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Monday, September 27, 2021

Getting a criminal justice category wrong

‘Habitual offender’, is not an arbitrary police usage. Due processes are followed before slotting an accused as such an offender


July 28, 2021 6:07:22 pm
The baggage of the Criminal Tribes Act, 1931 was carried forward in few Habitual Offenders Acts subsequently legislated by states.(Representational image)

Written by Amandeep Singh Kapoor

The postal department has the quintessential postman and his ubiquitous “goody bag” which has carried through the ages messages, ideas, values, biases, shibboleths, love, hate, poetry, data, facts of whole civilisations. But generations of thankful consumers never doubted the postman or suspected him of evil intentions with their stuff. Even after superbly graduating to speed post and digitised delivery, nowhere was the objectivity and neutrality of postman under question.

The police shoulders similar civilisational responsibilities especially in preventive and record keeping roles. That the police is the most scrutinised department of the state (by judiciary-in-situ of the criminal justice system, media, commissions, legislature) is a medal every right minded policeman wears with a smile throughout his career. It is with this background that a rebuttal is brought forward to the blatantly biased article, “Efficiency vs Dignity” by Nikita Sonavane, Srujana Bej, Ameya Bokil (IE, May 28). Statements in the article — while discussing the Inter-operable Criminal Justice System (ICJS) — like “illegal process of data creation at the level of police stations” and “the gravest injustice of being labelled as a Habitual offender is that it hinges entirely on police suspicion, discretion and conventional knowledge, which are informed by caste prejudices”should be refuted.

The article has many convenient but dubious hypotheses which betray a lack of faith in the sense of judgement of the police force. By attacking the systemic record keeping and statutory duties of police, many of which are undertaken after the judicial process has been completed, it hits explicitly at the objectivity and neutrality of the entire criminal justice system. This points to a poor understanding of the ground reality.

Habitual offenders as they exist in criminal jurisprudence are not a function of police discretion or belief system. “The Habitual Offender” is an umbrella term apart from being used in the original “Habitual Offenders Acts” promulgated subsequently in various states post 1952. It finds mention in respective state police rules and is also the basis for opening a history sheet and mounting surveillance and preventive detention statutes like PASA (Prevention of Anti-Social Activities Act) of Rajasthan. Statutorily, multiple convictions is the baseline requirement for initiation of action in any of these categories and so is the final approval of either the Superintendent of Police or the District Magistrate as the case may be, thus ensuring the application of the doctrine of reasonable belief as is desired in sound criminal jurisprudence.

The baggage of the Criminal Tribes Act, 1931 was carried forward in few Habitual Offenders Acts subsequently legislated by states. The “defined” criminalised tribes (or registered offenders subsequently) are not the focus of police in any way as the bogey presumes. The police has gradually, through the arsenal of habitual offender statutes, focussed on a wide range of organised criminals. Thus we have to differentiate habitual offenders and registered offenders of colonial lineage if any.

There is no denial that the colonial baggage of undignified human behaviour has to be discarded and just and empathetic norms of criminology have to be embodied as democracy matures, but the issue can be addressed by adding appropriate filters pertaining to the length of recent criminal activity. Any case most Habitual Offender Acts provide for periodic review of “Registered Offenders” placed under restrictions.

In the article there is an increased reliance on the phrase, “myth of criminality”, whereas the basis of criminality in HO record initiation is “conviction” — this is a judicially vetted process. Some records are in fact put up legally before the court under section 75 IPC for sound conviction. The authors of the article would do well to visit a police station or SP office to see the records themselves before conjuring some convenient myths.
The article pushes the envelope that data entries pertaining to criminals will create a disconnect with the legal rights of the culprit. By this understanding, lower court judgements can never be uploaded to the e-court system since the process of suitable levels of appeal is still to be fully exhausted.

Instead of raising such bogeys, we should focus on judicially monitored auditing and intervention of algorithmic solutions in the ICJS ecosystem to nullify the impact of data labelling and bias transmission. The beauty of machine learning, the future use-case of ICJS, is that rules are learned from data instead of being generated by experts. So rules have a lower chance of being contaminated by experts’ bias.

Privacy, dignity, empathy and truth are values dear to the police force. A privacy related data protection law is already on the anvil with a Parliamentary Committee at the moment with excellent deliberations conducted by the Justice Srikrishna Commission. The E-Court Committee is headed by a very respectable Supreme Court Judge. It is an enthralling journey. Let’s take off first. Avoid the commotion on the tarmac. We have able pilots to see us through the turbulence.

The writer is DIG, ATS & SOG, Jaipur

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