Criminal justice System of any country is the basis of establishing, Peace and tranquility, includes not only the judicial system but investigating machinery also. To tame the over flooding of crimes a strong criminal justice system is required. Administration of justice through the instrumentality of law is an essential component of governance. Rule of law is the bedrock of democracy, which is acknowledged as the best system of governance to ensure respect for human rights. The dignity and worth of the individual being at the core of a democracy, constitutional governance in a democratic set up is the safest guarantee for the protection of human rights and assurance of human resource development. Equal respect for the rights of all sections of the society is necessary to obtain full human resource development respecting the basic human right of non-discrimination. The concept of inclusive democracy recognizes this aspect.
Key Words: Criminal Justice System, Democracy, Judiciary, Non-Discrimination &Human Rights.
The Criminal Justice System has the power to control crime, prevent crime and punish the criminals. Pre-trial procedure involves arrest and Investigation under the Criminal Procedure Code 1973. Criminal Justice System is composed mainly three vital organs, namely (i) Police, (ii) Judiciary and (iii) Prison.
Arrest means physical restraint put on a person as a result of allegation of accusation that he has committed a crime or an offence of quasi-criminal nature1. Sec.41 (1) of the criminal procedure code confined only to the power to arrest and extends to both cognizable and non-cognisable offences; without the order of a competent magistrate under S.155 (2) of Cr.P.C2.
The Code of Criminal Procedure contemplates two types of arrests. (i) Arrest made in pursuance of a warrant issued by a magistrate; and (ii) arrest made without such warrant but made in accordance with some legal provision permitting such arrest.
Sec. 46 of Cr.P.C. explains how arrest could be made. Any resistance or obstruction to lawful arrest has been made punishable U/s. 224,225,225-B of IPC.
Art.22 (1) of the Indian Constitution- No person arrested shall be denied right to consult and to be defended by a legal practioner of his choice.
Sec. 303 of Cr.P.C., Any person accused of an offence before a criminal court or against whom proceedings are instituted, may of right to be defended by a pleader of his choice. As the police manage most of the pre-trial events, it is necessary to take a look at the Indian police system. The Despatch of the Court of Directors, dated September 24, 1856, gave a candid account of the working of the system: That the police in India have lamentably failed in accomplishing the ends for which it was established is a notorious fact, that it is all but useless for the prevention, and sadly inefficient for the detection of crime, is generally admitted. Unable to check crime, it is, with rare exceptions, unscrupulous as to its mode of wielding the authority with which it is armed for the functions which it fails to fulfil and has a very general character for corruption and oppression3.
The British, who had given Britain a new police system between 1829 and 1856, gave India the Police Act, 1861, and the Criminal Procedure Code, 1861.The Indian Evidence Act came a little later. These three acts gave India the present police system. Efforts were made later at the provincial level to review and reform the system. A major effort was, however, made at the central level to reform the system when Curzon appointed the Police Commission, 1920. The Commission studied the work of police stations and said: There can be no doubt that the police force throughout the country is in a most unsatisfactory condition, that abuses are common everywhere, that this involves great injury to the people and discredit to the government and that radical reforms are necessary4.
Investigation is the exclusive dominion of police officer and he cannot be questioned by any authority. In India as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities. 5
‘In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offence by the police officers is ordinarily not impugned by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose.’ 6
In D.K.Basu vs. State of West Bengal.,7The Apex court laid down 11, guidelines to be followed by police.
(i).The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(ii).Preparation of memo of arrest with the witness of a family member or local person;
(iii).Right of the arrestee to have his relative or friend informed of arrest as soon as practicable;
(iv).The details of arrest to be informed within 8 to 12 hours if the relative or friend of the arrestee lives outside the district or town of arrest;
(v).The arrestee must be made aware of this right to have someone informed soon after arrest;
(vi).Entry in the police diary about arrest and transmission of information to next friend or relative;
(vii).In case arrestee requests for examination of his bodily injuries at the time of arrest, the request to be complied with;
(viii).Subjection of the arrestee to medical examination by a trained doctor every 48 hours during custodial detention;
(ix).Copies of documents to be submitted to magistrate;
(x).The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation;
(xi).Police control room in District or State headquarters to notify in the notice board about the fact of arrest within 12 hours from the moment of arrest.
1. Indian constitutional Framework
The preamble the people of India has resolved to secure to all citizens the following four objectives:8Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity and to promote among them all and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.
Indian criminal justice system has two primary responsibilities i.e, prevention and control of crime and the protection of rights. The most important factor in preventing and determining crime is the certainty of punishment; the efficiency with which who commits crime is arrested, prosecuted, convicted and punished. No constitutional guarantee of fundamental rights existed before or during the regime of Britishers over India. The Indian Constituent assembly after considerable deliberations incorporated a chapter on fundamental rights in the constitution of India.
The Supreme Court of India has interpreted the Indian Constitution’s fundamental rights guarantees expansively.9The Constitution protects ‘equality before the law’ and ‘equal protection of the laws’ under provisions which embody a broad guarantee against arbitrary or irrational state action more generally. Indian citizens are guaranteed the rights to speech and expression, peaceable assembly, association, free movement, and residence although Parliament may legislate ‘reasonable restrictions’ on some of these rights in the interests of the ‘sovereignty and integrity of India,’ ‘security of the state,’ or ‘public order.’ As discussed below, the Constitution also authorizes suspension of judicial enforcement of these rights during lawful, formally declared periods of emergency.
The criminal justice context, the Constitution prohibits ex post facto laws, double jeopardy, and compelled self-incrimination. Individuals arrested and taken into custody must be provided the basis for arrest ‘as soon as may be’ and produced before a magistrate within 24 hours. In its landmark case of D.K. Basu v. State of West Bengal, the Supreme Court extended the Constitution’s procedural guarantees further by requiring the police to follow detailed guidelines for arrest and interrogation10. The Constitution also guarantees the right to counsel of the defendant’s choice, and the Supreme Court has held that legal assistance must be provided to indigent defendants at government expense, a right that attaches at the first appearance before a magistrate. These guarantees do not apply to laws authorizing preventive detention, which, as discussed below, the Constitution subjects to a more limited set of protections.
While the Constitution does not explicitly protect ‘due process of law,’ it does prohibit deprivation of life or personal liberty from any person except according to ‘procedure established by law,’ and the Supreme Court has broadly interpreted this guarantee to encompass a range of procedural and substantive rights that approximate the concept of ‘due process.’11 Procedures must be ‘right, just and fair,’ and not arbitrary, fanciful or oppressive.12 The Court has held, based on its broad understanding of the right to life and liberty, that the Constitution guarantees the right to privacy13 and freedom from torture or cruel, inhuman, or degrading treatment14.The Court also has recognized a constitutional right to a fair criminal trial, including among other elements the presumption of innocence; independence, impartiality, and competence of the judge; adjudication at a convenient and non-prejudicial venue; knowledge by the accused of the accusations; trial of the accused and taking of evidence in his or her presence; cross-examination of prosecution witnesses; and presentation of evidence in defense15. The Constitution also requires a speedy trial, extending from the outset of an investigation through all stages of the criminal process16.
Human Rights under Indian Constitution 17
The Indian Constitution shows that human rights have been classified under Indian Constitution into the following categories:
a) Fundamental Rights and Rights to freedom (Fundamental freedoms)
b) Civil, Political, Economic, Social and Cultural Rights,
c) Human Rights for all and Human Rights for citizens only,
d) Justifiable Human Rights and Non-justifiable Human Rights
e) Enumerated Human Rights and Un-enumerated Human Rights.
2. Police and Criminal Justice System frame work
The legal and institutional framework that independent India inherited from the British to govern criminal law, criminal procedure, and policing largely remains in place today. Police matters are governed primarily by the Police Act of 1861, one of several framework statutes enacted in the wake of the Indian uprising of 1857 to more firmly establish British control. The 1861 statute self-consciously followed the paramilitary model of policing that the British had established in Ireland, structuring the police not to promote the rule of law, serve the community, or ensure accountability, but rather to ‘perpetuate British rule.’ In doing so, the British incorporated the feudal values already present in Indian society, hiring into the police rank and file Indians perceived to be loyal and willing to acquiesce to the place of British leadership within the social hierarchy.
Upon independence, the British ‘bequeathed’ to India and Pakistan the laws, institutions, philosophy, and norms of the colonial police. The new government implemented no significant changes in policing, and the police remained principally an instrument of coercive state power and political intelligence. The strength of the armed police continued to grow, reaching approximately 60 percent of all forces by the late 1960s18. Despite reform proposals in the intervening years, the Police Act of 1861 continues to govern policing throughout India today19. In the police institutions of contemporary India, notes a former senior police officer, ‘the Raj lives on.’20
These colonial-era laws and institutions are now situated within a post-independence constitutional framework that distributes power between the central and state governments. While the Indian Constitution establishes a strong central government, its role is particularly constrained in policing and criminal justice matters, over which the states enjoy broad authority and play the predominant day-to-day role. The Constitution grants the central and state governments’ concurrent jurisdiction to enact substantive and procedural criminal laws, and authorizes the central government to legislate exclusively on matters involving national security and the use of the military or central police forces to help state civilian authorities maintain public order. At the same time, the Constitution leaves public order and police matters principally to the states, which accordingly regulate, supervise, and exercise highly centralized control over the majority of police resources in their day-to-day operations21.
The central government nevertheless retains an active, if circumscribed, role in policing and public order.
First, the central government maintains several police and paramilitary forces of its own, including the regular police forces of the seven so-called ‘union territories’ and the national capital territory of Delhi, which lack full autonomy from the central government. The central government also operates a number of police, investigative, and paramilitary services that have jurisdiction over specialized areas. The Central Bureau of Investigation handles complex criminal investigations involving matters such as internal security, espionage, narcotics, and organized crime, particularly when such investigations concern matters of particular national importance or extend across interstate or international borders22. Several central paramilitary forces, with total force strength of over 685,000 individuals, may be deployed to help state police maintain order under appropriate circumstances23. Ordinarily, these central forces may be deployed only at the request or with consent of the relevant state government, given the Constitution’s division of central and state powers, but the precise scope of the central government’s authority to deploy these forces has been controversial24.
Second, while the regular domestic police services are subject to state government control, the most senior officers in all police forces nationwide are drawn from the Indian Police Service, an ‘all-India’ civil service cadre whose members are recruited, organized, trained, and disciplined by the Union Home Ministry25 IPS officers may be appointed at the rank of assistant superintendent of police or higher and may be assigned to positions with the state or central governments26.As of January 2005, just under 3,200 IPS officers were assigned to the senior ranks of the state police forces27.
Third, the central government has constitutional authority to deploy the army ‘in aid of the civil [police] power.’28 This authority derives directly from powers granted under successive British colonial-era laws to deploy the army to maintain internal security29Pursuant to this authority, the central government has enacted several laws conferring sweeping search, arrest, and preventive detention authority upon the armed forces, even authorizing them to shoot to kill suspected terrorists or insurgents, and has deployed the army to maintain order in particular moments of crisis.
Finally, the central government has limited authority to investigate and enforce directly some criminal matters that otherwise fall within the ambit of state authority, but may do so only under exceptional and highly constrained circumstances. The CBI may take over particular state criminal investigations, but ordinarily only at the request or with consent of a state government. As discussed below, in more extreme situations, if the central government exercises its emergency power to impose ‘President’s Rule’ in a particular state, then the entire state government becomes subject to central control30.
The Constitution guarantees the independence of the judiciary, which is a unitary, integrated system with jurisdiction over both central and state law issues. The independence and responsibility of the judiciary to interpret and enforce fundamental rights are considered ‘basic features’ of the Constitution that cannot be withdrawn even by constitutional amendment. The judiciary consists of the Supreme Court of India, twenty-one High Courts, and an extensive system of subordinate courts and tribunals which are subject to the broad supervisory jurisdiction of the High Courts. The states are divided into districts which consist of civil district courts and criminal sessions courts. Judicial magistrates are authorized to adjudicate lesser criminal offenses, subject to oversight by the session’s courts, and have supervisory responsibility over police investigations and other pretrial matters.
While the organization and jurisdiction of the Supreme Court and High Courts are, within constitutional constraints, largely subject to central government control, state governments share concurrent authority to regulate the jurisdiction of all courts other than the Supreme Court for areas in which they have legislative authority. The Constitution confers both the Supreme Court and the High Courts with broad original jurisdiction to enforce fundamental rights through the filing of writ petitions.
3. Indian Judiciary ‘ Criminal justice system
The Judiciary has been assigned supervisory role, it cannot take over the investigation process31.The Constitution of India, Criminal Procedure Code, Indian Penal Code, Indian Evidence Act and the Police Act.ets Important Statues for Criminal Justice System.
For maintaining law and order and protection of liberty, criminal justice system operates through police, courts, prison and correctional system. Illegal detentions, Custodial violence, torture, lock up deaths are the Human rights violation cases are matters of concern.
Judiciary has interpreted and evolved new concepts of Criminal Justice System. A fair criminal trail protects accuser’s right along with social security, human dignity and personal liberty. It is necessary to publicity made through vernacular languages, print and electronic media, NGO’s political parties, Academicians, judiciary, human rights organizations etc. to increase awareness of the human rights. Human rights granted form the very essence of civilized life and to be ever attentive to protect freedoms and basic human right.
Indian Constitution and other international documents, Universal Declaration of Human Rights (UDHR) 1948 which says: ‘Everyone is entitled in full equality to a fair and public hearing by any independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.’
The right to life and personal liberty enshrined in Article 21 of the Constitution is of widest amplitude and several un-enumerated rights fall within Article 21.
These rights are:
a) Right to go abroad;
b) Right to privacy;
c) Right against solitary confinement;
d) Right against Bar Falters;
e) Right to free legal aid in criminal trail;
f) Right to speedy trail;
g) Right against handcuffing;
h) Right against delayed execution;
i) Right against custodial execution;
j) Right against public hanging;
k) Right to health care or Doctor’s assistance;
l) Right to Shelter;
Other Rights which have been held to emanate from Article 21 are following:
a) Right to know;
b) Right to compensation;
c) Right to Release and Rehabilitation of Bonded Labour;
d) Right against cruel and unusual punishment;
e) Right of Inmates of protective Homes.
4. Prison Justice System
‘Prisonization symbolizes a system of punishment and also a sort of institutional placement of under trails and suspects during the period of trial. One cannot think of a society without crime and criminals, thus, the institution of prison is obligatory for every country32.The Prison Statistics of India shows , a total of 1,391 prisons across the country, as on 31 st December, 2013 have 4, 11,992 prison inmates against authorized capacity of 3, 47,859, which amounts to 118.4% of occupancy rate. The rate of imprisonment in India, as per number of prison inmates, is 32 prisoners per one lakh population during 2013, which is demonstrably one of the lowest in the world. The prison inmates in India comprise of 67.6% under trials, 31.5% convicts and remaining 0.9% as civil prisoners and detainees33.
Purpose of Prisons
Maintenance of law and order lies in the hands of the state and therefore if a person violates the law of the state and commits crime, he is put behind the bars so that he cannot commit another crime. The place where he is put is called ‘prison’ or ‘jail’. Jail is the oldest institution for incarcerating offenders. It is the portal of the criminal justice system. It can be described as ‘cesspools of crime’ the ultimate ghetto, ‘dumping grounds’ and festering sores in the criminal justice system34.
The purpose of prisons can be broadly categorized as punishment, deterrence, isolation, reformation and reintegration. If a person commits a crime, is put behind the bars. Prison acts as agents of punishment on behalf of the society.
The powers of the trial court are very wide and the legislative intent of providing a fair trial and presumption of innocence in favour of the accused is the essence of the criminal justice system.
A magistrate is competent to direct further investigation in terms of Section 173 (8) Code of Criminal Procedure in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Code of Criminal Procedure to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of Section 210 Code of Criminal Procedure use the expression ‘shall’ requiring the Magistrate to stay the proceedings of inquiry and trail before him in the event in a similar subject matter, an investigation is found to be in progress.
5. International human rights norms
The idea of Human Rights is universal concept for all mankind and it has evolved gradually through the world. It is based on natural rights. The Magna Carta(1215), Petition of Rights (1628), Bill of Rights(1689), Charter of New Plymouth (1620), State of Virginia declaration of rights (1776), French Declaration of the Rights of Man and of the Citizen(1789), Bill of Rights in America (1791),Babylonain laws, Hittile laws, Dharma of the Vedic period in India and sangam literature etc. have roots for the protection of rights of man.
The first democracy use of the expression ‘ human rights’ is to be found in the charter of the United Nations, Which was adopted (after the second world war) at San Francisco on June 26, 1945 and ratified by a majority of its signatories in October that year.
UN’s Universal Declaration of Human Rights (1948), Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights (1966) are international instruments.
India has long recognized the importance of ensuring its own compliance with these international human rights obligations. While international treaties do not automatically become part of domestic law upon ratification35, the Constitution provides, as a Directive Principle of State Policy, that the government ‘shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with one another,’ and also authorizes the central government to enact legislation implementing its international law obligations without regard to the ordinary division of central and state government powers. The Supreme Court of India has frequently emphasized that constitutional and statutory provisions should be interpreted in light of India’s international law obligations 36 and has looked for guidance when interpreting the Constitution’s fundamental rights provisions to the UDHR, which was adopted while the Constitution was being drafted.
India also is bound by customary international law norms, to the extent it has not persistently objected to those norms, and is absolutely bound by norms that have attained the status of jus cogens. In 1993, India established the National Human Rights Commission, an independent government commission whose mandate is to protect and promote international human rights norms. The NHRC is empowered to receive and investigate individual complaints of human rights violations, initiate such investigations on its own, monitor and make non-binding recommendations to the government on domestic implementation of international human rights norms, and promote public awareness of human rights standards. To conduct these activities, the NHRC has the powers of a civil court, including the ability to compel appearance of witnesses, examine witnesses under oath, compel discovery and production of documents, and order production of records from courts and government agencies. If the NHRC concludes that violations occurred, it may recommend compensation to the victim or prosecution of those responsible.
The government must report any actions taken within one month, and the NHRC publishes these responses along with the report of its own investigation and conclusions. The NHRC only may investigate alleged violations within the previous year and may not investigate allegations against the armed forces.
India and International Conventions on Human Rights
Rights UDHR Indian Constitution
Right to Life, liberty and security of person Article 3 Article 21
Probation of slavery, slavery trade etc Article 4 Article 23
Equality before law and non-discriminate Article 7 Article 14 and 15(1)
Right to effective remedy Article 8 Article 32
Right against arbitrary arrest, detention etc Article 9 Article 22
Right against ex-post factor laws Article 11 (2) Article 20(1)
Right to freedom of movement Article 13(1) Article 10(1) (d)
Right to own property and not to be deprived of property (But it was omitted by the constitute (42 Amendment Act, 1978) Article 17 Article 19(1) (f)
Right to freedom of thought, conscience and Religion Article 18 Article 25(1)
Right to freedom of opinion and expression Article 19 Article 19(1) (a)
Right to freedom of peaceful assembly and association Article 20 (1) Article 19 (1) (b)
Right to equal access to public service Article 16 (1) Article 21 (2)
Right to social security Article 22 Article 29 (1)
Right to form and to join trade unions Article 19 (1) (c) Article 23 (4)
6. Balancing Rights of the accused and the victim
The protection of human rights through the criminal justice delivery system is an indispensable feature of any system governed by the rule of law. the protection of human rights have been acknowledged to varying extents across time, but since the Second World War, the universality of human rights has been recognized by the United Nations as inherent in the very nature of human beings ‘ a reflection of their common humanity.
The Constitution of India, in its Part III, guarantees a set of Fundamental Rights to citizens. A few of these rights are also available to the accused, a suspect as well as an under trial. These rights are guaranteed under Articles 14, 19, 20, 21 and 22. Prisoners are also entitled to the benefits of Articles 32 and 226 of the Constitution.
In addition to the fundamental rights, the accused, suspects and under trail prisoners enjoy certain other legal rights provided under the Indian Penal Code, 1860 (IPC); the Criminal Procedure Code, 1973(Cr.P.C); and the Indian Evidence Act, 1872 (IEA).
The Supreme Court of India and High Courts have not only played a vital role in attaching constitutional significance to these rights but, through humane judicial interpretation and acumen, also expanded their contents.
An attempt is made to highlight briefly a few prominent rights of the accused, a suspect, an under trial and to offer some suggestions to ensure their promotion and protection.
Rights of the Accused37
1. Right to Life
2. Right to Speedy Trial
3. Right to Counsel
4. Right to Free Legal Aid
5. Right to Fair Trial
6. Right against Double Jeopardy
7. Right against Self-incrimination
8. Right against Third-Degree Methods
9. Right to Fair Treatment
In India the fundamental rights guaranteed under our constitution is the repository of those inalienable human rights, which inhere in a person. The words ‘life’ and ‘liberty’ appearing in Article 21 has been construed by the Hon’ble Supreme Court of India in an open all encompassing way that it has now matured to an extent not seen in their mind’s eye by the fathers of the Constitution or by the Judges who gave it an initial lustre. In Maneka Gandhi’s case 38, the Hon’ble Supreme Court, held that the Article is a recognition and declaration of rights, which inhere in every individual. It was a major departure from the narrow interpretation of Article in A.K.Gopalan’s Case39.This remarkable expansion of Article 21 paved way for the resurrection of many non-justifiable Directive Principles as enforceable fundamental rights. The word ‘deprived’ used in Article was supposed to impose upon the State the negative duty not to interfere with the life or liberty of an individual without the sanction of law. With the magic wand of judicial activism, Judges imposed a positive obligation upon the State to initiate steps for ensuring to the individual a better enjoyment of his life and dignity. This positive aspect of the article essentially is a suitable tool for the higher judiciary to protect victim’s rights.
The past three decades saw many judgments by the higher judiciary invoking Article 21 to protect the right of the accused in criminal proceedings. Prisoners’ right of speedy disposal 40, handcuffing of prisoners 41, delay in execution of death sentence 42, right to open fair trial 43, are few of the countless number of instances when the Apex court came to the aid of the accused to guard their rights. Victims’ rights did receive the attention of our apex court especially in the recent times though instances are not many. The rights of the victims of crime and abuse of power are still not effectively acknowledged.
The fundamental rights guaranteed in the Constitution of India and other statutory rights, victims can fall back on the International Conventions to which our country is a party, to establish their rights. The Supreme Court in several cases accepted International Conventions as enforceable when these Conventions elucidate and bring into effect the fundamental rights under the Constitution. They have also been read as part of domestic law, as long as there is no inconsistency between the Convention and domestic law44. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantees. This is implicit from Article 51(c) and the enabling power of the parliament to enact laws for implementing the International Conventions and norms by virtue of Art.253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution45.
All Criminal Justice Systems in democratic World have three separately organized parts; The Police as law enforcement agency; The Courts; which, serve to establish the guilt or innocence of the apprehended person and, if his guilt is established, pass sentence upon him as provided by the sanctity of the code violated; and The prison and correctional system. Each one of the components of the Criminal Justice System shares certain common goals.
They collectively exist to protect society, maintain law and order and protect crime. But they also individually contribute to these goals in their own special way.
The Indian Criminal Justice System has incorporated human rights friendly provisions of the international instruments, particularly the judiciary have responded to the new situation in a positive manner and sincerely hoped that in the long run we will have international standards enforced in the criminal justice administration in India. Malimath Committee recommendations are implemented immediately.
1.State of Punjab v.Ajaib Singh, AIR 1953,SC 10
2.Avinash v.State of Maharastra (1983) Cr.L.J 1833 (para 9) Bombay
3.Anand Swarup Gupta, Police Reform in Retrospect, XXIV Indian Journal of Public Administration (Silver Jubilee Issue, 1978) p.59.
4.Ibid. p. 60
5.H.N.Rishbud and Indersingh v.State of Delhi [(1955) 1 SCR 115]
6.Manohar Lal Sharma v. Principal Secretary [2013 STPL (Web) 1017 (SC)] para. 29
7.(1997) 1 SCC 416: 1997 SCC (Cri) 92: AIR 1997 SC 610
8.K.P.Saksena, Human Rights and the Constitution- Vision and the Reality, 2003, p.246
9.Pathumma v. State of Kerala, A.I.R. 1978 S.C. 771
11.Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597;
12.Kartar Singh v. State of Punjab, (1994) 2 S.C.R. 375, 1994 Indlaw SC 525, para. 216.
13.Kharak Singh v. State of Uttar Pradesh, A.I.R. 1963 S.C. 898.
14.Francis Coralie Mullin v. Union Territory of Delhi, A.I.R. 1981 S.C. 746
(available at http://www.redress.org/studies/India.pdf.)
15.State of Punjab v. Baldev Singh, A.I.R. 1999 S.C. 2378
16.Antulay v. R.S. Naik, A.I.R. 1992 S.C. 1701
17.Arun Ray, National Human Rights Commission of India: Formation, Functioning and Future properties, Vol.1, 2004, p.50-52.
18.T. Anantha Chari, Democracy and Social Defence, SEMINAR, Oct. 1977, at 26, 29 (quoting Report of the Delhi Police Commission, 1966-68).
20.Verma, supra note 25.
25. R.K. Raghavan, The Indian Police: Problems and Prospects,Sept. 2003, at 119, 129.
26. R.K.Raghavan, supranote 39, at 131 n.14; seeINDIA CONST. art. 311.
27.MHA, ANNUAL REPORT 2004-05, supranote 37, at 105.
28. Indian Constitution., 7th sched., List I (Union List), ” 2A; see also id.art. 355.
30.http://www.icj.org/IMG/pdf/india.pdf; JAIN, supranote 33, at 190-288, 372-458.
31.State of Bihar v. J.A.C. Saldhana, 1980 SCC (Cri) 272, 286.
32.Dr.Shivani Gosami , Prison reforms in India, Nyaya Deep , Vol.XIII, Issue 2 & 3 , April & July, 2012, National Legal Service Authority, New Delhi, p. 65
34. Dr.Shivani Gosami , Prison reforms in India, Nyaya Deep , Vol.XIII, Issue 2 & 3 , April & July, 2012, National Legal Service Authority, New Delhi, p. 66
35.State of Madras v. G.G. Menon, A.I.R. 1954 S.C. 517.
37. Shivraj B.Nakade. Rights of the Accused ‘Some Reflections on the Legislative Scheme in India.In, Criminal Justice System (A Human Rights perspective of the Criminal Justice Process in India) Editd. Dr.K.I.Vibhute. Eastern Book Company, Lucknow, 2004.pp.129
38. AIR 1978 SC 597
39. AIR 1950 SCR 88
40. Raghbir Singh v. State of Bihar 1987 SC 149;
Ramdas v.State of Bihar 1987 SC 1333;
A.R.Antulay v. R.S.Nayak 1992 SC 1701
41. Aeltemesh v. Union of India, 1988 SC.1765
42. Triveniben v.State of Gujarat 1989 SC 1335
43. Kehar Singh v. State 1988 SC.1883
44. R.D.Upadhaya v. State of A.P. AIR 2006 Supreme Court 1946=2006 AIR SCW 2274
45. Vishaka v. state of Rajasthan [(1997)] 6 SCC 241
46. 1998 CRLJ 4561
47. Jacob George (Dr.) v.State of Kerala, 1994 SCC (Cri.)774; (1994) 2Crims 100.
This essay discusses how the criminal justice system is an important part of the government, allowing for the prosecution, imprisonment, and rehabilitation of criminals. Apart from the court system and police, the criminal justice system has other components like criminal justice agencies that provide additional information for researchers to form studies and articles to help improve the criminal justice system as a whole. This Criminal Justice Essay will help students looking to understand what the system is and what components make up the system. By exploring the core of the criminal justice system, one can understand law and how the government carries out enforcement of the law within the country.
What is at the Core of the Criminal Justice System in the United States?
The Effects of the Criminal Justice System on Crime
Does the Criminal Justice System Need Change?
Selected Title: The Role of The American Criminal Justice System in Crime Prevention
Effectiveness of Current System
Fairness and Racial Profiling
A. Defining Criminal Justice System
B. Racial Profiling
C. Current Trends in the American Criminal Justice System
D. Fairness or Profit?
The criminal justice system in the United States has existed since the colonial era. Although the colonial era brought a European form of justice, the United States would later create its own criminal justice system that includes a prison and court system. None of what the criminal justice system is now was conceived or implemented at one time. Rather, it exists as a collection of progressive moments that culminated in what American law enforcement is today. Although American has improved its law enforcement methods, there are problems that have led to a desire for reform.
The American criminal justice system has roots going as far back as the 18th century. What began as a rebellion against England became a fight for independence and a chance at true freedom; this freedom brought with it a responsibility to serve and protect.
This essay will show how the American criminal justice system has changed from its beginnings in the colonial era to its current manifestation, as well as offer a brief analysis of what has become of the various components of the system from the courts to the prisons and police officers, how these components may have contributed to the racial profiling and profiteering witnessed in today’s criminal justice system.
Defining Criminal Justice System
The criminal justice system can be defined as: “The criminal justice system consists of three main parts: (1) law enforcement (police, sheriffs, marshals); (2) adjudication (courts which include judges, prosecutors, defense lawyers); and (3) corrections (prison officials, probation officers, and parole officers)” (US Legal, 2017).
Aside from these three main components, there does exist criminal justice agencies aim to help the public and criminal offenders through rehabilitation and additional services. These were not part of the American criminal justice system during the earlier phase of the country. Back then there were no prisons or police officers. The system was based off law enforcement in England and France.
The current form of criminal justice system in the United States involves a police force, a court and prison system, and rehabilitation measures. “Normally, the first contact an offender has with the criminal justice system is through police who investigates a suspected wrong-doing and make an arrest. Next is the court, where disputes are settled and justice is administered” (US Legal, 2017). The prison system is where the most changes happened. Although it was not adopted until late into the 19th century and early 20th century, the American prison system was the first system to offer the option to courts to imprison criminals on the state and federal level. Federal prisons provided the option of incarcerating criminals who have committed crimes against the federal government or crimes that affect the country as a whole. But it not in the federal prisons where the problems lie. The main problem lies in the state and local prisons where overpopulation and overcrowding is a continued problem. Here is where many problems in today’s American criminal justice system exist.
Back then there existed two forms of prison systems with Pennsylvania and the Quakers having their own form of criminal justice. “Two different prison systems arose at first. Most states followed a New York prison model called the Auburn plan. It was named after the Auburn Prison opened in 1821 as a maximum-security facility. Inmates were locked in separate cells at night but worked in groups during the day” (Bettman/Corbis, 2017). Americans were the first to implement a true prison system and continue to provide a prison system that changes every couple of decades. These changes can as a result to internal government changes like those brought on by the Civil Rights Movement or due to privatization efforts. The prison system became the main means of rehabilitation of criminals in the United States. The court system and police officers aimed to curb criminal activity via arresting and imprisoning criminals.
This has led to voices of dissent over American law enforcement. The American criminal justice system has transformed and become one that has met many criticisms. One such criticism is the disproportionate incarceration of black Americans versus white Americans. This has become a hot-button topic and has led for cries to reform the criminal justice system. Along with racial profiling are harsher sentences that have led to continued problems among black Americans in gaining employment and avoiding additional arrests.
Racial profiling has led to many problems for the American criminal justice system. Many researchers and journalists have noted the disproportionate arrests and harsh treatments of black and Latino Americans compared to their white counterparts. One article noted how cases like Garner’s help fan the flames of police brutality and racial profiling.
In Garner’s case, for example, police targeted him for the petty crime of selling loose cigarettes — the types of crimes black people are targeted for at higher rates — and then attempted to arrest him with a chokehold, banned by the department. Whatever else we have learned from the recent tragedies of police violence, it is clear that we need comprehensive federal, state and local policies that outlaw racial profiling and rein in police excessive force (Natarajan, 2014).
It seems cases like Garner’s have increased and provided a harsh light on racial profiling and the subsequent police brutality that ensues. Thanks to the growing evidence of the problems brought on by racial profiling, more and more people have asked the American government to create reform in the criminal justice department, beginning with police officers and their treatment of specific populations.
One such areas where Americans want reform is the stop-and-frisk program. “The NYPD’s controversial stop-and-frisk program shows similar evidence of racial profiling, with police targeting blacks and Latinos. In nearly nine out of 10 searches, police find nothing. Likewise, excessive force by police persists despite Constitution’s prohibition on unreasonable searches/seizures” (Natarajan, 2014). Not only is it a wasteful action, leading to potential problems with the public and unnecessary arrests, it perpetuates the fear culture brought on by police officers and their, at times, unfair treatment of people of color. Many accounts exist that highlight the use of such a program to lead to arrests of people that otherwise would not face legal consequences. A simple act of walking away could be seen as combative and police may charge the person with ‘unlawful conduct’ “Racial profiling — as well as profiling based on religion, ethnicity and national origin — continues to plague our nation despite the constitutional guarantee of equal treatment under the law” (Natarajan, 2014).
Accounts of racial profiling are seen not just in these programs, but in simple areas like traffic tickets. Police officers may choose to ticket people more based on their race. “Rufus Scales emerged from the encounter with four traffic tickets; a charge of assaulting an officer, later dismissed; a chipped tooth; and a split upper lip that required five stitches. That was May 2013” (LaFraniere & Lehren, 2015). Rufus Scales was simply attempting to talk to the officers and was tasered, fell to the floor, and sustained an injury. After the injury, he had to appear in court where he was charged.
Rufus’ brother Devin developed a fear of police as have many black Americans. He even carries a card with him for legal help should police unfairly target him like they did with Rufus. “Today, his brother Devin does not leave home without first pocketing a hand-held video camera and a business card with a toll-free number for legal help. Those pervasive doubts about police mirror those of millions of other African-Americans” (LaFraniere & Lehren, 2015). American citizens like Rufus and Devin should not have to fear the actions of police officers. Police officers are meant to serve as the guardians of the criminal justice system, aimed at preventing and stopping crime at the local level. However, police officers have contributed to the problems of criminal activity by perpetuating the cycle of arrests targeted at non-white populations. As the article additionally states, even if white Americans have twice the amount of contraband, due to being white, they are not searched as often. This leads to the discussion of current trends in law enforcement. If racial profiling is leading to increased arrests and increased sentencing in the court system, what effects are coming from such actions?
Current Trends in the American Criminal Justice System
Although the United States has reduced the use of the death sentence in several areas of the United States, the country is widely regarded internationally as one of the few that retain such punishment within its criminal justice system. “Globally, the trend is also toward abolition. All European countries except Belarus have abolished the death penalty. The United States is among a few countries that retain the death penalty and routinely assign death sentences” (Finley, 2016, p. 163). The United States is also moving towards lengthier sentences and away from rehabilitative efforts. Many that support punitive measures rather than rehabilitative, argue that statistics show that imprisoning criminals work.
In its more sophisticated versions, the ‘prison works’ argument is backed by numbingly complex econometric studies that are difficult for ordinary mortals to follow. But it doesn’t hold up, for two fundamental reasons: First, because the data, even those offered by its most ardent proponents, do not really support it: second, and even more importantly, because it wrongly poses the issue in the first place (Currie, 2013, p. 52).
Punitive measures may have decreased crime statistically, but it has not improved how the public feels or handles crime. Statistics show one thing and experience and stigma reveal another. Especially when it comes to overcrowding. Overcrowding is a real problem that exists due to the continued prison sentencing of criminals and the harsher penalties incurred.
If current trends lead to overcrowding and continued use of the death penalty, at the police level, there are more arrests being made leading to higher cases in court. If the judges and prosecutors favor long and harsher sentences like the three-strikes law sentences that have led to prison terms for seemingly petty crimes, what has the criminal justice system become in the eyes of the American public? Some people say that thanks to the existing trends, the police cannot be trusted. This ring especially true for people of color who are arrested most for drug related crimes (Finley, 2016). More arrests for marijuana possession have led to increased prison time for black American males. Finley notes that continued enforcement of police officers towards imprisoning black Americans for searches that produced small amounts of marijuana or cocaine.
Such treatment can be seen as unfair. However, there could be another motive. The biggest recent trend that has grown in the last few decades is privatization of the prison system. The privatization of the prison system has led to reforms politically and socially that have put more prisoners in jail than any other time in American history.
Fairness or Profit?
Looking at the beginnings of private prisons, one can see how such a change could lead to the current problem of overcrowding in American prisons.
While private companies played various roles in American corrections and juvenile justice systems in the past, modern private prison corporations first emerged in the late 1980’s. At that time due to dramatic increases in incarceration rates and in an attempt to reduce spending, the federal government and state governments began turning to private companies for their prison needs. Some states such as Tennessee, even considered full privatization of their prison systems (Finley, 2016, p. 452).
Private prisons are quickly growing and becoming a means of gaining more prisoners and turning those prisoners into a source of profit. As Finley (2016) discusses, prisoners coming back to prison often face longer stays, leading to work inside the prisons like assembly and road cleanup. Although private prisons only make up a small percentage of the prisons in the United States, states like Tennessee have shown interest in full privatization.
Such privatization of seemingly government controlled areas seems unfair. If there is profit, to be made from prisoners, then police officers, those in the court system, and politicians at the White House may act according to where the money flows. Finley (2016), suggests the overcrowding issue can stem from the need to increase profits from private prisons and the lobbyists from the corporations who go to Congress to change, modify, or add laws. Such actions down the line promote high arrest rates, lengthier sentences, and thus overcrowding situations in today’s criminal justice system. The problem has become so bad that researchers are studying cases where overcrowding and actions to alleviate it have led to risky decisions. “The most studied case is Florida, -despite 25,000 new prison beds, a huge influx of drug offenders during the 1980’s resulted in massive prison overcrowding, forcing the state to establish an early-release program, depositing thousands of offenders back into society” (Currie, 2013, p. 46).
Quick releases can be detrimental to not only the prisoners released, but the communities that co-exist with them. If there are no measures in place to help former convicts find jobs, they may turn back to crime. Currie (2013), states those that are released often go right back to prison at a later time due to lack of employment options and resources. One of the biggest changes the American criminal justice system needs is to focus on rehabilitative measures more than punitive measures.
The American criminal justice system is one that has existed for centuries. Although its current manifestation is just decades old, it brings with it roots from England and France, with its own unique interpretation of law enforcement brought in through the creation of prisons. While the history of American law enforcement is rich with changes and reforms, it is also rife with problems. The current problem facing the American criminal justice system is racial profiling and harsh sentencing.
Black U.S. citizens face increasingly long periods of jail time because of laws like the three-strikes law that have led to overcrowding in prisons and some suggesting use of prisoners as a form of free labor. Some blame this recent problem to the privatization of the prison system where companies make money from the labor of prisoners. Whether this has any effect on how other parts of the criminal justice system work is left for debate. What is certain is the lack of desire in law enforcement to provide rehabilitative efforts to criminals. The harsher and longer sentences as research suggests, does little to alleviate crime in American society.
For the American criminal justice system to improve and grow past its current problems, it must look back and see why American needed a criminal justice system in the first place. People wanted fairness and an effective government to combat criminal activity and protect the public. If the criminal justice system fails to do this in the current era, it must make efforts to reform. Reform has existed in the criminal justice system several times from the colonial era, post-American Revolution era, and the civil rights era. Now is the time to offer the public a chance to see true justice come back into law enforcement and provide the kind of protection and fairness people are looking for.
To do this, the American criminal justice system must remove the privatization of prisons. They must remove harsh sentencing. They must end racial profiling. They must aim to rehabilitate the criminal instead of penalizing. These are the major changes that need to take place for the criminal justice system in the United States to take hold. Without these changes, people will have a difficult time believing in American law enforcement and could lead to additional problems.
This has already been seen through increased racial tension in American society. People who are black or Latino have a fear and avoidance of police officers with black Americans noting their fear to go out in public because of police brutality and increased arrests. If these increased arrests are motivated by profit, steps must be taken to avoid police officers, judges, and politicians from fueling these profits. The American criminal justice system is a complex and ever-changing system. It can endure the injustices seen in this era and transform into one that is fair and equal for all.
This essay discussed how the American criminal justice system is just one of many that exist in today’s world. Each country has its own unique interpretation of law enforcement. When looking at America’s criminal justice system, it is important to understand what its roots were and how it has evolved to what it is today. If these essays offer you help in understanding hard-to-tackle topics, feel free to check out other essays for more information.
Bettman/Corbis. (2017). The Early Years of American Law – Colonial Freedom, Britain’s Push For Greater Control, A New Start, A New Criminal Court System – JRank Articles. Retrieved from http://law.jrank.org/pages/11900/Early-Years-American-Law.html
Currie, E. (2013). Crime and punishment in America. Macmillan.
Finley, L. L. (2016). Crime and punishment in America: An encyclopedia of trends and controversies in the justice system. ABC-CLIO.
LaFraniere, S., & Lehren, A. W. (2015, October 24). The Disproportionate Risks of Driving While Black – The New York Times. Retrieved from https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-driving-black.html
Natarajan, R. (2014, December 14). Racial profiling has destroyed public trust in police. Cops are exploiting our weak laws against it. – The Washington Post. Retrieved from https://www.washingtonpost.com/posteverything/wp/2014/12/15/racial-profiling-has-destroyed-public-trust-in-police-cops-are-exploiting-our-weak-laws-against-it/?utm_term=.9b89ddb4b90f
US Legal. (2017). Criminal Justice System Law and Legal Definition | USLegal, Inc. Retrieved from https://definitions.uslegal.com/c/criminal-justice-system/