Listen to this article:
Chief Justice of India (CJI) N.V. Ramana spoke recently of the need to “move away from colonial rules followed in the country’s legal system, and towards an ‘Indianisation’ of the same”.
What this means in concrete terms is not immediately apparent.
In the post-independence decades, ‘Indianisation’ has not signified any particular trajectory of change. Sometimes, it has coincided with the democratisation of public spaces, or increased access, or more transparency. At other times, however, it has meant quite the opposite: the crystallisation of the idea of a ‘strong nation state’, with fewer deliberations and debates. ‘Indianisation’ has also meant, for some, a conflation of the country with particularist religo-cultural representations.
Earlier this year, the government successfully made the argument before the Supreme Court that India is only a representational democracy, and not a participative one. In other words, that the extent of peoples’ participation is limited to electing representatives and then leaving the majority government alone to get on with the job. In this view of things, challenges to state policy, or state action, are seen as disruptive. If the ruling establishment gets particularly worked up, it can also label these challenges ‘anti-Indian’.
We should bear in mind that this “government knows best” argument has been made many times before. The first amendment to the constitution of India was brought within 16 months of its adoption, by the provisional parliament, even before the first government was elected. The provisional parliament was led by the interim prime minister Jawaharlal Nehru. The amendment allowed the state to occasionally restrict the fundamental right to freedom of speech and expression on grounds that it may cause public disorder. This was a reaction to fears about the stability of the new republic in its founding moments, in the face of increasing ‘crowd action’ relating to the partition of India, peasant movements in Telangana, food shortages etc.
By bringing in the first amendment, which also brought in other changes relating to property rights etc., the provisional parliament sought to ensure for the state the power to restrict speeches and crowds that might lead to any kind of public disorder.
This amendment was opposed within the provisional parliament by those who felt that the new Indian republic must trust its dissenting crowds.
Siddharth Narrain describes the debate as a question about where to place ‘Indian’ legitimacy: in the provisional parliament and the fledgling post-colonial state; or amidst the unorganised crowds. When the first amendment was approved, it would seem that ‘Indianisation’ tilted a bit towards the state.
India’s early elected popular governments continued to repurpose colonial laws and apply them to the free country. Equally, the republic’s citizens continued to legally ‘push back’ in recognition of their own constitutional status. Rohit De’s book A People’s Constitution describes these contestations of ‘Indianisation’.
The CJI’s use of ‘Indianisation’ is a reference to the need for the ‘democratisation’ of justice delivery, as opposed to iterating a scheme, which has the state at its centre. He speaks of the ‘barriers [of style and language] for common people in approaching the justice delivery system’.
It must be said, however, that beyond the alienation caused by language and protocol, justice delivery unfolds within the prevalent social and political logic of the times. For the justice system to be democratised, the prevailing social and political logic must be democratic and not majoritarian. But this is not always the case.
Creating a hard state
Today, ‘Indianisation’ is popularly understood in terms of the creation of a ‘hard nation state’: a state that is hard on its dissidents, hard on legal procedures, hard on Pakistan, and a hard negotiator globally. There is little room in the rhetoric of ‘Indianisation’ to address the simultaneous democratic deficit that is a byproduct of the building of ‘hard states’.
These are times when overbroad and vague references to ‘national security’ are allowed to place official actions outside the purview of judicial scrutiny, or indeed any kind of citizen’s scrutiny. In the event, it’s so much beyond the pale now that we do not any more know what we speak of when we speak of ‘national security’. It could signify Internet shutdowns, hacking, surveillance and incarceration. ‘National security’ vetoes are now raised by the state when refusing to provide affidavits to the Supreme Court or share copies of innocuous FIRs and arrest memos with the accused.
It is in keeping with this general sense of diminished transparency and the general attitude towards the futility of any debate, let alone accountability, that the state routinely submits ‘sealed envelope’ reports in court proceedings. Thus, the citizen who challenges state action is often not allowed to know the contents of the state’s response to her challenge. Any such challenge to the statist project is presumed to be mala fide and therefore suspect.
Within this larger discourse, changes to mere form may only help so much in opening up access.
Access to justice
While thinking about access and trying to do away with the alienation that the litigant feels inside the courtroom, it might be useful to consider the figure of the accused. He enters the criminal justice system in opposition to the (democratic) state, but presumably as an equal party before the law. How does ‘Indianisation’ of the system treat the accused/ transgressor?
I had argued in a webinar some months ago that ‘the colonial origins of our criminal procedure code give much more power to the police than is given in other countries’. Meena Dhanda, professor of philosophy, had gently suggested that perhaps we need to think more about colonial laws and their trajectories in the post-colonial decades. Independent countries have now had significant time to change certain laws, which govern the power relations between state and citizens. Have we remoulded those power relations, or repeated them?
Some of the former colonisers (as well as the colonised) have moved towards further democratisation of law and procedure. Others haven’t.
The Indian justice system is admittedly overburdened. There is a pressing need to review the superfluous cases that are forced into the system by investigating agencies, and by the tendency to make unwarranted arrests, in the face of overwhelming pendency in Indian courts. We must remember that each unnecessary arrest is an additional excess case in an already burgeoning justice system. It thus impacts the right to access to justice, and also the more fundamental right to personal liberty.
Arrest as an ‘investigative tool’
As a principle of law, ‘arrest’ or remand of an accused to the custody of the court is done with the express purpose that the accused may face trial for the alleged offence. When the accused is granted bail, he is entrusted to the custody of his sureties, who are bound to produce him at his trial at a specified time and place. Thus, the purpose of ‘arrest’ is to ensure appearance at trial, and not as an ‘aid to investigation’ as is commonly understood. Naturally then, an arrest would only be made at the point when the police are ready to formally charge the accused and present him for trial with attendant witnesses and evidence. This logic is inverted in the Indian criminal justice system, where the rights of the accused person to meet with counsel, or his family, for instance, are made subservient to the exigencies of conducting an unhindered interrogation.
There are certain other situations where the police have the right to detain an individual: for instance, to stop them from creating a public nuisance, or from committing a crime. Also, there are situations where the police have investigated a crime and are fairly sure about the identity of the perpetrator, but before arresting him and handing him over to the custody of the court, they might want to interrogate him and confront him with the evidence collected. Such a right is recognised, but most jurisdictions allow very short periods for questioning in detention, ranging from 12 hours to 4 days. At the end of this period, if the police are unable to formally charge the suspect and adduce evidence admissible in court, they have to let him go. It is clear that arrest is not to be used as a means to badger the suspect for information, or indeed badger him into confessing to a crime, but only as a formal closing of an independent investigation by the police.
In India, however, the law permits the police to arrest a person on ‘reasonable suspicion’ of him having committed an offence, and then ask for the suspect to be kept in custody for up to 90 days, while the police continue their investigation. (Notice the contrast with 12 hours to 4 days in pre-charge custody that is allowed in most other common law jurisdictions.) In India, suspects are routinely arrested much before the police are ready to press charges and adduce evidence in court. In fact, interrogation in custody is an accepted investigative tool. Thus, in a departure from colonial, common law tradition, arrests in India do not necessarily signify ‘handing over to the court for commencement of trial’.
The law in India does mandate that the police produce the arrested person in court within 24 hours of arrest. The arrest and investigation thus have the court’s sanction (and supervision), although it still does not meet the common law principle that an individual should be sent into the court’s custody only to face trial.
There is a view that Sir James Fitzjames Stephen, author of the Indian Criminal Procedure Code regarded the English police as ‘fair’ and also felt that they were capable of conducting an independent investigation and arresting only when they had enough evidence to charge with. The native police, on the other hand, would torture the suspect and only extract confessions, he felt. Therefore any detention in police custody should have the sanction of the courts. However, the law that mandates production of an accused before the court has inverted itself over time, and is now understood to mean that ‘arrest on mere suspicion’ is acceptable as long as overseen by the courts.
As an investigative practice, when arrests are made easily, it floods the system with ‘suspects’. Rather than the investigating agencies sifting through the cast of characters, and available evidence, all ‘suspects’ are simply arrested and put into the criminal justice system. It is left for the courts to do the work of sifting through the evidence to decide which of the lot, if any, can be held guilty.
The National Crimes Records Bureau (NCRB) Report for 2020 states that there were 66,01,285 cognizable offences registered nationally. Against this number, a total of 68,14,614 arrests were made, showing a high suspect-arrest-badger ratio.
Naturally, for those under-trials who are detained without charge (as also for those who have been formally charged but are awaiting trial) the only remedy is to keep filing bail applications. According to the NCRB’s Prison Statistics Report for 2019, the total number of prisoners in judicial custody (as opposed to police custody) on December 31, 2019 numbered 4,78,600. Out of these, the undertrials (those facing trial in a court of law) number 3,30,487 (69.05%) and detenues (those detained without charge) number 3,223 (0.67%). Incidentally, the number of detenues increased from 2,384 in 2018 to 3,223 in 2019, thus showing an increase of 35.19% during this period.
On the other hand, our former coloniser, the UK, surprisingly registered an almost identical number of offences for the year 2019-2020 as India, given the huge difference in population size. There were 58 lakh (5.8 million) crimes recorded, but much fewer arrests, numbering about 2.6 lakhs. The UK’s prison statistics for the period record that with respect to the Crown Court, in cases involving serious offences, “the proportion (and volume) of defendants not remanded (to custody) has been increasing from 15% to 27% in 2019 (16,000 to 23,200)”.
The material effect of this difference in criminal justice practice is that in the UK, the police is restricted from arresting without charge, and even upon charging, it often chooses to not take into custody a significant percentage of those charged, while merely directing them to appear in court. The courts then endorse the non-custodial continuation of trial, in most cases.
In India, a crowd of suspects is arrested, pending investigation. Most often, custodial remands are mechanically granted by the magistrate’s court, leading to the practice of filing bail application upon interim bail application by the pre-trial detainee. The practice of herding suspects into interrogation reflects colonial sensibilities towards natives; it could certainly do with change. However, I believe that it is these colonial attitudes towards both native-accused and native-police that have now segued into the post-colonial state.
Change perhaps should be imagined through frames of democratisation, and beyond the colonial-Indian binary. The aspirational, strong post-colonial state has at times imagined itself in the reflection of the colonial state thus collapsing that binary in the first place.
In conclusion, and delving in to Chief Justice Ramana’s concerns with form and language employed in the courts, it is not as if that subject weren’t a minefield in itself. If the courts were to begin to employ the language of the most marginalised litigants, then going by the demographics of our undertrials, a significant part of court proceedings would have to be conducted in Santhali, or Gondi, or Urdu.
Shahrukh Alam is a lawyer practising in New Delhi.