Issue 49 Vol III, October 15, 2007

L A W  &  J U S T I C E

Wither Criminal Justice Reforms
Joginder Singh Toor

THE inordinate delay in the delivery of justice particularly on criminal side is evident from pendency of 3 crore cases in the courts in India, seventy percent of which are criminal cases. Thousands of persons accused of various offences are languishing in jails awaiting trials. Many have suffered imprisonment more than what they would have got if they were convicted. A number of them are acquitted after they have undergone imprisonment for years as under trial prisoners. Justice delivery system is apathetic towards human rights, freedom and liberty. In fact, it blatantly denies all justice in many cases.

The Union Home ministry appointed a Committee on November 24, 2000 headed by Dr. V.S.Malimath, retired Chief Justice of the Kerala High Court with members of I.A.S, IPS cadre, a vice Chancellor and the Chairman of Bar Council. The Committee after thorough research made recommendation, recommended that the present neutral role of the courts should be changed and they be invested with a duty to find the truth by requiring the accused to make a written statement at inception of the trial to place his defense on record and then subjecting him to make statement when ever the court deems fit, he should make it.

The basic law followed is “Adversarial System” inherited from the British Common Law under which the accused is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty. The other is ‘Inquisitorial System’ where power to investigate offences rests primarily with the “Judicial Police Officers”. Police/judiciare, who are required to gather evidence in a neutral way, and objective manner. The accused has the right to engage counsel during investigation to assist the Judge under whose directions the investigation is being made. The accused in that system also is presumed to be innocent but the Judge is not a spectator. He is duty bound to find the truth. The accused can suggest the Judge questions to be put to the witnesses as such there is no cross-examination. It is the Judge who puts questions. The standard of proof is the inner satisfaction of the Judge and not the proof beyond doubt. The defense in this system lacks opportunity to test the veracity of the witness by cross-examination, because it is the Judge who puts questions. The system is followed in France and some other countries. The position of the Magistrate and the prosecutor is interchangeable. The Magistrate can be appointed as a prosecutor and the prosecutor as a Magistrate in the next term.

The Malimath Committee thus recommended that our system be made a mixed one. Section 311 of the Code of Criminal Procedure be amended and the court be empowered to suo motto cause production of any evidence not relied upon by the prosecution, but in addition to it, to find out the truth. The Judge should not confine himself to the evidence suggested by the prosecution in challan/report u/s 173. The court sometimes may not know the person who can throw light on the commission of offence. The victim in the present system is not a party to investigation. It is the investigator who decides whose statement he is to record. The Committee suggested that victim be made a party to assist the court for discovery of truth. He should also be allowed to actively participate in the investigation. His lawyer should be allowed to address the court as of right unlike the present system where he is allowed to address after the counsel for the prosecution has addressed and he consents to the address by the victim’s lawyer with permission of the court.

At present the victim cannot file appeal against acquittal except with the leave of the High Court and that too when the State has not filed appeal. The Committee recommended the right to appeal to the victim also. The most controversial recommendation was regarding the right of silence which Constitution of India protects under Article 20(3) that “Nobody accused of an offence shall be compelled to be victim against himself.” The Committee recommends that if the witness cannot be compelled to speak, the court be entitled to draw an adverse inference against him from his silence. The recommendation has been considered by many to be violative of the Constitution. Many other recommendations proved gravely controversial.

The Ministry of Home Affairs was compelled to appoint another committee after the this report in 2003 to draft a policy on Criminal Justice and Prof. N.R.Madav submitted  a report in January,2007, based on internal discussion.

It bases itself on the promise that “crime can never be eliminated. It can be reduced/contained in reasonable limits.” “The country should have a short term plan to propose necessary initiatives in legislative sphere” and there be an annual report on the state of criminal justice. As a “vision and strategy” measure the national draft policy envisages “Most of the problems, the Committee identifies, are the result of institutional mal functioning. The police require structural reforms which are hanging fire despite Supreme Courts direction in Prakash Singh’s case. The prosecution could not acquire the efficiency and accountability which is required. The Courts require better recruitment system. The defense lawyer being part of the system should not be accountable to his client alone but to the society too.

The controversial recommendations still persist and exist. Such as “In crimes it is difficult to detect and prove, public interest may demand the sharing of burden between the prosecution and defense in which case, right to silence may have to undergo change. Even confession to a police officer and hearsay evidence now declared inadmissible may have to be admitted under prescribed conditions. Legislature may have to expressly declare that “truth” is the primary concern of every criminal proceeding and in pursuing truth, the judge in a criminal court will have greater discretion to modify procedure subject to the overriding concern of ensuring a fair trial for both sides.”

The above approach is again violative of Article 20(3) of the Constitution of India. It not only ignores the third degree methods the investigation agency applies in retracting confessions even from innocent people but also seems devoid of constructive suggestions to eliminate or reduce crime. The country needs an objective Criminal Justice Delivery System.

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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