29 April 2014 7:00 AM GMT
Prof. G.S.Bajpai is a known Criminologist and Social Scientist in India. He won the Prof. B S Haikarwal and Prof Sushil Chandra Award for Senior Social Scientist this year. He is a Professor of Criminology & Criminal Justice in National law University. (NLU)Delhi. In this interview with Live Law Associate Editor Suchitra Menon, he speaks about a variety of subjects- from Legal research...
Prof. G.S.Bajpai is a known Criminologist and Social Scientist in India. He won the Prof. B S Haikarwal and Prof Sushil Chandra Award for Senior Social Scientist this year. He is a Professor of Criminology & Criminal Justice in National law University. (NLU)Delhi. In this interview with Live Law Associate Editor Suchitra Menon, he speaks about a variety of subjects- from Legal research to Kaushal Judgment.
Live Law : Congratulations on the receipt of Social Scientist award. Can you share a few words about this achievement?
Prof. G.S.Bajpai : The Indian Society of Criminology has been in existence for last more than four decades. It has instituted many awards. Prof. B S Haikarwal and Prof Sushil Chandra Award for Senior Social Scientist is most coveted one. It is given to an academician who has contributed through his research and publications in the field of criminology and criminal law. My candidature for the award was judged by an apex committee who scrutinized the nominations for this award. The award recognized, my more than eighty publications, eight books and ten research projects and many other occasional papers and other contribution to the field.
Live Law : As a pioneer in the field of legal research methodology, please tell what motivated you to specialize in this niche area?
Prof. G.S.Bajpai : Legal research methodology (LRM) is one of my key specializations. I was always fascinated to research and the learning of research methodology was a natural consequence in this process. My one liner is: ‘best way to learn research method is doing research ’. While teaching LL.M course at NLIU, Bhopal, I realized that there is huge scope to impart training in LRM not only to students but also to teachers. I tailored research methodology specially to law and perhaps for the first time in the country, law specific issue like ‘law impact assessment’ was added in the syllabus of law by me. On one occasion, Prof N R Madhva Menon suggested me to hold training programmes in this area. Following this, I organized a first of its kind national level workshop, in LRM and there was tremendous response from all corners and that motivated me to continue with these workshops and by now I had organized more than a dozen of such events. Two International workshops on empirical legal research have been organized at NLU Delhi with the collaboration of Cornell Law School. My current focus is training law researchers into using software in data processing. Thanks to the inspiration of Prof. Ranbir Singh, Vice Chancellor, NLU Delhi, we became perhaps the only law university to have acquired and utilized the SPSS based data processing training to law researchers and students. The NLU Delhi is going to set up an exclusive ‘Centre for Empirical Legal Research’ to carry out advanced activities in this area. The NLU Delhi is sure to emerge leader in empirical research training.
Live Law : Often it is said that legal research always focused on doctrinal research? But is this true and does non-doctrinal methods of research have relevance for law?
Prof. G.S.Bajpai : I find even doctrinal research method has not been rightly understood and executed in India. I am of the view that doctrinal research could be as rigorous and systematic as empirical or non-doctrinal one. There is a surely a need for training the researchers in doctrinal method in law and I am working on that. Non-doctrinal methods have tremendous relevance for law. Wherever law is studied in context, empirical methods assume importance. And whenever you want to study the compliance part or impact component of law, only empirical method becomes relevant.
Live Law : Legal research methodology experts in India are very few in India? Why this scenario?
Prof. G.S.Bajpai : That is right and there are reasons for this. In their time of grooming, most senior generation academicians did not have any focus on legal research and most research was centered on doctrinal methods and there was hardly any scope and opportunity to emphasize research in the discipline of law. Legal education was barely up to LL.M level and there was no research paper on LRM. All this did not allow the research traditions to grow in this country. Many a times, I find a near phobia among scholars to statistics, technology, software and modern techniques. But now young students easily adopt the requirements of LRM.
Live Law : As a criminologist, please tell us how you view the call for increasing the quantum of punishment for juvenile crimes?
Prof. G.S.Bajpai : Recently in Salil Bali case, this matter was dealt with and it did not find favour with the apex court. Reducing the age for criminal liability of juveniles and increasing the quantum of punishment are two very crucial matters currently in debate. I am of the view that increasing the quantum of punishment is not the correct approach to deal with juvenile criminality. The need is to review the whole juvenile justice system which is really not delivering. I am of the opinion that the response to juvenile criminality need to be individualized as children in conflict and in need of care and protection has their own unique problems. Failure of correctional juvenile justice system in India should not be construed a plea to go back to retribution. The need is to ensure that the juvenile justice system starts functioning.
Live Law : Can you please throw light into some pioneering research you have done in the field of socio legal research?
Prof. G.S.Bajpai : To go back to some earlier research that I conducted include ‘victims of violent offences’ and ‘community policing in India”. These were some very original piece of work that had seminal effect. Lately, I have researched the problems of witnesses in the criminal justice process. The study was conducted on 300 witnesses in six states It was attempted to know as to why and in what circumstances the witnesses turn hostile. Are there any specific factors, which induce hostility of a witness? Do the incidents of cooperation or hostility tend to vary along the types and characteristics of witness? The study offered useful suggestions. Besides, I also tested a successful imitative carried out in the UK known as ‘situational crime prevention’. I have done two broad based field research on some six hundred cases to assess the extent to which this model can work in India. This work has been published in the form of a book. I can classify some of studies that I guided as truly pioneering. For instance, one was on the measurement of ‘police subculture’ and other was an empirical analysis of ‘effects of imprisonment’. These areas are hitherto unexplored areas in India.
Live Law : What are your current research endeavors?
Prof. G.S.Bajpai : I have just completed two research manuals published from NLU Delhi to facilitate the project writing and LL M dissertation / Ph.D. writing. Another study which I am currently engaged in is about ‘evolving victimological jurisprudence for suggesting a new legal theory’. Two more studies that are underway deal with the measurement of ‘access to justice’ and ‘rule of law’. My latest book that would come next month is titled ‘victimological narratives on gender violence’. Another is in the making and is on ‘socio-economic offences’.
Live Law : What should law schools in India do to improve the legal research standards?
Prof. G.S.Bajpai : To my mind, the law schools must start taking LRM courses seriously. They need to identify the core faculty and train them. Also, a crisp course module of LRM at the first year of LL.B course can be a good idea so that the students can be oriented to learn the basic methodology to do justice with more than fifty subject projects that they produce in their five year course. At LL.M level also the LRM can be a rigorous programme to develop the research skills and in this module they need to be assigned with projects and actual conduct of field research. Like in the beginning, it is apt to ask to students to go to library and see the structure of some standard research and analyze its methodology. A network of law teachers interested in LRM is also quite imperative. Exchange of faculty for teaching this course should be encouraged.
Live Law : You have rich experience in Criminology ad Criminal laws. Could you give some insights on that?
Prof. G.S.Bajpai : I have tried to do some experiment in the teaching and research in criminal law and criminology. Criminal law teaching needs to be contextualized with the developments happening at the national level. Debate on amendments and case laws is a great idea. On some occasions, I chose landmark cases to do what I call a ‘reverse engineering ’. I expect the students to write pleadings and bring arguments in order to decide the case in its complete reversal (e.g. from acquittal to conviction and vice versa). This would require the students to do a lot of hard work otherwise the flat reading of a decided case does not challenge the mind of students. Similarly, asking the students to bring the aspects of criminal law where the empirical research may be possible is another innovation. Tracing the jurisprudence of every single provision of sections of IPC or Cr P C is indeed highly refurbishing. ‘Theory of criminal procedure’ and ‘critical criminal procedure’ are the two very distinct areas that I developed in the recent past and perhaps no other institutions are currently engaged in these pursuits. ‘Critical criminal procedure’ is a new coinage to identify crtical postions( viz.,of apex court and jurists) on several issues in procedural law which went beyond normative procedure and develop a new jurisprudence. The best shades of criminal law are seen in critical positioning. This is also a new methodology of teaching and researching criminal law. Research driven teaching and pedagogy and engaging the students with real life situations is highly needed. Exposing the students to actual litigants, accused, victim, police, prosecution and other stake holders is bound to bring a creativity in learning the substantive and procedural law.
Live Law : Legal research in India has yet not attained the standards maintained by U.S and European universities and institutes. What are the possible reasons and what could be certain possible solutions to plug the gap?
Prof. G.S.Bajpai : The practices that are recognized most are likely to grow best. In the U.S., the research was not only recognized by the academia but also by the state and policy making bodies. Law researchers have impacted the course of legal regimes and public policy effectively. Legal research by academia in the U.S. brought impressive criminal justice reforms and changes. In India, the academic legal research is in not in good shape. The linkages to utilize the academic research for policy goals in India have not been fully explored and resultantly even good studies go to shelved. There is tremendous scope to forge a partnership between the state and educational institutions to work together. For instance, in India most laws have never been subjected to any impact assessment and this area can be handled by the academic institutions in partnership with the states. There is need to support and nurture faculty exclusively for LRM in India. The National Law Universities, for most part, have been focused to LL.B teaching and their research engagements leave much to be desired. They need to be now geared to enter into their second phase to contribute to research. Research contribution need to be made the key criteria in the recruitment process in academics.
Live Law : What is your take on the recent Supreme Court direction for transgender as the third sex?
Prof. G.S.Bajpai : This should have been done much earlier. Transgender is a reality and they (people) have the right to be recognized as group with third sexual orientation. And this is not merely about identifying them as separate sexual category rather it is more so to address several problems and discrimination that they face on account of their sexual orientation and typical social attitude.
Live Law : Award of life sentence without remission has raised a serious legal and Constitutional question. Can the Supreme Court take away the constitutionally conferred power on governments to remit the sentence of a lifer after he/she has served 14 years in jail? Please share your thoughts?
Prof. G.S.Bajpai : The Supreme Court, which has become increasingly unwilling to sustain the death penalty even for those guilty of gruesome multiple murders, had 7 years ago created a method to balance the scales of justice by imposing life sentence without remission, meaning the convict would spend rest of his life in prison. This kind of sentencing without remissions gave rise to some complex legal and Constitutional question like - can the Supreme Court take away the Constitutionally conferred power on governments to remit sentence of a lifer after he/she has served 14 years in jail? This question was recently dealt in Sangeet&Anrv. Sate of Haryana (2012).
A Three Judge Bench in Swamy Shraddananda case also justified this position . The issue under consideration in this case was whether the punishment to be given in cases where the death penalty ought not to be awarded, and a life sentence is inadequate given the power of remission available with the appropriate Government under Section 432 of the Cr.P.C. In such a situation, what is the punishment that is commensurate with the offence?
The SC in SwamyShraddananda and several other cases gave a sentence in a capital offence of 20 years or 30 years imprisonment without remission and effectively injunct the appropriate Government from exercising its power of remission for the specified period.
In fact the origin of this story can be traced to Vinayak Godse Case in 1961 where the Constitution Bench dealt with the plea of premature release and held that life imprisonment means that the prisoner will remain in prison for the rest of his life. Credit for remissions given or awarded has a meaning only if the imprisonment is for a definite period. Since life imprisonment is for an indefinite period, remissions earned or awarded are really theoretical. From this position the remission by the state is possible only where the sentence is definite but the life imprisonment is indefinite sentence and hence remission may not be permissible. On the petition of noted lawyer FaliNariman five years ago the SC could not take a decision. While admitting the petition for hearing, a bench of Justices H S Bedi and R M Lodha had on April 6, 2010 said: "The basic issue raised by Nariman in this case is whether the direction of the Supreme Court in Shraddananda case that imprisonment of life would mean imprisonment till the rest of the life encroached on the legislative field as it ignored the provisions of Article 21 of the Constitution and Sections 53 to 55 of the Indian Penal Code and Section 433A of the criminal procedure code." Though the SC seems to have fared cautions since then like in the Rajiv Gandhi assassination case it commuted the death penalty of three to life imprisonment with provision for remission of sentence. On the other hand the Tamil Nadu government straight away proposed to release the three by remitting the rest of their life term on the ground that they had already served more than 20 years in prison. The SC had to intervene in this matter on the Centre's petition to stay their impending release.
Live Law : The Supreme Court had observed that for speedy justice in rape trials, the Criminal Procedure Code should drastically amended to allow a magistrate to straight away record statements of all witnesses in sexual assault cases. But this observation is viewed with raised eyebrow by the Law Commission. What is your opinion?
Prof. G.S.Bajpai : The apprehensions of Law Commission in this matter are not totally unfounded. This suggestion conflicts with the basic idea of the police being the sole agency to conduct investigation. Recording of statements routinely by magistrate in all cases amounts to undue interference to police investigation and the position to this respect was already settled in Khwaja Nazir and Saldana cases. The interaction of police with the victim and witness is a part of police investigation and depriving police from this may cause quality loss to the investigation. The mechanisms at the level of police is only sought to expedite the investigation.
Live Law : As a criminologist, how do you view the Koushal judgment and debate regarding de-criminalization of homosexuality under S.377?
Prof. G.S.Bajpai : I suppose the position taken by the Delhi High Court was part of a forward looking and progressive thinking in keeping the individual liberties in view. The ruling of SC is not decisive in the sense it put the ball in Parliament's court to decide on the desirability of deleting the relevant section from Indian Penal Code. Apparently, there is no constitutional infirmity in section 377 of IPC which makes gay sex an offence punishable with up to life imprisonment.
The SC in Koushal v. Naz stated that the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution. This is a very contentious observation and the moot point of whole debate. The Article 15(1) proscribes classification founded only on certain points of identity. Sex is one of them. The opinion of Delhi High court in Naz found that sexual orientation is a ground akin to sex and therefore cannot be the basis of classification as per Art. 15(1). In Koushal, the apex court did not address this issue.
I would say, the issue of two verdicts being right or not so right is part of outlook that you may have for homosexuality and LGBT rights. If one considers such indulgences as offence then punitive approach would prevail otherwise a right based approach would sum up the story other way. These sexual minorities had looked down upon by the society and the police also harass them in all possible ways. This situation was the bedrock of Delhi High court judgment and nothing different happened these days which made the apex court to give a different verdict. Though the SC’s move is technically correct as it has asked the legislature to make proposal on the issue,but considering the rich and proactive past of the apex court where it has given several over aching and path breaking judgments to help the needy, the present verdict caused disappointment to a many sections of society.
Live Law : Supreme Court view regarding capital punishment has increasingly become lenient recently. How do you perceive this development from the perspective of a criminologist?
Prof. G.S.Bajpai : According to NCRB data about 133 persons were awarded death penalty every year in last one decade. Hence, I would not say that the court became lenient in the matter of capital punishment cases. It is more about growing our research based understanding about the effect and consequences of capital punishment. Criminological knowledge and implications explain the logic of three tests (crime test, criminal test and society test) that are used to decide the choice of punishment in terms of life or death. Death penalty does seem to serve the ends for which it is awarded. It does not cause deterrence. It does not help rule of law. From the angle of criminology, it can safely be said most death penalty decisions followed crime test- heinousness of crime, manner of its commission and the total harm inflicted by it. Society test is not so well accepted but in some cases it has been referred to. Criminal test which deals with the profile of offender and particularlywith his potential to reform. As per Bachan Singh crime and criminal test related variables are crucially detrimental in deciding the death penalty. A criminologist would ask to what tools and techniques are available with a judge assess the potential of reform of a criminal. A recent case, State v. Bharat Singh, 2014( Delhi High Court), decided by the Delhi High Court dealt with this dilemma and found that a criminological determination is essential in this case before a judge take decision into such matter.
Suchitra Menon is an Associate editor with Live Law