Recommendations of the Malimath Committee on reforms of Criminal Justice
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.
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.
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.
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.
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.
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
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.
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.
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.
pre trial detention lasts as long as the investigation.
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!