JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROJECT – Law and Poverty

TOPIC: Criminal Justice System:

The Triturator of Poor

SUBMITTED TO-
Mr Rasheed CA

SUBMITTED BY-
Anubhav Sharma (SF)

Roll No: 12

BA.LLB (HONS.)-2nd YEAR

BATCH: 2020-2025
Acknowledgement
First and foremost I would like to thank my Law and Poverty professor Mr
Rasheed CA for giving me an opportunity to work on the project named
“Criminal Justice System: The Triturator of Poor”. His guidance and support
has been instrumental while making this project. I would also like to thank all
authors, writers and columnists and social thinkers whose ideas have been
used in my project. My heartful gratitude also goes to all staff and
administration of JMI for providing access to E Library which have been very
useful in completing this project. I would also like to thank my parents, my
seniors, peers for their precious inputs which have been very useful in
completion of this project. I hope you will appreciate my work

Anubhav Sharma (SF)

Roll No. – 12

Semester – IV

BALLB(H)
Introduction

It is common sayings that “if you want to know any country’s prospect of development, look
at its crime rate”. The Criminal Justice System of a country helps in keeping the crime rate
under control. By helping enforce the law, the CRIMINAL JUSTICE SYSTEM enables the
society as a collective in ensuring acceptable behaviour from all its participants i.e. victims,
criminals, witnesses and the society at large1. But the hopes of a country’s bright future are
vanished if the country’s CRIMINAL JUSTICE SYSTEM is tainted. The same seems to have
happened with India as well. The whole CRIMINAL JUSTICE SYSTEM seems to have
become anti poor. Be it the police, investigators, advocates, media, even the judiciary- people
below the poverty line always find the system stacked against them. For a man who does not
have a decent economic background Filing an FIR is struggle, his evidence is always
tempered by the police, advocates do not cooperate with him, access to quality legal service
is in dire and even bearing the daily costs of criminal proceedings is a daunting task. Though
many laws are incorporated to provide free legal aid to poor, the reality seems otherwise.
Recently, the report of the Death Penalty Clinic at the NLU in Delhi2 analysed people who
have been sentenced to death. The analysis showed that inevitably these are the people who
have not been represented or been represented poorly; people with little or no means of
defending themselves and therefore they become victims of the system. Not only the death
penalty awardees, if we talk about under trial prisoners also, around 55% 67.2% of them are
below poverty line3. Also, as per a report a large chunk of people are not able to get released
even after getting bail due to non payment of security amount. At every stage of a criminal
proceeding the poor are always discriminated.

1
India’s Criminal Justice System: Reforming Institutions for Delivering Justice available at: https://a1181-
indias-criminal-justice-system—reforming-institutions—for-delivering-justice.pdf
2
Criminal Justice System in India skewed against the poor; judiciary losing credibility due to repeated legal
oversights available at https://www.firstpost.com/india/criminal-justice-system-in-india-skewed-against-the-
poor-judiciary-losing-credibility-due-to-repeated-legal-oversights-4402129.html/amp (Visited on April 2,2022)
3
Vrinda Bhandari, “India’s Criminal Justice System: An example of justice delayed, justice denied” available
at: https://www.dropbox.com/sh/f14ij8t5h98evjq/AAD_p9Wa768BpjlSXAee53FQUa/Unit%20II/India%27s
%20criminal%20justice%20system%20An%20examplw%20of%20justice%20delayed%2C%20justice
%20denied.docx?dI=0 (Visited on April 2, 2022)
What is Criminal Justice System?

A criminal justice system is a set of legal and social institutions for enforcing the criminal
law in accordance with a defined set of procedural rules and limitations. It includes several
major subsystems, composed of one or more public institutions and their staffs, police and
other law enforcements agencies, trial and appellate courts prosecution and public defender
offices, probation and parole agencies, custodial agencies and the most important
investigation agencies. In addition various administrative agencies whose work includes
criminal law enforcement are also part of criminal justice system.

Components of Criminal Law System

Though, it’s very difficult to list down all the institutions which form part of criminal law
system, broadly speaking the following are said to form the basic components of criminal
justice system in any country:

1. The Law Givers- They define a crime according to the exceptions and needs of
society, prescribe the procedure for verification of deviance, investigation, procedures
for defining the guilt, nature and quantum of punishment. To delineate the parameters
of behaviour in society.
2. The Law Enforcers- They are the one responsible for enforcing the laws in the
country. Police personnel, various investigation agencies like CBI, ITBP, CISF,
bureaucrats, etc form part of this. Their main job is to prevent and detect the
occurrence of crime, collect and present material evidence n proof of violation before
judicial adjudicators and to assist in the administration of justice4.
3. Judiciary- It is the venue where disputes are settled and justice is administered. All
the offenders which violate law are punished by Judiciary on the basis of evidence
adduced and witnesses. Also, it is responsible for determining the quantum of
punishment both which is suited for the offender and serves the purpose of reforming
them.

4
Crime and Criminal Justice System available at:
https://www.dropbox.com/sh/f14ij8t5h98evjq/AAAYSPITYpZcEfR2P14vMMLAa/Unit%20II?
dI=0&preview=criminal+justice+system+in+india+chapter+2.pdf&subfolder_nav_tracking=1 (Visited on April
2, 2022)
 4. Correctional Administration- It is responsible for carrying out the punishment
awarded by the judiciary to the offender after they are found guilty. Prison officers,
execution personnel, etc are part of it.

Is India’s Criminal Justice System Anti Poor?

Though there are no specific laws or prescribed procedure in India which makes its Criminal
Justice System Anti Poor, the truth is that it jeopardizes your interest if you are poor. Indian
government since independence has taken various initiatives to make the system bias free. To
tackle the inequality and inequity of formal legal system, we have institutionalised the
delivery of legal services through LSAA. We have a four tier mechanism with NALSA,
State Legal Service Authorities, District Legal Service Authorities and the Taluka
Committees. We also have a Legal Service Committee in every High Court. We have
attempted providing not just legal representation but legal services as well. Laws are
made in such a way that prefers giving bail instead of detaining a person. No security amount
is prescribed in Criminal Procedure Code, 1973 so that judges can decide the amount keeping
in mind the economic capacity of a person and a person doesn’t have to suffer because of
shortage of funds.

Similarly, laws made it compulsory for police personnel to register FIR no matter whether the
grievance is from rich or poor. Investigation agencies like CBI, IFTP, etc also works
diligently no matter who the victim. Judiciary also pays no heed to the economic capacity of
an individual while adjudicating him.

Though all the points mentioned above indicates that the poor faces no discrimination in
Criminal Justice System in India, the reality seems otherwise. There are many barriers to
accessing justice that a poor man faces. The laws, rules and processes are mystifying
and befuddling even for an educated, literate person. Legal Service Authorities Act
could have been a game changer on equal access to justice. However, like many other welfare
based laws LSAA too suffers from serious implementation issues including governmental
apathy, procedural barriers, corruption and above all shortage of funds5. Judges do not take

5
Legal Aid under various statutes in India available at:
https://www.dropbox.com/sh/f14ij8t5h98evjq/AAAYSPITYpZcEfR2P14vMMLAa/Unit%20II?
dI=0&preview=position+of+poor+and+indingent+persons+under+crl+system.pdf&subfolder_nav_tracking=1
(Visited on April 2, 2022)
into consideration the economic capacity of an individual while giving bail and often sets the
amount quite high. According to the recent Law Commission report around 67.1% of
prisoners in India are under trials which means that 2 out of 3 prisoner has not been adjudged
guilty yet still they are in prison. For a poor to even file an FIR is a daunting task if he refuse
to bribe police personnel, his investigation is tainted, evidence is tampered and he even face
prejudice in terms of getting quick dates, appeal preference and at various other stages of
criminal proceedings. Even the SC has admitted on multiple occasions that the Indian
judiciary has been ignoring the common man while giving priority to rich, powerful and
influential people in hearing cases, “Sometimes, I wonder at my system. Here is an
appeal of the year 2013 which gets a quick hearing. In how many cases are we doing so?
That’s why poor man feels that the system cares only for known persons and the
unknown gets ignored” said Justice HL Dattu while hearing a case. “We can say on
oath that only 5% of the time is being used for common citizens, whose appeals are
waiting for20 or 30 years. This court has become safe haven for big criminals.” Said
Justice BS Chauhan

To determine whether India’s Criminal Justice System is Anti Poor or not, we have to assess
various factors. These are as follows:

1. Access of Justice i.e. whether poor people are able to approach court regardless of the
complicated nature of the legal procedures and sky rocketing fees.
2. Bail granted i.e. whether those below the poverty line are able to get bail by paying
surety amount or not
3. Investigation aspect i.e. whether poor people are jeopardized by th police and other
investigation agencies while registering the complaint or carrying out the
investigation of the case
4. Legislative aspect i.e. whether the laws made by the Parliament are in favour of poor
people or not
5. Post Conviction Difficulties i.e. whether poor people exclusively face any difficulties
in prison after being convicted
 1. Access to Justice

Right from filing of a case to applying for protection from arrest, seeking bail or requesting
expeditious hearing to probability of getting a favourable verdict, ability to getting the appeal
accepted by the higher courts and getting relief there, the assistance of a counsel is required at
every stage of criminal proceedings6. Prior to independence, poor people were often
jeopardized in criminal justice system as they were not able to afford a counsel for fighting
their case due to their economic insufficiency. After independence, the law makers wanted to
solve this problem and thus incorporated various provisions for the same.

Some of them are as follows:

1. Article 39 A of CONSTITUTION OF INDIA- It states that the state shall provide free
legal aid to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities.
2. Section 304 of Criminal Procedure Code, 1973- It provides that “where in a trial if the
accused is not represented by a pleader due to insufficient means the Court shall
assign pleader for his defence at the state expenses”.

Further, in 1995, Legal Service Authorities Act was enacted to enable free legal aid for
socially and economically vulnerable people. All these provisions should have solved the
problem of access to justice to poor but the reality is different. Like many other welfare based
laws LSAA too suffers from serious implementation issues including governmental apathy,
procedural barriers, corruption and above all shortage of funds. Justice UU Lalit, Executive
Chairman of NALSAA noted recently, “Only 1% of the total criminal cases heard in the
courts of law get legal aid from the offices of Legal Services Authorities across the country7”.
There are various reasons for it. First, the quality. As reported in an article, for lawyers at
lower courts the amount awarded per case varies between Rs 1500 and Rs 50008. Such a
6
Inequality in Access to Justice is No Less than Injustice available at; https://www.abgaindia.org/blog/4186/
(Visited on April 2, 2022)
7
The Laws are Structured to Discriminate Against the Poor available at:
https://www.livelaw.in/topstories/appearing-in-court-challenges-in-representing-the-marginalised-196753
(Visited on April 2, 2022)
8
Supra note 3 at page 4
paltry sum obviously does not help in attracting talented and experienced lawyers thus
impacting the quality of legal representation for the poor and failing to address the very
objective of free legal aid. Moreover, lawyers which are employed by Legal Service
Authorities do not focus much on the cases of poor (as they are getting such a meagre sum for
it) and instead focuses more on the cases of their private clients who pay them much more. In
addition to it, nowadays it has become a common practice among LSAA lawyers to demand
additional money from their clients (though they are supposed to provide free legal aid) and if
they failed to do so, the consequences can be seen in the outcome of case.

Moreover, Legal aid can be provided to a needy litigant to cover one or more expenses like
payment of court and other processes fees; charges for preparing, drafting and filing of any
legal proceedings; charges for a legal practitioner; costs of obtaining orders judgements and
other documents in legal proceedings, cost of paper work, etc9. However, in a legal suit many
other costs are also involved which are not compensated under Legal Aid. While the legal aid
programme may pay for court fees, cost of legal representation, obtaining certified copies and
the like, it usually does not account for the bribes paid to the court staff, the extra fees to the
legal aid lawyers, the cost of transport to the court, the bribes paid to the policemen for
obtaining documents, copies of depositions and the like or to prison officials for small
favours. The ability to meet these cost is directly proportional to the probability of getting
justice that too sooner than later and the inability to meet this cost on the other hand
diminishes the possibility of getting justice, for the luckiest ones it may come eventually but
still far too late10.

Also, it is a universal fact that a major influence on how courts respond to litigants has been
attributed to the status of the senior advocates or defence councils who enjoy a celebrity
status in the legal fraternity. Senior advocates who appear before the court gets special
attention. The top 10 Advocates of India charges between Rs 5,00,000- Rs 25,00,000 per
case. A man who earns Rs 10,000 per month can’t even think of paying that much. As a
result he is denied of quality legal aid for his case and therefore is jeopardized when hearing
their case.

9
Supra note 6 at page 7
10
Supra note 7 at page 8
After analysing the above points, we can conclude that though the government had taken
some initiatives and incorporated various laws for ensuring free legal aid to poor people but
in real world they are nothing but a dead note which do not have any relevancy in real world.

2. Bail granted

Bail, in the law means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal
authority11. The security may be cash, the papers giving title to property, or the bond of
private persons of means or of a professional bondsman or bonding company.

Whenever the accused person is granted bail, he/she has to give a surety amount for the same.
The problem in this provision is The Criminal Procedure Code, 1973 does not mention the
amount of security that is to be paid by the accused to secure his release. Thus, it is the
discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that
courts have not been sensitive to the economic plight of the weaker sections of society. The
unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their
callous attitude towards the poor. One can see those ranges from Rs 10,000 – Rs 1,00,000 and
even higher in some cases. Although it’s easy for a rich man to pay this amount, it is a very
daunting task for a poor. In a country where more than 50% of the population is below the
poverty line and earns less than Rs 10,000 per year, it is absurd that such amount are asked to
be submitted in court in lieu of the bail. As expected most people who are below the poverty
line are not able to pay the surety amount and end up in prison even after being granted bail
for a long period of time.

According to the report of the Law Commission as on April 1, 2015, of a total prison
population around 67.1% were under trials which means 2 out of 3 prisoners has not been
held guilty yet he is still in jail12. One of the reasons for this is the large scale poverty
amongst the majority of the population in our country. Fragmentation of land holdings is a
common phenomenon in rural India. A family consisting of around 8-10 members depends
on a small piece of land for their subsistence, which also is a reason for disguised

11
Legal Service India-Indian System of Bail-Anti Poor available at:
https://www.dropbox.com/sh/f14ij8t5h98evjq/AAAYSPITYpZcEfR2P14vMMLAa/Unit%20II?
dI=0&preview=poor+and+bail.docx&subfolder_nav_trackings=1 (Visited on April 2, 2022)
12
Reformation of the Indian Criminal Justice System available at:
https://www.dropbox.com/sh/f14ij8t5h98evjq/AAAYSPITYpZcEfR2P14vMMLAa/Unit%20II?
dI=0&preview=reformation+of+the+indian+criminal+justice+system++shreya-mishra-2-
others.pdf&subfolder_nav_tracking=1 (Visited on April 2, 2022)
unemployment. When one of the members of such a family gets charged with an offence, the
only way they can secure his release and paying the bail is by either selling off the land or
giving it on mortgage. This would further push them more into the jaws of poverty. This is
the precise reason why most of the under trials languish in jail instead of being out on bail.

Not only in non bailable offence but also in bailable offence where the bail is granted as a
matter of right, the plight of the poor continues. People who, lives in the thrall of poverty and
destitution, and who don’t even have the money to earn one square meal a day are expected
to serve a surety even though they have been charged with a bailable offence where the
accused is entitled to secure bail as a matter of right. As a result, a poor man languishes
behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened
criminals and effectively being treated as a convict.

3. Investigation Aspect

Though investigation agencies along with police personnel in India are quite diligent, a
difference of attitude can be seen when they attend a case of poor instead of a rich man.
Consider the Ryan International School Murder case where the Haryana police wasted no
time in arresting and claiming a ‘confession’ from the school bus conductor13. While for a
poor getting an FIR registered itself is a daunting task. They are asked to pay hefty sum for
registering FIR, for investigation, for inquiring the accused and for various other things
which is the duty of police personnel to assist the citizen with. Not only this, they are also
asked to pay for their food and drinks whenever the police personnel visits their house and if
they fail to do so, the consequences can be seen in the investigation report prepared by the
police.

In the 2005 Diwali blast case, Mohammed Rafiq Shah, a college student from Jammu and
Kashmir was taken into custody on the allegation that he had physically implanted a bomb in
a bus near Sarojini Nagar. At the time he was taken into custody, he contended that he was in
class at that time, but the police did not bother to look into the same. Later, a letter was sent
to Kashmir University to verify this and was presented before court. But more than 12 years
years have passed by then and a precious life has already been wasted. This is what happens
if you refuse to fulfil the illegitimate demands of police personnel and fails to satisfy their
appetite of money- your all case along with your life can be ruined.
13
Supra note 2 at page 4
Same goes for other investigation agencies as well. Investigation agencies when collecting
evidence related to a case of poor are often seen lethargic in the way they prosecute.
Ultimately, there is nothing in the case and the accused are let off14. Even people who are
arrested and prosecuted on valid grounds get acquitted due to sloppy investigation. On the
other hand while investigating a case of rich man, for instance Aryan Khan, they can’t afford
of becoming lethargic. In a rich man’s case investigation is completed within 10 days while
in a poor man’s case a charge sheet could not be filed even after 3 months.

4. Legislative Aspect

Though it is completely biased to say whether the laws are biased in favour of poor or not, at
first impression they seem to be structured to discriminate against poor. Whether we talk
about anti beggary laws that criminalises poverty, the Immoral Traffic Prevention Act that
criminalises sex work, the juvenile justice law that delivers the street child into the arms of
law or even the municipal laws that criminalise acts of encroachment of public spaces by
street dwelling homeless persons and hawkers they all seem to jeopardize the interest of
poor15.

In addition to the harsh bail laws discussed earlier according to which the poor people are
expected to pay hefty sum demanded by judges for getting bail, another problem which a -
poor man faces is of fine. Fine is forfeiture of money by way of penalty. Though in some
offences, the quantum of fine is pre determined, but in other offences like Section 123, 124,
126-134, 380, 444 and 475 of IPC, the law has given absolute discretion to the judges to
decide the quantum of fine which jeopardize the interest of poor. Judges usually fail to take
into consideration the economic capacity of an individual and impose high fines. In
Association of Victims of Uphaar Tragedy V Sushnil Ansul, a fine of 30 crore was imposed
which was completely unrealistic. For a man who earns Rs 10,000 per month, it’s impossible
for him to pay that much.

What adds to the plight of poor people is additional imprisonment the poor as to face in
default of payment of fine. Section 64 of IPC confers a general power on the courts to award
the sentence of imprisonment in default of payment of fine. For instance, in Ram Das V

14
Criminal Justice System in India skewed against the poor; judiciary losing credibility due to repeated legal
oversights available at https://www.firstpost.com/india/criminal-justice-system-in-india-skewed-against-the-
poor-judiciary-losing-credibility-due-to-repeated-legal-oversights-4402129.html/amp (Visited on April 2,2022)
15
Supra note 7 at page 8
State of Uttar Pradesh16, the accused was awarded imprisonment for two years because he
failed to pay the fine of Rs 3000. No one wants to go behind the bars especially for non
payment of such a meagre amount. But the accused’s financial position did not allow him pay
the fine. The Judge failed to notice it and he ended up wasting two precious years of his life
behind the bars. Thus, at first instance the laws seems to jeopardized the interest of poor

5. Post Conviction Aspect

Though after holding guilty all persons are sent to prison whether rich or poor, discrimination
is faced by poor in terms of treatment in jail. If you are wealthy enough to bribe the jailor,
you will get all the facilities in jail-fan, cooler, your favourite food, cigarette, beer,etc.
Moreover, you don’t have to do any work in prison. While if you belong to a poor family you
will see a living hell on Earth. Just one meal per day that too which is not suitable even for
animals. You have to sleep in front of toilets, have to do double work and will not get any
blanket in winter or any fan in scorching summer.

Not only this prejudice is faced by poor if he has to visit his family member in prison. For
visiting someone in the prison you have to first register the visit request. You are not allowed
to bring any phone or other device which can be used as a threat to jail security. Even for
bringing homemade food special permission is required and one often have to wait in long
queue for his turn. However, a recent reality check by A famous newspaper revealed that the
staff offers three packages Rs 300 for a regular meeting, Rs 100 to send home food to an
inmate, Rs 1200 for a direct meeting(without a grilled window in between). One can pay
additional Rs 200 to jump a long queue17. You are even allowed to bring phone and other
devices as well. On the other hand, if you refuse to bribe them you will find that when your
turn for getting in had come the visiting hours would have been over.

Reforms Needed

1. The payment of Legal Service Authorities lawyers shall be increased. This will attract
more capable lawyers for serving the society. Also it should be made compulsory for
all the senior advocates to serve as Legal Service Authority’s Lawyer for one month
every year.

16
AIR 1974 SC 1811
17
In Jail, Sasikala prefers to be left alone available at:
https://m.economictimes.com/news/politics-and-nation/in-jail-sasikala-prefers-to-be-left-alone/
amp_articleshow/58490126.cms (Visited on April 2, 2022)
 2. New Punishments keeping in line with changing socio economic framework shall be
introduced. Instead of imprisoning a poor in default of payment of fine, a new type of
punishments like community service orders, servicing in old age home, orphanage
shall be given.
3. Provision should be incorporated in LSAA to include indirect costs like cost copies of
depositions, photocopy, print outs, judgements and other costs within the ambit of
free legal aid.
4. CCTV cameras shall be installed in all the police stations and if any policeman is
found asking money for registering FIR or for doing favour during investigations,
he/she shall be suspended.
5. Legal Service Authority’s Lawyers shall be kept under strict supervision. A monthly
report of all the cases attended by LSA lawyer containing all the details of the
proceeding which took place in the month shall be sought from him. Also, if any
complaint is received from a person regarding LSA’s lawyers asking to pay him
separately, strict auctions shall be taken against him immediately.

Conclusion

Indian government no doubt had taken some good initiatives to ensure that poor people don’t
suffer the backlashes of their economic condition when facing criminal proceedings but all
these initiatives have proved to be fatal. Money is required at all the stage of criminal
proceeding whether registration of FIR, filing suit, paying bail bond, or filing appeal.
Realistically speaking there is no such thing called “free legal aid”. Whether we like it or not
the quantum of money you have plays a major role in winning or losing a suit. You have to
pay money for registering an FIR, have to pay for the meals of policemen when they come
for investigation, have to pay for getting bail, filing appeal and so on. Even the Legal Service
Authorities’ lawyers who are supposed to provide free legal aid does not work unless you pay
them separately for their service or else you would suffer in your case. Recently while
appearing on behalf of the petitioner who was sentence to death for rape and murder for
review petition, a NALSAR professor came to know of a shocking fact. The petitioner was an
insane from birth. He was sent to an Ashram for treatment but after reaching there, his
condition worsened. One day he ran from the Ashram and on his way of escaping committed
the brutal act of rape and murder. None of this fact was presented to the judge by the lawyer
(appointed by LSAA) during the trial just because the petitioner’s family was poor and they
refused to pay him money.

Also, free legal aid covers only direct costs. It does not account for various indirect costs like,
the cost of transport to the court, cost for obtaining documents, getting photocopies and print
outs, copies of depositions, etc. Also, absence of any bar on the security money for bail
jeopardizes the interest of poor people. In a country where more than 50% of the population
is below the poverty line and earns less than Rs 10,000 per year, it is absurd that such amount
are asked to be submitted in court in lieu of the bail. As expected most people who are below
the poverty line are not able to pay the surety amount and end up in prison even after being
granted bail for a long period of time.

Also, the laws in the country are not made keeping in the mind the economic conditions of
majority of population. In many offences there is no bar on the quantum of fine and it all
depends on the discretion of judges but they hardly give any reference to economic condition
of the accused and impose hefty fines. If the poor fails to pay, he/she ends up behind bars
jeopardizing not only his but also his entire family.

Thus, we can conclude that the Criminal Justice System in India is anti poor which
jeopardizes the interest of poor.