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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 Outdated policing methods, an inefficient judicial system, poorly conceived laws, political interference and sheer callousness have all conspired to produce a system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 report’s 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