Brief thoughts on the use of petitions and the Indian legal system

Do petitions work? That totally depends on what they are for and in what legal system they seek to operate. Today, I sent around a petition to my Indian friends, which asks to sign in order to bring charges for a politician who apparently incited violence at the recent Delhi protests. Many of my friends signed, but almost all of them asked: Alright, so why am I signing this? What will this do? Can’t someone just, like, go to the Court and file the case? I am not lawyer, so I don’t know, and I also don’t know what the person who made the petition is planning, but I did a little reading and found this:

Important is the distinction between civil law and criminal law. Civil law governs the relations of people among each other, and criminal law the relation between citizens and the government. If someone hits another person, this could be covered by both legal regimes: It could be a criminal law case, as it is illegal to hit someone else with the intention to hurt them, and it could also be a civil law case, as the ‘aggrieved party’ could ask for reparations from the person who hurt them. In civil law cases, the victim a large role to play as they are one party, but in criminal law cases, the victim might only be allowed to listen in and aren’t involved.

There are also different legal systems around the world, and I know that they can largely be divided into two systems: Common law and civil law. Yes, the word ‘civil law’ pops up again – it is not only a type of case, but also a type of legal system. But even though the two share the same name, they have nothing to do with each other.

Now, while the characteristics of each type of legal system often overlap or blend into each other, I want to grossly oversimplify them for the purpose of this explanation. Most civil law systems come from the French model, and follow the principle that any case with sufficient evidence should be put before a court of law. So once a prosecutor hears about a person where there is enough evidence that they did something, their job forces them to see if someone is already prosecuting it, and if no, they have to. Other countries follow the “principle of opportunity”, which is mainly present in common law countries (again, oversimplification). Common law comes from the British legal system, and India therefore has a largely common law system. Here, a prosecutor does not have to prosecute a case even if there is enough evidence. This is because the legal system might be overburdened if aaaaall cases were brought to court. The general idea is that the prosecutor should prosecute those cases that “serve public interests”. But little is known about what that means in practice, but you can usually see a tug-of-war with police over what cases should be prosecuted.

I’m taking this from the textbook I had in my Comparative Justice Systems class: Francis Pakes, Comparative Criminal Justice (2014) Routledge. I am kind of piecing together the knowledge I have – I don’t exactly know why there is a petition, and what it does, but I strongly assume that it has to do with this “prosecutorital discretion” that exists in common law systems, such as India. Then again, I would have to research more about that.

Another frequent question was why one can’t just go to the Delhi High Court and file a case against the politician. Why sign the petititon? I remember reading a book about so-called “public interest litigation” (PIL) in South Asia (https://amzn.to/2wJjxPb). They are an incredible concept that is actually quite rare worldwide where someone can file a case at a court even if they are not the aggrieved party. This has significantly helped NGOs and activists to file cases even if they are not directly the victim, and have been used mainly for things like “My village is not receiving water!” or “This company polluted my river!”. What is clear about PILs from the language ‘aggrieved party’ is that they exist in civil law issues – disputes between actors, where one felt that the behaviour of the other injured them. While you can file murder as a civil litigation case, the outcome would not be that the person who did wrong goes to jail. Instead, civil disputes are usually settled through fines. And most importantly even, a PIL can also only be filed against the government as an institution. In other words, it does not invoke responsibility, but liability. It is aimed at remedies rather than punishment.

So let’s apply this and imagine a family member of someone who died at the Delhi protests files a PIL about their relative getting killed. They could not blame an individual police officer or politician, but would have to address their complaint towards the government: “Because you failed to prevent this violence, my relative’s right to life under the Constitution was violated!” This would probably work, but not bring any individual responsibility, but could lead to the family getting paid reparations.

So no – I am not giving you an answer on what a petition does do. But I hope that I provided some context as to why petitions might be used. At most, the petition might even be a mechanism itself to start a procedure. But it is clear that for criminal cases in countries that follow the Principle of Opportunity, petitions can at least create public awareness and serve as a grounds for a prosecutor to think that they should pursue a case and bring charges.

Note: This is what the petition I refer to itself writes about its use.

It is imperative to file a first information report (FIR). Experience shows that in the current political climate the police does not register an FIR and begin an investigation, even though duty bound to do so, unless it has clear political directions. Hence it is important for concerned citizens or organisations to register a complaint (either in person or by registered post) and, thereafter, if the police do not act, approach the courts to ask that such offences get investigated. You can file an FIR under section 154 of the CrPC by registering it with a local police station. If the police argue on issues of jurisdiction (delays the action stating that the hate speech or writing was made elsewhere) you can, under law, insist that by hearing these words or such writing in the media/in a pamphlet or on television, you have been aggrieved by it and hence wish to file it there. In the worst-case scenario, if the police refuse, you can obtain an order from a local Magistrate for registration of an FIR under Section 156(3) of the CrPC.

https://www.change.org/p/commissioner-of-police-new-delhi-hold-kapil-mishra-accountable-for-instigating-violence-prosecute-him?recruiter=852549536&utm_source=share_petition&utm_medium=copylink&utm_campaign=share_petition&utm_term=46fd25763ce8443092b00ffd3a0fc51d
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