Criminal Justice System: Concept and Modes

Criminal Justice System, hereinafter CJS, is a system of law which deals with the arrest, prosecution, defence or sentencing and punishing of the individuals— who are suspected to have violated some penal law.[1] According to Black’s Law Dictionary, it is considered as a network of courts, tribunals and institutions— which deals with the enforcement and adjudication of criminal law.[2] Experts say that ‘criminal justice’[3] is a generic term/noun used to describe the procedure, which is based upon the fundamentals of:

·         Investigation of criminal conduct, by

·         Making arrests,

·         Gathering evidences,

·         Filing charges,

·         Examining witnesses,

·         Raising defences,

·         Conducting trials,

·         Rendering sentences, and

·         Punishing convicts,

In common parlance, it is a system used for the ‘implementation and adjudication’ of criminal law in a particular legal system. Though, the aims and objectives are same, but different countries apply different modus oprendi to ‘implement and adjudicate’ the criminal law. Ordinarily, there are two modes of seeking truth in a CJS, which are—

1.      Adversarial Criminal Justice System, (ADS)

2.      Inquisitorial Criminal Justice System, (IQS)

Before discussing the duo, let’s first make it certain that not even a single system among them is considered as absolute. Both form as a methodology to do the justice, and depend, mostly on the nature of a legal system. That is to say, ‘adversarial and inquisitorial’ criminal justice systems are found in ‘common law’ countries like— England, USA, Australia and ‘civil law’ countries like— France, Spain, Germany.

An adversarial system is a scheme of jurisprudence, wherein a judge, jury or presiding officer comes to a decision in an openly contested (criminal) conflict/controversy among the parties, asserting contradictory positions, during a formal judicial examination loosely called as ‘a trial’.[4] In simple words, it a method of establishing truth by way of structured and well controlled trial through the implementation of definite criminal procedural guidelines. The ultimate dogmatism of this system is akin to moto of a sports game, ‘who wins and who loses’. It is said to have come into existence in 1600s in England; after sixth amendment in USA, and in India after the codification of CRPC, 1898[5].

Take an example of India, state enters into the shoes of a victim and takes an accused to the court where ultimately charges are filed and evidence is produced to prove the guilt or innocence, by way of a contest. In order to give the decision, courts act as a referee, or a non-partisan party between the prosecution and defence. Both parties are given a so called equal opportunity to prove their stand. Same position is in the USA, and other common law countries as well as the most Asian countries like Pakistan, Bangladesh etc.

Critics believe that adversarial system has an inherent flaw of being lazy and slow. It takes years to reach to a decision, and after the considerations like right to appeal/review— years are wasted for the final determination of the guilt/innocence. It is viable to be misused. The party who could afford/engage efficient lawyer has more chances to win, even if it is guilty, in a real sense.[6] Whereas the proponents argue that such a system ensures the impartiality, fairness, rigidity and allows no procedural leakages, or arbitrary discretion to prevail.

As compared to above, an inquisitorial system is an application of criminal jurisprudence wherein a judge investigates the facts, interviews the witnesses, adduces the evidences and renders a decision after a proper application of mind. He doesn’t act as referee, but a judicial officer, whose discretion/satisfaction is most valued for the sake of administration of justice. Most Western European countries have this system in place, and it is said that until the first fall of 17^th century inquisitorial system was prevalent. The criminal trials were unstructured, and defendants had an opportunity to produce their counsel.[7]

The search to carve out the truth, according to the inquisitorial system, needs more active role of the judge. They believe that people have the tendency to manipulate the third person, thus, to arrive a decision— a judge must have everything, from an investigating agency to enforcement authority, at his disposal. It is also said, this system is least influenced by the corruption and is isn’t influenced by bribery.

In order to understand where these two systems are poles apart, let’s go through this comparison:

1.      Nature of Investigation: The ADS aims to get the truth through an open contest between the prosecution and the defence. The IQS generally aims to get the truth of the matter through extensive investigation and examination of all evidence.

2.      Trial: In an ADS parties determine what witnesses they should call, and what evidence they adduce. In an IQS the conduct of the trial is in hands of the court, and a trial judge determines what witnesses to call & order, in which they are to be heard.

3.      Value of Precedents: In ADS previous decisions by higher courts are binding on lower courts. Each case is determined according to its own facts, in an IQS.

4.      Role of Lawyers: The lawyers are known as officers of court. They file litigations, and represent the parties very actively. In an IQS the rule of lawyers is passive.

5.      Role of Judges: The judges pronounce judgment depending on the hearing, evidence or, on the basis of examination & cross-examination, in an ADS. Whereas, the judges, play an active rule for questioning & hearing the parties directly, in an IQS. In the former, the rule of the judges is merely passive in nature, and in latter the rule of the judges is very active. The case management does not depend upon the judges, so the judge’s contribution is very low for the disposal of any case in an ADS. The case management depends upon the judges, so the judges’ contribution is very high for the disposal of any case in an IQS.

6.      Priority: Parties, in ADS, producing the evidence, or witnesses get priority to analyse and examine that in front of the court. In an IQS documents and information about the real facts get priority.

7.      Case Management & Communiqué: Case management doesn’t involve interactions in ADS, and is not effective under this system, because the judges cannot exchange views with the parties for taking any decision. So no initiative can be taken for speedy disposal of any case. Whereas, case management is effective under IQS. The judge sits with the parties. And, can exchange views for taking any decision for speedy disposal of any case. In an ADS, judge has a discretionary power, but that is controlled by the evidence. In an IQS, judges have wide discretionary power. 

After the brief discussion, and arguments, it becomes evident to say that ‘both ADS and IQS are basically a sense of systematic understanding/belief to ensure that an offender shouldn’t escape the clutches of penal procedure, once he has faulted it. A close examination reveals that both systems should be transformed to create a Hybrid Criminal Justice System, wherein the scope of justice isn’t discretionary, but natural, swift, certain and fair too.

 

 

 

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[1] Oxford Languages Definition

[2] https://blacks_law.enacademic.com/6659/criminal_justice_system

[3] https://legal-dictionary.thefreedictionary.com/Criminal+justice+system

[4] https://legal-dictionary.thefreedictionary.com/Adversary+System

[5] The Code of Criminal Procedure, 1898. (Act No. V of 1898). [22nd March, 1898]

[6] ibid

[7] Ibid, https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-legal-systems.html

J&K Municipal Corporation Act, 2000

J&K Municipal Corporation Act, 2000: An Analysis of following Provisions.

1. Functions of Corporation  

2. Building Regulations         

3. Building Procedures, Powers and Penalties. 

4. Appointment and functions of Commissioner.

 

1. Functions of the ‘Municipal Corporation’

A municipal corporation/committee can be defined as an autonomous, or a self-government institution constituted for the purposes of regulation of local affairs, either in cities or in towns. In J&K, there are two Municipal Corporations (one each in Jammu & Srinagar). And as many as 20 Municipal Committees (one each in every district). Both Corporations and Committees have been constituted under Section 3 of the Municipal Corporation Act, 2000, and have been assigned a number of functions, which can be categorized into the following—

a.      General Functions/Powers. (Section 41)

b.      Obligatory functions. (Section 43)

c.       Functions entrusted by Governments. (Section 42), and

d.      Discretionary functions of the Corporation. (Section 44)

 

a.  a. General Powers/Functions.

According to Section 41 of the MCA, 2000— a municipal area is entrusted to the Corporation, or a Committee, which has been constituted for it. In other words, it means, every Corporation/Committee is responsible to manage to the local area, which comes under it. For instance, ‘Srinagar’ is under Srinagar Municipal Corporation; ‘Kulgam’ is under Kulgam Municipal Committee and similarly every District/city falls under its respective Committee/Corporation[1]. These bodies are duty-bound to take decisions and pass the resolutions, in relation to the financial, as well as other important matters.[2]

b.      Obligatory functions.

Obligatory functions are the functions, which are compulsory, binding, or incumbent in the convention. These functions, as a matter of obligation, are necessary to be discharged by Committees/Corporations. In case of failure, a corporation can be held responsible. Section 43 of the Act deals with such functions. It imposes a number of ‘obligations’ on the Corporation to fulfil its role. In this regard, the corporation/committee may take suitable measures to— 

1.   Construct and maintain the drainage system, including public toilets and other similar facilities. Apart from this the body is also responsible for the construction, maintenance and providing of water supply in its vicinity.

1.   Construct and maintain the drainage system, including public toilets and other similar facilities. Apart from this the body is also responsible for the construction, maintenance and providing of water supply in its vicinity.

2.      Keep its localities healthy, and remove filthy, rubbish or other obnoxious material, which may cause pollution or annoyance. In this regard, measures can be taken to prevent the spread of diseases.

3.      Construct and maintain the cattle pounding.

4.      Regulate and maintain the dedicated sites, which are meant for the burial/disposal of the dead bodies.

5.      Construct, maintain and regulate the Municipal Markets, in a way to prevent the dangerous, as well as offensive trade practices.

6.      Build, maintain and regularly improve the roads, bridges, paths, and etcetera. Apart from this, the corporation has to assure that there’s no obstruction on such places, which might cause inconvenience to the public in general. Streets and other premises need to be ‘named and numbered’. Moreover, they also have to maintain the municipal offices, and secure such sites, which may be dangerous to access.

7.      Regulate, and upkeep the recreational places, e.g., public parks, gardens etc.

8.      Preserve, protect and develop the ‘monuments, memorials and other valuable properties, which have been entrusted to their management. For this purpose, the committee has to ensure the survey of the buildings, and lands falling within its area.

9.      Implant trees for ‘roadside greenery’, and fulfil such obligations, which may be entrusted to their management from time to time.

 c.       Functions entrusted by Governments.

As already stated in Section 41 of the Act, a municipal corporation/committee is ‘wholly and solely’ responsible for the management of the affairs of a particular locality. Section 42(1), however, authorizes the Government to entrust the corporation with the powers, which they deem necessary for its ‘local self-governance. The expression ‘entrust’ means ‘to confer trust’, or ‘to deliver something in trust’. Hence, whatever functions are ‘notified to the corporation’, must be delivered efficiently, and without any compromise. The committee may be asked to—

1.      Prepare and present an extensive plan in relation to the economic development, and social justice.

2.      Carryout their functions actively, and ensure the implementation of different schemes in relation to…

a.       The regulation of ‘use of land’, ‘construction of buildings, roads, and bridges’.

b.      The ‘economic and social development’ of locale.

c.       The ‘supply of water (industrial and domestic)’, ‘public health’, ‘sanitation or ‘solid waste management’, and ‘up gradation’ as well as ‘improvement of slums’.

d.      The preservation, protection, and promotion of environment including ‘ecological aspects of environment’ including ‘urban forestry’.

e.       The ‘alleviation of poor in urban areas’ including the ‘interests of weaker sections, handicapped and mentally retarded’.

f.       The dedicated sites, e.g., ‘burial grounds/sites, cremation grounds (centres)’, and ‘urban amenities’ like public parks, gardens or play-grounds, and ‘street lighting’, ‘bus stops’, ‘public conveniences’ etcetera.

g.      The ‘cattle pounding’, ‘slaughter houses’, ‘tanneries’, and ‘prevention of cruelty to animals’.

h.      The ‘registration of births, deaths, and other important statistics’.

 According to a proviso added to Section 42(1), the government had to issue a notification in relation to the above matters within three months of the implementation of the Municipal Corporation Act, 2000. The said enactment has already come into force in the year 2000. Subsequently, per clause (2) of this section, once powers/functions have been vested to the corporation— it shall not be interpreted as to take away the other functions, given under different laws.

d.      Discretionary functions.

The expression ‘discretionary’ may be defined as ‘a state of having or using the ability to act or decide according to one’s own will, discretion or judgement’.

In other words, it means that the functions given under Section 44 are arbitrary in nature. In case corporation fails to accompli in discharge of its functions, it cannot be deemed to be in fault. Besides, these functions are generally falling under the ambit of other departments, but owing to their vitality corporation can take a due care at times. Following are the matters, in which corporation may exercise its discretion—

1.      It may work for the development of education in general, and for ‘cultural and physical’ education in particular. In order to achieve this goal, it may establish and maintain aid— to develop libraries, museums, or art galleries, botanical gardens, and zoological collections.

2.      Similarly, it may set an aid, and maintain it to regulate different stadiums, gymnasia, akharas (traditional wrestling clubs) and other places of such importance like— swimming pools, bathing places, and public washhouses.

3.      It may build up facilities for civic reception for the persons of higher distinction. Apart from this, it can also provide for the establishment of different theatres/cinemas in public places, or resorts, fairs and exhibitions.

4.      The corporation may also work for the construction and maintenance of rest houses and shelter homes for the poor and destitute. Or, houses for vulnerable groups like— children, deaf and dumb, handicapped and disabled, or mental asylums. The corporation may arrange the housing for inhabitants of any area, including its own.

5.      It has a discretion/power to work for the welfare and betterment of its officers, and employees. In relation to that— dwelling houses may be constructed, and maintained; including the sanctioning of loans, and purchase of vehicles.

6.      Corporation may go on organising the management of different bacteriological/chemical laboratories for the purposes of examining foods, drugs and water. Subsequently, it may also make different kinds of provisions for the relief of destitute, or disabled persons.

7.      It may also undertake the task of vaccination and inoculation for the purposes of public health. The establishment of hospitals; dispensaries and other welfare, including maternity wards for public medical relief.

8.      It has a power to organize, and manage different dairies, farms both in and outside the jurisdiction for the supply and procession of milk etcetera. It can construct, and maintain the cottage industries, handicrafts, sales emporium, or warehouses go-downs, sheds, garages, stables as well as vehicle stands.

9.      It may create provisions for filtered water supply, development of the municipal area, and approve schemes for that.

10.  It can undertake other such measures too which aren’t mentioned here, but are necessary for the convenience of the public, and are related to public safety, health or welfare.

2.      Building Regulation

2.      Building Regulation

Chapter fourteenth of the MCA, 2000 deals with the building regulations. It consists of Section 242-260 provisions—

242. Prohibition of erection of building without sanction.

It lays down an explicit law by prohibiting the construction and erection of any building, including the works given in Section 244. However, as per the exception given within this rule, a person having a proper sanction of the Commissioner under the law of land may be allowed to execute or erect any building or construction work.

243. Erection of building.

Per provisions of this Section, if a person wants to construct a house or building, he must get a sanction first. In order to get that sanction, he needs to file an application and fulfil the form to provide the required information. Apart from this, he has to submit the documents— which carry the plan and other specifications signed by a qualified civil engineer.

 244: Application for making repairs and additions of the building.

Every person who wants to execute the work related to the following matters has to file an application before the Municipal Corporation to get the sanction.

a)      To make any additions to a building or to make alterations or repairs involving the removal or re-erecting of any partition or wall, supporting the roof or exceeding ½ of the plinth level.

b)      To make any alteration in any room(s) involving the subdivision of any room or their conversion; or the repairing, removal or construction on a street close to the building; closing or opening or any window or door and the removal of staircase(s).

In order to do such work the application must contain the documents having the plan to be executed.

2.1.  Sanitation and Public Health

Chapter XV deals with the obligation of the Municipal Committee/ Corporation in relation to the following matters:

a)      Daily cleansing of streets of rubbish and filth (S-261).

b)      Placement of depots, containers, holders and places for rubbish, garbage and other polluted matter (S-262).

c)      Removal of garbage and other wastage by collected or gathered on the premises of factories or workshops (S-265)

d)     The Commissioner may ask the owner or occupier of such premises to collect all such garbage and other polluted matter and transport that by such routes as may be specified. They may also prohibit such occupiers or owners under section 266 to accumulate such rubbish, filth or polluted matter for more than 20 hours. Simultaneously, no owner or occupier should be allowed to throw or run down the waste into the drain or street except in the manner provided(S-266).

e)      Scavenging and cleansing of filthy or unwholesome premises, streets or places(S-267). Commissioner has the power to order for the scavenging and cleansing of such places wherein the occupier fails to do that and may recover the expenses as the arrear of tax. He may order for the construction of public convenience places based on separate compartments as per gender.

Besides, this chapter also provides for the following facilities in relation to the construction of new buildings or houses and works,

a)      Water flush latrines along with urinals on each floor and as per gender (S-269-270)

b)      In case of tenants and separate accommodation for servants, same facilities should be provided(S- 271)

c)      Latrines and urinals for markets and other public places as per the description and number(S-277)

d)     In case of private accommodations, Commissioner may write for the construction and maintenance of the same facilities in case not built already (S-273).

e)       Commissioner may order for the vacation of such premises which are not provided with sufficient accommodation for convenience.

f)       Removal of congested buildings, (S-274) — if MC is satisfied that some buildings or residential houses cause crowdedness and aren’t having proper ventilation or drainage. They may issue an order of removal of such buildings, however, after an inspection by the Corporation Health Officer is made.

g)      Improvement of buildings unfit for human habitation, (Ss-275, 276 and 277). In case upon any information, Commissioner is satisfied that certain area or buildings aren’t suitable for the living purposes, he may order for the repairs or constructions in such buildings. In case, a person possessing such premises fails to do so within a specified period of time, same will be done by the MC, at the cost of the owner. Commissioner may, under Section 277, cause the demolition of such buildings too.

Test for declaring a building unfit for human accommodation, or habitation: It has been laid down Section 277, and states that following matters should be given a due regard for the purposes of fitness-

·         Repair;

·         Stability;

·         Freedom from damp;

·         Natural light and air;

·         Water supply;

·         Drainage and sanitary conveniences;

·         Facilities for storage, preparation and cooking of food and for the disposal of rubbish, filth and other polluted matter; and

·         the building be deemed to be unfit as aforesaid if and only if it is so defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition.

An explanation appended to Section 277 states that “work of improvement” shall be construed to include—

·         Necessary repairs;

·         Structural alterations;

·         Provision of light points and water taps;

·         Construction of drains, open or covered;

·         Provision of latrines and urinals;

·         Provision of additional or improved fixtures and fittings;

·         Opening up or paving of courtyard;

·         Removal of rubbish, filth and others, and

·         Any other work including the demolition of any building or any part thereof which, in the opinion of the Commissioner is necessary for executing any of the works specified above.

 

3.      Powers, Procedure, Offences and Penalties

 a)      Power to entry and inspection: According to sec 357, Commissioner has a power to enter into any building for the purpose of inspection, or may empower any employee:

*        For the purposes of ascertaining any contravention of the provisions in connection to any building or land.

*        For the purposes of ascertaining any contravention of the provisions in connection to any building or land.

*        For the purpose of ascertaining the circumstances to authorize any action.

*        For the purpose of executing any work or to make any examination measurement, valuation and survey.

*        For the purposes of inspecting any land, adjacent to the land of work under section 358 to authorize the owner for necessary amendments.

b)      Similarly Commissioner has the power to enter a land adjacent to land in relation to work and can order amendments like building a wall etc. In doing so minimum damage should be done and it should be compensated.

c)      In case of any emergency, according to Sec-359, Municipal Commissioner may consider a case for breaking into a building by breaking the tools of input. However, minimum damage should be sustained and entry must be made in presence of two witnesses and a report should be made in this regard.

The entry to the house must be made in the daytime between sunrise and sunset (S-360). However, under S-361, Commissioner is duty-bound to seek the consent of entering into the premises and a notice of twenty-four hours must be given to seeking the consent. According to the proviso of this section, no such consent would be required in case there is an apprehension that there is an animal is slaughtered in any shed, latrine, and urinal or in any under-construction building. Sec- 362, due regard has to be given to the social or religious places or the buildings having the female occupancy

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Municipal Authorities under the Corporation

 

1. Appointment of Commissioner: According to Section 45, Chapter IV of the MCA, 2000 government is authorised to appoint any officer of class I category as a Commissioner of Corporation. He should be appointed for a tenure of 15 years but should have a 3 years term at the very outset. It further states that government may require his appearance in some special meetings, however, for that purpose a resolution needs to be passed first.

2. Functions of the Commissioner: Per provisions of chapter IV, Section 50, a commissioner shall discharge the functions under this Act as well as of the others too. He must—

·         Exercise all the powers and discharge all the duties specially conferred or imposed by this Act or by any other law for the time being in force;

·         Prescribe the duties of and exercise supervision and control over Corporation officers and other Corporation employees.

·         He should dispose of all questions relating to the service of the said officers and other employees and their pay, privileges, allowances and other conditions of service;

·         On the occurrence of an accident, unforeseen event or natural calamity involving or likely to involve extensive damages to any property of the Corporation or danger to human life— take immediate action in consultation with the Mayor.

·         Bring to the notice of the Corporation any act or resolution of the Corporation which may be in violation of any Government instructions or the provisions of this Act. If he fails to do so, he’ll be subject to violation and omission. 

 

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[1] Section 41 (1)

[2] Section 41 (2)

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