By Justice H. Suresh (Retd.).

Is it the judiciary? Is it the Police? Is it the law? Or is it the system itself?

What are the ailments? Inordinate delay, denial of justice, both to the accused and the victims, conviction rate going down while the crime rate is on the increase, inability of the legal system to prevent mass violence, politically backed communal violence, spurt in terrorist activities, shoddy investigation, corruption, and incompetency at all levels, of men who man the system, are some of the ailments. Is there a cure? ….. not in my life time.

If we compare our Criminal justice system with what is stated in Articles 9 and 14 of ICCPR, we are on par with the latter. No arbitrary arrest or detention, and no one shall be deprived of his liberty except in accordance with such procedure, as are established by law. (Art. 9(1) of ICCPR & Art. 21 of our Constitution). Anyone who is arrested shall be informed of the reasons for his arrest and shall be promptly produced before the Judge (Art. 9(2) & (3) of ICCPR, and our Art. 22(1) & (2)). In fact, they are found in our Criminal Procedure Code, much before the Constitution i.e. S. 50, 56, 57, etc. The provisions for bail release (Art. 9(3) of ICCPR and similar provisions V/s. 436, 437 Cr. P. Code) or to challenge the lawfulness of his detention are all the same.

All fair-trial principles as are found in Art. 14(1) to (7) of ICCPR are all there in our Criminal Procedure Code. Some of these provisions have been incorporated in our Constitution in Art. 20, 21 & 22 of the Constitution, so as to treat them as fundamental in our system. Apart from the Cr. P. Code, several judgments of the High Court and the Supreme Court have repeatedly reiterated all those principles. Presumption of innocence, proof beyond reasonable doubt, the benefit of doubt goes to the accused, the burden is always on the prosecution to prove the case, the accused not to be compelled to be a witness against himself, and the right of the accused to remain silent – these are the principles which are so ingrained in our system for over a century and a quarter, that to suggest any departure from these principles becomes questionable. These are the very principles which are found in the International Humanitarian Law.

Some time in 1975, Mr. Justice V. R. Krishna Iyer referred to these principles as some “Sacred Cows” of our Criminal System, but he called for a second look at them (Social Mission of Law – published by Orient Longman). He said that jurists must do some “heart searching and head – scratching” on these matters, in order to provoke discussion, -- “not to provide solutions, to ignite investigation anew, not to extinguish everything old.” He referred to crime – explosion – particularly “drug crime”, gold – smuggling, black-marketing, corruption, white-collar crime, and also increase in the activities of Naxalites, etc. It is in this background, he felt that the law was deficient. He says: “Inefficient law is worse than no law because it undermines the faith of the community.” He then refers to presumption of innocence and the right of the accused against self-incrimination and his right to silence. He quotes the maxim, that some guilty persons may escape, but not one innocent should suffer. He says, “The maxim really means no more than that the evidence be examined carefully so that the conclusion may be correct, more so because the consequence of error is jeopardy to life or liberty.” He observed that if this maxim is extended, it will result in a situation where every guilty man will escape and there will be no one to be convicted.
We have then the following passages (almost foreboding what Malimath Committee said after thirty years!) :
“This has resulted in the development of a system of criminal justice in which it is often very difficult to convict even those who are plainly guilty. The imbalance of the system can be rectified by the wholesome thought that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent”. And if undeserving acquittals are frequent, fear of and faith in the law will vanish, which is worse, in terms of social damage, than the moral qualms experienced at the punishment of an innocent man. ……….”

“…… I submit that there is a case for revision of the superstitious and socially callous creed that a hundred guilty men may escape but an innocent man shall not suffer. If equality for guilt and innocence is fair, the chances must be even for both and the scales need not be titled heavily in the direction, and that too the wrong one.”

After referring to the Soviet system as it existed then, he suggests :

“…….. The recasting of our trial procedures and rules of evidence, the direction to the prosecution to disclose its case and evidence at the earliest stage, provision to the accused of legal assistance from the beginning and the greater emphasis on activism in the judge to discover the truth by bringing on record evidence useful for either side but beyo0nd the means or mood of one or the other – these may be the remedy and not different standards of proof between the prosecution and the accused. Of course, the serious nature of the criminal sanction is, according to the orthodox, good reason for insisting upon a more rigorous standard of proof than in civil cases but overdoing the game of proof beyond reasonable doubt by running after doubts, chases justice out of the court house. ……………”

He then suggests that the rule that the benefit of doubt must go to the accused should be replaced “by real doubts operating to the advantage of both, depending on who has to convince the Court of a fact.” He says that the privilege of being silent handicaps the prosecution by forcing it to prove what, if asked to speak, the accused would admit. He says that this “blessing of silence for the man in the dock harms the quest for truth and the purpose of social defence. The individual versus society dilemma has to be resolved in a more balanced way.”

He refers to the Continental practice. He suggests a fair compromise which would be to give the discretionary power to the Court to examine the accused on oath or direct him to file a statement, even in the beginning subject to protection from self – incrimination and prima facie credibility of the prosecution story. His theme is that our criminal jurisprudence suffers from the “inherited, individualistic idiosyncrasies” of the law, and if law is an instrument of social engineering, we must change on the basis of the principles valid today using techniques designed for the age and the cause. An “anti-social adventurer cannot claim for his injurious activities larger legal regard than for the defence of the society itself.”

I have referred to this article extensively. Coming from Justice V. R. Krishna Iyer, it should be surprising for most of us. I myself don’t agree with many of his observations though he is my mentor and Guru. Perhaps, if he recalls this article, he himself would not agree on many of his own observations. However, we should ponder over a little more. Mr. Justice Iyer was essentially dealing with criminals such as black – marketers, foreign exchange manipulators, adulterators of drugs and foods, gold smugglers, corrupt public servants and politicians in strategic positions, tax-evaders, etc. In all such cases, presumption of innocence would only mean unjust indulgence to a person who plays hide and seek with the prosecution. And towards this end, he suggests that, the law, may be modified without deprivation of immunity from self – incrimination. In fact, during the last three decades or more we have many statutes and judicial pronouncements, particularly in respect of economic offenses where the burden has been shifted from the prosecution to the accused.

From 1975, I come to 2002 when we had Malimath Committee Report with bizarrie recommendations. The Report says that the Criminal Justice System “in India was about to collapse.” There is a high rate of pending cases with low rate of conviction, and this has made crime a “profitable business.” This, in term, has resulted in violation of Article 21 of the Constitution of India – a proposition which Dr. Upendra Baxi, rightly considers as extraordinary. So, how to remedy the situation?

The Malimath Committee says:
Firstly, the Criminal Justice system should be so constituted as to punish the guilty and protecting the innocent, the necessary implication being, the existing Criminal Justice System does not punish the guilty. The other implication could be punish the guilty first, and protect the innocent next. Secondly, quest for truth shall be the foundation of the Criminal Justice System, and everyone associated with the system shall actively pursue the quest for truth. Thirdly, how to find out the truth? The accused is a source of information of truth, and he cannot be allowed to remain silent. However, under Article 20(3) of the Constitution, he has a fundamental right to remain silent. So to get over this impediment, the recommendation is that the judge should “vigorously” and “pro-actively” question the accused for the purpose of discovering “truth”, and if the accused remains silent, draw adverse inference. Fourthly, the presumption of innocence and proof beyond reasonable doubt should be replaced by a standard of proof lower than that of “proof beyond reasonable doubt” and higher than the standard of “proof on preponderance of probabilities.” How to achieve this haphazard standard? The Report says, amend S. 3 of the Evidence Act, to say that in a criminal case, a fact can be said to have been proved, if “the Court is convinced that it is true.” Fifthly, with a view to find out the truth and secure conviction, (and more conviction means a more efficient functioning of the Criminal Justice System) the evidence of ‘bad character’ and previous convictions should be allowed as a part of the prosecution case. Sixthly, the police should be allowed to extract confessional statement from the accused and for that purpose S. 25 of the Indian Evidence Act be done away with and in its place such confessional statements be made admissible as in TADA OR POTA. Seventhly the Committee recommend, law like POTA or TADA should be part of our general law, in view of the increased terrorism in the Country.

If only Matimath Committee Recommendations were accepted, that would have been plainly violative of our obligations under ICCPR. In fact during the last two decades, we experimented with law like TADA and POTA, draconian by any standard of International Humanitarian Law, but would have been to the liking of Malimath Committee. What is the net result? Did it increase the rate of conviction? Did it eliminate acts of terrorism? Under TADA out of the 77,000 persons arrested, over 72000 persons were released without any trial after they suffered all kinds of torture, and humiliation. Even as against the others, the Conviction is not more than 1.8%. And what about POTA? The conviction rate could not be significantly better.

There is a sort of feeling that there has been a large number of “undeserving” acquittals, which has resulted in the increase of criminals in the country. That is the under-current of Malimath Committee Report – the large percentage of acquittals of guilty persons.

“More the number of acquittals of the guilty, more are the criminals that are let loose on the society to commit more crimes. They would do this with greater daring for they know by their own experience that there is no chance of their being punished.”
How would any one know that the accused are really guilty, but they are acquitted? If they are really guilty, why should the Judge acquit them? If the Judge knows that an accused is guilty, and yet if he acquits him, would he not be liable for dereliction of his duty and consequently for censure by the appellate Court? This reminds me of what Justice Thomas (former Judge of the Supreme Court) said that the confessional statements recorded by the police are true! How does he know? If he was certain, why did he not convict the accused in Rajiv Gandhi murder case, under POTA. Apart from acquitting 19 persons (all given death sentence by the Trial Judge) from all charges, the remaining 7 were convicted, not under TADA, but under IPC Sections.

What happened in Best Bakery Case? All the accused were acquitted by the Trial Judge. That was certainly “unmerited”, “undeserving” acquittals. What happened, thereafter is well-known. The Supreme Court held that the trial was a fraud on law and justice system. Later on, as we know, under the existing law, despite Zahira back-tracking once again, the accused have been convicted. – nine of them got life term. The law was the same in both Gujarat and Mumbai. It is the same Criminal Procedure, the same Indian Evidence Act and the same Indian Penal Code.

Who fails, in all these cases? Is it the law? -- or the men behind the law? In the Best Bakery case, the investigation was deliberately dishonest and faulty and perfunctory. The Public Prosecutor “acted more as a defence counsel” than as a genuine prosecutor. The Court, in turn appeared to be “a silent spectator, mute to manipulations and preferred to be indifferent to sacrilege being committed to justice. It was an “over-hasty, stage-managed, tailored “partisan trial”. So also in Jessica Lal case. The Police and the Prosecutor failed on the pretext that the witnesses turned hostile. Now, the High Court has been able to convict the accused, on the very same evidence.

Sometimes I wonder whether we should have any presumption of innocence for Narendra Modi, or a person like Togadia, or for Bal Thackerary, or for that matter for L. K. Advani & Co. when they openly demolished Babri Masjid. Still, what does the law say? Narendra Modi could be tried for “genocide” or for “crimes against humanity.” He dare not go to certain countries, for he could be arrested and tried under the concept of Universal Jurisdiction. He could also be tried by the International Criminal Court. But what does the Rome Statute which governs ICC procedure, say? Unlike the Nuremberg and Tokyo trials, –

“The Rome Statute envisages the systematic and comprehensive application of international human rights standards in ICC procedures. Article 55 of the Statute, concerning the rights of persons during an investigation, follows the various elements contained within – among other international human rights instruments – the International Covenant on Civil and Political Rights. Article 63 provides for the trial to be held in the presence of the accused and sets out provisions for situations where the accused disrupts the proceedings. Article 64(2) provides explicitly that the Trial Chamber shall ensure the trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. Importantly, the protection of the accused, witnesses and victims is amongst the Trials Chamber’s functions and powers; see article 64(6)(e). Provisions guaranteeing the right of the accused to have a public trial, and not to make a confession except voluntarily after sufficient consultation with defence counsel are found in articles 64 and 65. The right of everyone to be presumed innocent until proved guilty is provided for very clearly in article 66. The right of everyone to be presumed innocent until proved guilty is provided for very clearly in article 66. In fact, article 67 details minimum guarantees for the accused in the determination of any charge. Practically all the guarantees found Art. 14 of ICCPR are incorporated.”

So, it is not the nature of the crime that determines the trial procedure. It is absolutely necessary that whatever be the crime, the fair-trial procedures and the minimum guarantees as recognized by the International humanitarian law, will have to be observed. To the extent that we deviate, to that extent the rule of law stands undermined. TADA and POTA just did that. It resulted in repression of society, and arbitrary arrest and detention of many innocent people. It made the Police a law unto themselves. The Police became autocratic and in the process, lost the art of investigation. The Police, now indulge in torture with impunity, POTA or no POTA, and seek justification in an ill-informed society, through media manipulation. Unfortunately, the Courts refuse to take cognizance of terror in the Police Stations.

The argument that torture is justified has both corrupted intellectual debate and led to increased torture throughout the world. While in the United States torture is proposed as a means to defeat terrorists, in other countries crime. As a result, other abuses – particularly extrajudicial killings – are also on the rise, and are likewise openly justified by the perpetrators. Behind these developments lies a change in the way punishment is itself being understood. Torture, murder and other extrajudicial means are being openly advocated as a means to deter others from crime. The guilt, or innocence of the accused is of little relevance. Law enforcement agencies are being freed from the need to produce evidence of guilt, and from the fear of punishment should it be found that they acted outside of their authority. Impunity is becoming ideologically acceptable. The draconian powers enjoyed by investigators and prosecutors in earlier centuries are being steadily reinstated.

So, it is not the system that is responsible for the present scenario, in the administration of Criminal Justice and rule of law. It is the institutions – i.e. the personnel – that manages the Criminal Justice System that are responsible. They are the law enforcement agencies (the Police), the prosecutors, and the judiciary. Plainly the Police and the Prosecutors are politically pliable. Judiciary has quite often turned its face on crucial human rights issues.

The Supreme Court has repeatedly stressed that arbitrariness is incompatible with the rule of law. “Be you ever so high, the law is above you.” The experience of the common man is, high or low, this does not apply to the Police. The abuse of power and violation of laws by the police goes on with impunity. If the Police flaunt the law, take bribes openly, fabricate charges, kill innocent people in the lock up act in league with the under-world and violate human rights, every day, what do you expect the impact of these acts of commission and omission on the justice system itself?

So also the role of Prosecutors. It is they who are responsible for ensuring that all law is enforced. When laws are violated and crimes committed, the prosecution must ensure that due process is followed and Justice obtained. This is particularly important when it is the Police and the officials break laws and committing violations. In order for the prosecution to enforce the law, it must be institutionally independent. Our Prosecutors are not independent. If only they were independent many of the cases where there is no proper investigation and where there is not sufficient material to establish the charge, would not be filed in the Court. This is particularly relevant in the light of the fact that majority of the cases are lost for want of sufficient evidence, and if they were not to be filed, so much of the time of the Court could have been saved. It is important to mention that our Prosecutors should function according to the U. N. Guidelines on the Role of Prosecutors. In that, I quote Guidelines, para : 4:

“Whereas prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles (equality before the law, presumption of innocence and the right to a fair hearing), thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime.”

Coming to judiciary, we find from the Apex Court, such judgments like Joginder Kumar v/s. State of U. P. & Ors. (1994 SCC 260) laying down directives with regard to arrest, D. K. Basu V/s. State of West Bengal (AIR 1997 SC 610) laying down elaborate guidelines mainly to avoid torture and inhuman treatment in the Police lock-up and setting out in detail, the rights of the person arrested or detained, Nandini Satpathy V/s. P. L. Dani (AIR 1978 SC 1025) regarding the “right to silence”, and various other judgments on “Bail or Jail”, speedy trial, on hand-cuffing of an accused etc. Above all we have the Maneka Gandhi V/s. Union of India (AIR 1978 Sc 597) wherein we brought in “Due Process” within the Constitution of India. In addition to this we have to appreciate the bold innovative initiative of the Supreme Court, in the Best Bakery case. At the same time, we have the unfortunate experience of TADA being upheld by the Supreme Court in Kartar Singh V/s. State of Punjab (1994)3 SCC 569), and POTA being upheld in PUCL V/s. Union of India (2003 (10) SCALE 967 and Armed Forces (Special Powers) Act, 1958 upheld in Naga People’s Movement of Human Rights V/s. Union of India (AIR 1998 SC 431). It is necessary that Kartar Singh is over-ruled for it has laid down bad law, and like bad coin it has gained currency more than it deserves.

At the lower level, the problems are manifold, arrears, lack of infra-structure, lack of enough judge strength, corruption, in-competency and external influence. This has only added to the work at the higher level – appeals, revision, review and 482 Cr. P. Code petitions. A criminal trial, if not over within a very short period becomes oppressive, both for the victims and the accused.

Instead of over-hauling the administration of the Criminal Justice System, which requires political will, the Government is still thinking in terms of Malimath Committee Report and its retrograde recommendations. Any tinkering with the fair-trial principles and minimum guarantees, as found in ICCPR, will only result in more violations of human rights. Terrorism cannot be solved by any harsh law. All over the world, all laws brought in for preventing terrorist acts, have failed. Laws like TADA and POTA will only result in gradual but certain, degradation of Rule of Law and human rights. “Jessica Lal” could not have been solved by amending the Criminal Procedure Code; Recording the Statements of witnesses before a magistrate, will only end up in sending the witness to jail, as in the case of Zaheera Shaikh for perjury, with no guarantee that the accused will be convicted. Conviction in any case is no certainty that truth has been found. The objective of any justice system is to do justice as between the State and the accused, as between the State and victim, on the basis of fair trial procedure.