Rights and criminal justice
|The bulk of the Malimath Committee recommendations revolve around the idea that whittling down the rights of the accused and increasing the rate of convictions will help tackle crime.|
"Everything has been said already,
but as no one listens, we must
always begin again."
but as no one listens, we must
always begin again."
Andre Gide, French thinker and writer.
THE report of the Committee on Reforms of the Criminal Justice System, or the Justice Malimath Committee, opens with this quote from Andre Gide, which seems to find an echo in the committee's deliberations. It sent a detailed questionnaire to 3,164 persons across the country, including lawyers, police officers, government officials, forensic scientists and legal academics. Just 284 responded, and some among them are bitter that their suggestions have been ignored in the report.
"I sent a series of recommendations that have been ignored," said former Chief Justice of India A.M. Ahmadi. "What is the process by which they have taken into account responses to the questionnaire?" he asked.
The Committee, headed by Justice V.S. Malimath, former Chief Justice of the Karnataka and Kerala High Courts, had the task of examining the fundamental principles of criminal law so as to restore confidence in the criminal justice system. This involved reviewing the Code of Criminal Procedure (CrPC), 1973, the Indian Evidence Act, 1872, and the Indian Penal Code (IPC), 1860.
It began its work in November 2000, when it was constituted by the Home Ministry, and submitted its report to Deputy Prime Minister L.K. Advani, who is also in charge of the Home portfolio, on April 21, 2003. The six-member Committee included S. Varadachary, former Adviser to the Planning Commission of India, Amitabh Gupta, former Director-General of Police, Rajasthan, Durgadas Gupta, Joint Secretary in the Ministry of Home Affairs, D.V. Subba Rao, Chairman of the Bar Council of India, and N.R. Madhava Menon, Vice-Chancellor of the West Bengal National University of Juridical Sciences.
The government has maintainted silence on the implementation of the report but the Union Cabinet announced its decision to draft a law to amend the CrPC. The decision came after the Supreme Court asked the government, while hearing the Gujarat Best Bakery case, about the steps it had taken to implement the committee's recommendations, specifically those on protecting witnesses.
One of the first responses to the Report was a conference in Delhi held jointly by the International Commission of Jurists and the Human Rights Law Network. Said Colin Gonsalves, a lawyer from the Human Rights Law Network: "The recommendations are like a sugar-coated pill. Though there are a few welcome changes, the core recommendations are dangerous and will lead to reconstructing criminal law. The report has not been circulated and most of the participants in the conference, including senior Judges and lawyers, have not been able to get hold of a copy."
The 158 recommendations of the committee, arrived at after examining several national systems of criminal law, especially the continental European systems, essentially propose a shift from an adversarial criminal justice system, where the respective versions of the facts are presented by the prosecution and the defence before a neutral judge, to an inquisitorial system, where the objective is the "quest for truth" and the judicial officer controls the investigation of offences.
While suggesting that the present adversarial system be made inquisitorial, the report does not take into account the increased burden on the court and the need for far greater infrastructure that such a shift would entail. In the inquisitorial system as followed in Germany and France there are moves to incorporate features of the adversarial system. In fact, the French system had come in for criticism in recent times. Given these facts and the practical difficulties involved, the working of the inquisitorial system has to be studied in detail before it can be incorporated into our system.
The Report, which Ahmadi labelled "pro-police", suggests that the special powers the police have under legislation such as the Prevention of Terrorism Act (POTA) should be extended into general criminal law. It recommends that the "presumption of innocence" under the present system and the need to establish the guilt of the accused "beyond reasonable doubt" be replaced with the lower standard of "the court's conviction". This is in accordance with the committee's belief that proof "beyond reasonable doubt" places a very heavy burden on the prosecution.
The absence of any reference to the right of the accused to a fair trial in the suggested preamble to the CrPC is based on the committee's belief that the criminal justice system has too many loopholes, which afford the accused several avenues of escape. In the committee's view, "the accused nowadays are more educated and well-informed and use sophisticated weapons and advanced techniques to commit offences without leaving any trace of evidence."
Its report has suggested the dilution of many of the pre-trial safeguards against violence in police custody that an accused has. For instance, it seeks to double the 90-day period available for filing a charge-sheet after which an accused can be released on bail. It also recommends that the permissible 15-day police remand of an accused be doubled for grave offences.
It also seeks to curtail an accused person's right to silence under Article 20(3) of the Constitution, which guarantees the right against self-incrimination, by amending Section 313 of the CrPC. The amended Section would allow the court to draw adverse inferences, which it considers proper under the circumstances, about an accused person's silence to a question put by the court, which he or she is under no compulsion by law to answer.
The Committee has suggested that Section 25 of the Indian Evidence Act be amended to bring it in line with Section 32 of POTA, which makes confessions to a police officer admissible as evidence subject to the accused being informed of the right to consult a lawyer. In effect, this suggestion will enable confessions extracted under duress to be used as evidence against the accused. Said Navkiran Singh, an advocate who practises in the Punjab and Haryana High Court: "Most magistrates are dependent on the police for day-to-day affairs and there is a deep nexus between the police and the magistrate. Usually there is no lawyer available to the accused at the time of the remand proceedings. So what type of system are we talking about? And how can the police be given the power to record a confession?"
The report also seeks to amend Section 54 of the Indian Evidence Act to make admissible evidence regarding the character of the witness. This move is widely seen to be in violation of all international norms, but is justified by the committee thus: "Evidence regarding good character of the accused may show that he is not likely to have committed the offence. Logically, it follows that the evidence of bad character may show that he is more likely to commit the offence."
The committee has suggested that specific provisions be incorporated in the CrPC and the Indian Evidence Act to enable a magistrate to order an accused to give samples of handwriting, fingerprints and footprints for purposes of scientific examination. It also provides for provisions similar to those in POTA to intercept electronic or oral communication.
Four of the 16 research papers used by the committee in the drafting process were written by police officers, including one by K.P.S. Gill, former Director-General of Police, Punjab, on terrorism. Any impediment to the "quest for truth" has to be eliminated, the report says, and recommends that the accused be asked to disclose at the initial stage of the re-trial the special exception he or she claims and also be made to file a defence statement once the prosecution statement is filed. Along with the defence statement, the accused would have to file the documents he or she relies on and the list of witnesses proposed to be examined.
The political colour of the document is revealed in the section on terrorism, which emphasises that terrorism caused by Islamic fundamentalists is the most serious threat facing the country today but completely ignores majority fundamentalism. It says: "The terrorists continue to attack vulnerable targets, including members of the minority community and political activists."
What India is facing in Jammu and Kashmir "is not insurgency or indigenous militancy but a clandestine or proxy war by Pakistan, which is the epicentre of terrorism". The report states that "misguided youth" in Kashmir become militants, but ignores the socio-political origins of the insurgency in Kashmir, the massive scale of disappearances, custodial deaths and the possibilities of the state misusing such harsh laws.
THE shortcomings in the criminal justice system have engaged the attention of the Supreme Court in a series of cases since the 1970s, including Hussainara Khatoon vs Home Secretary, Bihar, Sunil Batra vs Delhi Administration and Common Cause vs Union of India. The Supreme Court even laid down detailed guidelines on arrest and detention in D.K. Basu vs Union of India (1996).
Eight reports of the National Police Commission (NPC), produced between 1979 and 1981, have suggested several measures to minimise political interference in the functioning of the police, reduce the incidence of torture in police custody and to make the police accountable by withdrawing the immunity they enjoy against prosecution. There are also recommendations of the National Human Rights Commission (NHRC) to reform the criminal justice system using a human rights approach. In 1997 the NHRC sent a circular to State governments suggesting that investigations into encounter killings be made mandatory.
While speedy trials, fast-track courts, the huge undertrial population, and access to courts have been part of the debate on the reforms relating to the criminal justice system, the Malimath Committee seems to have concentrated on the rights of the victim. It mentions the need to formulate a witness protection programme, reclassify offences, and involve the victim in all stages of the trial, but these concerns are driven by the threat of terrorists, organised and white collar criminals, and what it claims is pressure from civil society to convict more people.
The committee has addressed the issues of compensation to victims, something the Supreme Court has been talking of for a while now. It mentions the need for a Victim Support Service Coordinator to work closely with the police and courts to ensure delivery of justice during the pendency of the case. It also talks of economic crimes and organised crime, but only in passing.
On the question of making investigations more effective, it suggests the setting up of a State Security Commission, as recommended by the NPC, to insulate the police from political pressure. But the suggestion to create the post of Director of Prosecution and appoint a police officer to it carries the risk of putting the police in control of the criminal justice system.
The recommendations on offences against women ignores the struggles and suggestions of the women's movements. These suggestions include the drafting of a law on sexual assault, a law to deal with child sexual abuse, criminalising marital rape and decriminalising homosexuality. The women's movements have also been demanding a law to regulate the conduct of trials of cases of child sexual abuse. The committee seems to have ignored the demand to do away with the definition of molestation in the IPC, which even today talks of outraging the modesty of a woman. Instead, it suggests that adultery be made punishable for the wife too to "preserve the sanctity of marriage".
The positive recommendations, such as expanding the definition of rape to include all forms of forcible penetration, are eclipsed by the indifference to most of the concerns of the women's movements. The committee does not favour the death penalty for rapists. In fact, the report states that wherever the death penalty is a possible punishment it should be replaced with life imprisonment without commutation or remission.
Crimes against members of the Scheduled Castes and the Scheduled Tribes do not find mention in the report, though the committee held a consultation on the "Criminal Justice System and Dalits" in Kolkata. The plight of undertrials - 74 per cent of the total population in prisons, according to the NHRC's custodial justice cell - and issues of non-criminal lunatics, the misuse of the lunacy Act, the mental health Act and the State police Act have been bypassed in the report.
The bulk of the recommendations revolve around the idea that whittling down the rights of the accused and increasing the rate of convictions will help tackle crime. But can the reform of criminal law based on this assumption correct social imbalances? "The vast majority of prisoners in the country today are there because they cannot afford to get out," said Usha Ramanathan, a legal academic.
The committee does not address this social reality but it sees the role of the criminal justice system as one of reducing the level of criminality in society by ensuring the "maximum detection of reported crimes, conviction of an accused person without delay, awarding appropriate punishments to the convicted to meet the ends of justice and to prevent recidivism".