Sunday, October 30, 2016

The Supreme Court of India and the urgent need for reform of the criminal justice system

Here is my response to a blog post by Abhinav Sekhri titled 'Girish Kumar Suneja and the Exclusion of the High Court’s Jurisdiction in Anti-Corruption Cases' at https://indconlawphil.wordpress.com/2016/10/30/guest-post-girish-kumar-suneja-and-the-exclusion-of-the-high-courts-jurisdiction-in-anti-corruption-cases/

Abhinav Sekhri raises some very important issues. The criminal justice system in this country is in serious need of reform, yet the Supreme Court has not really pushed for a reform process. Instead, the Indian judiciary has in select cases involving politically connected or high value accused, bypassed the criminal justice rules and procedures applicable to all, and has created specialized investigation, prosecution and trial processes (even special courts) for such "sensitive" cases on a case to case basis. This has been justified by the courts as being necessary because the investigation, prosecution and trial stages of our criminal justice system can be easily compromised by the powerful and influential. 

Yet, the specialized processes created not only violate procedural and substantive rights of the accused and the complainants but may be even more prone to being compromised. 

Also, these kinds of special rules created for individual cases cause further systemic harm to the criminal justice system and act as an impediment to the initiation of a real reform process. 

This special treatment of the influential is happening not only in "sensitive" criminal investigations and trials. The black money, Sahara and the BCCI cases in the Supreme Court are also examples of a similar special handling outside the prescribed and applicable regulatory processes and institutions. 

In a just and fair criminal justice system, there must be a separation between the investigating and the prosecuting agencies and the judiciary. This principle is being completely demolished by such special handling where the Supreme Court is involving itself in monitoring investigations, in perusing and approving charge-sheets, in monitoring trials etc. How then can the Supreme Court hear appeals from such cases without bias? 

Read this news report on the sorry state of our criminal justice system – “Cops openly flout forensic norms, delay of over 10 days in sending samples to labs” at http://indiatoday.intoday.in/story/cops-flout-forensic-norms-samples-labs-police-station-delhi-state-legal-services-authority/1/798686.html?google_editors_picks=true

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