HRF/89/03

 18 December 2003

Malimath proposal on inquisitorial system – Mixing apples with oranges

The Committee on Criminal Justice Reforms, headed by a former Chief Justice of the Karnataka and Kerala High Courts and former member of the National Human Rights Commission of India, Justice V.S. Malimath (“Malimath Committee”), submitted its report to the Government of India’s Ministry of Home Affairs in March 2003. 

In its report, the Malimath Committee makes a series of recommendations that seek to shift India’s adversarial system of criminal justice toward an inquisitorial system modelled on continental European systems, particularly that of France. The Malimath Committee blames the adversarial system for “a large number of criminals…escaping justice” and seeks to selectively incorporate what it terms as the “good aspects” of the inquisitorial system.

Under the guise of making the “quest for truth” the very foundation of India’s criminal justice system – the Committee feels that the adversarial system “lacks dynamism” as it has “no lofty ideal to inspire” – the Malimath Committee proposes to endow the courts with broad new powers, including the power to direct investigations. At the same time, the Committee seeks to eviscerate the rights of the accused and undermine existing procedural safeguards within the criminal justice system. Despite the Committee’s claimed concern that the accused receive a fair trial, it seeks to eviscerate the right to silence, do away with the presumption of innocence and lower the standard of proof.

The danger of the selective incorporation of aspects of the inquisitorial system 

There has been a steady trend across the world towards hybrid legal systems, with countries with adversarial systems borrowing aspects and practices from inquisitorial systems and vice versa. The serious dangers inherent in this practice have been described by Professor Abraham S. Goldstein:

“There is little doubt that when “borrowing” occurs across national and systemic lines, there is a great risk that stereotypes will be imported, without appreciating the distinctive relation of the borrowed practice to the premises of the system in which it has evolved and the living context in which it has taken its form. Indeed, it is commonly assumed that such borrowings are, at best, risky and, at worst, calamitous.”

Prior to any attempt to “borrow” aspects of another nation’s inquisitorial system, which is what the Malimath Committee is proposing with respect to the French system, it is of vital importance that the entire structure, evolution and context of that system be understood. The Malimath Committee report, however, fails to demonstrate any real understanding of the underlying ideology, structure, history and political context that have produced the criminal justice system that exists in France today. Nor does the Committee acknowledge that the French criminal justice system has recently been the subject of widespread reform as the consequence of the development of a European standard of human rights law.

The lack of a demonstrated in-depth understanding of the French system is hardly surprising. The only step that seems to have been taken in an attempt to grasp the complexity of the French system was to send a delegation to Paris for a few days.

The Committee is proposing to mix apples with oranges, seeking to selectively incorporate stereotypical aspects of the inquisitorial system without adequately considering the compatibility of those aspects with the criminal justice system existing in India today.

Summary of the recommendations

 In this context, some of the Malimath Committee’s most alarming proposals are as follows:

 (a)            Adverse Inferences

The Malimath Committee seeks to allow adverse inferences to be drawn from the silence of the accused at trial (Recommendation 8). This abolition of the right to silence will violate the Indian Constitution as well as fair-trial standards long established by case law and by the Code of Criminal Procedure, 1973. The Malimath Committee fails to adequately address the definitive findings of the Law Commission of India, in its 180^th report, that the drawing of adverse inferences from silence would contravene the Indian Constitution.

(b)            Defence Statement

The Malimath Committee proposes a massive overhaul of the basic trial procedure through the introduction of a requirement that the accused file a “defence statement” (Recommendation 9 & 10).

Under the proposed procedure, the prosecution would have to prepare and serve a “statement of prosecution”, which would include all information relevant to the prosecution’s case. Within two weeks, the accused would then be required to submit a defence statement which would have to “give specific reply to every material allegation made in the prosecution statement”, unless the defendant planned to plead guilty. If the court deemed a reply too vague it would be able to require the accused to amend it within two weeks. If the accused failed to do so, the relevant allegation would be considered admitted.

As pointed out by the International Commission of Jurists, this proposal contravenes the presumption of innocence, and represents an attempt to introduce a burden of proof which belongs to the contradictorial civil process, where the person relying on an alleged fact has to prove it.

(c)            Transforming Section 311

The Malimath Committee proposes to amend section 313 of the Code of Criminal Procedure to “empower the court to put questions to the accused for the purpose of discovering the truth”. Thus, the court would be charged with interrogating the accused, and would be expected to use the new power of questioning “vigorously and proactively”. Such an amendment would subvert the purpose of section 313 – instead of acting as a safeguard for a fair trial by allowing the accused to give his or her explanation, the section would be a tool for interrogating the accused.

(d)            Standard of Proof – Inner Conviction

The Malimath Committee proposes to do away with one of the fundamental principles of criminal justice by substituting the usual standard of proof of “beyond a reasonable doubt” for a lower standard of proof of “court’s conviction that it is true.” This lowering of the standard of proof will violate the presumption of innocence, as enshrined in article 14(2) of the International Covenant on Civil and Political Rights.

(e)            Investigative Magistrate

The Malimath Committee seeks to place a duty on the court to direct the Investigating Officer to make further investigation or to direct the Supervisory Officer to take appropriate action for proper or adequate investigation so as to assist the court in the search for truth (Recommendation 6). Thus, the Malimath Committee seeks to involve the trial judge in the investigation.

The danger of judges being involved in the investigation has been recognised in countries with inquisitorial systems. For example, recently the Cour de Cassation, the French ultimate judicial Court, recognised the danger for impartiality and equality of arms between the parties when judges were cumulating the functions of enquiring, investigating and judging.

Thus, whilst France is recognising the danger of judges performing both investigatory and judicial roles, and is reforming the role of the juge d’instruction, the Malimath Committee is seeking to introduce this potential danger into the Indian criminal justice system.

(f)        Bad Character Evidence

The Malimath Committee recommends that section 54 of the Indian Evidence Act be amended to allow for the admissibility of bad character evidence (Recommendation 7). The Committee asserts that “there is no good reason” for the exclusionary rule of evidence created by section 54, which it describes as “illogical and irrational”, and points out that bad character evidence is not excluded in the inquisitorial system.

The Committee ignores the reasoning behind this centuries-old rule of evidence, which is that the guilt of the accused must be established by proof of the facts alleged and not by proof of his character, and such evidence may lead to prejudice to the accused. This recommendation represents an attempt to undermine an exclusionary rule of evidence that protects the accused.

Seeking The Truth, Or Simply More Convictions?

Whilst the Malimath Committee repeatedly advocates the fundamental importance of the quest for the truth, it simultaneously seeks to introduce a number of proposals which reveal that it is convictions, and not the truth, that is of real importance to the Committee. Examples of such proposals include the following:

·        The recommendation that a system of plea-bargaining (see HRF-88) be introduced into the criminal justice system. In most inquisitorial systems, there can be no guilty plea by the defendant as the emphasis is on the public interest in finding the truth. Thus, this recommendation represents a significant move away from “seeking the truth”, as the defendant’s desire to plead guilty is given supremacy over any quest for the truth.

·        Under the proposed “defence statement” procedure, discussed above, investigations will be limited according to the plea taken by the accused (Recommendation 9(ix)). Again, this is incompatible with the quest for truth.

The recommendations outlined above represent a dangerous attempt by the Malimath Committee to selectively incorporate aspects of the inquisitorial system without adequately considering the compatibility of those aspects with the criminal justice system existing in India today. These recommendations will weaken the rights of the accused and will erode due process of law.

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