Bengaluru: Several government decisions and Supreme Court observations and verdicts delivered in 2022 have had, or will have, an impact on the justice system in India. These will have a bearing on the functioning of the judiciary, police efficiency, the issue of arbitrary arrests, and overcrowded prisons systems.

In a year-end look at the justice system, we examine five major Supreme Court and government decisions that can impact the criminal justice process.

SC direction on bail law and undertrial prisoners' release

In July, the Supreme Court directed the Union government to consider introducing a separate bail act to streamline the process of granting bail.

India has one of the highest undertrial populations in the world. As many as 76% of all prisoners in Indian jails are awaiting trial, which compares unfavourably with the global average of 34%.

The problem of undertrial incarceration in Indian prisons, which has troubled the criminal justice system for decades, is also a reason for overcrowding. In November 2022, President Droupadi Murmu highlighted the problem of overcrowding in India's prisons: "We should be closing down existing ones [prisons]" instead of creating new ones, said Murmu.

Following President Murmu's speech, the Supreme Court directed states to furnish information on undertrial prisoners who have been granted bail, but are in jail because they are unable to meet bail conditions. The states are expected to forward relevant data to the National Legal Services Authority (NALSA), the court added, according to a November 2022 Live Law report.

"The court has made the right move," said Maja Daruwala, chief editor, India Justice Report and senior advisor, Commonwealth Human Rights Initiative. There have been directions about processes to be applied in cases of arrests and custody extensions, and on thoughtfully applying bail provisions, but these have to be inculcated in the police and the judiciary right down the line, she said.

Delay in the adjudication process, lack of support for filing of bail applications, or inability to comply with bail conditions in the bail system contributes the most cases of prolonged incarceration, said Medha Deo, programme director, Fair Trial Fellowship Programme, Project 39A, National Law University, Delhi.

But the system needs to definitely identify the issues that led to delays in granting bail, she said. "Unless this question is answered, solutions can only be offered based on anecdotal premises, which may or may not achieve the intended outcomes."

Under a NALSA campaign, conducted between July 16 and August 2022, to release undertrials based on identification of eligible prisoners by the district level Undertrial Review Committee (UTRCs), nearly 25,000 prisoners were released on bail.

According to NALSA data, because of the UTRC's decision, prison occupancy rate decreased by 5.7 percentage points to 124.3%, and the proportion of undertrials similarly decreased by 4.5 percentage points to 72.6%.

"It will take changes all across the practice and culture of the justice system before the number of undertrials can be reduced, and consequently, the high overcrowding is addressed," said Daruwala.

SC puts sedition law in abeyance

In May 2022, the Supreme Court told states to refrain from registering cases for the offence of sedition under Section 124A of the Indian Penal Code (IPC). The sedition law, first passed in 1860, was used by the British to suppress dissent. It provided for punishment for anyone who "excites or attempts to excite disaffection towards the Government", with a maximum of life imprisonment, with or without a fine. After Independence, it has been used by successive Indian governments to similar effect.

In 1973, after changes in the Code of Criminal Procedure (CrPC), the police were allowed to arrest without warrant under Section 124A. The law has been prone to abuse by government and law enforcement agencies.

In a March 2021 response, the government informed Parliament that between 2015 to 2019, 501 people were arrested under Section 124A, but only nine persons, or 2%, had been convicted.

IndiaSpend has asked the Ministry of Law and Justice, and the Law Commission for their comments on the decision to put sedition law in abeyance, and on the bail law. We will update the story when we receive a response.

In a 2018 consultation paper on sedition, the Law Commission noted that "every irresponsible exercise of right to free speech and expression cannot be termed seditious", and that Section 124A should be "invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means".

"Although the ambit of section 124A has been narrowed by the Supreme Court in the Kedarnath judgement, the police seem ignorant of the judgement or wilfully ignore it," said Leah Verghese, research manager at DAKSH, a Bengaluru-based law and justice reforms think-tank. "This explains the high acquittal rates, since the persons arrested have often not committed the offence of sedition."

"There has to be immediate and sure consequences for abuse of office and abuse of power [through the sedition law]; only then will there be real improvements," said Daruwala.

Web portal Article 14's database on sedition reported that in a six-year period until 2020, there had been a 28% annual rise in sedition cases compared to the yearly average between 2010 and 2014.

According to the government's crime data, there was a 83.4% pendency in the police disposing sedition cases in 2021, which included 189 cases pending investigation from the previous year, while the court's backlog was at 97%.

Review of the Prevention of Money Laundering Act

In July 2022, the Supreme Court upheld various provisions of the Prevention of Money Laundering Act (PMLA), including the putting the burden of proving innocence on the accused for granting bail (versus the norm of being considered innocent until proven guilty), defining the powers of the Enforcement Directorate (ED) for arrest and seizure, and making the Enforcement Case Information Report (ECIR, equivalent to an FIR) available to the accused.

In August 2022, a review petition was filed in the Supreme Court, following which the court decided to "prima facie" review the two matters: addressing the presumption of guilt on the accused, and availability of ECIR. The petition had pointed out that if the accused is not given access to the ECIR, it becomes difficult to present evidence to show their innocence.

The definition of money laundering is wide and covers a range of activities, so it becomes easy for the ED to target people under this law, said Verghese.

"The provisions of the PMLA that make bail very difficult and reverse the burden of proof fly in the face of the presumption of innocence which is the bedrock of our criminal justice system," she added. "The reversal of burden of proof is a worrying new trend in criminal legislation."

The concern about the unbridled power to the ED and possibility of abuse of provisions is "contrary to the factual position particularly when all the actions by the ED are subject to judicial scrutiny by the courts", said the ED in an official response to IndiaSpend's questionnaire.

While the powers of punishment are vested with courts, the ED's power of seizure of property "is subject to judicial review and such power is available to anti-money laundering agencies all over the world and Indian money laundering agency is not an exception", the response said.

According to ED data on PMLA, 5,422 cases are under investigation, 400 persons have been arrested and 25 have been convicted until March 31, 2022.

Earlier in July, a government response in Parliament showed that 3,985 cases had been registered between 2012-13 and 2021-22. At 1,180 cases, 2021-22 reported the highest cases registered, four times higher than a decade ago.

The ED's response to IndiaSpend said that it is true that a large number of the cases are at various stages of trial and that, pendency of trial proceeding in a large number of the cases is due to multiple litigation invoked by accused or suspects.

"... out of 32 cases where trial have been completed, [the] accused were convicted for [the] offence of money laundering in 31 cases by the courts," it said. "In other words, [the] conviction rate by ED is about 97%."

Reform criminal laws

In 2020, the Ministry of Home Affairs constituted the National Level Committee for Reforms in Criminal Laws to undertake a review of criminal laws–the IPC, 1860, the CrPC, 1973 and the Indian Evidence Act, 1872 (IEA).

Parliament committee reports over the years have recommended reform in the criminal justice system instead of a piecemeal approach. "...there is an imperative need to reform and rationalise the criminal law of the country by introducing a comprehensive legislation in Parliament, instead of bring amendment bills in piecemeal," said the 146th department-related parliamentary standing committee report (2010) on the Code Of Criminal Procedure (CrPC) (Amendment) Bill, 2010.

The Union government, in March, initiated the process for addressing amendments to criminal laws. According to an April 2022 government response in Parliament, the committee submitted its recommendations in February on various sections of the IPC, CrPC and IEA.

In October, Home Minister Amit Shah said that the government had received multiple suggestions for improvements. "Soon we will be able to present a draft of the new CrPC and IPC in Parliament," he said.

IndiaSpend has asked the Ministry of Home Affairs for comments on changes in criminal laws and the presentation of the draft in Parliament. We will update the story when we receive a response.

Framing guidelines for mitigating factors in death sentences cases

In September, the Supreme Court decided to refer to a five-judge bench the task of framing guidelines regarding potential mitigating circumstances to be considered while imposing a death sentence.

There were 488 death row prisoners in India in 2021, according to Project 39A's Death Penalty in India report. This was the highest recorded since 2004, when it was reported to be 563.

According to Project 39A's Death Penalty and the Indian Supreme Court report, mitigating circumstances are aspects pertaining to an offender's character, background, record, offence, or any other circumstances which, while not constituting excuses or justifications for the crime, might serve as the basis for a lesser sentence.

The referral is "extremely significant" to ensure adequate consideration is placed on mitigating circumstances and procedural fairness is secured before imposing the death sentence, said Shivani Mishra, senior associate (Litigation) at Project 39 A.

"..... the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction," the court noted.

In the Bachan Singh case (1980), the Supreme Court, while upholding the constitutionality of the death penalty, considered a separate hearing on sentence as an important safeguard, added Mishra.

The Project 39A report data from 2007 to 2021 on sentence of death showed that of 106 judgments ending in commutation of death sentences, 94 had reasons for commutation provided and mitigating circumstances were considered, while the rest did not have a clear reason.

Of the 40 confirmed death sentences, 12 judgments (30%) did not consider mitigating circumstances at all, which demonstrated "the failure to comply with the least disputed aspect of Bachan Singh, i.e, the conduct of mitigation", said the report.

During the tenure of N.V. Ramana as Chief Justice of India, three benches of the Supreme Court heard arguments in 15 death penalty appeals, resulting mostly in commutations and acquittals, said Mishra.

"A common thread running across these decisions is a deep and acute concern surrounding the procedural fairness of the imposition of the death penalty and the lack of adequate information about the accused."

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