meet the constantly increasing demands due to proliferation of technology based crimes. ● Training the Police, Prosecution and Judiciary in the new role of forensic science with technological innovations impacting all walks of life should be a top priority to exploit the full potential of forensic science.
Summing up the discussion, there is a need for focussed attempts to address the issues confronting the forensic services in India through a well meaning effort to ensure better law enforcement and justice administration.
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Dr. M.R. Ahmed
Prison Reforms
One of the major problems faced by prison administration is the management of a large number of remand and under trial prisoners. There are problems posed by the pressure of a large un-convicted population in the jails in terms of congestion, idleness and wastage of human resources. Various recommendations like speedy trials, liberal policy of granting bails, release on personal bonds, providing free legal aid have been made. However, the situation continues to deteriorate. A total of (4,66,084) prisoners as on
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31st December, 2018 were confined in various jails across the country. The number of Convicts, Undertrial inmates and Detenues were reported as 1,39,488, 3,23,537 and 2,384 respectively accounting for 29.9%, 69.4% and 0.5% respectively at the end of 2018. The frequent admission, release and transit to and from courts create a lot of administrative problems for prison administration. Much of the sneaking of contraband articles inside the prisons and the contagious diseases are due to the perpetual movements of UTs in and out of prisons. In spite of concern shown by Apex Court for decongestion of prisons, the situation is grim. The law commission in its 77th , and 78th reports has done some extremely commendable work in analyzing the causes of delay in criminal courts and crowding of UTs in jails. It’s recommendation with regard to suitable amendments in the present law, the disposal of cases, expansion of the category of bailable offences, determination of the amount of bond, release of accused persons on bond without sureties deserve immediate attention. Bail should be granted as a matter of right. Release of accused persons on personal recognizance should be encouraged. Pretrial detention should be used as last resort in criminal proceedings with due regard for the investigation of the alleged offence and for the protection of society and the victim. Alternatives like house arrest, electronic monitoring and mediation can also be thought off.
Another alarming feature of our jails is the presence of a large number of short term offenders. They are convicted mostly of non-serious crimes. Short term imprisonment is neither deterrent or corrective. The time spent by these short term convicts is too short to provide him any opportunity of benefiting from treatment programmes but in fact is enough to contaminate and make them bigger criminals. The most successful of all alternatives and the most innovative experiment in dealing with short term convicts is the Community Service Order. It provides an offender with an opportunity to make reparation to the community against which he has committed a crime by working for its benefit. It is also less costly than the custodial measure. The Andhra Pradesh Prisons Department has already enacted “The AP Release of Convicts on Community Service Act
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2012 which is awaiting clearance of the Central Government. Time has come to introduce community service in our country as an effective alternative to short term imprisonment.
The predicament of life convicts is much worse. The present practice of insisting on a 14 years minimum period of actual imprisonment has taken away the incentives of good behavior and Remission is no longer effective as incentive to self-discipline and reformation of life convicts. Here it is suggested that a system of releasing life convicts and other long termers on Probation be given serious thought. Such provision already exists in Madhya Pradesh and Punjab. Andhra Pradesh also has drafted a bill. The cases
rd of all convicts should be reviewed after they complete 1/3 of their sentence. No state has a systematic way of dealing with prisoners from their admission to release. The essential principles of the Sentence Planning emphasize correctional treatment of prisoners; therefore, prison authority encourages personal reform and social rehabilitation and helps them to lead law-abiding and self-supporting lives after their release. Presently, there is no proper system of classifying prisoners based on risk analysis and need analysis, anywhere in the country. While the Model Prison Manual 2016 provides elaborate and detailed guidelines, the classification recommended is only security oriented and not reintegration oriented. There is an urgent need to review the system and to make it in accordance with the best practices in other countries and in alignment with International standards including the Standard Minimum Rules for the Treatment of prisoners.
The task of bringing reformation calls for a thorough reorganization of prisons in the country. If the function of a prison is restorative than oppressive, if prison programmes are to be geared towards reformation and rehabilitation of the offenders and if prisoners are to be brought back into the social mainstream as dignified law abiding and productive individuals, all the aspects of prison administration would need to undergo
103 progressive changes. Reorganisation of prisons will have to be accepted as a social development issue and included National Development Plans.
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Shri Atul Kaushik
Bringing the ‘E’ to Judicial Efficiency: Implementing the e-Courts System in India
Information and communication technology (ICT) has become the sine qua non of efficiency and development in the 21st century. Government benefits from technology as much as private sector organisations and the judiciary is no exception. This chapter discusses the e-Courts Mission Project of the government of India, which is aimed at ICT enablement of courts in India.
An e-Committee to formulate a national policy on computerisation of the Indian judiciary and advise on technological, communication, and management–related changes was constituted on 28 December 2004. The e-Committee submitted the first National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian judiciary in 2005, eventually resulting in the e-Courts Project.
By the end of Phase 1 (2015), about 95 per cent of the project activities were completed in terms of hardware provision and service delivery. The unprecedented breadth and depth of the project threw up various implementation challenges. The court sites had to be ready for computerisation by provision of a Judicial Service Centre for electronic processing of case registration and movement of cases in courts, a server room with
104 sufficient power back up, creation of ducts for fibres for local area network (LAN) installation, sufficient bandwidth for connectivity of courts with data centres through leased lines and virtual private network (VPN) over broadband procured from Bharat Sanchar Nigam Limited (BSNL), adequate technical manpower at courts to help in the initial provision of services, and training of judicial officers and the court staff.
Phase 2 of the project, , approved in 2015, now envisages universal computerisation of courts in the country and delivery of services to stakeholders. Information kiosks at all district courts, e-filing of cases, e-payment of court fees, process service through e-mail and through process servers having handheld devices, digitally signed copies of judgments, and multiplatform service delivery to stakeholders are some of the services to be added in Phase 2. The key to the success of the project was now the availability of case data online so that services could be delivered, for which having a robust connectivity between the courts and the National Data Centre was paramount, as was the development of a unified software application.
A variety of applications were being used across the country, each having different scripts and logic, and each suited to the specific circumstances and procedures used by the courts under the directions of the relevant High Court. In May 2008, the e-Committee decided to standardise and implement a common case information system (CIS) software application for the e-Courts Project. The unified CIS was successfully rolled out as a pilot in Ernakulam in October 2009. It was gradually spread across all courts in Kerala, and by December 2010, to Karnataka and Andhra Pradesh as well. By February 2013, after a satisfactory roll-out in many courts, it was decided that the CIS version developed for the southern states would be called NC 1.0 (National Core version) and deployed all over India.
In 2014, the e-Committee finalised the Policy and Action Plan for Phase 2 of the project (the Policy Document) for implementation in three years.By the end of the project, it is proposed to ensure availability of case data for all courts on the national judicial data
105 grid (NJDG). This will not only enable better judicial monitoring and management by the courts, but also enable the government to use the data for policy purposes.
Once the exercise to generate case data was completed, the next step was to convert the massive data into information, and ultimately, knowledge. It was also necessary to host the data on a single portal for ease of use by all stakeholders. By August 2013, sufficient data had been captured on the NJDG for the Chief Justice of India to formally announce the launch of the NJDG. In September 2015, NJDG was opened up to the public. However, there are still challenges in getting a more disaggregated data set of details of pending cases as well as differentiated case data based on the types of cases pending in courts. These challenges arise primarily due to the variety of ways in which cases are classified in various courts, the nomenclature given to different types of cases, the lacunae in the filling up of case data in courts and the fact that the e-Courts Project is attempting to coalesce disparate already functioning electronic databases into a single software application.
Today, the NJDG has data entered in diverse forms with diverse nomenclature from which some reports can be generated by backend integration through ingenious programming. The NJDG can still however not provide reports of different case types. This is theoretically possible, but requires intensive process reengineering of all High Court Rules. Hence, at the level of providing civil and criminal cases separately, the harmonisation across the country has been achieved. For the rest of harmonisation across case types, results of the process reengineering exercise is awaited.
India ranks 142 out of 189 countries on the World Bank Ease of Doing Business Index, which is based on 10 parameters, one of which is enforcing contracts. On enforcing contracts, India ranks 186 out of 189 countries. Singapore, Luxembourg, Iceland, South Korea, and Austria rank as the top five countries based on these criteria. Each of the top performing countries commenced computerisation of courts decades before India. Globally, one of the most common features of reforms in contract enforcement in the past year was the introduction of electronic filing. The e-Courts Project, by ICT
106 enablement and making available case data online and through the NJDG will create an enabling environment for the judiciary to improve court and case management and monitoring the performance of judges. Thus, efforts made under the e-Courts Project, supplemented by policy, legislative and judicial administration measures should improve India’s ranking based on this indicator also.
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Shri N.L. Rajah (Co-authored with Smt. Aparna Raman)
India’s Legal System and Ease of Doing Business
John F Kennedy in a 1959 speech remarked, “When written in Chinese the word ‘crisis’ is composed of two characters - one represents danger and the other, opportunity.” It is true indeed that a crisis always gives birth to an opportunity as we are witnessing in the case of the ongoing coronavirus global crisis that is on its way not only to change the way we work but also the way we live and possibly, alter the existing order of globalisation and geo-political power, paving the way for new systems and processes to emerge.
India has, for several decades now, been seen as a developing economy with potential for better growth and development that has long remained mostly unrealised. And so, in the coming days and months, India will have to swiftly capitalise on its inherent advantages for business and investment while simultaneously addressing its structural deficiencies with a new mindset.
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The 7 most significant factors that determine a favourable regulatory environment for business and/or investment are: 1. Better enforcement of contracts - As one of the pillars of the Rule of Law, effective enforcement of contracts and timely resolution of contractual disputes are an indispensable precondition for better economic growth and development. The Doing Business Report of the World Bank, ranks India at 63 out of 190 countries assessed in 2019-20 in terms of “Ease of Doing Business”, made possible by some of the recent amendments to the Arbitration and Conciliation Act 1996, the Specific Relief Act 1963 and the Commercial Courts Act 2015. Further, alternative dispute resolution (ADR) in this country will be able to reach world-class standards and be institutionalised if and only if it is allowed to be a truly “alternative” system of dispute resolution. So long as mediation and arbitration continue to be controlled and excessively interfered with by either the judiciary or the executive, they will just be a mere proxy of the existing dispute resolution system with nothing “alternative” about them.
2. Fast-tracking land acquisition - Due to an acute lack of clarity on central land acquisition provisions, several state governments such as Gujarat, MP, UP, Telangana, Andhra Pradesh, Rajasthan, Haryana, Delhi, Bihar, Maharashtra and Jharkhand have created their own alternative land policies to make it easier for investors to acquire land. For instance, in recent years, land pooling has emerged in India as a viable and popular alternative to direct land acquisition, with some states amending laws to allow for the same. In a nutshell, land pooling is a land acquisition strategy wherein the controlling interests of privately-held land parcels are transferred to an appointed agency, with them being pooled as a result. The agency then utilises some of the pooled land for infrastructure development and sale, while the rights to new parcels in the pooled land are transferred back to the original landowners in some proportion to their original
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property. In Andhra Pradesh, for example, land pooling has been done on an exceptionally large scale for the development of its new capital city of Amaravati for which more than 33,000 acres of land were acquired from thousands of landowning farmers.
3. Implementing IP and data protection laws - India has shown consistent improvement in absolute score according to the International Intellectual Property Index of the US Chambers of Commerce in terms of the strength of its patent and copyright laws.
With respect to data protection, the Personal Data Protection Bill introduced in Parliament last year in December, for regulating the processing and sharing of individual citizens' personal data on the lines of EU's General Data Protection Regulations (GDPR), once passed, will enable and enforce more secure use of personal data and databases by the private sector as well as the government.
4. Increasing access to capital - The past few years have seen the explosion of non-performing assets (NPAs) in the BFSI sector rooted in a slew of scams and serious mismanagement. In response, the Government facilitated the recovery of debt through the Insolvency and Bankruptcy Code (IBC). At the same time, the consistent and large scale growth of small finance banks in the last ten years have had a multiplier effect on the availability and network of banking and credit facilities with extensive support through the Pradhan Mantri Jan-Dhan Yojana.
5. Electricity and Labour Reforms - Under its two flagship energy access schemes namely the Deen Dayal Upadhayay Gram Jyoti Yojana (DDUGJY) and SAUBHAGYA, the Government ensured in 2019 that almost 100% of the households in India had been electrified. This is not to say that the power sector today is entirely free from structural and operational deficiencies and there are
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issues relating to power procurement and newer technologies such as electric mobility that may disrupt the way power markets worked till now.
As far as labour is concerned, the ongoing consolidation of at least the existing Central Acts into codes based on industrial relations, wages, social security and safety or working conditions will go a long way in streamlining them, although some like the Factories Act 1948 and the Industrial Disputes Act 1947 still need major amendments to replace draconian and outdated rules.
6. Timely resolution of insolvency cases - The introduction of the Insolvency and Bankruptcy Code (IBC) 2016 raised hopes for both operational and financial creditors for the recovery of their long-pending dues. While this Act dealt with corporate insolvency, the provisions relating to personal insolvency are yet to be notified and implemented.
7. Elimination of corruption - India had earlier experienced the height of crony capitalism with rampant bribery and corruption in public procurement contracts and allocating licenses for natural resources. As a result, the Government moved to institutionalise Lokpal and Lokayuktas to scrutinize complaints by citizens, although it still remains to be seen how effective the anti-corruption ombudsman would be in reducing and controlling corruption. Certain recent legislative and administrative measures to tackle corruption are also noteworthy such as the agreements signed in 2016 on the automatic exchange of information between India and Switzerland, the execution of newer versions of double tax avoidance agreements with countries like Mauritius, Cyprus, Singapore, the introduction of the Centralised Public Grievances Redress and Monitoring System (CPGRAMS) etc.
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End of day, the above steps are all necessary, though by no means sufficient, to incentivise our national entrepreneurial spirit in these times. But the Government would be well advised to remember that vis-a-vis regulatory reforms and policy restructuring, this crisis provides an opportunity as much as it presents a challenge.
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Shri V. Sudhish Pai
Constitutional Benches
The Supreme Court has emphasized time and again that it is the function of the Court to uphold constitutional values and enforce constitutional limitations- the judge’s oath of allegiance to the Constitution entails that responsibility and the faithful discharge thereof.
Over the years the Supreme Court has shed its original essential quality. The structure, composition and the functioning of the Supreme Court has changed from what the Constitution envisaged. It has converted itself into a general court of appeal by a self enlargement of its jurisdiction. Most of the Court’s work now is confined to considering Special Leave Petitions sitting in Division Benches of two judges and rarely three. Added to this self enlargement, the Legislature has also contributed to the dilution of its status, the Supreme Court has been designated as the first appellate court - an appeal court on facts and law - under various special enactments. The net result is that the Court has no time or inclination for serious constitutional work for which the Court is meant and whatever is done, one can never say for sure that it is done satisfactorily. Presidential references under Article 143 and matters referred to larger Constitution Benches are not taken up as required.
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The Constitution envisages the Supreme Court, though at the pivot of a hierarchy of courts, not so much as a general appellate tribunal but as a Constitutional Court to decide constitutional issues of great urgency and importance which are to be heard by a bench of not less than five judges. But again unfortunately even two judge Benches pronounce upon constitutional issues later necessitating reference to a larger Bench and also undermining the authority and certainty that are required to be attached to its pronouncements. Paradoxically sometimes persons with no constitutional law background are assigned constitutional cases in the Supreme Court and there are astounding judgements for all to see.
It has been suggested too often that the Court should have a regular Constitution Bench sitting to deal with constitutional issues and the Appellate Division of the Court should deal with other cases. The suggestion bears repetition because of the urgency and importance of the problem. It is also imperative to have judges of the highest calibre to man the superior courts- judges, according to Chief Justice Dixon, possessing ‘integrity, equanimity, legal knowledge, patience and common sense.’ It is imperative to maintain the pristine pre-eminent position of the Supreme Court as envisaged and to ensure that it exercises its jurisdiction unimpaired. The position of the High Courts can be no different.
Judicial Accountability
The ultimate guarantee for upholding constitutional values and for enforcing constitutional limitations and the rights of the people is the personality and intellectual integrity of the judge. Constitutional guarantees are futile unless they are enforced by judges of ability and integrity and who can withstand pressures from all quarters, within and without.
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Once appointed, judges enjoy a measure of immunity that their misconduct, unworthy behaviour and deviance and other vices both on and off the Bench remain irremediable except by the constitutional procedure for removal which is extremely long winded and more often than not is a political process and fails to produce any desired result. It is necessary to ensure that once the process for removal of a judge is set in motion, he is not allotted any judicial work and he is not permitted to resign and render the constitutional process a mockery. Articles 124 & 217 would have to be suitably amended for this purpose. Judicial functioning and accountability is an area which needs to be addressed seriously. What is needed is a comprehensive National Judicial Commission, the details of which is a matter to be worked out. In the final analysis the Commission will be as good as those who work it.
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Shri Alok Prasanna Kumar
Strengthening the Role of Constitutional Courts
In my view, all courts in India are constitutional courts. Whether it is in enforcement of fundamental rights or ensuring operational independence, the Constitution does not make too much of a distinction between the three tiers of courts in India. All three are equally important for the protection of rights and the maintenance of constitutional order.
However, given the scope of this discussion and the problem to be addressed, this note will address the main issues with the High Courts and the Supreme Court namely, the capacity, credibility and constitutional focus of these two forums.
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The main problems facing the High Courts are:
1. Enormous delays in disposal of criminal cases. 2. Largest pendency of cases per judge of the three tiers at the HC. 3. Exclusion from access to justice as cases are mostly from cities they are located in.
The causes for these problems are:
1. Lack of adequate capacity to argue and dispose of criminal appeals. 2. Overburdened with bail cases as a result of lower courts’ refusal to grant bail. 3. Bureaucratic intransigence towards court orders prompting the repeated filing of contempt petitions. 4. High percentage of vacancies against sanctioned strength (40%) 5. Not enough circuit benches, especially in large states like UP, Rajasthan, Andhra, Karnataka, et al. 6. Mix of appointees biased towards bar rather than subordinate courts.
Potential solutions:
1. Short term: (0-2 years) a. Prioritization of criminal cases pending for 10 years plus. b. Temporary additional judge appointments from district judiciary to clear backlog. c. Identify judges with aptitude for criminal law and set up dedicated, year round criminal law benches.
2. Medium term: (2-5 years)
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a. Ratio of bar:subordinate judiciary judges to the HC to be raised to 50:50 from 70:30 at present. b. Use data to identify the best places for circuit benches (Noida, Surat, Mangalore, Vizag, e.g.) instead of purely political reasons. c. Appoint Chief Justices for a fixed, minimum two year term, extendible at their option. d. Fill all vacancies in the High Court through sustained efforts in coordination with HC CJs.
3. Long term: (5 years+) a. Change the appointment process to one involving wider consultation and discussion b. Change the pattern of evaluation of subordinate judiciary judges c. Invest in the training and upgradation of skills of subordinate judiciary d. AI to help with speeding up hearing of criminal appeals cases
The main problems facing the Supreme Court are:
1. Most time of the court is consumed with ordinary civil and criminal matters in appeal and not in constitutional cases. 2. Delays in hearing constitutional cases render them essentially moot. 3. There’s no consistency in the law laid down by the court leading to further confusion and litigation.
The causes for the problem are:
1. The court’s present jurisdiction is simply too wide - there’s no limit to what sort of cases the court hears under the SLP jurisdiction. 2. Far too many cases are heard by two judge benches with no consistency
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3. Far too few cases are placed before constitution benches to settle the law 4. Judges spend too little time on the Supreme Court.
Potential solutions:
1. Break up the Supreme Court into four separate institutions: a. An Apex Court of Civil Appeals which will be the forum to hear appeals from all civil cases from the High Court and transfer petitions b. An Apex Court of Criminal Appeals which will be the forum to hear appeals from all criminal cases from the High Court, bail petitions, habeas corpus and transfer petitions. c. An Apex Court of Constitutional Interpretation which will be the forum to hear appeals from cases concerning constitutional interpretation and writ petitions against government action. d. A Judicial Appointments and Accountability Council composed of judges, lawyers, civil society and government that will oversee the appointment of judges to the High Court and the Supreme Court.
2. Create multiple benches across the country for the Apex Court of Civil Appeals and Apex Court of Criminal Appeals depending on data relating to the filing of cases from different parts of the country.
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Shri Mohit Rao
Excerpt from CNN article on Policing in India
Since gaining independence from colonial rule in 1947, India has had a long, tumultuous relationship with police excess. Force was used against political dissidents during India's period of Emergency in the late 1970s, and to counter secessionist movements in Punjab, Kashmir and Northeast India. In recent years, police have been accused of using excessive force to quell left-wing extremists in the so-called "red corridor," in the west of the country, and today force is often casually employed to disperse peaceful protesters and non-violent mass gatherings.
The problem, critics say, begins with Indian laws, some of which condone, or even encourage, police violence. For instance, anti-terror laws or special laws in conflict-ridden areas, such as the territory of Jammu and Kashmir, sanction the use of violence to elicit information or maintain order. In individual states, police manuals allow certain officers to authorize the use of violence (formally called lathi charge or baton charge) to control crowds -- officers have to subsequently write a report on how this was carried out. More often, lathi charge is done without formal orders. And if there is a public complaint, often the police in the same jurisdiction investigate their own personnel.
While confessions are not admissible in courts under the Indian Evidence Act, police are legally allowed to use admissions of guilt to initiate the recovery of stolen goods -- an outcome often deemed as good as a conviction. Data from India's National Crime Records Bureau (NCRB) shows that not a single police officer has been convicted for custodial deaths since 2011, while over 860 cases were recorded in the same time
117 period. And in the past five full years, only 3 officers have been convicted for almost 500 cases of other human rights violations, such as torture, illegal detentions and extortion.
Through multiple judgments over the years, India's courts have sought to improve the situation by giving teeth to national and state human rights commissions -- quasi-judicial bodies formed to probe complaints of human rights violations, including police torture. But, as numerous cases of torture show, police find ways to avoid facing justice: either surveillance cameras don't function or torture occurs outside their range; magistrates do not examine the accused for injuries and place their trust in police accounts; and post-mortem reports are manipulated. The NHRC is rendered toothless when its inquiries are dependent on reports from the local police officers who are accused.
There needs to be a holistic approach to reforming the policing system that goes beyond augmenting infrastructure, procuring modern tools and filling up manpower shortages. There needs to be processes that accord policemen autonomy from political interference while also mandates accountability from the police system. Importantly, there needs to be a change in the way policing is viewed in India. It doesn't exist to control or manage a population using colonial power structures or by assuming itself to be a disciplining force. Instead, it should function as being a part of the community in which it merely aids in maintaining law and order.
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ORGANIZING TEAM
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Organizing Team
Core Committee:
1. Dr. Aarushi Jain - ISB 2. Akshat Mohan - FDR 3. Bhavani Pasumarthi - FDR 4. Harshitha Dammu - FDR 5. Prof. K.K. Kailash - UoH 6. Keshav Reddy - FDR 7. Meena Yadem - FDR 8. Meghana Lakkapragada - FDR 9. Mogulaiah Manthuri - FDR 10. Sangeetha Hariharan - ISB 11. Sasikala Valluri - FDR 12. Shweta Chandar - FDR 13. Sruti Paturi - FDR 14. Sumedha Kuraparthy - FDR 15. Swathi Reddy - FDR 16. Prof. Venkatesu E. - UoH 17. Vriti Bansal - FDR
Members:
1. Alisha Singh, FDR 2. Amal Jose, UoH
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3. Bharathi Surendran, FDR 4. Dheeraj Dama, FDR 5. Dyuti Pandya, FDR 6. Harshini Ramakrishna, FDR 7. Hriti Parekh, FDR 8. Indra Lahoti, FDR 9. Kartheek Vegesena, FDR 10. Rithwick Mosalikanti, FDR 11. Sahithi Ratna, FDR 12. Saikishan Rathore, FDR 13. Shatakshi Singh, FDR 14. Shreethigha Ganeshan, FDR 15. Sourodip Nandy, FDR 16. Stuti Mathur, FDR
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