Abstract
Challenges to internal security of India are numerous. The extent and scope of threats are complex, varied and vast. No other country in the world confronts so many threats, with so much intensity, at the same time. Overall, more than 50 per cent of India is said to be affected by one or the other of these threats, which are not just ‘law and order’ problems. They have increasing external dimension falsifying conventional wisdom that internal security threats are caused mainly by internal sources. They threaten the body politic like a ‘cancer’. The state of poor internal security situation is not because of India’s unfavourable strategic environment but also due to weak internal security mechanism, especially its criminal justice system. In this context, the article argues that if appropriate actions are not taken, the threats may result in the gradual degradation of the Indian State. It suggests renewed set of policies and mechanisms in political, economic, socio-cultural, military and diplomatic arena.
Keywords
Introduction
To understand the internal security situation of any country, three questions should be addressed: What is being threatened? By whom is it being threatened? And, by what means? These three components come out clearly in the definition of ‘internal security’ in the Indian context by the Centre-State Relations Committee. The Committee defines ‘internal security’ as follows:
[S]ecurity against threats faced by a country within its national borders, either caused by inner political turmoil, or provoked, prompted or proxied by an enemy country, perpetrated even by such groups that use a failed, failing or weak state, causing insurgency, terrorism or any other subversive acts that target innocent citizens, cause animosity between and amongst groups of citizens and communities intended to cause or causing violence, destroy or attempt to destroy public and private establishment.
1
Thus, the source of threats to internal security is not necessarily internal, but also external. The means of threat could be insurgency, terrorism or any other subversive acts. And the target could be innocent citizens, public and private establishment. Trends of India’s internal security threats and responses have to be looked at in this conceptual backdrop.
Mapping the Threats
In the recently brought out Global Risks Atlas 2012, India is listed under ‘high risk’ category on security. Terrorism and political violence are particularly identified as prevalent risks, which ‘threaten human security and business continuity, while diverting valuable government resources and money.’
2
In his address to Intelligence Bureau officers on 23 December 2009, the then Union Home Minister P. Chidambaram observed:
By a quirk of fate India in the twenty-first century has turned out to be the confluence of every kind of violence: insurrection or insurgency in order to carve out sovereign states; armed liberation struggle motivated by a rejected ideology; and terrorism driven by religious fanaticism. Never before has the Indian state faced such a formidable challenge.
3
Confirming this observation, US’ Country Reports on Terrorism 2011 identifies India as ‘one of the world’s most terrorism-afflicted countries and one of the most persistently targeted countries by transnational terrorist groups…’ (US Department of State 2012). In the recent period, India has witnessed more terrorist incidents than any other country in the world. 4
Traditionally, threats to India’s unity, territorial integrity, sovereignty and internal order existed in three main forms: rebellion in Punjab, militancy in Jammu and Kashmir, and insurgency in the North-east region of the country. Every case has ‘a distinct identity moulded by its geo-strategic, political and socio-economic contexts’ (Lal 1999). Notably, all have a deep linkage to external security threats of the country, as the states they exist in are at peripheries sharing borders with countries like Pakistan, China, Bangladesh and Myanmar; external sponsorship to all the above identified violent manifestations has added to their complexity. Apart from disturbances in Jammu and Kashmir and the north-east of India, India is also plagued by Left-wing extremism, what Prime Minister Manmohan Singh dubbed as ‘India’s greatest internal security threat’ (The Hindu 2007). At a later date, he said, ‘the problem of Left-wing extremism is indeed a complex one.’ 5 The problem of the LWE has been like a shifting pain that moved from West Bengal to Bihar and then to Andhra Pradesh and then to central India. Now, there are indications that it is spreading to parts of the North-east and South India.
To these, a new threat dimension has come to the fore in recent years in the garb of jihadist terrorism with international linkages. Threats arising from this kind of terrorism are phenomenal because of their non-amenability to negotiations or agreements or any other form of political settlements. It is identified as ‘the most dangerous threat’ by the States not only because of increased ruthlessness of attacks, but also due to their lethality and unpredictability. Increased possibilities of weapons of mass destruction reaching terrorist groups like the al Qaeda have further heightened the threat level. Jihadist terrorism initially commenced in the state of Jammu and Kashmir and later in a decade spread to other parts of India. Closely witnessing the strength of the jihadists, the ISI made them as part and parcel of its larger plan to ‘bleed India’, and ‘liberate’ Jammu and Kashmir. The demolition of the Babri Masjid and the subsequent communal riots and bombings acted as a defining moment for the rise and intensification of jihadist terrorism in India. Jihadist terrorists’ nexus with criminal gangs like those of Dawood Ibrahim also came to the fore after this period. India or its interests abroad have witnessed deadly attacks since 1992 from jihadists.
In the present context, incidents of violence in Jammu and Kashmir, north-east India, LWE and Jihadist terrorism have come down, according to the latest government figures. 6 There is indeed a sense of improved security situation. But, does this mean that there would not be any reversal in the four sectors mentioned above? A few recent incidents in each of these sectors indicate that threats are very much alive. Maoists staged a brutal attack on CRPF jawans in January 2013; a twin bomb attack rocked Hyderabad in February; and Pakistan-based Hizbul Mujahideen terrorists made a daring fidayeen attack in Srinagar in March. Then there are other security issues like drug-trafficking, illegal migration, circulation of fake Indian currency notes, human trafficking, proliferation of small arms and cyber warfare, whose magnitude looms large. A snapshot of each of these threats is important to understand the overall internal security situation faced by the country.
Drug-trafficking poses a major threat to India. A recent Presidential Memorandum of the United States has identified India as one of ‘the major drug transit or major illicit drug-producing countries.’ 7 Apart from external sources, drugs are also produced within India in central parts of India, where Maoists are dominant, and in the states of Uttar Pradesh, Rajasthan, Karnataka, Kerala, Tamil Nadu, Himachal Pradesh, Jammu and Kashmir and the north-eastern region. 8 It is said that ‘more than 25 per cent of the money spent on terrorist activities (for weapons, explosives and to pay salaries for terrorists) in India by the ISI comes from the narcotics drug trade’. 9 The most worrying phenomenon is the involvement of drug cartels in smuggling of small arms and explosive devices and in money laundering (Federal Research Division, US Library of Congress 2002). The number of seizures of narcotics and drugs during 2011 alone was 10,036 (National Crime Records Bureau 2012, 126). Yet another aspect of threat from narcotics is drug addiction. According to the United Nations Office on Drug and Crime (UNODC), in 2004, India had over 2.3 million cannabis users, followed by 0.5 million opiate users. 10 The majority of addicts are between the ages of 15 and 35. Drug addiction is not only a problem in itself, but is also a precursor for increase in crime rate in the society. If the nexus between drug and crime is broken, the crime rate is likely to decline (Government of India 2012, 21).
The illegal immigration from Bangladesh has led to a demographic upheaval and generated serious communal, political, social and economic tensions and conflicts in several areas of the north-east of India. The most affected states are Assam, Meghalaya and Tripura, although illegal migrants are seen in other states of India as well. According to the ‘Group of Ministers Report on Reforming the National Security System’ (2001), there were about 15 million Bangladeshis staying illegally in India.
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It could be more now. The illegal migration of Bangladeshis in fact triggered an agitation in Assam by the All Assam Students Union (AASU) in 1979–1985. Despite the Assam Accord of 1985, the issue remains unresolved to this day and the ‘silent demographic invasion’ persists. Due to vote bank politics, the motivation to block illegal migrants from Bangladesh is absent. The gravity and scope of threats arising out of illegal migration was highlighted by Gen. S.K. Sinha in his report. Inter alia, he points out:
This silent and invidious demographic invasion of Assam may result in the loss of the geo-strategically vital districts of Lower Assam. The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic fundamentalism may provide the driving force for this demand. In this context, it is pertinent that Bangladesh has long discarded secularism and has chosen to become an Islamic State. Loss of Lower Assam will sever the entire land mass of the Northeast, from the rest of India and the rich natural resources of that region will be lost to the Nation.
12
This applies to other states of the north-east, especially those that share borders with Bangladesh like Tripura and Meghalaya. In Tripura, the migrants have reduced the locals to a minority leading to a rise of insurgent groups like the All Tripura Tiger Force (ATTF). Bangladeshi migrants have even spread to states like Arunachal Pradesh, and to other parts of India and are seen as potential threat bearers. Some of these migrants give shelter to Bangladeshi militant groups like HuJI (B) and are very amenable to ISI activities. 13
There has been a spurt in fake currency circulation especially since 2006. According to figures disclosed by the Government of India, during the period 2006–2009, 7.34 lakh ₹100 notes, 5.76 lakh ₹500 notes and 1.09 lakh ₹1,000 notes, all fakes, have been seized.
14
This is considered as only the ‘tip of the iceberg’ when compared to the total counterfeit notes circulating in the Indian market. According to the National Investigating Agency, the amount of fake currencies in India could be over ₹16,000 crore (The Indian Express 2012). Fake Indian currency notes principally originate from Pakistan, and are smuggled through various routes, using different modalities. The most popular among them are via the UAE, Nepal and Bangladesh. Fake notes from Dubai are transported by air with the help of bona fide passengers or couriers appointed for the purpose (Srinivasulu 2009). Fake currency is also sent by land route through infiltrators from Pakistan to India. Once smuggled, the fake money is exchanged for original notes on a roughly 2:1 ratio (The Hindu 2005). Pumping in fake currencies is one of the sub-conventional warfare strategies pursued by Pakistan against India. The objective is to subvert the Indian economy and fund terror networks (The Indian Express 2010). According to a Planning Commission Report:
the fake currency enables the adversary to obtain the services of individuals and groups in this country to act against our security interests at very low cost to itself. Once such conduits are established, they are used to push in drugs, explosives, weapons and trained terrorists. (Subrahmanyam 2003)
For instance, investigations reveal that the ₹50 million that were incurred by the terrorists to trigger blasts in Hyderabad in 2007 and ₹3 million spent on the attack on the Indian Institute of Science, Bangalore in 2005, had been generated mainly through fake currency (rediff business 2008).
Human trafficking is the second most lucrative illicit market in the global economy after the drug trade. Some 2.5 million people are trafficked each year, 1.2 million of them children. In cross-border human trafficking, India is a sending, receiving and transit nation. Interestingly, only about 10 per cent of those trafficked are cross-border and the rest (90 per cent) are within the borders. This shows prevalence of both supply-side and demand-side factors in India. The rate of crime under human trafficking was 0.4 in 2006 and 2007, 0.3 in 2008, 0.2 in 2009 and 0.3 in 2010. Thus, a mixed trend is observed during 2006–2010. 15
The proliferation of small arms is yet another major security challenge for India. More than 600 million small arms and light weapons are estimated to be in circulation worldwide. 16 They are directly responsible for the deaths of more than 300,000 people every year through armed conflict, homicides and suicides. They fuel civil wars, organised crime, and terrorist violence. Illicit small arms trafficking are closely connected to narcotic drugs in terms of exchange. The estimated total number of registered small arms in India is roughly 6.3 million; unregistered illegal weapons could be several times more. Criminal gangs are heavily involved in the trade in illegal firearms. Most crimes are committed with illegal weapons (NCRB 2010, 340).
Cyber warfare, described as the ‘next generation of threats’, 17 has turned out to be another internal security issue and an ‘area of emerging concern’. 18 Statistically, India has been among the top five targets of malicious activity on the internet that ranges from virus, Trojan, malware, identity theft, hacking, cyber stalking, cyber squatting, spamming, email-bombing, email-spoofing, cyber defamation, web defacement, data diddling, web jacking, denial of service attack, key logging and internet time theft. The country has seen an increase in the number of cyber attacks from 23 in 2004 to 2,565 in 2008, 10,315 in 2010 and 13,301 in 2011 (Business Standard 2012).
Thus, challenges to internal security of India are numerous and the extent and scope of threats are complex, varied and vast. No other country in the world confronts so many threats, with so much intensity, at the same time. Overall, more than 50 per cent of India is said to be affected by one or the other of these threats, which are not just ‘law and order’ problems. They have increasing external dimension falsifying conventional wisdom that internal security threats are caused mainly by internal sources. They threaten the body politic like a ‘cancer’. If appropriate actions are not taken, they may result in the gradual degradation of the Indian State.
Analysing the Responses
What are the reasons for such a disturbing internal security trend and what should be the right response?
Geo-political Factor
Very few countries in the world are placed in an unfavourable, troubled and uncertain security environment as India is. Its immediate neighbourhood, especially, is dangerous. South Asia is the second most volatile region in the world after West Asia. India is located at the centre of an arc of fundamentalist activism, terrorism and political instability between North and East Africa and South-east Asia that has witnessed some of the most dramatic acts of terrorism over the last decade. To cap it all, India is sandwiched between the ‘Golden Crescent’ and the ‘Golden Triangle’ 19 —the two major illicit drugs-producing zones in the world. India faces on a daily basis a proxy war from across its borders from Pakistan using terrorism and local insurgencies. 20 The Inter Services Intelligence (ISI) initially used Pakistan-based militant groups like the Lashkar-e-Toiba, Jaish-e-Muhammad, Hijbul Mujahideen, Harkat-ul-Jihad-al Islami (HUJI), but gradually encouraged local Muslim groups like Students Islamic Movement of India (SIMI), Indian Mujahideen and Al Ummah to ‘wage jihad against India’. 21
Border security, therefore, is critical for effective internal security management; it is important in preventing terrorist attacks from across India’s porous borders. India’s land borders have for long been used for infiltration by inimical forces. Vigilance along the borders needs to be substantially enhanced, including through the use of hi-tech surveillance devices. Border management also needs to be more efficiently coordinated between various Central agencies that operate along the country’s borders. In this respect, the report of the Border Management Committee, established by the Group of Ministers (GoM) that studied the recommendations of the Kargil Review Committee, must be implemented in full at an early date. Frontage for border patrolling should not be more than 30 km. Floating border out posts (BOPs) for riverine patrolling are important. Each specialised force should be used for the intended purpose and should not be diverted. For instance, the use of the Border Security Force (BSF) personnel for election duties has unnecessarily stretched the Force from its primary task of border guarding. Similarly, the GoM Report recommended ‘one border one force’ to make border management more effective. However, in practice, the BSF looks after two borders—India-Pakistan and India-Bangladesh—and the Sashastra Seema Bal (SSB) is responsible for India-Nepal and India–Bhutan borders.
As far as coastal borders are concerned, India’s 7,516 km-long coastline along nine states and four union territories (UTs) and 1,197 islands are not invulnerable. The Coast Guard and the state-level police forces, the primary agencies responsible for guarding the coastline, do not have adequate personnel or infrastructure to discharge their responsibilities. The concept of ‘marine policing’ is still on paper. This should be revived. The ‘Coastal Security Scheme’ launched in March 2006 by the Union Home Ministry, in which 73 coastal police stations, 97 check posts, 58 outposts and 30 barracks are planned, requires to be revisited in terms of quantity and quality of the proposed infrastructure (India Today 2009). There has to be good coordination between the coastal states/Union Territories and the marine forces (Navy and Coast Guards). Training and periodic orientation of marine police should be the responsibility of the Navy. Piracy that has emerged as new marine threat to India’s coastal security should be incorporated under the ‘Coastal Security Scheme’. Periodic joint exercises among the marine forces and marine state police should be conducted.
Criminal Justice System
India’s unfavourable strategic environment does not fully explain the state of poor internal security situation. The reason also lies in the weak internal security mechanism, especially the criminal justice system. The principal objective of a criminal justice system is to give a maximum sense of security to the people. However, India’s criminal justice system is not in good shape and is, in fact, under immense strain. There are problems in all the three components—law enforcement, adjudication and correction—and desperately call for reforms.
Law Enforcement
Indeed, some of the Indian laws have become old, archaic and out-dated. Yet, for the most part, India’s laws and regulations are satisfactory, but it is the enforcement of these laws that is challenging. Why? According to Bureau of Police Research and Development (BPRD), the Police in India ‘suffer with a variety of organisational, procedural, personnel and behavioural ailments and paradoxes’ (Bureau of Police Research and Development (2006). The ‘Draft National Policy on Police Training’ identifies major dimensions of change and challenges as regards the police organisation: Rise in white collar and organised crimes, economic changes and sociopolitical instability resulting in public protests, demonstrations and mass violence; social disparities, anomalies, lawlessness and permissiveness, leading to a higher rate of juvenile delinquency, alcoholism and social disorder; acceleration of social mobility giving birth to new patterns of criminal acts, declining standards of morality and degeneration of ethical values; proliferation of social legislation and increasing burden of social responsibilities of the police leading to gradual decline in respect of law, rampant corruption, increasing materialism at all levels, increased police stress and an aggressive approach among police officers themselves for solution of their problems; smuggling, espionage, subversive activity along the international borders, terrorism and threat to national security and integrity; increasing communal and caste intolerance; information technology revolution resulting in the growth of cyber crimes; and increasing public expectations (Ministry of Home Affairs 2006).
However, the numbers of policemen have not caught up with the mounting challenges. Statistically, the number of policemen per 100,000 people in India is 137.8 as against the minimum UN norm of 220. In other words, one policeman is required to look after 761 people. The ‘Actual’ strength of Civil Police, including District Armed Police in the country during 2011 stood at 1,281,317 against the ‘Sanctioned’ strength of 1,660,953. The vacancies run over 23 per cent (NCRB 2010, 167). At national level, India has an average of one constable for every 1.53 sq. kms of geographical area. As a result, there is an extraordinary workload on an average policeman, which has adversely affected his efficiency, performance and morale. When it comes to quality, the functional image of police in India is not satisfactory. Police-Community relations are normally ‘brief, contextual and even negative in nature’ (Bureau of Police Research and Development 2006, 3).
The poor quality of policemen is partly due to lack of proper training. Not much has changed since the Gore Committee on Police Training observed that ‘our considered view is that police training, except in some of the central police organisations, is currently in a state of general neglect. The training arrangements in the different States are unsatisfactory qualitatively as well as quantitatively’.
22
There are indeed training institutions for the Indian Police Service (IPS) officers but there is little training for constables and sub-inspectors.
23
On an average a police officer is retrained only once in about twenty years, although in some states like Tamil Nadu this has improved. Training of police personnel has been accorded low priority by most state governments for two reasons:
The available staff are so stretched that there is no time for police personnel to be sent for training; and Lack of training infrastructure in most states.
24
An amount of ₹709 crores was spent on police training at the all-India level during 2010–2011 which was only 1.43 per cent of the total police expenditure of ₹49,576 crores. (Bureau of Police Research and Development, 2012, 84).
What India requires is, as the Padmanabhaiah Committee advocated, a ‘highly motivated, professionally-skilled, infrastructurally self-sufficient and sophisticatedly trained police force’. 25 There has to be conscious and serious effort to strengthen the overall professionalism and capacity of the police. Due attention is required for proper training, development of advanced forensic skills and facilities, and separation within the police of responsibility for conducting investigations from the day-to-day responsibilities for maintaining law and order. As the BPRD rightly points out, the procedural quagmire tends to make police an object of social distance and popular distrust. The penal and procedural police aspects will have to be reshaped according to the democratic, secular and egalitarian aspirations of the Indian people and their Constitution. Behavioural reforms and attitudinal change at the individual and department levels are required to be brought about with a view to developing professionally sound, individually courteous, functionally democratic and morally strong people to man the police organisation. A modernised police organisation will become progressive in their functioning and democratic in their behaviour (Bureau of Police Research and Development 2006, 4–5).
Lack of proper equipment like weapons, gadgets, protecting gears and communication devices for police personnel is yet another issue. Police constables are poorly armed and the firemen lack protection. There has to be routine up-gradation of equipments as per world standards. Use of state-of-the-art technology is important to have an edge over terrorists. The Central government has already been assisting states by providing separate funds for police modernisation. ‘Modernisation of State Police Forces Scheme’ has been in implementation since 1969–1970.
26
The objectives of the Scheme are to meet the identified deficiencies in various aspects of police administration and to reduce the dependence of states on the Central Police Forces/Army. Keeping in view the difficulties expressed by the states to contribute a matching share towards implementation of the scheme, it was revised on 22 October 2003. The revised scheme includes changes in the funding pattern after grouping the states into two categories, namely, A and B, on the basis of threats from insurgency/Naxalite militancy/cross-border terrorism being faced by them. Focus has been on fortification/up-gradation of police stations in terms of infrastructure, weaponry, communication equipment and mobility in Naxalite affected districts. Yet, most of the states are found wanting in utilisation of police modernisation funds. They do not even have perspective action plans for modernisation. As a Parliamentary Committee rightly points out:
…when it comes to the control and superintendence of police forces, the States do not want to yield even an inch of their jurisdiction. But at the same time when it comes to improve and strengthen their police forces, they simply raise their hands expressing their inability to do so because of financial constraints.
27
The Centre also has to share the blame for releasing funds late. Partly the reason for delay is due to states’ failure to submit ‘utilisation certificates’ on time. But, overall, the scheme has undoubtedly made some positive impact on strengthening the ‘first responders’ (Jha 2007). Apart from insisting on a national standard, monitoring of modernisation of state police forces should be periodically undertaken by the Central government. In the process of modernisation, needs of the local and district levels should be taken into consideration instead of pushing things from above. This will require updating educational levels in the security forces and developing a technological and scientific temper.
Emphasis should be on capacity building at the police station level itself, so that the police personnel are better equipped. Each police station should aim at being self-sufficient and needs to be given the required resources in terms of anti-riot gear, better weapons, a nucleus of a mobile forensic unit and be connected to a networked criminal database management system. Ironically, as on 1 January 2011, 350 police stations did not possess telephone facilities; 107 police stations were without wireless sets; and 38 police stations possessed neither (Bureau of Police Research and Development 2009). Rectifying this ‘communication gap’ is important. Every city should have a modern police control room with digitised maps. Connecting all police stations in the country through an intranet is not a luxury, but an imperative. Currently, the database of each agency stands alone, with its owners having no access to other databases. As a result, crucial information that rests in one agency is not available to another. In order to remedy this deficiency, the government has decided to set up NATGRID, under which 21 sets of databases would be networked to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies (India Today 2011). But this ambitious project is yet to get operational.
The Group of Ministers Report on ‘Reforming the National Security System’ recommended making the CRPF as the nodal counter-insurgency force. However, even after 10 years since the recommendation, the CRPF is yet to gear itself to the job. There are several problems that range from training to shortage of officers at the cutting-edge Assistant Commandant level, to lack of motivation, ethos, leadership, resources and credible intelligence (Swami 2010). To sort out these problems, the force requires major restructuring. The idea to restructure the force by dividing it into two to take care of ‘soft duties’ like law and order and ‘hard duties’ like counter-insurgency may sound good, but in reality may not be feasible (The Times of India 2010). There will invariably be a mix-up between the two divisions due to manpower shortage and various other administrative reasons. It is better to increase the efficiency of the whole force and give emphasis to quality rather than indiscriminate expansion. It would also be better if the CRPF follows officer-led operational model of the Army instead of placing its men under the command of the district Superintendent of Police (SP) for counter-insurgency operations. It is also important for the CRPF battalions to operate as self-sufficient cohesive units. Appreciable, there has been some improvement in this regard.
At the macro level, the Constitution should clear the cobweb of who is responsible for internal security. Presently, there is no mention of ‘internal security’ in the Constitution. The Supreme Court in Kartar Singh’s case clearly spelled out who’s responsible for what. 28 The Court said ‘law and order’ is one thing, ‘public order’ is another and ‘acts of terrorism’ are quite another. All were referred to, in the words of Chief Justice Hidayatullah, as three concentric circles. As far as the security of the state is concerned, it is the innermost circle that is purely the responsibility of the Centre. The Court clearly observed that the ‘public order’ entry of the State List does not encompass terrorism. It is either the residual entry 97 (of List I that says ‘Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists’) or it is the defence of India entry which covers terrorism. This has to be formalised. The Seventh Schedule should, therefore, be amended suitably to include ‘internal security’ either under Central List (List I) or Concurrent List (List III) to enable a clear cut role for the Centre with the concurrence of the concerned states on the issue. It is vital for the Centre to assert its role on issues pertaining to internal security, but by taking states as partners, without compromising the spirit of federalism.
Adjudication
The main problem in this component of criminal justice system is huge backlog of cases due to resource and manpower constraints. By mid-2012 there were 61,876 cases pending in the Supreme Court. Of these, the number of unresolved cases older than one year has increased to 40,658 from 35,909 (Ganz 2012). The total number of pending cases in the High Court and subordinate courts was around 3.2 crore as on 31 December 2010 of which around 85 lakhs cases were more than five years old. Pendency has increased by 148 per cent in the Supreme Court, 53 per cent in the High Courts and 36 per cent in subordinate courts in the last 10 years (PRS Legislative Research 2011). There were 3,146,326 cases for investigation during the year 2011 including the pending cases from previous year (National Crime Records Bureau 2012a, chap. 4).
Due to this, there were enormous delays in the adjudication, increase in litigation costs, loss or diminished reliability of evidence by the time of trial and unevenness and inconsistency in the verdicts that ultimately are reached at trial. Consequently, large numbers of under-trials languish in jails while awaiting trial. In many cases, the detention under trial even exceed beyond the maximum periods to which they could be sentenced if convicted. Justice delayed is of course justice denied. Such incapability of the judiciary in delivering justice on time has the danger of reduction of faith in the justice system among the people; low conviction rate has created a perception that crime is ‘low-risk, high-profit business’ (Ministry of Home Affairs 2003). Presently, compared to China and Japan, where the conviction rate in criminal cases are about 98 per cent, the corresponding rate in India is much lower.
29
This has resulted in huge under trails and overcrowding of prisons, which in turn, has significantly brought down the deterrence value of the criminal justice system. Two measures are suggested:
It is important to increase the number of judges. As suggested by the Supreme Court, the present ratio of about 13 judges per million people should be raised to at least 50 judges per million people in a phased manner.
30
While working autonomously, better rapport between police and prosecutors could certainly improve the condition (Raghavan 2003). The present Adversarial System is not only insensitive to the victims’ plight and rights, but also does not encourage the presiding judge to correct the aberrations in the investigation or in the matter of production of evidence before court. The judge in this system is not concerned with the truth, but only with the proof. As suggested by the Criminal Justice Commission, some of the good features of the Inquisitorial System
31
can be adopted to strengthen the present Adversarial System of common law to increase the rate of conviction.
Simultaneously, a number of judicial and legal bottlenecks must be removed to improve India’s enforcement regime. In addition to electronic filing systems, India’s courts need more judges, higher filing costs (to discourage frivolous litigation), improved tracking of cases, more alternative options for dispute resolution, pre-litigation measures and plea bargaining. Specialised courts should be set up to replace civil courts in the appeals process. Judges and courts who are trained in specific areas of the law would be better equipped to consistently enforce laws and judgments in a relatively small area than courts which are forced to deal with widely disparate areas of law. Setting up such courts ought to be a joint effort of the government and the bar. Enforcement could be improved by better training for the police and judiciary; placing a limit on the number of adjournments and injunctions granted; and imposing higher costs on parties that lose commercial disputes. Lawyers are also to a large extent responsible for the lax enforcement regime. Most of the times lawyers not only fail to fix an ailing system, but nurture and exploit it.
Correctional System
Indian jails are overcrowded. As on 31 December 2011, the total capacity of jails in the country is 332,782 as against 372,926 jail inmates. The occupancy rate at all-India level works out to 112.1 per cent. Ironically, the number of under-trials stands at 241,200, constituting 64.7 per cent of total inmates (NCRB 2012b). Uttar Pradesh has reported the highest number of convicts (23,910) under IPC crimes followed by Madhya Pradesh (14,434) accounting for 21.4 per cent and 12.9 per cent, respectively, of the total Indian Penal Code (IPC) convicts (111,987) in the country. There were 48,656 persons lodged as under-trial prisoners in various prisons of the country for committing crimes under Special and Local Laws (SLL). The highest number of under-trial prisoners (11,779) was reported under NDPS Act which accounted for 24.2 per cent of the total under-trial prisoners under SLL followed by the Arms Act (18.6 per cent) and the Excise Act (12.0 per cent) (ibid.).
The main aim of ‘correction’ strategy is to induce positive change in the attitude of criminals. The emphasis is on the basic trust in the ability of the criminal to rehabilitate himself and proceed towards a re-adaptation of his behaviour. But there are certain issues that require attention. Firstly, are prison conditions good enough for correction? There are two aspects involved in imprisonment: ‘imprisonment as punishment’ and ‘imprisonment for punishment’. In the first aspect, the very solitary confinement and denial of societal contacts is regarded as punishment. In the second aspect, apart from the first aspect, the added physical, mental and other kinds of humiliation are considered as part of punishment. The latter aspect, by default, gets activated due to poor prison conditions resulting in the counter-productiveness of the whole corrective system. 32 This should change; prisons are principally meant for rehabilitation. Secondly, care should be taken that the internment should not become a kind of ‘staff college’ for the criminals to plan and regroup (Wilkinson 2001, 116).
Conclusions
To realise its national objectives—political, economic, socio-cultural, military and diplomatic—India has to secure itself internally. Till the time ‘our internal security is not up to the mark, we won’t be able to take good care of external challenges’. 33 Governance cannot be carried out in the absence of internal security. By 2050, India will be the most populated country in the world and second largest economy with around one billion workforce. India will be a significant player in regional and global arena. However, India cannot become a global power as long as complex threats afflicting its internal security remain. Countering complex nature of threats effectively requires a renewed set of policies and mechanisms.
What is required, at the outset, is a political desire, if not political will, to deal with the entire gamut of internal security threats. Unless it is made sure that the criminal justice system functions with speed, fairness, transparency and honesty, it is difficult to bring down the prevailing ‘crisis of legitimacy’. Improving law and order requires cooperation across all rule-of-law institutions. Police reform alone would not suffice to quell crime if police capture criminals and then corrupt judges release them and if prisons allow convicts to enlarge their criminal empires while behind bars, or if laws do not exist to keep them in jail for adequate periods of time.
The most important ally in countering complex internal security threats is the common public. The state cannot afford to be present everywhere. If ‘eternal vigilance’ is identified as a crucial component of the response option, involvement of civil society is important. Only a firmly united people and stable society can help any government of the day in countering the threats external or internal. For this, the common public need to be sensitised about the gravity of threats and suitable responses. Strong security consciousness is required to be created.
At the same time, the role of the private sector in enhancing security cannot be undermined. Although there is a lack of clarity on the role of the private sector in internal security, the market forces could be helpful in three ways. Firstly, it could meet the requirements of the internal security apparatus through international collaboration and technology transfers. Secondly, the private sector could make sure that it does not indulge in over-exploitation of resources and in turn alienate the communities. Thirdly, it could generate numerous employment opportunities in addition to involving itself in community service as part of ‘corporate social responsibility’. 34
On securing cyberspace, neither the government nor the private sector nor individual citizens can meet this challenge alone; all have to work together to investigate cyber intrusion and to ensure an organised and unified response to future cyber incidents. It is also important to strengthen our international partnerships on a range of issues, including the development of norms for acceptable conduct in cyberspace; laws concerning cybercrime; data preservation, protection and privacy; and approaches for network defense and response to cyber attacks. 35 While it is a challenge for law enforcement agencies to monitor every cyber café, it is here that cyber forensics-based audits and evidence gathering can play a pivotal role in dissuading criminal use of the cyber cafés. Similarly, ISPs can use that technology to monitor the traffic data of the cyber cafés to a greater degree, and develop (real time) trends and patterns at the micro level. Cyber forensics can be applied to networks and in case of any red flags or once the IP is tracked, it can help in imaging the hard disk and track the individuals responsible for the activity. The metadata of the files or any document can be analysed and matched with the log maintained by the cyber café. Some of these measures would require policy and legal changes to ensure compliance and prevent misuse.