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PUCL Bulletin, July 2003

Crime and politics
-- By K.G. Kannabiran

In a stagnant society, all efforts are focussed on the preservation of the status quo and this fierce protection of the status quo will lead to large-scale crime. Gigantic scams and the growth of gangsterism are direct by-products of this stagnant society. Politicians and Governments do not want these uninvestigated, though registered, crimes to stand in the way of their efforts to occupy the seat of power.

How could they forgo their right to stand for elections on the basis of mere accusations? Between accusation and judgement, the time span is a decade. Why do you prejudge our case? Have you not seen all the stalwarts who are and who have been in governance either acquitted or discharged?

Criminals get away very easily under the existing law, said our Deputy Prime Minister. Quite true. It is in this background that the Committee on Reforms of the Criminal Justice System, headed by Justice V.S. Malimath, came to be appointed.

In the preface to the questionnaire, the Committee tells us "on the one hand, there is a steady increase in violent and organised crimes, and a pronounced rise in the nature and complexity of financial crimes, while on the other, there are innumerable complaints of misuse of powers by the police including arbitrary arrests and unnecessarily long detention, not to mention the large-scale violations of human rights".

It recognises that the operation of the justice system is not even and that the rich and the powerful get away with crimes. In fact, it refers to the latest United Nations report, which categorises India as one of the most corrupt countries.

What has the Malimath Committee done about it? What has it done about this kind of crime which has destroyed almost all the institutions of governance? The Committee perceived the terms of reference as wide enough and emphasised the need for urgent attention. It was briefed to examine the fundamental principles of jurisprudence and the Constitution and rewrite the laws touching criminal adjudication.

The committee does deal with organised crime. Several States including the State in which the Committee was sitting have enacted statutes to control organised crime. It could have looked into these enactments and made recommendations.

It recommended that the Government should release a paper delineating the origin, growth and consolidation of organised crime in the country. The Committee did not suggest amendments to the laws governing the criminal justice system, but left it to the Government.

It did not suggest a special mechanism or the procedure that should be followed in the inquiries against the Prime Ministers and other Ministers, Chief Ministers and elected representatives.

The Committee had enough material to formulate a deterrent criminal code. There was the Jain Hawala case; the JMM parliamentary bribe case; there were the cases against the Chief Ministers of Tamil Nadu and Bihar. It had before it the Special Courts Act, the Presidential Reference and later the unceremonious repeal of the Special Courts Act. It also obviously had a brief to deal with economic offences, and look at the way they were dealt with. The Committee had the UTI, the fodder, the fertilizer and other scams to examine. It had before it the case of banks, cooperative banks, chit funds and financial shops swindling money without any compunction of the savings of middle class families in almost every State. This plunder of middle class families, who save principally for their sons' education and daughters' weddings, went unchecked. Instead of providing for a rigorous framework of law with procedures, presumptions and deterrent punishments, the Malimath Committee offers loosely-worded advice to Governments.

The Committee came into existence at a time when minorities in the country were under attack. Crimes against the minorities were on the increase. The slaughter of the Sikhs in 1984 and the appointment of several commissions of inquiry and the term of reference and the material gathered for the purpose were all available. Not a single reference is made either to the attack on the Sikh community, the Stains murder or the attack on churches. Nor is there a reference to the holocaust in Gujarat.
The conflict in our plural society is visible and menacing. Part of the conflict is the Dalit and tribal question. The Committee raised relevant questions on specialised courts but never examined the functioning of the statute specially enacted to prevent atrocities on the Dalits and tribals. Nor was this problem adverted to. There were a few questions pertaining to human rights violations but were not even referred to in the recommendations.
Having dealt with the major actors forces operating in the criminal arena, the Committee went on to handle the ordinary criminal and the poor who are likely to revolt against the maintenance of the status quo. It started with a grandiloquent preamble which provides for a philosophy for criminal law. The object is not to bring about a society free of crime, but to rid the stagnant society of its criminals.

Therefore, the Committee felt it was necessary to constitute a criminal justice system for punishing the guilty first and protecting the innocent thereafter. The quest for truth shall be the fundamental duty of all functionaries associated with the criminal justice system from the judges of the Supreme Court down to the class IV employees in a magistrate's court.
None of them seems to have realised that the word truth is difficult to interpret, particularly in a caste-ridden society where there are bound to be several versions of truth. Just as there are now several versions of justice pursuant to the "quest for truth" being made the fundamental duty, several major departures have been recommended.

This active pursuit of truth (these are the words used in the statute) is a collective endeavour of every functionary of the criminal justice system and everyone associated with it in the administration of justice. The end product of this rigorous pursuit of truth is the protection of the innocent. The innocent referred to here is not the accused making an effort to prove his innocence.


II
Certain key changes have been recommended which replace the present Anglo Saxon liberal legacy, which enabled us to use liberal values in our freedom struggle. This legacy is different from the colonial legacy of repression, which had no sanction of the liberal values and which provided the philosophical background of the English Revolution.

It is interesting to note that nowhere is 'truth' discussed as a jurisprudential concept. Nor is it discussed in the law on evidence as the end product of proof. The end product of proof is a fact, which is put in issue. We use evidence is defined as that which court permits to be made before it relating to matters of fact under enquiry. The fact proved must be so probable that a prudent person can act on it.

The endeavour of the entire law of evidence centres should the establishment of facts. There has always been some skepticism over the capacity to arrive at a correct Judgement. Judicial discipline inculcates in the judge from day one that the verdict of the institution is only finial and does not claim to discover the truth. All the efforts are for as close an approximation to the truth as possible by a proper assessment of evidence.
In this crusade against crime, the Malimath Committee looks at justice as one-dimensional. Punishing the guilty, says the Committee, is justice. The initial presumption in favour of the accused is discarded quite unequivocally. It recommends that the standard of proof must be located between "proof beyond reasonable doubt" and "preponderance of probabilities".
Consequently, it tampers with one of the finest documents viz., the Evidence Act, remarkable for its precision. It recommends a special definition of "fact". In criminal cases, unless otherwise provided, a fact is said to be proved when after considering the matters before it, "the court is convinced that it is true".

Ever since the Constitution was put into use, the Executive and the Legislature have been concertedly making inroads into personal liberty and other associated freedoms and the Judiciary has been validating these inroads by its interpretive expertise. The Committee has relied on this tradition of the court in suggesting inroads into Article 20 (3) of the Constitution (no accused shall be compelled to be a witness against himself.) "While respecting the right of the accused a way must be found to tap this critical source of information". The Committee is of the view that at present there is a minimal participation of the accused in his trial.
To increase the participation of the accused, the Committee suggests that the prosecution file a statement of acts. It is not clear whether it is in addition to the charge sheet to be filed under section 173 of the Criminal Procedure Code. The statement of facts should contain all the particulars regarding the accusation. The defence should file within two weeks the defence statement and the judge will determine the points for determination and these will determine on whom the burden lies.

By such legerdemain, the centuries-old presumption in favour of the person accused of an offence is neatly exercised. A criminal trial has been equated with the usual property litigation governed by the Civil Procedure Code without realising that the criminal justice system inform us as to the nature of the political system we are living under. The statement of the defence suggested here is yet another novel inroad into Article 20 (3). This formulation takes us back to pre-nineteenth century development of burden of persuasion in private law disputes, when criminal law still remained in private domain governed by private law.

The burden of proof was largely governed by the Latin maxim, which said that a party which asserts a fact should prove it and not the person who denies it and matters of exception are to be proved by the defendant. We have moved away from this simplistic position.

Criminal law has become an index of the political system we are in. It also reflects the social and moral philosophy of governance and its central question is the justification of the use of coercive force against individuals and human collectives. There is a decided shift from an objective assessment of guilty to dangerousness of the criminal and it enlarges the area of all concerned with the administration of criminal law and administration.

Thus, the thrust of the Report is a concerted movement towards the suspect who is presumed guilty. Once the presumption is drawn, the Constitutional guarantee becomes irrelevant and he has to file a defence statement. And failure to traverse the prosecution statement will lead to a mandatory adverse inference.

The statement of the accused under the proposed Sections 313A & B are further inroads into Article 20 (3). Under Section 313A, which is to replace Section 313, the court will call upon the accused to generally explain personally the circumstances appearing against him in evidence. The emphasis is on "personally explain" and allows no room for a lawyer's intervention.

After the examination under 313 A, Section 313 B empowers the court to question the accused without giving any notice to him and his silence or refusal to answer the questions will empower the court to draw an adverse inference. The accused has been assured that he will not be additionally punished for such refusal or silence. The Committee recommended that all the criminal courts should have inherent powers to discover truth. Pursuit of truth cannot be the exclusive privilege of the High Court.

The Indian Inquisitorial System is complete with certain section of POTA. They are, Section 27, which enables a Chief Judicial/ Metropolitan Magistrate to obtain finger and footprints, specimen handwriting, semen and saliva and blood samples etc. from the person of the accused with an adverse inference attached to refusal; Section 32, making confessions to a Police Officer, the general law in place of Section 25; violation of the right to privacy by making interception of telephonic conversations, part of the general law by incorporating the entire chapter V of POTA into the proposed code.

To grant these extraordinary powers, ordinary powers to ordinary, is a sad comment on the committee's understanding of criminal law and its limitations and the Government's understanding of governance.


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