In Conversation with Mr. Sanjay Vashishtha – Criminal Law Policy and Reforms

Mr. Sanjay Vashishtha is currently Advocate at Supreme Court. He has completed his  LL.M from McGill, Canada and MSc. in Criminology from University of Oxford. He is a Professional Criminologist and is Research Associate at Centre of Criminology, University of Oxford. He is also associated with Indian Police Institute and Association in Defense for the Wrongfully Convicted (Canada), Innocence Project. In recent conversation with IJLPP, he talks about his paper on Evidence based Policing, Acid attack cases in India, Innocence project, role of the Supreme Court in reforms and much more.

Q. To start with, you have been part of Indian Police Institute. There has been a discussion going on around the point that we may need experts in the Police System as bureaucrats are not policy experts in the field of criminology. You have interacted with many retired and working IPS officers. Do you think from your experience, we may need experts on government side?

Yes, of course expert is required. Evidence policing implies evidence-based policy making which will address the root causes of problem. There is a lot of jurisprudence on this aspect. We are still following the RRR (rapid response reactive investigation) technique but what we should follow is TTT technique i.e target tracking and testing technique. Expert would help and what would help is multi-disciplinary approach i.e. multiple agencies should come together for better policy and that requires better multi-agency bond. Expert from various domains should come up with their ideas which are cost effective. These all steps are required for better policing.

Q. You have been active supporter of Evidence based policing. Now this will require not only police system to reform itself but also for the academic side to look onto itself. Where do you think both stand today? Are they mature enough?

Absolutely, our academics is mature. I was sharing dais with G.S. Bajpai, renowned criminologist, he also admitted to this and told that endeavor is to connect academic world with the policing world and that to with a better and pragmatic manner. This interaction will result in better policing. For e.g. Acid attack has increased in last few years with rapid speed, we have the law as well as guidelines but where we have failed. There was a project by Bureau of police and development to study the socio-psyche analysis of the acid-attackers. This takes us to academic side and this requires research study which will come only from academic world, but this needs to be practical. This is how evidence-based policing will be generated.

Q. The Supreme Court in 2014 in Laxmi vs Union of India has already given guidelines on tackling acid attacks on women in India. Then recently we saw acid attack on Shabnam Rani who is the lead petitioner in the case challenging Nikah Halala. What do you think are the reason for this vindictive and cruel crime in the society? How does criminology see this crime?

In India, gender-based violence is dominant and this has many reasons such as power dynamics is disturb, studies tell us that it is mostly out of love rejection, vendetta etc. where male ego is hurt and these things perpetrate offenders. We have grossly failed in control of acid sale which is the major reason of the crime. Also, conviction rate is really low as 11%. There are multiple problems, my personal understanding is that chain of criminality should be broken which can save the victim. The moment it is realized that crime can be committed against victim, it should be reported to the police. It starts with eve-teasing and can lead to heinous offence.

Q. In this week the Me-Too movement has gained quite a popularity where a lot of women have come ahead to talk about sexual harassment against them. Mostly it involves acts done way long back. Do you see it as a failure of CJS to imbibe confidence among women to go and approach authorities for redressal of such crimes at the very same time when the crime was committed?

Naming and shaming offender is the concept behind #metoo movement. Judge Kavanaugh who has been confirmed to USA Supreme court had to appear before FBI as well as Senate. This incident (with which he was charged) happened when he was 16. We need to understand why these women take decade. I think there was a lot of pressure on them to take forward their journey, career and these individuals against whom there are allegation are big-shots and they could have destroyed their career very easily. Something to note is middle class women are not being highlighted and the whole point of this movement is to highlight is that they do not trust our criminal justice system. They do not feel encouraged enough to report crime. To enhance police legitimacy, we need better approach. To ensure confidence in such victims. Otherwise crime will increase. This movement has given them impetus to highlight their plight.

Q. There has been some landmark judgments of SC on police reforms like D K Basu or Prakash Singh Case etc. Now there are two-pronged question here:

a) Are guidelines by SC evidence based or they are simply what the petitioner in such PILs ask for.

b) effectiveness of judicial institutions in criminal reforms.

Recently, HM Justice Madan B. Lokur formed this committee on Jail reform which consist of member from various disciplines. The approach is pragmatic where committee is headed by Retd. SC judge and other members are social workers and from police system. So, Supreme Court has at various time taken such endeavor. If we see the Prakash Singh’s judgement, Prakash sir fought this battle for more than 10 years, unfortunately the judgement is still to be implemented in various state. The will and intention of the state also matters. Everybody cannot be shown contempt notice. We need to understand that there are legal loopholes and state needs to show willingness to overcome such obstacles because PIL order is not sufficient. If anything is done without the will then it will not have desired result. Supreme court is a dynamic court and irrespective of prayer, court has at various instances accommodated various interest of the society to ensure social justice.

Q. You have been associated with Innocence Project in Canada. Do you think India needs a Innocence project of its own like in America and Canada?

Ans. We do need an Innocence project. In Canada, the Code of Criminal Procedure allows to re-open the matter. My association with the Innocence Project in Canada has been there for a while. There have been cases where the person has been languishing in prison for 20 years only on the sample of a hair found from the crime spot. But then later when DNA profiling was done it was found that the hair didn’t match. In India, poverty is a big problem. There may be cases of improper representation. This may lead to absence of fair trial. There may also be cases where the person pleads guilty because of circumstances like better health facilities and food etc. in prison. I have been part of certain discussions where such project has been planned for India as well. But let’s see how they unfold.

Q. Now the government has proposed the idea of DNA Technology Regulation Bill. There has been a wide discussion in its favor and against already at such an early stage of the bill only. What’s your take on such steps on reforming criminal system?

I haven’t studied the bill in detail, but it can lead to wrongful conviction as DNA can also be planted. The Aadhar Act has made itself clear that no such use can be made. There was also a Bombay High Court judgment on this point of refusing the sharing of finger print as the act doesn’t allow so. This is just a bill and not finalized yet. But if there are any negative aspects of this Bill, they need to be resolved. Right to Privacy will be the biggest challenge for this bill and that needs to be addressed before the bill is brought into force.

Q. Lastly, from your experience how do you see the future of Criminal Justice System and Policy making in India?

It is about time that we need a multi-disciplinary approach. We need representation from every segment of society irrespective of their educational background. The problem with NCRB data is that it is limited to reported crimes but crimes again women are hardly reported. When we know they are hardly reported why are we shocked about Me Too movement. The solution lies with Evidence based Policing. We need to understand that our country is very diverse and there cannot be single policy for everyone.

The Interview was taken by Pranav Tanwar (Editor in Chief, Volume V Issue I) and Saurabh Pandey (Publishing Editor, Volume V Issue I)