HRF/84/03

 15 September 2003

Malimath panel finds reform vital but rights dispensable

In April 2003, the Committee on Reforms of Criminal Justice System (headed by Justice V.S. Malimath) submitted its report to the Ministry of Home Affairs, and asserted that thanks to the “commitment” of the Home Minister and the Law Minister who had pledged to implement its recommendations, the report would be spared the dust of the government archives.

The self-assurance and candour are refreshing, coming from a government-ordained panel; however, a close look at the report reveals that several recommendations contained in it may well be allowed to mix with the dust.

The Malimath Committee recommends an overhaul of the criminal justice system. It proposes to do this, however, by eviscerating many fundamental rights guaranteed by the Constitution.

The report attempts to address the “huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other” in two main ways. First, the Committee quite reasonably seeks to root out incompetence and corruption among the police, prosecutors, and judges by improving training, standards, and accountability and to increase the overall efficiency of the court system.

It is the second aspect, however, that is disconcerting. The Committee seeks to dramatically increase the power of judges and the police by altering the fundamental principles of the criminal justice system and obliterating many of the rights of the accused, and by disregarding the injustice of false convictions. This, after bemoaning the corruption and incompetence in the judiciary.

An alarming feature of the report is the Committee’s attempt to introduce some of the most controversial and problematic aspects of the Prevention of Terrorism Act (POTA) into the general criminal justice system. For instance, despite the Committee’s concerns about police corruption, and despite widespread reports of torture and mistreatment of suspects by the police, the Committee seeks to erode the safeguards in sections 25-29 of the Indian Evidence Act which prevent confessions to the police from being admissible in court, unless they were made in the presence of a magistrate. Even though the Committee is concerned about the need to reduce incentives to the police to “resort to compulsion or trickery to obtain a confession”, it is essentially providing the police with the strongest such incentive possible: the knowledge that statements by the accused will be admissible in court and could lead to conviction.

Further, the Committee seeks to introduce POTA provisions allowing the police to intercept “wire, electric or oral communication for prevention or detection of crime”. Human rights activists and jurists have repeatedly pointed to the draconian nature of such provisions. However, the Committee does not appear to have taken them into account.

The most radical suggestions of the Committee would obliterate most of the basic principles of Indian justice system, rendering it unrecognisable. First, the Committee seeks to move the system away from the adversarial type (where the prosecution and defence each present their cases to a passive, unbiased judge) and towards an inquisitorial one, where a judge actively directs the proceedings. This, of course, would give tremendous powers to India’s judiciary, despite the Committee’s admission that “adequate attention is not paid to look for competent [judges] proficient to handle criminal cases”.

Next, the Committee would like to have the required burden of proof lowered – from ‘proof beyond a reasonable doubt’ to allowing a fact to be considered proved “when, after considering the matters before it, the court is convinced that it is true”. Rather than addressing the reasons judges may be unable to find guilt beyond a reasonable doubt in many cases – such as poor investigations and incompetent prosecutors – the Committee seeks to make it easier to convict in spite of these weaknesses.

The Committee frequently resorts to gratuitous predictions and grandiloquence rather than set forth arguments to convince readers of the need for this “reform”. It claims that the ‘beyond-a-reasonable-doubt’ standard (rather than corruption, limited resources, and incompetence) is the cause of guilty people going free, and that soon many guilty people will “occupy important and sensitive position [sic] in public life. “If criminals start ruling the country one can imagine the consequences,” it observes. “If crimes go unchecked,” it adds ominously, “anarchy will not be in the distant future.”

Therefore, the Committee implies, the burden of proof must be lowered, and it is irrelevant that many innocent defendants may be imprisoned with the guilty, if a judge need only be “convinced” of a defendant’s guilt to convict him or her.

The Right to Silence

The next seismic change to a fundamental principle of the criminal justice system is the Committee’s proposed evisceration of the right to silence. The Committee recommends obliterating the right to silence by allowing judges to draw adverse inferences from a defendant’s refusal to answer questions at trial. However, both Article 20 (3) of the Constitution of India and Article 14 (3) (g) of the International Covenant on Civil and Political Rights, 1966, to which India is a party, expressly forbid testimonial compulsion. Article 20 (3) guarantees that “[n]o person accused of any offence shall be compelled to be a witness against himself.” Article 14 (3) (g) guarantees that the defendant “not be compelled to testify against himself or to confess guilt.” The Committee attempts to play semantic games with the word “compel”, maintaining that because silence would not result in punishment for contempt of court, no compulsion exists.

The accused however have very good reason to fear the adverse inferences and will feel compelled to avoid them by testifying at trial. To claim otherwise is disingenuous. Just because the accused will not be directly punished for failing to testify, but rather indirectly punished by the drawing of adverse inferences, does not mean that Article 20 (3) will not be violated. The Committee, however, does not provide any support for its position, instead merely repeating its conclusion as though it were an argument: “[D]rawing of adverse inference against the accused will not offend the fundamental right granted by article 20 (3) of the Constitution as it does not involve any testimonial compulsion”.

Other countries which have also guaranteed the right against self-incrimination, such as the United States (in the 5^th Amendment to the Constitution) and Canada (in section 11 (c) of the Charter of Rights and Freedom) have refused to undermine the right to silence and have prevented courts from drawing adverse inferences from silence. Only countries which have failed to enshrine the right, such as the United Kingdom and Israel, have allowed it to be eviscerated. The Malimath Committee conveniently ignores the difference in constitutional protections provided by India and the UK and recommends following the British lead in dismantling the right.

The British first abolished the right to silence in cases in Northern Ireland, with the Criminal Evidence (Northern Ireland) Order 1988, and followed that by ending the right to silence in England and Wales as well with the Criminal Justice and Public Order Act (UK) 1994. These acts, though their reach is broader than that recommended by the Committee (the British acts allow the drawing of adverse inferences from silence both at trial and during investigation; the Committee recommends adverse inferences only from silence at trial), have failed to increase the overall conviction rate. The most thorough study of the effect of either of the acts was carried out for the Northern Ireland Office by faculty at the Queen’s University of Belfast. This study found that even for trials without juries, guilty plea rates fell after the introduction of the act. “The research also could find no support for the conclusion that conviction rates improved during the period following the introduction of the Order.” Thus, even though more defendants testified at trial this has not led to any of the improvements foreseen by the Malimath Committee: the right to silence does not, it appears, help the guilty.

Not only has the Committee failed to survey the results of the obliteration of the right to silence in countries whose constitutions, unlike India’s, allow it, the Committee has also failed to examine any of the academic work on the right to silence, relying instead on faulty platitudes about the right to silence helping only the guilty. An article in the Harvard Law Review employing game theory and the Nobel-prize-winning theory of the pooling of bad information with good information, demonstrates that the right to silence helps the innocent by lending credibility to their stories. When there is no right to silence, the guilty “pool” their lies with the true stories of innocent defendants, lessening the general credibility of the stories of innocent defendants. While the right to silence does not help the guilty by shielding them from conviction, it does help the innocent by increasing their chances of going free.

Although these are solid reasons not to abandon the right to silence, the most important reason resides in the Constitution. It is, simply, a violation of Article 20 (3) to force a defendant to testify. It is alarming that that fact alone does not stop the Malimath Committee from pursuing this issue.

In fairness, the Committee’s goals of rectifying judicial delay and improving the conviction rate are laudable, and some of the reforms suggested are quite welcome. For example, it recommends better training for police, judges, and prosecutors. The Committee is particularly concerned with excessive judicial vacations and poor handling of dockets and with public distrust of police. There are good suggestions regarding specific crimes, and some of the results of blurring the distinction between cognizable and non-cognizable crimes would be beneficial.

However, the implicit proposal to alter the fundamental principles of the criminal justice system would dismantle basic human rights guaranteed by the Constitution. Given that the Committee consisted of at least two eminent names in Indian jurisprudence, it is appalling that certain issues were even taken up for discussion.

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