Death
Of Criminal Justice System?
Asian Human
Rights Commission
26 May, 2003
In November 2000 the Government
of India set up the Committee on Reforms of the Criminal Justice System,
purportedly to fairly assess and propose changes to the way criminal
trials are conducted in India. This April, the true objectives of theCommittee
have been revealed. A summary of its 158 recommendations shows that
despite its smart of expression of noble sentiments, the Committee has
in fact been intended as a means for the government to attack the very
foundations of criminal justice in India, and give enormous powers to
the police.
Were proposals to demolish
the fundamental principles of criminal justice in India to have come
from the government itself, they would have been met with great resistance.
The Reforms Committee, then, is a neat and carefully crafted vehicle
to drive through the government's agenda with the subtle language of
ostensibly independent experts. If its recommendations are implemented,
it will be unnecessary for India to introduce new anti-terrorism laws
or emergency legislation: their cumulative effect will far exceed the
powers of such regulations. The Asian Human Rights Commission's initial
assessment of these recommendations is as follows.
To begin with, the Committee
has suggested that the Indian criminal justice system be guided by a
"Quest for Truth". The Committee may feel like this is a reasonable
proposition, and perhaps even an original one, but the "Quest for
Truth" is nothing new to India. Every humbug politician trying
to look pious begins with the popular refrain Stayam Sivam Sundaram.
Notwithstanding, the inequalities and untruths that continue to consume
India have few parallels in world history. That is because this "Quest
for Truth" has been de-linked from the search for justice and thus
this "truth" permits cruel rampant inequality. Now the old
ideal is being recalled to undo the system of criminal justice. The
"Quest for Truth" also recalls the motto of the Chinese judicial
system: "Finding Truth from Facts". Whereas the Committee
is pretending to introduce practices from continental European legal
systems it is in fact borrowing the motto and practices of an authoritarian
system that only now is developing new and less primitive judicial methods.
To achieve this "truth",
the Reforms Committee has in fact launched an assault on the Constitution
of India, without making mention of it. Article20(3) of the Constitution
ensures that an accused not be compelled to act as a witness for the
prosecution. The Committee is effectively proposing that this article
of the Constitution should be discarded, as it recommends the accused
present a statement of defence at the beginning of the trial. This is
not unlike what is done in China, although there the right of the accused
to remain silent is not recognized at all. This clever proposal aims
to reduce criminal trial to civil trial standards. In India, where the
poor lack access to competent lawyers, it will mean a growth in criminal
convictions without adequate defence. The number of innocent persons
languishing in jail due to ignorance and lack of resources will increase
immeasurably.
The Committee has also proposed
a change to the burden of proof, from "proof beyond reasonable
doubt" to a "clear and convincing" standard of proof.
The Committee has justified its decision on the grounds that "beyond
reasonable doubt" is too high a standard for prosecutors to meet.
In fact, this is a proposal to undo the presumption of innocence itself.
Lower standards of proof and the presumption of innocence cannot coexist.
This was observed by Basil Fernando, Executive Director of the Asian
Human Rights Commission, in his response to the questionnaire distributed
by the Committee in 2002: "To effect such a change goes against
the very fundamentals of criminal trial, which deal with the life and
liberty of individuals... [It] would trivialise criminal justice. A
direct outcome would be the further degeneration of the police investigators
and prosecutors. It would open the road for miscarriages of justice..."
(Published in article 2, vol. 1, no. 2, April 2002, online at
http://www.article2.org/mainfile.php/0102/26
. Once again,
this is nothing other than a devious attack on one of the pillars
of criminal justice.
Another of the Committee's
remarkable suggestions is for an officer at the rank of Director General
of Police to be appointed as Director of Prosecution. This appointment
would virtually end the separation of the criminal investigation and
prosecution functions, as both would be in the hands of the police.
Civilian control of the system by way of an independent public prosecutor
would be lost. Such a model is typical not of more developed systems
but rather more primitive ones.
On the other hand, the Reforms
Committee has refrained from
making recommendations in a number of important areas,
including the use of torture by the police. India has not ratified
the UN Convention against Torture and nor has it made torture
an offence, unlike several other Asian counties, and despite
strong recommendations by the National Human Rights Commission. Meanwhile,
the police continue to be responsible for endemic torture and extrajudicial
killing. Although the Committee has acknowledged this situation, it
has failed to make a specific corresponding recommendation. Under these
circumstances its proposal that confessions be made admissible by amending
section 25 of the Evidence Ordinance is a dangerous incitement of further
torture. That such a statement would have to be made to an officer not
below the rank of Superintendent of Police, or recorded on tape, is
no safeguard without legal provisions to prohibit statements taken through
torture being used in trials.
The Committee is also silent
about the extreme corruption prevalent among the police. It has ignored
suggestions that an independent commission to monitor corruption be
established. Again, this means that its recommendations to strengthen
the position of police investigation through a National Security Commission
and State Security Commission is dangerous. Together with a proposed
Apex Criminal Intelligence Bureau, such agencies could become a surveillance
system threatening all independent organizations.
Moreover, in the hands of
a state inimical to the interests of some
specific groups in society, they could prove lethal. The Gujarat
massacre is not long passed, and the threat of such state-managed violence
yet hangs over millions in India. What is needed is not more freedom
for the policing agencies to encourage and commit further atrocities,
but rather independent bodies to monitor and control the police.
In conclusion, if these recommendations
are implemented, the
consequences will be that:
1. The judiciary and lawyers
will be subordinated to the police.
Judges hold an important place in society due to the high standards
they must uphold. Once they become mere arbiters of civil-style cases,
they will also be viewed as nothing more than that. Judges-and the lawyers
presenting cases-will lose respect, to the short-term benefit of the
executive.
2. By applying civil law standards to criminal trials, the value of
life and liberty will be reduced to same position as that of property.
In India, where society has been built upon graded inequalities, the
removal of the little recognition of human equality given by the law
can only have very sad consequences. The vast number of Indians, and
particularly more discriminated groups-such as women, tribal groups,
low castes and Dalits-will lose the small gains they have made since
independence.
3. Powerful groups will use the police as a tool without fear of
challenge. Given the already naked use of power by some political groups
associated with the ruling party, it is frightening to think of what
could happen next.
4. Ultimately, degenerating criminal justice will in turn affect the
basic democratic system enshrined in the Constitution. The electoral
system will be weakened, as opposition groups will face new and unprecedented
police powers. Again, those who represent minority interests will experience
the gravest problems.
Accordingly, the Asian Human Rights Commission urges all
democratic-minded persons to do whatever they can to expose and fight
the attack on criminal justice and democracy contained in the recommendations
of the Committee on Reforms of the Criminal Justice System. These are
not forward-looking reforms but a carefully concealed attempt to throw
India back to the primitive Law of Manu under which it had subsisted
for most of its history. There must be full and open public debate on
the Committee's findings. To be silent now is to accept the possibility
of silence for a long time to come.
Asian Human Rights Commission
- AHRC, Hong Kong