World Factbook of Criminal Justice Systems

WORLD FACTBOOK OF CRIMINAL JUSTICE SYSTEMS

INDIA

R.K.

Raghavan

Indian Police Service

This country report is one of many prepared for

the World Factbook of Criminal Justice Systems

under Bureau of Justice Statistics grant No.

90-BJ-CX-0002 to the State University of New York

at Albany. The project director was Graeme R.

Newman, but responsibility for the accuracy of the

information contained in each report is that of

the individual author. The contents of these

reports do not necessarily reflect the views or

policies of the Bureau of Justice Statistics or

the U. S. Department of Justice.

GENERAL OVERVIEW

i. Political system.

India attained independence from the British

Crown on August 15, 1947, and became a sovereign

democratic republic on January 26, 1950. The

Constitution of India provides for a quasi-federal

system of government. The President acts as Head

of State. A Council of Ministers, headed by the

Prime Minister, aid and advise the President. The

Council of Ministers is collectively responsible

to the Lok Sabha, the lower house of Parliament.

The country is divided into 25 States, each

headed by a Governor appointed by the Union

Government. A Council of Ministers headed by the

Chief Minister aids and advises him or her and is

collectively responsible to the State Legislative

Assembly. (Article 372 of the Constitution of

India protects all the law in force before the

commencement of the Constitution until altered,

repealed, or amended by the competent Legislature

or authority. It is under this provision that the

common law of the land has survived. This includes

not only the personal laws such as the Hindu Law

and Mohamedan Law, but also the rules of English

common law and customary laws.) In addition,

there are seven Union Territories (including New

,, ?

Delhi, the national capital city) which are

directly administered by the Union Government

through its officials.

The Constitution of India clearly limits the

law-making power of the Union and State

governments in what are known as the Union List,

State List and the Concurrent List in Schedule

VII. Subjects of relevance to the criminal

justice system include the constitution;

organization, jurisdiction and powers of the

Supreme Court of India; and the extension of the

powers and jurisdiction of members of a police

force. Public Order, Police, officers and

servants of the State High Courts and prisons are

within the legislative competence of States.

In sum, the criminal Justice System in India

is a legacy of the British system. It has four

subsystems, those being the Legislature

(Parliament), Enforcement (police), Adjudication

(courts), and Corrections (prisons, community

facilities).

2. Legal system.

The Indian legal system is a mix of

adversarial and accusatorial. In civil law, a

conscious attempt has been made to respect and

preserve the timeworn tenets of both Hindu and

Muslim jurisprudence. (The President of India and

Governors act according to the advice of the

Council of Ministers.) An informal justice system

does operate in the rural areas in civil and

family matters.

3. History of the Criminal Justice System.

The jurisprudence of Ancient India, which

was essentially Hindu-ruled, was shaped by the

concept of "Dharma', or rules of right conduct, as

outlined in the various manuals explaining the

Vedic scriptures such as "Puranas' and "Smritis'

The King had no independent authority but derived

his powers from "Dharma' which he was expected to

uphold. The distinction between a civil wrong and

a criminal offense was clear. While civil wrongs

related mainly to disputes arising over wealth,

the concept of pataka or sin was the standard

against which crime was to be defined. (Basham,

1967; Jois, Vol. I, 1990).

The Mauryas Dynasty, which had extended to

substantial parts of the Central and Eastern

regions during the 4th Century, B.C., had a

rigorous penal system which prescribed mutilation

as well as the death penalty for even trivial

offenses. About the 2nd or 3rd Century A.D., the

Dharmasahtra code was drawn up by Manu, an

important Hindu jurist. The code recognized

assault and other bodily injuries and property

offenses such as theft and robbery. During the

rule of the Gupta Dynasty (4th to 6th Century

A.D.), the judicial hierarchy was formed. The

judiciary was comprised of the guild, the

folk-assembly or the council and the king himself.

Judicial decisions conformed to legal texts,

social usage and the edict of the king, who was

prohibited from violating the decisions. (Pillai,

1983; Griffith, 1971; Thapar, 1990).

India was subjected to a series of invasions

by the Muslims beginning in the 8th Century A.D.

and ending in the 15th century when a mixed race

of Persians, Turks and Mongols set up the Moghul

Empire. They occupied most of the Northern region

and enforced a Mohammedan criminal law that

classified all offenses on the basis of the

penalty which each merited. These included

retaliation (blood for blood), specific penalties

(as for theft and robbery) and discretionary

penalties (Griffith, 1971; Atchuthan, 1983).

India became a nation under the British who

arrived in the early 17th Century as traders of

the East India Company. The Company slowly

acquired territory across the sub-continent,

strictly for commercial operations in the

beginning, but gradually assumed considerable

powers of governance. Considering the Muslim

criminal law to be irrational and draconian, the

Company brought about several reforms through a

series of regulations which modified or expanded

the definitions of some offenses, introduced new

offenses and altered penalties to make them more

logical and reasonable. (Jois, Vol. II, 1990).

In 1857, the large possessions and the

authority enjoyed by the Company were transferred

to the British Monarch by an Act of Parliament.

Until this time, India was a loose collection of

kingdoms, interactions between whom were nominal,

though cultural links were quite pronounced.

An Indian Penal Code (IPC) defining crime

and prescribing appropriate punishments was

adopted in 1860, following the painstaking work of

the First Law Commission, particularly its

Chairman Lord Macaulay. Drawing inspiration from

the English criminal law, the IPC has stood the

test of time. As a sequel to the IPC, a Code of

Criminal Procedure was enacted in 1861 and

established the rules to be followed in all stages

of investigation, trial and sentencing. (Rao,

1991). This code was repealed and a new Code came

into effect in 1974. These two codes, along with

parts of the Indian Evidence Act of 1872, form the

essence of India's criminal law. A large number

of special and local laws such as the Arms Act,

Prohibition Act, Immoral Traffic (Prevention) Act,

etc., take care of various other anti-social

activities.

CRIME

I. Classification of Crime.

*Legal classification. The IPC divides an

estimated 300 offenses into two classes.

Cognizable crimes are those in which a police

officer may arrest the accused or a suspect

without a warrant, and includes murder, rioting,

rape, kidnapping and abduction, robbery, dacoity,

organized robbery, house-breaking and theft. Non-

cognizable crimes are those in which a warrant is

required for arrest and are generally of a more

trivial nature. Crimes can be classified as

"bailable" or "non-bailable", depending on their

severity.(Rao, 1991)

*Age of criminal responsibility. Under the IPC,

criminal responsibility starts at the age of

seven. However, any act by a child between 7 and

12 years old, which would otherwise be criminal,

is free from liability if it is proved that the

child had not attained sufficient maturity of

understanding to judge the nature and consequences

of his or her conduct on the occasion in question.

*Drug offenses. The Narcotic Drugs and

Psychotropic Substances Act of 1985 promulgated by

the Union government is the main legislation

dealing with drug offenses. The Act defines

narcotic drugs as coca leaf, cannabis (hemp) opium

straw, and manufactured drugs, which includes all

coca derivatives, medicinal cannabis, opium

derivatives and poppy straw concentrate.

Psychotropic substances are those listed in the

Schedule of the Act and include, among others,

LSD, DET, and MDA.

The Act prohibits cultivation of coca plants

and the possession, sale, purchase, and use of

coca leaves in violation of the Act and in

contravention of any license granted under it. A

similar prohibition is imposed by the Act for

psychotropic substances. Officers empowered under

the Act include those of the Union Government

(Central Excise, Narcotics, Customs) and the State

Government (including Revenue, Drug Control,

Excise, and the Police).

2. Crime statistics.

The National Crime Records Bureau of the

Union Ministry of Home Affairs in New Delhi

publishes Crime in India annually.

*Murder. There were 39,174 murders recorded in

1991. The IPC defines murder as an act by which

death is caused intentionally. Attempts are not

included.

*Rape. There were 10,410 rapes in 1990. The IPC

defines rape as sexual intercourse by a man with a

woman against her will, without her consent, or

with her consent, if her consent has been obtained

by putting her or any person in whom she has an

interest in fear of death or harm. Attempts are

not included.

*Property crime. There were 10,831 dacoities

recorded in 1990. The IPC defines a dacoity as a

robbery committed or attempted to be committed

jointly by five or more persons. Attempts are not

included.

*Serious drug offense. In 1990, there were 5,299

drug offenses, as established by the Narcotic

Drugs and Psychotropic Substances Act of 1985.

There were 64,234 kilograms of illegal substances

seized. Attempts are not included.

*Crime regions. In 1991, 8 cities recorded more

than I0,000 cognizable IPC offenses each. These

were the four metropolitan cities of Bombay,

Calcutta, Madras and Delhi and the cities of

Ahmedabad, Bangalore, Hydrabad and Pune. The four

districts of Patna, Bhopal, Indore, and Jaipur

also registered more than I0,000 cognizable IPC

offenses.

Murders arising out of land disputes are more

common in rural areas. Suburban areas which have

isolated housing units and are not intensively

policed report a large number of dacoities.

Cities tend to report a large number of pocket

pickings and forcible snatching of jewelry cases.

VICTIMS

I. Groups most victimized by crime.

Due to the absence of survey data, it is

difficult to say whether a particular ethnic or

age group is more victimized than another.

2. Victims' assistance agencies.

A few private voluntary agencies are active

in assisting victims and survivors, particularly

in cases of murder or rape. All of the States

have State-sponsored Legal Advice Boards which

offer free legal advice to the poor, both in

criminal and civil litigation.

3. Role of the victim.

The victim has no role either in prosecution

or in sentencing.

4. Victims' rights legislation.

Under Section 357 of the Code of Criminal

Procedure, when a Court imposes a fine or a

sentence which includes a fine, it may order the

fine to be awarded to the victim in compensation

for any loss or injury caused by the offense. In

cases where no fine is imposed, the Court may

direct the accused to compensate any person for

loss or injury. Section 358 of the Code of

Criminal Procedure provides for compensation to a

person wrongfully arrested by the police.

Until a few years ago, the courts were

reluctant to invoke these sections of law.

Recently, the Higher Courts have been more

inclined to award compensation where no fine has

been ordered.

POLICE

i. Administration.

The Police are a civil authority subordinate

to the Executive, represented in the Union

Government by the Prime Minister and in the States

by the Chief Minister, and their respective

Councils of Ministers. Prominent among the Union

police forces are the Central Bureau of

Investigation (CBI), Border Security Force (BSF),

Central Reserve Police Force (CRPF), Central

Industrial Security Force (CISF) and the

Indo-Tibetan Border Police (ITBP). Each of these

forces is headed by a Director/Director-General

with the status of a three-star General in the

Army. The CBI is controlled by the Department of

Personnel of the Union Government headed by a

Minister of State who reports to the Prime

Minister. The other forces are controlled by the

Union Ministry of Home Affairs headed by a Cabinet

Minister.

The bulk of the Indian Police is comprised of

forces in the States. Each State has its own force

headed by a Director-General of Police (DGP) who

is equivalent in rank to his counterpart in the

Union Government forces. A number of Additional

Directors-General or Inspectors-General of Police

(IGP) who look after various portfolios, such as

Personnel, Law & Order, Intelligence, Crime, Armed

Police, Training, and Technical Services are

located at the State Police Headquarters and

report directly to the DGP. Major cities in a

State are headed by a Commissioner of Police (CP)

who, again, reports to the DGP. Areas outside

these cities in a State are divided into Districts

of varying size. Each district is headed by a

Superintendent of Police (SP) and supervised by a

Deputy Inspector-General (DIG) whose jurisdiction

is called a Range, composed of a group of three or

four districts.

In each District and in the city police

force, the basic police unit is a Police Station

(PS). A few police stations have an Out-post (OP)

which is a mini-station for serving remote or

trouble-prone localities. The number of police

stations depends on the size of the State and the

District. The state of Madhya Pradesh, which is

the largest state in terms of area (443,447 square

kilometers) has i,i01 Police Stations and 554

out-posts. While the larger districts have an

average of 22 Police stations, the smaller ones

have 15. A medium-sized State such as Tamil Nadu,

with an area of 130,058 square kilometers, has

1,090 police stations and 163 out-posts. A

medium-sized District covering an area of about

8,000 square kilometers has about 40 police

stations.

Each police station is headed by a

Sub-Inspector or Inspector referred to as the

Station House Officer (SHO). A designated number

of Constables, the lowest rank in the police

force, and Head Constables are assigned to each

police station. In some States, there are

additional ranks, such as Assistant Sub-Inspector

or Assistant Police Inspector. While urban police

stations often have certain functional divisions

such as Law and Order and Crime and Traffic, no

such divisions exist in rural or village police

stations.

An Armed Reserve at the District

Headquarters, under the command of the

Superintendent of Police, handles public

disturbance problems, such as religious or caste

riots and clashes between political rivals. There

are a few battalions of the Special Armed Police

(SAP) used for more serious situations. The SAP

is deployed by the Director General of Police when

the situation warrants it. For example, if during

a major breakdown of public peace the State Police

are outnumbered and unable to cope with the

magnitude of the disorder, a State Government may

ask for Central forces, especially the Central

Reserve Police Force. The cost of such deployment

is usually borne by the State government.

The Criminal Investigation Department (CID)

is an important arm of every State Police

department. Headed by an Additional Director of

General Police or Inspector General of Police, it

is a specialized agency for conducting sensitive

inquiries into allegations against public figures

or police personnel. More importantly, it is

entrusted with the investigation of important

criminal cases which cannot be solved by the

District Police.

2. Resources.

*Expenditures. There are separate budgets for the

Union and State Police forces. A large State such

as Madhya Pradesh has an annual police budget of

Rupees 3,730 million. A medium-sized State such

as Tamil Nadu has an annual police budget of

Rupees 3200 million.

There are two schemes by which the Union

Government assists State Police departments to

strengthen police administration: the Police

Housing Scheme and the Modernization Scheme.

While the Police Housing Scheme funds the

construction of housing units for lower levels of

police personnel, the Modernization Scheme

finances the purchase of equipment in the areas of

communication, transport and scientific

investigation.

*Number of police. As of December 31, 1991, the

actual collective police strength in the 25 States

and 7 Union Territories was 1,152,586. This

figure includes 13,654 female police personnel.

(Crime in India, 1991, pp.196-200).

Madhya Pradesh, the largest state, has a

police force strength of 86,345, including 1,060

female police. The Constabulary, namely, Head

Constables and Constables, constitutes more than

90% of the force strength in almost every State.

A medium-sized State like Tamil Nadu, with a

population of 55 million, has a force strength of

about 70,000, which includes 1,275 female police

personnel.

As of December 31, 1991, there were 35.1

police officers per 100 square kilometer and 1.4

police officers per 1,000 population in the

country. In Madhya Pradesh, there is one police

station for every 60,165 persons in the

population. In the State of Tamil Nadu, there is

now one police officer per 800 persons in the

population, and one police station per 52,000

persons in the population.

The Law ensures that the police force is

representative of the traditionally poor and

underprivileged sections of the society. There is

a quota of 22.5% for recruitment in every force

for Scheduled Castes and Scheduled Tribes.

Additionally, in some States, there is a

prescribed quota for those listed as Backward and

Most Backward.

3. Technology.

*Availability of police automobiles. Considerable

attention has been given by both the Union

Government and State Governments to increase the

mobility of police through the provision of

passenger cars, jeeps (including four-wheel

drive), trucks, buses and motorcycles. For

example, the Tamil Nadu Police force has a fleet

strength of 3,980. The fleet strength of the

Madhya Pradesh is 3,008. Cars are used for VIP

security duty and for senior officers above the

level of superintendent. All other vehicles are

allotted to teams of personnel at the District or

police station level for patrolling or

investigation work.

*Electronic equipment. Radio communication is

very well organized in most of the forces. Very

High Frequency (VHF) telephones connected by a

large number of relay stations are used to link

the police headquarters to the police stations in

every State. For instance, in Tamil Nadu, 1,015

police stations out of a total of 1090 have been

provided VHF telephones; I01 of the 163 outposts

also have this facility. In Madhya Pradesh, 1,062

police stations and 256 outposts have a wireless

telegraph facility. The State Police have 1,516

static and 590 mobile VHF sets. There is also an

Inter-State Police Wireless (ISPW) which offers a

national grid. At present, the national capital,

New Delhi, is connected to the capital cities of

States and Union Territories through high

frequency radio telegraph and by numerous

teleprinter links.

Fax facilities are also available in a number

of forces. Computerization of crime information

has taken place in a majority of States and is

monitored by the National Crime Records Bureau

(NCRB) working under the Union Home Ministry in

New Delhi. Both mainframe and personal computers

are used. Computer-aided dispatch is yet to be

introduced. (While the use of computers for

personnel management is still limited to a few

police forces, there is the distinct possibility

of widespread use in the near future.)

(Encyclopedia of the Indian Police, 1993)

*Weapons. The most common weapon available at the

police station level is the .410 musket. The

District Armed Reserve police use .303 rifles and

tear-gas guns. The Special Armed Police possess

stun-guns, mortars, light machine guns and A K-47

rifles. A few individual police officers on

special assignments, such as VIP security, carry

revolvers. Bullet-proof vests are generally

available to police assigned to protect high

dignitaries.

4. Training and qualifications.

There are different recruitment regulations

for the Constabulary, Sub-Inspector/Inspector and

Assistant Superintendent (ASP)/Deputy

Superintendent (DSP) levels. While the minimum

educational qualification for the Constabulary

and Sub-Inspector/Inspector is a High School

diploma, an undergraduate college degree is

required for entry into the ASP and DSP level.

Physical requirements include a minimum

height of five feet five inches, good eye-sight

and minimum attainments in a physical efficiency

test consisting of running, jumping, climbing and

throwing. Psychological tests are not yet used in

a majority of forces.

Superintendents of Police (SP) are recruited

every year by the Union Government on the basis of

a national competitive exam and are appointed into

what is known as the Indian Police Service (IPS).

(Although IPS officers are recruited by the Union

Government, they are assigned to each of the 25

States and collectively to the 7 Union

Territories. Positions in the Central forces are

manned partly by IPS officers drawn from the

States and partly by recruitment from the open

market.) The other levels are recruited by the

Union Government forces or by the State

Governments. Superintendents of Police are

trained at the National Police Academy, Hyderabad,

for about a year. At the end of the year, they

also undergo a brief orientation training at the

Police Academy of the State to which each is

assigned. (IPS officers are exposed to a variety

of training programs during their career. These

are given at the National Police Academy or at the

various management institutions.) Almost every

State and Central Police force has its own

training institution. In certain cases, training

resources may be pooled, as in the case of the

North Eastern Police Academy, which covers the

smaller States in that region.

The duration of training varies from State to

State, and with rank. Generally, DSPs and

Sub-Inspectors spend a year at the Academy and

Constables are trained for a shorter period (9

months) at Police Recruit Schools. The training

faculty are normally police personnel themselves.

Only at the NPA, Hyderabad, are outsiders such as

lawyers and management consultants associated with

training programs.

5. Discretion.

*Use of force. The Criminal Procedure Code

permits the use of force by the Police to disperse

an unlawful assembly that threatens public peace.

A police officer acting under this legal authority

cannot be prosecuted except with the sanction of

the Government. The use of deadly force is

permitted as a final resort against an individual

accused of an offense punishable with death or

with life imprisonment if he forcibly resists or

attempts to evade an arrest.

The Constabulary, whose duties generally

involve patrol, carry a long baton (lathi).

Officers may carry a revolver during specific

operations or when the occasion otherwise demands

it, such as during the tour of a VIP or while

patrolling a disturbed area.

* Stop/apprehend suspect. A complaint of the

commission of a cognizable offense is docketed

into what is known as a First Information Report

(FIR). An individual could be arrested by the

Police on a specific complaint or on suspicion of

having committed a cognizable offense. In all

such cases, the arrestee has to be brought before

the nearest Magistrate within 24 hours of the

arrest. Any detention in police custody beyond 24

hours is allowed only with the orders of a

Magistrate. The Magistrate has the authority

under the Criminal Procedure Code to either

release the individual on bail or lodge him in a

sub-jail for pre-trial detainees and those under

investigation. In certain cases, to facilitate

investigation, the Magistrate may permit an

arrestee to be retained in police custody for a

short period.

After completing the investigation and

obtaining legal opinion from the prosecuting

personnel, the police investigator either

establishes a charge-sheet, accompanied by

statements of witnesses, before the competent

Magistrate under the appropriate section of law,

or, in the event of insufficient evidence, files a

Final Report dropping further action. If the

defendant is charged, during the trial, it is the

responsibility of the investigating officer to

assist the Public Prosecutor in every way,

including the production of witnesses.

*Decision to arrest. Police may arrest, without a

warrant and without an order from a Magistrate,

any person who has committed or is suspected to

have committed a cognizable offense. Police may

also arrest persons for the purpose of preventing

the commission of such an offense without a

warrant or order. Very few arrests are made on

the basis of a warrant.

*Search and seizure of property. Normally, a

warrant is obtained by the Police to search a

place. However, when an officer believes that a

material needed for investigation is available in

a certain place and concludes that the loss of •

time incurred by obtaining a warrant would be

prejudicial to the investigation, he may search

the place without a warrant after recording the

grounds for his belief.

Any police officer may seize any property

which is alleged or suspected to be stolen or

which is found under circumstances which create

suspicion of the commission of any offense.

*Confessions. Under Section 25 of the Indian

Evidence Act, no confession made to a police

officer is admissible as evidence. However, there

is a provision in Section 27 which states that

when such confession leads to the recovery of a

material fact (for example, the weapon used in a

murder), the portion of the confession which had

directly led to the recovery can be admitted into

evidence. Also, during the course of an

investigation, a Magistrate may record the

confession of any person after warning the person

that the recording could be used as evidence

against him/her.

6. Accountability.

Complaints of police misconduct are first

handled by the departmental hierarchy.

Allegations of torture or death in police custody

are often probed by the CID. Charges of

corruption are investigated by the Director of

Vigilance who is usually a police officer of the

rank of DGP or IGP and is stationed outside the

department. The Director of Vigilance reports to

a Vigilance Commissioner, who is a high ranking

civil service officer. In some States, police

standing orders provide for an automatic inquiry

into complaints of police torture by a civil

authority called the Deputy Collector. Complaints

can also be made to a revenue divisional officer

who possesses magisterial powers. If the inquiry

proves the complaint to be true, a charge-sheet

under the IPC may be filed in Court against the

delinquent police officers who may ultimately

stand trial as offenders.

PROSECUTORIAL AND JUDICIAL PROCESS

I. Rights of the Accused.

*Rights of the accused. An accused is not

required to be physically present in court and may

be represented by his pleader. The accused is

entitled to receive without delay a copy of the

police report, the first information report (FIR),

and all statements and confessions on which the

prosecution proposes to rely for proving its case.

This privilege also extends to cases initiated in

a manner other than by a police report. All

evidence admitted during a trial shall be recorded

in the presence of the accused or his pleader. If

the accused pleads guilty, the Judge shall record

the plea and may, using his or her discretion,

convict him or her thereon. The system of trial by

jury was given up decades ago.

*Assistance to the accused. Any person accused of

an offense before a criminal court has the right

to be defended by a pleader of his choice. In

cases where the accused has no means of engaging a

pleader, it is incumbent on the Court to assign a

pleader for his or her defense at State expense.

2. Procedures.

*Preparatory procedures for bringing a suspect to

trial. A police investigation and the filing of a

charge-sheet before a Magistrate precede a

criminal trial. If the Magistrate believes that

on the basis of the available record there is

sufficient ground for prosecution, a summons or

warrant is issued. Warrants are used for offenses

punishable with death, life imprisonment, or for

prison terms exceeding 2 years.

When the accused appears before the

Magistrate, the Magistrate ensures that, on the

facts of the case, the charges against the accused

have been correctly framed. This is done after

the Magistrate has furnished a copy of the police

report and other records to the accused. At this

stage or at any time before judgment is delivered,

the Magistrate may alter or add any charge and

explain the charge to the accused.

The trial commences thereafter with the

Assistant Public Prosecutor (APP) examining

prosecution witnesses. However, when the

Magistrate finds that a cited offense is in fact

triable exclusively by the higher Court, namely,

the Court of Sessions, he or she commits the case

to that Court after notifying the Prosecutor.

Except for minor differences, the trials before

Sessions and Magistrate Courts proceed in similar

fashion.

*Official who conducts prosecution. An Assistant

Public Prosecutor, who is usually a full-time

Government counsel, conducts the prosecution in

the Magistrate's Court. A Public Prosecutor (PP)

is also available at every District headquarters

to conduct cases before the Sessions Court. The

Public Prosecutor is appointed on a contract basis

for a specified period. There is also a Public

Prosecutor who is contracted for the whole State

and appears on behalf of the Government before the

High Court. Any person, including a police

officer with a ranking at or above Inspector, who

has not investigated the case may conduct the

prosecution in a Magistrate's Court. This person

may conduct the prosecution after receiving the

permission of the court or the Public Prosecutor\

Assistant Public Prosecutor.

*Alternatives to trial. Indian criminal law does

not provide for plea bargaining.

*Proportion of prosecuted cases going to trial.

While almost all cases before the Sessions Court

proceed to a trial, a substantial number of those

before a Magistrate's Court do not. The difference

is explained by the severity of the cases before

the former.

*Pre-trial incarceration conditions. In cases

where police investigation cannot be completed

within 24 hours of the arrest, the accused is

presented to the nearest Judicial Magistrate. If

the circumstances warrant custody of the accused,

the Magistrate will order a period of detention.

For first-time offenders, 15 days is ordered.

However, such detention periods can be extended to

90 days if the offense is one punishable by death

or imprisonment for more than i0 years or for 60

days for other lesser offenses.

*Bail procedure. The First Schedule of the

Criminal Procedure Code classifies offenses as

non-bailable or bailable. Non-bailable offenses

include murder or attempted murder, causing

grievous hurt, rape, theft, robbery, and dacoity.

A person arrested for a bailable offense may be

released by the police or by a court before whom

he or she is produced. Based on the discretion of

the police or the court, the suspect may be

discharged on his/her own recognizance. An

individual accused of a non-bailable offense

punishable with death or imprisonment for life,

may be released on bail only by the High Court or

a Court of Session. This provision excludes women,

persons below 16 years of age or those who are

sick or infirm.

*Proportion of pre-trial offenders incarcerated.

Nearly 75% of pre-trial offenders are

incarcerated, most for 1 or 2 days. Only about

25% of pre-trial offenders may be expected to be

in jail during the trial. While no national data

exists, the number of prisoners awaiting trial in

Tamil Nadu prisons was 607 as of June 1993.

JUDICIAL SYSTEM

i. Administration.

Supreme Court. The highest Court of the land is

the Supreme Court of India located in New Delhi.

Other judicial bodies at the Union level take the

form of tribunals whose members may be from the

judiciary or from the civil service. The Supreme

Court of India is a court of records and hears

appeals from any judgments of a High Court. It

has the power to issue prerogative writs in the

nature of habeas corpus, mandamus, prohibition,

quo warranto and certiorari in the enforcement of

fundamental rights (Sandhu and Choudhuri 1987).

High Courts. Each State or a group of States has

a High Court. This is also a court of record

which hears appeals from the district courts and

has the power to grant writs.

Court of Sessions. Below the High Court is a

Court of Sessions of which the Judge, in his or

her capacity as District Judge, also handles civil

cases. There are a few Additional and Assistant

Judges exercising the powers of the Sessions Judge

in specified offenses.

District Courts. At the district level, the lower

criminal courts (sub-divisional courts) are headed

by Magistrates (sub magistrates and sub-divisional

magistrates) with jurisdiction over offenses

listed in the First Schedule to the Criminal

Procedure Code. One of the Magistrates in a

District is appointed as the Chief Judicial

Magistrate. Magistrates commit for trial to the

Court of Sessions certain offenses, such as

murder, which are exclusively triable by Sessions

Judges. Magistrates are competent to try and

dispose of lesser offenses. (To oversee and

assist the Police in the maintenance of public

peace, particularly in matters such as dispersal

of an unlawful assembly posing threat to public

tranquillity and the handling of disputes over

immovable property, the Criminal Procedure Code

empowers the Government to appoint a few Executive

Magistrates. Executive Magistrates are civil

servants who look after Magisterial functions in

addition to their own administrative duties. The

most senior civil servant in a District, namely

the Collector/Deputy Commissioner, is appointed as

the District Magistrate.)

2. Special courts.

The Criminal Procedure Code empowers the High

Court, upon being requested by the Union or State

Government, to confer on any person the powers of

a Judicial Magistrate to try particular cases or

classes of cases. Special courts exist for

handling a variety of problems, including

terrorist violence, family disputes, juvenile

delinquency, theft of forest wealth, corruption

among public officials, and various socio-economic

offenses (such as adulteration, hoarding and

black-marketing of essential food articles).

Judges presiding over such courts sometimes look

after IPC offenses.

3. Judges.

*Number of judges. Including the Chief Justice,

the Supreme Court of India has 26 Judges. The

number of judges varies in the State High Courts.

One of the medium-sized High Courts is Madras with

24. Increasingly, female judges are being

appointed at all levels. At present, there is one

female on the Supreme Court. There is no regional

or ethnic quota for the higher judiciary.

*Appointment, training, and qualifications.

Judges of the Supreme Court and the High Courts

are appointed by the President of India acting on

the advice of the Executive and after a process of

consultation with the existing Judges. Judges who

have sat on a High Court for at least 5 years, or

have practiced as an Advocate in a High Court for

I0 years, or a person who, in the opinion of the

President, is a distinguished jurist, are all

eligible for the Supreme Court.

Anyone who has held a judicial office for I0

years or has been an Advocate in a High Court for

i0 years is eligible for a position on the High

court. Sessions Judges are appointed by the State

Governor in consultation with the High Court.

Other judicial appointments are made by the

Governor after consultation with the State Public

Service Commission and the High Court.

PENALTIES AND SENTENCING

i. Sentencing Process.

*Who Determines the sentence? The trial judge

determines the sentence.

*Is there a special sentencing hearing? There is

no special sentencing hearing. At the end of a

trial, the sentence is wholly determined by the

Judge, who delivers the sentence. The accused is

required to be present in Court at this time,

unless absence at the trial had been previously

approved or if the sentence is a fine.

*Which persons have input into the sentencing

process? No other per{on (social worker,

psychiatrist or victim) has input in the

sentencing process.

2. Types of Penalties

*Range of penalties. Available penalties include

the death sentence, life imprisonment,

imprisonment, forfeiture of property, and fines.

Under certain circumstances, a person under 21

years of age who is convicted of an offense

punishable with a fine or with imprisonment for 7

years or less may be released on probation.

Community-based treatment is also available.

Probation with and without supervision is the

primary community based treatment. The probation

department functions under the Home Department in

most states and under the welfare department in

the other states. Generally, punishment takes the

form of a term of imprisonment or fine or some

combination of both.

*Death penalty. A death sentence can be imposed

for murder and for specified offenses against the

State which include waging war against the

Government of India, attempting or abetting war or

mutiny. Special reasons have to be given for

imposing the death penalty. For instance, in

addition to the above circumstances, the death

penalty can be imposed for abetting the suicide of

a child, an insane or delirious person, an idiot,

or an intoxicated person. The death penalty can

also be imposed when an individual serving a life

sentence attempts to murder, even if a non-fatal

injury results from the attempt.

Execution is by hanging. While nationwide

figures on executions are not available, inquiries

indicate that in Tamil Nadu, two to three persons

are hanged each year.

PRISON

I. Description.

*Number of prisons and type. As of April I, 1992,

there were 1,155 prisons in India. These included

86 Central Prisons, 252 District Prisons and 718

sub-jails.

In a typical State, such as Tamil Nadu, there

are five categories of prisons. In Tamil Nadu

there are 8 central prisons, which are used for

convicts serving one month or more, 2 special

prisons for women, which are used for female

convicts serving more than 1 month; 113 sub-jails,

which are used for convicts serving less than 1

month or awaiting trial; 1 Borstal School used for

adolescent convicts from 16 to 23 years old; and

one Open Air Prison. In addition, some States

have a District Prison which accommodates convicts

serving a term of 1 year or less.

*Number of prison beds. As of April i, 1992, the

total prison capacity of India was 193,987. The

State of Tamil Nadu is at 50% capacity, with a

prison population of 18,228. Women account for

less than 5% of the total Indian prison

population.

* Number of annual admissions. Information not

obtained.

*Average daily population/number of prisoners.

Information not obtained.

*Actual or estimated proportions of inmates

incarcerated. Information not obtained.

2. Administration.

*Administration. The administration of Prisons in

India is the sole responsibility of the States.

All prisons are managed by State governments or by

the Union Territory administration. The Central

Government is largely concerned with policy

formulation and planning services. In each State,

the head of prison administration is an Inspector-

General who is usually a police officer. He has a

few Deputy Inspectors-General to look after the

jails in each of the various geographical ranges

into which the State is divided. In the state of

Tamil Nadu there are four such Ranges.

Prisoners are classified on the basis of

age, sex, mental health, nature of offense

(criminal, civil, or security), and the frequency

of the commission of crime. In Tamil Nadu

prisons, prisoners are categorized into A and B

classes. The criteria for A class are social

status, education, style of living, character and

antecedents. Those convicted for offenses

involving gross depravity of character or for

offenses against society are not eligible for A

class.

The Central Prisons and the jails have both

custodial and treatment staff who include medical

doctors, psychologists, welfare officers, social

workers, teachers and vocational instructors. The

hierarchy of custodial staff in the prison system

takes the following form: superintendent, jailer,

deputy jailer, assistant jailer, head warders,

warders.

*Number of prison guards. Prison guards are known

as warders, who are supervised by head warders.

While no national data is available, as of 1993,

the state of Tamil Nadu had 2,108 warders, 347

head warders, and 33 chief head warders, of which

76 were female.

*Training and qualifications. While no national

data is available, the basic qualification for

recruitment of warders in the state of Tamil Nadu

is a High School diploma. They are put through a

six-month training program in discipline, the

principles of prison administration, and the

practice of correctional procedure.

*Expenditure on Prison system. While no national

data is available, during the fiscal year 1992-93,

the Tamil Nadu Prison Department had a budget of

Rupees 238 million.

3. Prison conditions.

*Remissions. Different scales of remission exist.

For instance, 2 days per month for good conduct or

work done while in prison can be given. Convicts

employed in prison services such as cooking and

sweeping and who must work on Sundays and other

holidays get 3 days of remission every quarter.

There is also a Special remission of 30 days a

year for maintaining prison discipline.

Parole is allowed in the form of emergency

leave (15 days yearly) and ordinary leave (30 days

yearly) for participating in family ceremonies,

such as marriages or funerals and for attending to

domestic problems like enrollment of children into

school and repairs to one's home.

*Work/education. Prisoners sentenced to rigorous

imprisonment are assigned the appropriate class of

hard, medium, or light labor under recommendation

of the medical officer. Purposeless and

non-productive forms of labor are avoided.

Prisoners are often taught trades such as

carpentry, tailoring, weaving, and book binding.

Every central prison has an elementary school

with qualified teachers. Adult education is

available for all prisoners. Attendance is

optional. Prisoners can also enroll in distance

education programs, such as university

correspondence courses. There are many instances

of prisoners receiving under-graduate and graduate

degrees.

*Amenities and Privileges. Vegetarian and

non-vegetarian food is provided at fixed costs,

which are slightly higher for A class prisoners.

A special diet is available to women and their

babies, and to sick prisoners on medical advice.

Each central prison has a hospital with a

part-time medical officer. Writing and receiving

letters and interviews with relatives are

permitted. Recreation in the form of games, yoga,

television watching and meditation classes are

also available.

EXTRADITION AND TREATIES

*Extradition. India has entered into bilateral

extradition treaties with Nepal, the United States

of America, Uganda, Bhutan, The Netherlands,

Belgium, Canada and the United Kingdom (including

Northern Ireland). India is a member of the South

Asia Association for Regional Cooperation (SAARC)

Convention on Suppression of Terrorism along with

Pakistan, Sri Lanka, Bangla Desh, Nepal and the

Maldives. The Convention provides for the

extradition of fugitive offenders.

*Exchange and transfer of prisoners. Information

not obtained.

*Specified conditions. As a general rule,

offenses of a political nature are excluded from

the purview of extradition. Also, the return of a

fugitive criminal to India is sought only if the

offense with which he is charged is recognized by

the extradition treaty with the country from which

such extradition is sought.

SOURCES

Basham, A.L, The Wonder that was India. London:

Sidgwick & Jackson, 1967.

Constitution of India, 1950.

Criminal Procedure Code, 1974.

Ghosh, S.K, and Rustamji, K.F (Ed.) Encyclopedia

of Police in India. New Delhi: Ashish

Publishing House, 1993.

Govt. of Tamil Nadu, Policy Note on the

Administration of Jails, 1993-94. Madras,

Home Department, 1993.

Griffith, Percival, To Guard My People: The

History of the Indian Police. Bombay: )~llied

Publishers, 1971.

Indian Penal Code, 1860.

Jois, Rama, M°, Legal and Constitutional History

of India, Vol. I & II. Bombay: N.M.Tripathy

Ltd., 1990.

Mohanty, A. and Hazary, N., The Indian Prison

System. New Delhi: Ashish Publishing House,

1990.

National Crime Records Bureau, Crime in India

1991. New Delhi: Ministry of Home Affairs,

November 1992.

Pillai, Atchutan, Criminal Law. Bombay:

N.M. Tripathi, 1983.

Rao, Venugopal., Criminal Justice. Delhi: Konark

publishers, Pvt. Ltd., 1991.

Thapar, Romila., A History of India, Volume I.

London: Penguin, 1990.

Additional

R.K. Raghaven

Professor and General-Director of Police

Indian Police Service

3 Sir Ramaswami Street

Vepery, Madras 600 007

India