Presumed Guilty
By Pratap Bhanu
Mehta
The
Telegraph
20 November, 2003
Few
people would dispute the claim that the criminal justice system in India
is in serious crisis. Outdated policing methods, an inefficient judicial
system, poorly conceived laws, political interference and sheer callousness
have all conspired to produce a system that often seems unable to either
convict the guilty or protect the innocent.
The Malimath committee
on reform of the criminal justice system was given a broad mandate to
suggest much needed reforms to the system. While the report contains
some useful suggestions, the overall thrust of the report is dangerous
for the health of the criminal justice system. Rather than engaging
in a serious critical diagnosis of what ails the system, the reports
central premise seems to be that arming the state with more discretionary
and punitive measures, weakening the constitutionally guaranteed rights
of the accused, relaxing the presumption of innocent until proven guilty,
is the surest way of creating a better criminal justice system. It is
in the end, more a reflection of the frustration with the ills of the
current system than a sober diagnosis of what can reform it. But it
is in line with the clamour for punitive measures that is becoming acceptable
increasingly in wide sections of India society.
Nothing reveals
the assumptions that have guided the report better than a sentence on
page 21. The report states that more specifically, the aim is
to reduce the level of criminality in society by ensuring the maximum
detection of reported crimes, conviction of the accused persons without
delay, awarding appropriate punishments to the convicted to meet the
ends of justice and prevent recidivism. The report assumes, first,
that crime rates are simply a function of the ability of the state to
detect them. There is no evidence for this proposition whatsoever. As
we know from comparative evidence, countries with more punitive legal
systems and efficient detection mechanisms as the United States of America
have also had high crime rates compared to their European counterparts.
This is not to suggest that detection of crimes is not important, only
to suggest that it is a piece of sociological fantasy to suppose that
crime rates are a direct function of the powers of the criminal justice
system.
But the phrase,
conviction of the accused persons without delay, indicates
the tenor of much of what follows. In reading a phrase such as this,
one is tempted to say what Seervai once said about a distinguished judge,
His Lordship neither understands English nor Law. Surely
this phrase cannot be meant literally. After all a just criminal system
ought ideally to convict the guilty, not simply the accused.
But then, the report
wants us to move away from the thought that determination of guilt ought
to be the central aim of the criminal justice system. Despite a hortatory
appeal to discovering the truth, the entire burden of the
report is to weaken the presumption of innocence that ought to be the
bedrock of any sane criminal justice system.
Here are some of
the presumptions that the report tries to reverse. The committee argues,
without adducing any evidence that the adversarial system of justice
is centrally to be blamed for the pathologies of our criminal justice
system. Under an adversarial system, the prosecution and the defence
present respective versions of the facts before the judge, who then
weighs the merit of each version depending upon the evidence. The committee
laments the fact that this system has no lofty ideals to inspire
it. It seeks to argue that the quest for truth be
made the corner-stone of the justice system, in which judges are more
proactive in investigations.
This shift in emphasis
betrays a woeful lack of understanding of the adversarial system. Was
not the premise of the adversarial system that the truth would come
out because it gave an incentive to all parties to argue their case
most vigorously? And for a committee that claims that judges already
have too much to do, giving them an investigative role is surely asking
for too much.
More important,
the rhetorical appeal to discovering the truth is patently disingenuous
coming from a report that seeks to lower the burden of proof on what
counts as truth. The committee recommends that the standard of proof
beyond reasonable doubt be replaced by a fact is said to
be proved when, after considering the matters before it, the court is
convinced that it is true. Either this is a distinction without
a difference or the lowering of standard seriously jeopardizes justice.
The report openly expresses its skepticism about the proposition that
it is better to let a few guilty go free than to convict one innocent
person. It argues that this presumption should be subject to a balancing
calculus and that the scales have been tilted too far in the direction
of protecting the innocent.
The committee forgets
that the idea of protecting the innocent cannot be subject to a utilitarian
calculus. What distinguishes a civilized government is the fact that
it does not make any individual merely an instrument to its own purposes.
For the state to risk convicting the innocent would amount to the state
committing a crime, and that is a not a principle any civilized state
ought to adopt. In lowering the standard of proof, the committee risks
jeopardizing the foundational principle of any decent state. The law
commission itself had, in an earlier report, stated that a dilution
of the beyond a reasonable doubt standard would be contrary
to basic rights concerning liberty.
The punitive thrust
of the committee continues. It recommends seriously weakening the right
to silence, makes it easier to use confessions as evidence in court,
increases the duration of police custody for the accused, openly advocates
the invasion of privacy rights, increases the scope for summary trials,
does away with the provision that previous bad character ought not to
be relevant to determining guilt on a particular occasion, and recommends,
in a bizarre move, that the prosecution should be headed by police officers
of the rank of director general of police.
Again, the committee
presents no evidence or reasoning for why any of these measures will
lead to more effective prosecution of the guilty. On the contrary, it
ignores substantial evidence that our policing system itself is one
of the significant sources of injustice. Imagine increasing the incentives
for the police to extract confessions, or leaving the accused to greater
time in judicial custody.
As Ujjwal Singh,
our foremost authority on political prisoners in India, has recently
argued, the Malimath committee seems determined to use the paranoia
created by terrorism to import highly punitive and liberty-restricting
measures into ordinary law. For example, in its discussion of the need
to intercept communication, the committee recommends that the Prevention
of Terrorism Act be followed: a suitable provision should be made
on the lines of section 36 to 48 of POTA, 2003 for the interception
of wired, electric or oral communication. To model the criminal
justice system on the lines of the POTA ought to be a worrisome trend.
Indeed on page 292, the committee virtually equates organized crime
and terrorism; in the introduction, it openly advocates language used
in the context of fighting terrorism, making appeals that India should
not be a soft state.
All of this would
perhaps matter less if there were any evidence that these measures would
work. The committee provides none and ignores all the evidence that
suggest that these measures will do more harm than good. Its diagnosis
of what ails the system is, therefore, predictably narrow and unlikely
to succeed. But then, perhaps the agenda of the committee is not to
reform the system, but to make space for a kind of punitive ideology,
that makes us all feel we are being tough. Perhaps that is why the committee
cares little about the thousands languishing in police custody without
trials.
The author is professor
of philosophy and of law and governance, Jawaharlal Nehru University