Government's Move to Revisit Malimath Panel Report on Criminal Justice is Worrying

Implementing the recommendations could likely lead to a system that disregards basic criminal justice principles merely to enable easier convictions.

Custodial torture and other ill-treatment is widespread in India. Credit: Reuters

Custodial torture and other ill-treatment is widespread in India. Credit: Reuters

Fifteen years after a committee on reforms of the criminal justice system was set up by the then home minister L.K. Advani, its recommendations are back on the table.

In 2003, the Justice V.S. Malimath Committee had submitted its recommendations to the Atal Bihari Vajpayee government. The committee had identified low conviction rates and judicial delays as major problems plaguing the criminal justice system. However, several of its recommendations sought to address these admittedly serious problems in a simplistic manner, which would corrode some of the basic safeguards of our criminal justice system. It is worrying that these recommendations are now being reconsidered.

Incentivising custodial torture

One of the most controversial recommendations of the committee was making confessions to a police officer of the rank of superintendent or above admissible as evidence in court, subject to the condition that the accused was informed of her right to consult a lawyer. The current bar on the admissibility of confessions to police officials contained in section 25 of the Evidence Act is a crucial safeguard against custodial torture intended to extract confessions. Despite this safeguard, torture and other ill-treatment are widespread in India – a fact acknowledged by courts on several occasions.

In the Kartar Singh vs State of Punjab case, for instance, the Supreme Court observed:

“…we with the years of experience both at the Bar and on the Bench have frequently dealt with cases of atrocity and brutality practiced by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour.”

Other laws that made confessions to police officers admissible as evidence, such as the Terrorist and Disruptive Activities (Prevention) Act, 1987, and the Prevention of Terrorist Activities Act, 2002 have led to torture and forced “confessions”.

This recommendation is particularly worrying since Indian law does not specifically recognise torture as a crime, and also lacks adequate provisions for safeguards against torture and other ill-treatment. Such a provision would almost certainly incentivise custodial torture. Reliance on “confessions” obtained through coercion as evidence will only undermine the criminal justice system over time.

Diluting presumption of innocence

The committee recommended an increase of the period of pre-charge detention in police from 15 to 30 days for “grave offences” (where the prescribed punishment is more than five years) and an increase in the period of judicial custody from 90 days – which is already far beyond international standards – to 180 days.

A longer period of pre-charge detention cannot be a substitute for more effective policing and investigation. The Supreme Court has recognised the inherent dangers of detention without charge. Increasing the period of pre-charge detention would prolong trials, and also exacerbate the problem of excessive undertrial detention in India’s prisons, most of which are already over-crowded.

Weakening other fair trial safeguards

The committee also recommended amending section 313 of the Code of Criminal Procedure to provide that if an accused person remains silent or refuses to answer any question put by the court which they are not compelled by law to answer, the court may draw an “adverse inference” against her. This is a significant dilution of the right against self-incrimination, recognised as a fundamental right under Article 20(3) of the constitution.

The right of an accused to remain silent during police questioning and at trial is also inherent in the rights to be presumed innocent and to not to be compelled to testify against oneself or confess guilt. The danger in watering down this safeguard is that in instances, say, where an accused person is silent about circumstances or evidence that may seem incriminating, the judge may draw an adverse inference against her which may lead to a conviction even if she is innocent.

The committee recommended a change in the standard of proof required for criminal trials because it believed that the internationally recognised standard of proof ‘beyond reasonable doubt’ placed “a very heavy burden on the prosecution”. The new lower standard of burden of proof it recommended was “the court’s conviction that it is true.”

Reducing the burden of proof required for a criminal conviction undermines the fundamental criminal law principle of presumption of innocence. The committee stated that the new standard of proof was necessitated by the criminal justice system having to deal with a new breed of “sophisticated criminals”. However, there is no empirical evidence for these assertions. Prison statistics from the National Crime Records Bureau for 2015 show that 53% of all undertrials were Dalit, Adivasi or Muslim, and 71% had not graduated class X.

Representative image. Credit: Reuters

Representative image. Credit: Reuters

Reforms and accountability

The framework used by the committee is modeled in several aspects on provisions of counter-terrorism laws that have been repealed or allowed to lapse. To normalise these provisions by making them a part of the ordinary criminal law is reductionist and jeopardises fair trial rights.

Also read: Aarushi Talwar-Hemraj Case Is a Perfect Example of Why India’s Criminal Justice System Needs Reform

The committee believed that these draconian provisions would help improve the efficiency of the Indian criminal justice system and increase conviction rates. It appeared to assume that all those who are arrested are guilty and that implementing the recommendations would ensure that these guilty persons are convicted.

The aim of the criminal justice system, however, must be to ensure justice, not merely to secure convictions. In many cases, including the recent high-profile cases related to 2G spectrum allocation and the killing of Aarushi Talwar, judges have specifically castigated investigating authorities for shoddy probes and prosecutorial staff for lackadaisical prosecutions.

The reasons for low conviction rates are many, ranging from poor investigation training and dismal working conditions for police personnel to pressure to make arrests. It is simplistic to assume that the criminal justice system is failing because “it is skewed in favour of the accused”.

In order to improve the quality of investigations, we need wide-ranging police reforms, including increasing police accountability, filling vacancies and improving equipment and infrastructure. It would be dangerous and short-sighted for us to move to a system that disregards basic criminal justice principles merely to enable easier convictions.

These warnings were sounded 15 years ago as well, but as the quote by the writer Andre Gide that prefaces the Malimath committee report says: “Everything has been said already, but as no one listens, we must always begin again.”

Leah Verghese works with Amnesty International India