Can there be justice without the state?

The recent terror attacks remind us of our vulnerability one more time. The blasts have raised a number of disturbing questions about our internal security. However, the political class, rather than address these questions purposefully, has once again brazenly made the tragedies cannon fodder to underline their differences. The government, one more time, has been indecisive - so life continues as usual ... until the next series of bomb blasts.

What are the questions we must confront and answer? While there is a tendency to think of the challenges in terms of 'internal security' alone, what we must really address are the larger questions facing our criminal justice system as a whole, not exclusively the ones on the issue of terrorism. The big question out of all this is: what is our conception of our criminal justice system for the next 20 years? But before we try to answer this, let us look at some ways in which the problems in our criminal justice system manifest in our daily lives.

• These terror strikes are not random occurrences - they feed off of our unwillingness and inability to address the systemic weaknesses in our internal security apparatus. Indeed, the terror attacks raise the big question about how we have thought about and acted on our criminal justice system over the years.

• Another manifestation of the decreasing confidence in our internal security can be seen in well to do neighbourhoods in our cities. If you walk through any of Delhi's upper class neighbourhoods, you may see a "guard cabin" - essentially, a small wooden box to house private guards - in front of several upper income households. These guards provided by private security agencies can also be seen in front of houses in many other cities around the country.

• The lack of confidence in our criminal justice system is also reflected in several other ways. For example, lynching of alleged criminals in Bihar in a bid to seek instant justice, reflects two different kinds of problems: one, that there is no faith in our system to deliver timely justice; and two, that the people involved in lynching episodes believe that the law may not be able to punish them.

• The recent case of two well known Supreme Court lawyers brazenly trying to influence the witness hit headlines recently. The two senior lawyers - R K Anand and I U Khan - convicted for 'obstruction of justice' which is obviously a very serious crime, got away with, what many believe was a very light sentence. In another instance, money being paid to a Punjab and Haryana high court judge as bribe has highlighted what some people say is the tip of the iceberg in the judiciary.

A cursory look at the statistics of our police and judiciary sheds more light on some of the problems in our criminal justice system. According to recent estimates there is one police person for every 700 people in India. This is a very low number when compared to approximately 350 people to a police person in the United States, and 290 people to a police person in the United Kingdom.

National Crime Records Bureau (NCRB) data points out that the rate of completion of trial has dropped from 30.3 percent in 1961 to 14.5 percent in 2005. Experts have pointed out that the data on incidence of crimes collected by NCRB cannot be fully relied on due to systemic deficiencies. However, the overall trends indicating a drop in conviction rates do seem to point to problems in the criminal justice system.

Moreover, the judicial process itself has gaping holes. Pending cases in our court system remain staggering; there are more than 49,000 pending cases in the supreme court, 3.7 million cases pending in our high courts, and a whopping 25 million in district and subordinate courts.

Speaking in November last year, the Chief Justice of India K G Balakrishnan lamented the under-investment by the government in the judiciary. "The Indian judiciary consists of the Supreme Court with 26 Judges, 21 High Courts with a sanctioned strength of 725 Justices (working strength 597 as on 1st March, 2007) and 14,477 subordinate Courts/Judges (working strength only 11767 as on 31st December, 2006). In fact, the Supreme Court in 2002 has directed the State and Central Governments to increase the strength of judges five times over a period of five years. Unfortunately, the government has not yet acted on this, despite mounting arrears and delays."

These are just some symptoms of the deeper malaise that afflicts our criminal justice system. We have under-invested in training our police, we have under-invested in modernising the police force, we have under-invested in our judiciary, we have under-invested in the investigative capabilities of our police. The Indian Police Act, which is the backbone for the functioning of our police system, was passed in 1861. Think about that - the framework for our thinking on the functioning of our police is almost 150 years old! And let us also remember that this law was passed in the aftermath of the so called 'sepoy mutiny' - so it reflects a vindictive, imperial mindset that sought to suppress the population.

At the core of all this, is a lack of accountability and responsiveness of a whole system. The result is a massive erosion in public confidence in our criminal justice system. The recent report on Public Order by the Administrative Reforms Commission carries some important statistics about the perception of various aspects of public order. A whopping 79 per cent of respondents 'were categorical in expressing their dissatisfaction' with the existing system of management of public order. The report goes on to say, "The lack of accountability has been the main reason for the tardy response of the government machinery. Rarely is an official held to account for his/her acts of omission or commission in dealing with a public order problem."

There have been numerous commissions set up to suggest improvements in our criminal justice system over the past three decades and longer. Nothing much has come of these recommendations. And the new draft police act that was drafted in 2006 lies dormant; the Home Ministry, unwilling or unable, to take it forward. My intent here is to draw attention to the specific policy recommendations that these commissions have made. Instead, the effort is to raise the bigger question of the role of the state, and as we have seen, the consequences of the abdication of its responsibility.

By far the biggest impediment in our criminal justice system appears to be a lack of political will within government. Perhaps the need of the hour is not one more commission which will make more recommendations about what needs to be done, but rather, a commission that lays down a step-by-step mandatory course of action for successive governments which seem incapable of taking the bull by the horns and putting citizens first. A news item in the Times of India on 23 September said this: "A fast track court in Barabanki has awarded death sentence to four persons and life imprisonment to 11 others in the murder of a Dalit committed about 15 years ago." Can there be a bigger insult to our imagination of how swiftly a fast track court should deliver justice?

Privatisation of civil security

This lack of confidence in police and the judiciary has provided excellent opportunities for private entrepreneurs to set up private security agencies. Consider these facts: The total number of people in the police force in India is around 1.5 million. The number might somewhat vary depending on how one counts it. By contrast, according to a recent Economic Times report, private security agencies are expected to employ as many as 10 million people over the next 5 years. According to Central Association of Private Security Industry, annual turnover of the segment has touched Rs.22,000 crores last year and is growing at a rate of 25-30 per cent per annum.

It is expected that the majority of these guards will man factories, malls, and other commercial establishments. And of course there is also a rapidly rising number of 'middle class' urban families who live with guard cabins in front of their homes or in gated communities.

Given all the massive problems in our criminal justice system, why should growth in private security agencies complicate matters further? The perception of safety in our privately guarded offices and homes means that the public pressure to invest more in our criminal justice system becomes lower. This investment is not just financial, of course. It needs to be made with a focus on transforming our criminal justice system to something that responds and is accountable to the needs of 21st century India.

Indeed, as former Home Secretary Madhav Godbole says: "This brings us to the question of the primary responsibilities of the state. It has to be accepted that all progress and development will finally depend on whether the state is able to safeguard the life and property of its citizens. In a sense, therefore, the basic functions of the government boil down to ensuring law and order and justice, and providing a social security net for the weaker and neglected sections of society - the very responsibilities neglected by the state all these years. From this perspective, the challenges in the field of police reforms are not only crucial but have acquired new urgency."

The issue of privatisation of civil security is a deeper question that highlights the essential and core role of the state and its contract with its citizens. The fact is that the privatisation of some of these sectors, such as health, education, security is path dependent. For example, if private security agencies become the norm and grow at the pace that the industry association claims it is doing, then we cannot undo that in the years ahead. As the private security industry spreads and provides a veneer of security to citizens and by natural contagion to media and the policy elites, the wider demand for better security to be provided by the state will be weakened.