The process is the punishment in India

SINCE the dawn of our Republic, India has been subject to a criminal justice system whose procedural soul was forged in the crucible of colonial subjugation, never designed for a vibrant, raucous and fractious democracy driven by due process, equal protection and the presumption of innocence.

What was heralded by the Union government in December 2023 as a ‘decolonising moment’ to indigenise our criminal law framework — the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and its sister statutes — belies a far more stubborn and insidious continuity.

The mere substitution of nomenclature, Dand (punishment) with Nyaya (justice) or Aapradhik Prakriya with Nagarik Suraksha, is a legislative sleight of hand that does not alter the fundamental architecture of the system. The BNSS, for all its promises of expeditious trials and technological modernisation, leaves the foundational power dynamics perilously unchanged.

The administration of justice requires more than philological revisionism: a fundamental re-imagination of the relationship between the investigating State and the accused citizen.

Successive re-enactments, from the Code of Criminal Procedure (CrPC-1898) to CrPC-1973 and now BNSS-2023, have tinkered at the margins, adding layers of judicial oversight and procedural niceties, but do little to surgically exorcise the original sin of the system: the control of the investigative and prosecutorial machinery by a partisan executive.

The police retain their near-unfettered powers to arrest, detain and investigate, powers too often exercised not as a solemn duty to unearth the truth but as a tool for political vendetta or a blunt instrument to instil fear. The power concentrated in the hands of the police remains a colonial feature and not a systemic bug.

The tragedy of this criminal system lies in the infinitesimal quality and integrity of the investigation and the prosecution that succeeds it. Legal safeguards for the accused remain parchment barriers, weakly enforced against law enforcement agencies. Ergo, the investigative branch becomes both a sword for the government to smite its opponents and a shield for the powerful to evade accountability.

This weaponisation of investigative agencies (CBI, ED and NIA) is a corrosive practice divorced from justice that shatters the social contract. The State, which has the monopoly on legitimate force, is honour-bound to protect individual rights. When that force is deployed to deprive an individual of his/her liberty for extraneous reasons, the contract collapses and the State descends into illegitimacy.

To ensure that the lofty ideals of the new Sanhitas are not suffocated by old pathologies, a denouement of executive control is imperative. The supervisory strings over investigation and prosecution must be wrested from the hands of the partisan (often legally untrained) ministerial executive and handed over to a legally astute, constitutionally mindful and operationally independent authority.

The first principle of this reform is to replace a system driven by the calculus of political vendetta with one accountable to the satisfaction of legally trained minds and the standards of evidence.

An investigator, often poorly versed in the exacting standards of proof beyond reasonable doubt, currently operates in a vacuum, paving the way for overburdened prosecutors to mechanically send files for trial. Should the investigation, from its inception, be guided and supervised by a senior legal practitioner — a directorate of prosecution — the entire process would be infused with a forensic rigour it currently lacks. The prosecutor must be statutorily obligated to satisfy himself on the substance of the evidence collected and that its integrity substantively points towards the guilt of the accused, not merely that it provides a pretext for a chargesheet.

A viable model for this lies within our own constitutional scheme: the offices of the Attorney General and the Advocate General at the Centre and in the states. Though they are political appointees, the Constitution sets a formidable bar, requiring these law officers to possess distinguished legal acumen and experience. The Attorney/Advocate General must be appointed by a committee consisting of the Prime Minister/Chief Minister, Leader of the Opposition and the respective Chief Justice.

This is not an unprecedented fantasy. The problem of arbitrary, capricious, mala fide and partisan prosecution that plagued the US in the 19th century was surmounted by an 1870 law that placed all federal prosecutors under the Attorney General, leading to the creation of the Department of Justice (DOJ).

Unlike their Indian counterparts, US probe agencies operate under the legal and professional supervision of the DOJ, and not overtly under a partisan minister. The contemporary public debate in the US concerns the independence of the Attorney General, a debate we are yet to even commence in earnest. We remain mired in a system where the executive and the prosecution branches are virtually fused. It obligates no detailed weighing of the prosecution evidence and allows the court to proceed on a presumption of commission of the offence, leaving the solitary accused pitted against the mighty State, with no meaningful opportunity to plead even an open-and-shut defence at this nascent stage.

The courts must be statutorily required to find that a prima facie case against the accused is made out, a higher threshold that demands a diligent appreciation of evidence before the ordeal of a trial is unleashed upon them.

The cases of former Brazilian President Jair Bolsonaro, French politician Marine Le Pen and Russian Opposition leader Alexei Navalny illustrate the perils of unfettered investigative powers vested in partisan actors in heavily polarised democracies.

The law of procedure, as is said, must be the handmaid of justice, not its mistress. The Supreme Court, in Vineet Narain vs Union of India (1997, Hawala judgment), recognised this profound truth and attempted to insulate the CBI by mandating a degree of autonomy. Yet, that vision remains largely unfulfilled, its spirit diluted by subsequent executive and legislative manoeuvres. The duty to dispense justice, therefore, falls not just on the judges, but more fundamentally, on the prosecutors and investigators who build the case. They must be guided only by the light of evidence and the compass of the law.

Until we possess the courage to undertake this structural emancipation, the new Sanhitas will remain but old wine in a new, and deceptively labelled, bottle. And the insanity of expecting different results from the same processes will continue to extract its great human cost — the cost of liberty, rights and the presumption of innocence on which the entire legal edifice stands.