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