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The webinar on ‘Rule of Law in the 21st Century’, held on 2nd January, 2021 was a curtain raiser for the second edition of the ‘Indian Democracy at Work’ series. It was a thought-provoking discussion on strengthening rule of law in India. The session touched upon pragmatic reforms pertaining to the police, prosecution and the judiciary. On the panel for discussion were Dr. Jayaprakash Narayan (General Secretary, Foundation for Democratic Reforms), Shri Kamal Kumar (Former Director, SVP National Police Academy), Shri K. Padmanabhaiah (Former Union Home Secretary) and Justice Jasti Chelameswar (Former Judge, Supreme Court of India).
Dr. Jayaprakash Narayan began the discussion by stating that the most important purpose of a government is enforcing rule of law, which is unfortunately being forsaken by populist governments for short-term gains. The speaker highlighted three major shortcomings of the rule of law in India: large pendency and long delays in courts, significantly higher criminal caseload than civil caseload in a relatively crime free country – indicating that civil disputes are not resolved in courts, and lastly dismal conviction rates.
Dr. Jayaprakash Narayan pointed out that inability to deal with increasing civil disputes and crimes by the due process of law 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. He illustrated the lack of sufficient forensic infrastructure with an example of India’s capacity for testing DNA samples of approximately 3000 cases in a year, when Delhi alone saw more than 11,000 violent crimes in 2019. He further highlighted the severe shortage in personnel in police as well as prosecution.
As a solution for pendency in courts, Dr. JP advocated for the establishment of local courts inspired from the UK example of Magistrates’ Courts for criminal matters and the small claims track in civil courts for dispensing speedy justice in the vast majority of cases.
Shri Kamal Kumar began his address by simply defining rule of law as the principle that no one is above the law. He 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 stressed on the necessity of institutional safeguards to forestall any undue political interference and for the protection of upright police officers. Shri Kamal Kumar stated that an appropriate regime for the police for effective rule of law shall entail full functional autonomy to the police, upgradation of training and increased resources, accountability mechanisms for both misconduct as well as performance, strengthening of the prosecution system, campaign to generate favourable public opinion for promotion of rule of law and finally, a well-structured effort to persuade the political leadership of the urgency and significance of rule of law.
The next panelist, Shri K. Padmanabhaiah acknowledged that considering the dire state of rule of law in the country, India is now close to being either a failed state or a police state. He highlighted the dismal position of India in the global rule of law ranking, at 69 out of 128 countries. The speaker suggested the recruitment of cadets immediately following school education. He also recommended linking promotions to specialised police training, creation of an Indian Forensic Service to strengthen forensics in the country, 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 Chelameshwar began by commenting upon 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 attributed such lapses to the absence of a periodic audit of performance. He suggested imparting specialized education for the police, as well as a scientific method of recruitment to the force where the recruitment and training process would be based on an assessment of required personnel and projections of the requirement for the following 10 years. The speaker further proposed that the prosecution must be able to supervise the investigation process, and thereby be made accountable for any lapses in the process. He added that promotions must be based on careful assessment of performance.
The question and answer session began with a question on the large number of vacancies in the police and judicial officers. Shri K. Padmanabhaiah stated that it is primarily due to the lack of leadership within the police, as well as the lack of political will. Justice Chelameshwar added talented people not opting for the judicial service and unwarranted litigation has hindered the creation of a standardized and consistent recruitment process in the judiciary.
On a question about extrajudicial killings of suspects by police officers in order to please the public, Shri Kamal Kumar noted that the inefficiencies and delays in the due process of law make extrajudicial executions seem to be ‘speedy justice’. Dr. Jayaprakash Narayan added that the general public must be made aware that such actions have bigger repercussions including tyranny, coercion, and suppression of the rights of vulnerable communities.
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 K. Padmanabhaiah replied that the plea bargaining system is under-utilized in India. Shri Kamal Kumar remarked that a 2005 amendment of the CrPC simplified the procedure for undertrial prisoners to be released under certain circumstances, but the assistance currently being provided by the Legal Services Authority is inadequate.
The last question inquired whether the failure of the Indian institutions in upholding the rule of law has created the unwarranted perception around the globe that India is an unsafe country, despite the low crime rate. Putting the issue in perspective, Dr Jayaprakash Narayan highlighted the significantly lower number of instances of rape in India, compared to countries such as the United States and the United Kingdom. However, being relatively more sensitive to crimes against women due to cultural notions, the reaction to these crimes in India differs from the reactions elsewhere.
This webinar charted the contours of rule of law reform, which was deliberated at a granular level during the second edition of the Indian Democracy at Work conference in February, 2021.