PUCL Bulletin, January 2003

Malimuth Committee -
Safegaurd the rights of the accused
-- By K.G. Kannabiran

Also, Recommendations of the Malimath Committee on reforms of Criminal Justice System

The Committee headed by Justice Malimath has the broad mandate, "To examine the fundamental principles of criminal jurisprudence, including the Constitutional provisions relating to criminal jurisprudence and see if any modifications and amendments are required."

It reads as a very laudable attempt at reining in the disorder prevalent in the community. Is the mandate to amend the Constitutional provision implied in this reference valid? The Constitutional Review Committee has not recommended whittling down any fundamental rights. Constitutional provisions dealing with criminal jurisprudence are in the fundamental rights chapter. A person cannot be detained beyond twenty-four hours without producing him before the nearest magistrate. He/she shall have the assistance of a lawyer while in custody. No person shall be preventively detained for a stated period without informing him/her of the grounds of detention with the right to having his detention subjected to scrutiny by a duly constituted advisory board.

Nobody can be prosecuted and punished for an act, which was subsequently legislated as an offence. Nobody shall be prosecuted and punished twice for the same offence. Nobody can be compelled to be a witness against himself/herself. These are values, which people secured over long periods of struggles. Fifty years of our political and legal history exemplifies the struggle between rights of the people and the power of authority to subvert the very instruments of the Constitution to subjugate the people, which is euphemistically termed governance.

The words used for such subversion have always been "law and order", "Public Order" and "security of State" As Chomsky described, these are powerful semantic tools, which define and justify themselves. They supercede every value system of the constitution. India is a soft state said our law commission. Others said that we need a strong government. A tough state and a strong government need not be equated with a good state or a good government. Crime Control is not the whole of governance; it is only a part of governance. A large part of governance deals with the effort to secure the objectives which are written down in the Preamble, the fundamental rights and the fundamental obligations contained the Constitution.. In short criminal law reform will not and cannot correct social imbalances in society. Such reforms have not and do not provide answers to the problems faced by the society. The issues raised by this Committee have already been raised and recommendations have been made. But then spending resources on committees and commissions has always been understood as part of governance.

The Committee recognizes the existence of these reports and recommendations made from time to time and the Committee has taken up the task of repeating the performance earlier performed but by a different set of eminent men which went unheeded. Unfortunately there has been no culture or tradition of turning down such assignments on the simple ground that they are not going to repeat the tasks already undertaken to completion by earlier committees and commissions and which remain unimplemented. A country with grinding poverty does not need such wasteful exercises. I know that the members who constitute the Committee are very conscientious persons and even if they receive Re one as salary yet it will be a drain on resources, which we can ill afford. One is tired of the repeat performances at reforming governance and governance has come to mean only the criminal justice system.

The Malimuth Committee has posed three major questions.

(i) Should we dispense with the basic premise of criminal law, namely, proof of guilt beyond reasonable doubt. According to the Committee such a presumption is not found in the Evidence Act.

(ii) Should we not as a consequence do away the right of the accused to silence?

(iii) Should we not as a consequence abolish the right of the accused against self-incrimination?

The answers to these questions in the affirmative would mean that the accused would have to prove beyond all reasonable doubt that he is not guilty. It is a total reversal of the justice system, which has been prevailing over a period of two hundred years. It is an authrisation define and limit the discretion of the court.
We are made to believe that the presumption of innocence of the accused, his silence and the privilege against self-incrimination have been principally responsible for the increase in the crime rate in the country. This appears to be an unduly exaggerated picture of the failure of the criminal legal and justice system.

The presumption of innocence is firmly embedded in the Evidence Act. It candidly tells you that if you accuse me of a crime you must establish the same and beyond all reasonable doubt. Obviously the proof required cannot be less than reasonable doubt for that would be dispensing with justice. The scheme of the provisions relating to burden of proof and presumptions in the Evidence Act lays down in detail about the course of onus of proof as also the initial presumption and other presumptions that are available with respect to events and facts during the course of a trial.

Even the hectoring by Justice Arijit Pasayat of the Supreme Court recently against over emphasizing the concept of proof beyond reasonable doubt by the arguing counsel did not suggest that this principle should be dumped. He was arguing for a sane attitude in the conduct of cases. He pointed out that this salutary principle should be a guideline ant that one should not make fetish of it. It seems to be an angry response to an importuning counsel than an argument against the principle. He traces the history of interpreting this principle by a string of accepted and settled decisions.

The English decision relied on by him is very succinct." A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that guilty man does not escape. Both are public duties." It would be unfair to assume that judges of all ranks are in the service of this villainous presumption of innocence and are finding ways of letting off criminals. More than the courts scouting for reasonable doubts for acquittals it is the investigating agency's sloppy pursuit of proof of guilt that leads to acquittals. It is wrong to assume that judges are presiding over courts to hand in judgments of acquittals. The purpose of criminal ad judicatory system and criminal laws are not intended to find persons guilty at any cost or to keep suspects for prolonged periods in detention without trial either.

This desire to do away with the presumption of innocence is to violate Article 14 (2) of the International Covenant on Civil and Political Rights to which this country is a signatory. This Article reads ": Everyone charged with a criminal offence shall have the right to be presumed to be innocent until proved guilty according to law.." This principle, though unstated explicitly, governs our criminal jurisprudence and is also a valid principle of International law. If it is not contrary to any municipal law the principle enunciated in the covenant assumes the character of customary law.

There is no law in this country, which contravenes Article 14(2) of the Covenant. In fact the Government of India in its Declaration deposited with the UN on 10-4-'79 expressly declared that Article 22 (3) to (7) of the Constitution of India would prevail in case of any conflict with Article 9 of the Covenant. In the case of Article 13 of the covenant, which deals with aliens the Government, declared its right and jurisdiction to deal with foreigners. It did not demur to Article 14.The rights that flow from this presumption are the rights to silence and the privilege against self-incrimination. And the ICPR specifically affirms as fundamental, the privilege against self-incrimination and confession, and so does our Constitution in Article 20(2).

Would it be proper for the Government or this Committee to go into it? The Committee regards these rights as obstacles for the discovery of truth. A very questionable presumption. These three privileges/rights are related to the concept of fairness, which has come to occupy an important position in the justice system and administrative jurisprudence. While the first of these deals with method of reviewing the entire evidence before arriving at a finding of guilt or otherwise, the latter two protects the suspect from every possible means of unfairness that may be inflicted on him in the course of investigation and trial. All these principles emerged out of the struggle against tyrannical and absolutist rule, which rule continues in its modem forms.

These facts have been acknowledged, inter alia, by the Covenants on Civil and Political Rights and the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment which was brought into force on 26 June 1987. Article I which defines "torture" includes infliction of pain or suffering, whether mental or physical, for securing information or confession from the suspect. It also includes intimidation or coercion for the said purpose. The Constitution Review Committee at Para 3.5 of its Report dealing with this issue points out that the Supreme Court has held that this right against torture is implied in Article 21 They go on to point out that the Universal Declaration on Human Rights and the ICCPR prohibit such act in paragraphs 5 and 7 respectively. They go ahead recommend the inclusion of a sub article to Article 21 which reads: No one shall be subjected to torture or to cruel, inhuman and degrading punishment." Thus this safeguard becomes part of the Procedure Prescribed by Law.

In this backdrop it becomes necessary to examine the right to silence and its companion right against self-incrimination. These are the two aspects of fair trial and therefore cannot be made a subject matter of legislation. Right to fair trial is the basic premise of all procedural laws. The very prescription of procedure and the evolution of procedural law have to be understood in the historical context of the anxiety to substitute rule of men by rule of law.

In law any statement or confession made to a police officer is not admissible. Right to silence is mainly concerned about confession. Breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate is required to take several precautions. We have inherited as part of our legacy a dual system of jurisprudence. There is a general procedure for trying ordinary offences. There were special laws setting up regressive procedure for trying rebels against the British. These, laws are retained and enforced. With the rise of terrorism and other popular movements we have enacted special laws providing a special procedure for trial of offenders, which abridge the rights and privileges of suspects. The present exercise of the Committee is to formulate procedure leading to deprivation of all these rights totally even under the general law.

Right to silence and the right against self-incrimination have been watered down quite considerably by interpretation than by legislation. The defendant if he so desires can be a witness in his trial. His confession outside the court either to the police officer under POTA or the magistrate is admissible. He is encouraged to betray his colleagues in crime on promise of pardon. He is expected to explain every adverse circumstance to the court at the conclusion of evidence with the court having jurisdiction to draw adverse inference while appreciating the evidence against him.

In fact in the case of General Vaidya's murder Jinda and Sukha were convicted and sentenced to death under ordinary law by the voluntarily breaking their silence. In fact by repeated interpretive exercises the privilege of self-incrimination has been so reduced beyond recognition that confession made to a police officer of a stated rank is parading as substantive evidence, which can secure a conviction. As the entire scheme is relatable to the very basic right to a fair trial, which Maneka Gandhi's case traced, to Articles 14 and 21, it is basically a judicial function and so cannot be legislated about.

The Committee suggested a change over to the French Inquisitorial system. Nobody knows the present position of the Inquisitorial system. What changes are brought about in the French system after the setting tip of the European Human Rights Courts operating the European Human Rights Convention? People are entitled to know about the French system and the effect of Strasbourg Jurisprudence on the French criminal Justice system. Even before the advent of Human Rights Court, there have been complaints against the French system respecting two major aspects. The prolonged period of pre trial detention and the attempts and the manner in which confessions are procured from the suspect.

The pre trial detention lasts as long as the investigation.

No criminal ever looks into the criminal law before he commits a crime. He always acts independent of the character and the quality of the law. Deterrence either of the law or the sentencing policy of the courts ever led to a reduction of crime as has been repeatedly established in the past three decades. A criminal arranges for his freedom thereafter. He expects his lawyer to look after that.

A successful project for breaking the silence of the accused must be accompanied by silencing the defence. Rightly therefore the Committee thought the system has to be replaced. This is a system, which created legends and legends out of lawyers. The adversarial contest, which, as the American humorist Damon Runyon described, closely resembles a pugilists contest The crime and the criminal, the litigant and his cause, recede to the background and the lawyer occupies center stage leading to his unashamed self aggrandizement.

The profession will most probably rise in revolt. It is true that the adversarial system with no instrumental role to play has converted the trial nay-even adjudication itself into a game of hide and seek. The defects in the profession can be remedied by disciplining the profession. Our inadequacies need not be visited on the poor criminal. Many of them are!

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