Criminal justice system "reforms" - II

This part of the series examines certain key provisions of the recommendations of the Malimath Committee. It particularly focuses on the Committee’s failure to take into account international human rights standards which establish a framework of human rights for criminal justice systems throughout the world, as also a disregard for those human rights standards to which India is a party and which it is therefore bound to uphold.

I. Increasing Vulnerability to Custodial Torture

As a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, India has committed to not do anything that is inconsistent with its object and purpose. The prohibition of torture is absolute and may not be suspended no matter how heinous the crime for which someone has been arrested, even in situations of emergency.

However there is little doubt that torture and other cruel, inhuman and degrading treatment continue to be endemic throughout India. Supreme Court orders, NHRC guidelines and official sanctions have not deterred officials from inflicting torture on individuals in their custody. The Malimath Committee’s recommendations discussed below may further increase vulnerability to torture.

i) Increase in periods of custody
Section 167 of the Code of Criminal Procedure (CrPC) currently provides that a person can be held in police custody for up to 15 days if ordered by the nearest judicial magistrate. The Malimath Committee recommends that the period of police remand be extended from 15 to 30 days for grave offences, leaving detainees more vulnerable to torture or ill-treatment. The Committee ignores a significant body of evidence (including the 177th, 180th report of the Law Commission and those of the National Police Commission), which indicates that police routinely abuse their powers of arrest and detention.

ii) Making confessions admissible as evidence
The Committee recommends that section 25 of the Indian Evidence Act should be amended on the lines of Section 32 of the Prevention of Terrorism Act (POTA) to allow a confession, recorded by a Superintendent of Police (or officer above him) which is also audio or video-recorded, admissible in Indian courts as evidence, subject to the condition that the accused was informed of his right to consult a lawyer.

Section 25 of the Indian Evidence Act currently provides that no confession made to a police officer shall be admissible in a court of law. The section is broadly worded and it absolutely excludes from evidence against the accused, a confession made by him to a police officer under any circumstances, while in custody or not. The reason for such exclusion is to avoid giving the police any benefit from resorting to threat and use of violence to extract a confession from the accused. Statistics published by the NHRC highlight the problem of torture in custody despite the fact that presently confessions taken in police custody are not admissible as evidence.

The NHRC’s opinion on POTA (asserted when the precursor, the Prevention of Terrorism Bill, 2000 was being discussed) commented specifically on Section 32. It noted that this provision would, “increase the possibility of coercion and torture in securing confession” (Para 6.8.2).

Furthermore, section 32 of POTA is similar to the section 15 of the now lapsed Terrorist and Disruptive Activities (Prevention) Act [TADA]. In Kartar Singh v. State of Punjab, (1994 3 SCC 569), while the majority of the judges upheld the constitutionality of section 15, they recognized the danger inherent in this section of TADA noting the existence of “over zealous police officers resorting to inhuman, parabolic, archaic, and drastic methods of treating the suspects in their anxiety to collect evidence by hook or crook and wrenching a decision in their favour…”

In fact, concerns about POTA already appear to have been realised in practice. In Gujarat there have been several allegations made by detainees in court that confessions have been extracted forcibly from them. There is no evidence that any of the “safeguards” in section 32 were followed in these cases or that the allegations have been independently investigated as required under Articles 12 and 13 of the UN Convention against Torture.

The Malimath Committee has ignored all this and also the fact that in POTA there is no provision for sanctions against police where “safeguards” are not complied with. This reflects what appears to be a consistent lack of concern by the Committee about abuses of human rights within the criminal justice system and impunity for those abuses. There is also little reference to the guidelines laid down by the Supreme Court in Kartar Singh and they are not specifically mentioned in the recommendations section.

II. Attacks on the right to fair trial!

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. [Art. 11 (1), UDHR]

The recommendations of the Committee relating to trial processes - specifically those relating to the right to silence, admissibility of “bad character”, standard of proof and burden of proof, together – are aimed at increasing convictions at the cost of internationally recognised standards for fair trial. The Committee’s solution to its perceived problem that “the guilty” are too often being acquitted is to reduce the rights of accused at trial, rather than to recommend measures for investigative and prosecution processes to be professional and free from abuse, coupled with due process at trial. The assurance of human rights is better with due process, not by its dilution.

i) The right to silence
The Committee recommends that “the court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused”. The Committee is of the opinion that if this questioning is done “without duress”, the right to silence available to the accused under Article 20(3) of the Constitution of India would be respected as would the procedural provision in the CrPC (section 161(2)). The Committee states that the drawing of adverse inference on silence does not offend the right granted by Article 20(3), as “it does not involve testimonial compulsion.”

As a state party to the ICCPR (expand this), India is obliged to respect Article 14(3)(g) which refers to various “minimum guarantees” and states that everyone has a right not to be compelled to testify against himself or to confess guilt. Similar provisions are also found in the UN Body of Principles for the Protection of All Persons and under the Rome Statute of the International Criminal Court.

Since at no time does the Committee seek to challenge the constitutional right, the issue thus remains as to what constitutes compulsion. The Committee’s position that drawing adverse inference when the accused remains silent is not “compulsion” ignores the object of the right and undermines the spirit of the fundamental right to silence.

In its 180th report issued in May 2002, the Law Commission of India has stated unequivocally that any move to amend the provisions of the CrPC (in the manner that the Malimath Committee has suggested) would be “ultra vires of Article 20(3) and Article 21 of the Constitution of India”. The Law Commission noted, “To draw an adverse inference from the refusal to testify is indeed to punish a person who seeks to exercise his right under Art. 20(3).”

ii) The presumption of innocence
The Committee recommends that section 54 of the Evidence Act be amended to include the provision that “in criminal proceedings the fact that the accused has a bad character is relevant.” It further explains that a previous conviction would be relevant as evidence of “bad character.” The present law stipulates that previous bad character is not relevant, except in responding to cases in which evidence has been led to show good character of the accused.

The Committee has argued that since the accused has a right to give evidence of good character (s.53 of the Evidence Act), it is only fair that the Prosecution be able to give evidence of bad character, even where evidence of good character has not been led. This superficial parity ignores the essence of the provision of presumption of innocence of the accused. The Committee’s stated aim is to “neutralize” the “advantages” of the accused and move towards shifting the burden to the accused requiring him/her to prove their innocence.

The requirement that the accused be presumed innocent unless and until proved guilty in the course of a trial has enormous impact at a criminal trial. It means that the prosecution has to prove an accused person’s guilt. It requires that judges and juries refrain from prejudging any case. It also applies to all other public officials, particularly prosecutors and police, who should not make statements about the guilt of an accused before or during the trial (Human Rights Committee General Comment 13, Para 7). It is fundamental to meeting the guarantees of fairness.

Particular attention should be paid that no attributes of guilt are borne by the accused during the trial, which might impact on the presumption of their innocence. Discourses on criminal jurisprudence make the presumption of innocence strong to ensure that miscarriage of justice never takes place due to frivolous allegations against the accused. This is relevant in India where there are concerns about the use of politically, socially or communally motivated criminal charges filed against individuals as a means of harassment.

The presumption of innocence of the accused, as also the general principle of criminal law thus requires that an accused should not be judged on his past reputation and deeds but only on the matter that is before the court on its own merit.

iii) The burden of proof
The Committee has recommended placing an increased burden on the defendant to defend him or herself early in the trial, with consequences if the defence is weak. For example, the Committee recommends the preparation of a statement of prosecution and a statement of defence. However it notes that where the reply of the defence is general, vague or devoid of material particulars, the Court shall deem that the allegation is not denied. Prior to this it may give the accused an opportunity to rectify the statement.

Once again the right of the accused to remain silent with regard to certain facts that may incriminate him/her self is in danger of being violated. The Committee also suggests, “on considering the prosecution and defence statements, the Court shall formulate the points of determination that arise for consideration” (para 10 i, Recommendations), and these points for determination shall indicate on whom the burden of proof lies (para 10 ii, Recommendations). This is an attempt to reverse the burden of proof and may require the accused to prove his innocence, violating a basic tenet of criminal law – that a person is innocent until proven guilty.

The ICCPR points out that in accordance with the presumption of innocence, the rules of evidence and conduct of a trial must ensure that the prosecution bears the burden of proof throughout a trial. Article 67 (1)(i) of the ICC Statute also lays down minimum guarantees to the accused including no imposition of “any reversal of the burden of proof or any onus of rebuttal”.

iv) Reduction of standard of proof

The Committee recommends that the standard of proof required presently in criminal law i.e. “beyond reasonable doubt”, be reduced to a lower standard, described as “the courts conviction that it is true.” The International Commission of Jurists (ICJ) has pointed out that this recommendation “carries the risk of unhinging the whole criminal justice system of India, but also one of the fundamental universal values of criminal justice, in a national, international and comparative law perspective”.

The standard of proof lies as a corollary to the presumption of innocence. While the prosecution attempts to prove the guilt of the accused, if there is reasonable doubt, the accused must be found not guilty. The Law Commission of India in its 180th Report states that dilution of the basic principle that the prosecution has to prove the guilt against the accused beyond reasonable doubt “would be contrary to basic rights concerning liberty”.

The ICCPR’s Human Rights Committee has stated, “By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.”(General Comment 17, Para 7) Article 66(3) of the Statute of the International Criminal Court (ICC) reads, “In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.”

There is concern about the potential for an increase in wrongful convictions if such a reform was introduced, particularly given the scope for discrimination – present within institutions of the criminal justice system, including the judiciary – to impact on the rights of the accused.

III. The normalisation of special legislation

Besides the inclusion of Section 32 of POTA in the Evidence Act, the Committee also recommends that other provisions from POTA be included in the regular criminal law, thereby making them permanent (POTA will expire in October 2004).

TADA, POTA’s predecessor, was withdrawn in 1995 after it was widely perceived to be a blot on India’s democracy and its criminal justice system. In the period between 1987 and 1995 TADA was reportedly used to put 77,000 people in prison of which only 8,000 people were tried and an abysmally low 2 per cent convicted. The Committee pays scant attention to the various complexities and problems in the implementation of POTA - often in cases that have nothing to do with “terrorism” and has also virtually ignored legal challenges to POTA, constituting mounting evidence of its misuse.

The recommendation to include a “comprehensive and inclusive definition of terrorist acts, disruptive activities and organized crimes” in the Indian Penal Code is justified by the Committee on the grounds that such a provision would avoid a legal vacuum after the lapsing of special laws. The definitions of “terrorist”, “terrorist activities” and “terrorist organizations” (and support and membership of the latter) under section 3 of POTA are extremely broad, and potentially dangerous. They are not in line with international law which prescribes that criminal offences must be clearly defined, free from ambiguities, and not extensively construed to an accused’s detriment. The definitions are extremely susceptible to misuse.

IV. The weakening of protection of women’s rights

The recommendations of the Malimath relating to the treatment of women in criminal law demonstrate a lack of consultation with the women’s movement in India and insensitivity to current national and international debates on the protection of women’s human rights through law.

The Committee has recommended that the offence of cruelty (committed by a husband or relative of a husband of a woman – section 498A IPC) be made compoundable and bailable. This amendment has reportedly been included in legislation recently drafted by the Union Government and an amendment along these lines has already been made to state legislation in Andhra Pradesh.

The amendment has been recommended ostensibly to enable a woman who has filed a police complaint against her husband’s family for cruelty and harassment to return to the house. The Committee notes that there is a “general complaint” that section 498A is subject to gross misuse and uses this as justification to amend the provision. It is pertinent to note that the Committee provides no data to indicate how frequently the section is being misused. It suggests that the Committee is acting upon rumour rather than research or independent study that either the Committee or any other party has conducted.

The Committee’s reasoning that the amendment is required to enable easier forgiveness of the husband and return of the woman to the matrimonial home and to protect the husband’s job ignores the pressure under which women are placed in this situation. The Committee observes, “For the Indian woman marriage is a sacred bond and she tries her best not to break it (she is willing to suffer insults and harassment in silence). As this offence is non-bailable and non-compoundable it makes reconciliation and returning to marital home almost impossible”.

The Committee’s insistence on reconciliation and compromise raises concern. While the prevalence of compromise in cases of domestic violence in India is overwhelming, this is perhaps due to the absence of choice for women trying to escape violent situations. Inevitably, a large percentage of women who approach the state or even non-governmental organizations for help are sent back into continuing violent situations following a process of "mediation" between husband and wife in which the woman is at a severe disadvantage because of the patriarchal nature of the process. The Committee’s recommendation would not only condone but also encourage such “solutions”.

In its report the Malimath Committee has completely ignored the above issue as also several other practical constraints that prevent women from obtaining justice through section 498A. Filing a case under this section does not protect a wife’s right to the matrimonial home or offer her shelter or protection during court proceedings. Often the woman may have no choice but to withdraw a complaint against a violent husband as a precondition for a settlement or the husband’s family may propose withdrawing the case as a precondition for an easy divorce.

Factors such as these ensure that the conviction rates under this law are very low. The Committee instead of strengthening the law has proposed to make it toothless, by suggesting that the offence be made compoundable and bailable. The law on domestic violence (as it now stands) does have a strong, though limited, deterrent value. It is extremely important that the issue of domestic violence be brought into the public from the private sphere by stressing its criminal content instead of projecting it as an exclusively internal family matter. The Government of India being a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is obliged to respond with legitimate and significant legal strategies to fight domestic violence.

V. Limited and Dangerous reform of Criminal Justice Institutions

The Malimath Committee’s suggestions to reform criminal justice institutions are disappointing as well as dangerous. The Committee ignores human rights protection in its move towards systemic reform and stresses on lack of resources. It has little to say about the judiciary, and with respect to the police, the Committee appears to believe that making very limited changes would justify giving them greater powers and trust. The Committee recommends the creation of the post of Director of Prosecution that should be “filled up from among suitable police officers of the rank of Director General of Police”. This is an extremely regressive recommendation by which the Committee seeks to hand over the role of prosecution to the Police, who are not “officers of the court” but an interested party in the criminal justice system. This retrograde step will adversely affect the perception of prosecutors and undermine public confidence in them. This has led former Chief Justice of India A.M.Ahmadi to label the Malimath Committee report a “pro-police report”.

The Public Prosecutor is appointed by the State or Central Government and the prosecution machinery is to be completely separated from the investigation agency (the police). In 1995, the Supreme Court ordered in SB Sahane v. State of Maharashtra (AIR 1995 SC 1628) that the prosecution agency be autonomous, having a regular cadre of prosecuting officers. Also on earlier occasions the Court has categorically laid down that the Public Prosecutor is not a part of the investigating agency, but is an independent statutory authority and that the duty of a Public Prosecutor is to represent not the police, but the State.

While mechanisms to allow better coordination between the prosecution and the police are welcome, in certain states the demarcation between the two agencies is being blurred by appointment of senior police officials to head the prosecution. Demarcation to maintain independence of the prosecution is essential to ensure that the trial is not laden with biases that could go against the right to a fair trial of the accused. It is unfortunate that the State Governments of Tamilnadu and Uttar Pradesh have ignored the various court judgments that have categorically stressed that the prosecution should be independent of the police.

In this light the recommendation of the Malimath Committee to further the blurring of the distinction between the police and the prosecution raises great concern. The Committee apparently concurs with the view of “several police officers” that this would not affect the independence of the prosecutors, which, it admits, “is essential for ensuring fairness in prosecution”. It is clear that while the Committee agrees, in principle, that the prosecution should be independent of interference by the police, it is of the opinion that this independence would not be affected by it being headed by a senior police officer. While this faith in the police is consistent with the Committee’s high opinion of the police in various respects, it ignores vast data on police abuse of power and the opinion of numerous police officers that the system of policing as it stands invites abuses.

Political influence over the Police in India has been acknowledged from even amongst senior police officials. Having the prosecution headed by the police would also leave scope for greater political pressure on the prosecution. Recent events in relation to the trial of those accused of involvement in communal riots in Gujarat have led to concerns about the politicised nature of the prosecution in that state. A thorough and independent review of the prosecution service is necessary prior to any reforms being implemented.

CONCLUSION

On the face of it, and especially from press coverage it may appear that some of the Committee’s conclusions and recommendations are harmless and indeed welcome. But there is more to be feared than gained from the recommendations as a whole. The overall failure of the Committee to address fundamental systemic failings in the criminal justice system which affect human rights rings alarm bells about the political commitment within the government that appointed this Committee to address these issues with the same zeal that it is addressing issues of internal and national security.

The Committee’s report is just one of a number of reports on the criminal justice system which have made recommendations for reform over a number of years. Few reforms however have been instituted. Despite this, there should not be any grounds for complacency about the recommendations of the Malimath Committee. Their favour poses a serious threat to human rights protection.