The Committee on Reforms of the Criminal Justice System, submitted its report in April 2003. It was constituted by the Ministry of Home Affairs of the Government of India in November 2000 and headed by former Chief Justice of Kerala and Karnataka, and former member of the National Human Rights Commission (NHRC), Justice V.S. Malimath. The two-volume report, over 600 pages in length contained 158 recommendations for reforming the Criminal Justice System (CJS).
There has been sporadic media coverage of selected recommendations in the report, and on 11 August 2003 it was reported that the government was introducing a Bill to amend the Code of Criminal Procedure, reflecting a few of the Committees recommendations. While there has been no official government response to the report., a common thread in most of the Committees recommendations is an absolute disregard for human rights both constitutional and international standards.
The recommendations of the Committee cover are wide ranging, from making confessions to the police admissible to courts to making matrimonial cruelty a bailable offence; they include placing a police officer as head of the prosecution and adding provisions from the Prevention of Terrorism Act (POTA) into the regular penal law. This article focuses on the manner in which the proposed reforms were arrived at, by examining the reports methodology, interrogating its premises and unraveling its exclusions and silences.
The process of drawing up a reforms agenda
A criminal justice system (CJS) does not function in a vacuum. The system and the actors, be they police, prosecutors, judges or lawyers, are all embedded in specific social, economic, political and cultural contexts. In India, like elsewhere, class, caste, gender, religious, ethnic and sexual identity and other (dis)abilities greatly influence the working of the criminal justice system. Thus it is critical that the purpose, sincerity and significance of any proposed reforms of the criminal justice system be judged by: the extent to which the process of drawing up the reforms was participatory and inclusive; and the extent to which they address social vulnerability and disadvantage and enable the system to better protect the rights of those most discriminated against.
Reforms BY whom?
Given the importance of the issue of reform of the CJS and the impact of any such reforms on all members of society, there is a need for transparency and consultation in the process of reform. The Malimath Committee appears to share a similar view when it voices its opinion that there is need for a reform of penal law in India and this should not be an exercise to be carried out only by lawyers and Judges. Public men and women representing different walks of life and different schools of thoughts, social scientists, politicians etc should be on such a committee to recommend to the Parliament a better and progressive penal law for the country. (Page 175 of the Report)
However the Committee ignores the fact that its own constitution and membership fails these inclusive and representative standards. The members of the Committee, besides the former judge as chairperson were: an Advocate, a serving bureaucrat, a retired IAS official, a retired DGP of Police and a legal academician. That this Committee was addressing the entire criminal justice system (not just the penal law) only made it more important that it be constituted with broader representation. Whats more, this Committee could not even find place for a single woman member!
Another aspect in which the question of representation is valid is in authorship of the research papers that the Committee appears to have commissioned from various experts. Six of the sixteen papers were written by serving or retired Police and other security agency officials (including the serving Inspector General of Police, Rajasthan and the serving Director of the Central Bureau of Investigation). The remaining ten papers are covered by a spattering of legal academics and lawyers and judges. Once again the Committee fails to live up to its own set standards.
Reforms - how?
The Committee claims to have consulted broadly in drawing up its report and recommendations. These claims are suspect. The body organised four seminars on specific issues and its various members attended another eight seminars organised by different organisations. There is little in the Report however to indicate that the Committee indeed drew from these limited discussions. Volume II of the Report of the Committee also contains a copy of a questionnaire sent to 3,164 individuals, along with an analysis of the 264 responses (less than 10%) received. There is no mention on how many of the 264 responses to the questionnaire came from non-governmental individuals or groups. There is little input from criminal lawyers dealing with cases within the criminal justice system on the ground. Members of the Committee conducted a whirlwind visit of France and this trip appears to have given them in-depth knowledge of the French system that they rely on heavily later in the report.
Unfortunately the report itself does not provide the material on the basis of which the bulk of the recommendations appear to have been made. Recommendations are made without independent analysis of specific areas of the criminal justice system. This is evident from the Committees treatment of the prosecution system and summary trials where it suggests major changes without referring to any studies that identify problems. In other places, the Committee is extremely selective in its reference to studies on the criminal justice system.
This lack of research leads to several very broad and vague recommendations for example tagging of pregnant women prisoners and the videoing of confessional statements made to police without providing any detailed analysis of how such recommendations could be implemented.
Reforms - FOR whom?
Though the Committee claims to have applied its mind to the grave problems facing the country (Page 265), there is little to suggest that it considered the grave problems facing the most vulnerable sections of Indian society vis-à-vis the criminal justice system. There is a deafening silence in the report on the criminalisation of poverty, the crisis in legal aid and the abject failures of the criminal justice system in protecting the human rights of the poor, dalits, minorities and other vulnerable sections of society. The most vulnerable endure enormous challenges in seeking redress from the criminal justice system. The Malimath Committee ignores this.
Furthermore, there is sufficient material to suggest that the poor constitute a disproportionately large number of the criminal defendants going in and out of the criminal justice system. A large percentage of the 2.7 lakh prisoners in India belongs to the economically weaker section of society, is by and large illiterate and unaware of the law or working of the legal system. The Committee on the other hand believes that the accused now-a-days are more educated and well informed and use sophisticated weapons and advance techniques to commit offences without leaving any trace of evidence (page 19); "the accused is normally represented by very competent lawyer of his choice" (page 19). Needless to say, the Committee does not back these observations with any empirical evidence.
For example, there is no substantive discussion in the Malimath Committee report on the challenges faced by dalits in ensuring protections from the criminal justice system. Institutional prejudices within the police and the judiciary or the problems with the implementation of the Schedules Castes/Schedules Tribes (Prevention of) Atrocities Act or the working of the Special Courts and many other issues significant to the protection of dalit human rights have not been of the least significance to the Malimath Committee. Neither is the Committee interested in police inaction and even direct complicity and participation in atrocities against dalits. The extent of the failure of the criminal justice system to combat caste discrimination seems to have totally escaped the Malimath Committee.
The failure to provide equal protection of the law to and safeguard the rights of minorities has been a major human rights issue dogging the criminal justice system for decades now. In early 2002, while the Committee was contemplating the "grave problems facing the country" and engaged in drawing up "comprehensive criminal justice reforms" more than 2000 people were massacred in Gujarat, thanks in no small measure to a criminal justice system that seemed more criminal than just. Despite repeated failures in ensuring effective protection, investigation, prosecution and justice to victims and survivors of communal violence it the Committee finds no space in its report to discuss these concerns. Instead the Report prefers to project communal violence as a phenomenon that is largely engineered by the Pakistans Inter-services Intelligence and pro-Pakistani terrorist outfits (Page 218).
The Committee's silence on the protection of human rights are by no means the only ones. A "comprehensive reform" of the criminal justice system was an opportunity to overhaul the system in a manner that could also address major human rights concerns of other vulnerable groups. These include criminalizing child sexual abuse, decriminalizing consensual same sex relations and addressing the serious challenges faced by the mentally ill, all areas in which the prevailing standards are way behind internationally accepted standards of protection.
Convictions - not Justice
According to the Committee "quest for the truth shall be the foundation of the Criminal Justice System" (Page 266). This laudable philosophical goal is justified by an assertion that "For the common man truth and justice are synonymous" (Page 28). The truth about the Committee however is that it is more concerned about the rate of convictions than about truth or justice. The Committee proceeds on the assumption that " the system is in favour of the accused." (Page 27) And it is this assumption that informs the discussions and recommendations in the report.
The Committee goes on to note, More specifically, the aim is to reduce the level of criminality in society by ensuring, 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 to prevent recidivism. (Page 21, emphasis added) This is particularly telling since the Committee does not even acknowledge determination of guilt, let alone emphasize it as a vital aim of the criminal justice system.
The Committee thus proceeds to recommend a series of measures to enable easier convictions; reduce the threshold of evidence, effectively remove the right to silence, reverse the burden of proof, make confessions made to police officers admissible as evidence and increase summary trials. On the other hand the Committee has little or nothing to say about ensuring greater justice. It is silent on issues of excessive and wrongful arrest, torture and custodial violence, the large number of under-trials, impunity, endemic corruption in the criminal justice system or the crisis in legal aid. These are all issues that numerous human rights organisations have raised over a number of years and which unless addressed, continue to perpetuate some fundamental shortcomings in the criminal justice system which have so far resulted in a failure to provide proper justice for all citizens.
Jumping onto the Security Bandwagon
True to its Home Ministry parentage the Malimath Committee report seems dominated by concerns of security rather than justice. The report devotes three pages to the discussion of Pakistan and its role in promoting terrorism. The discussion on Pakistan ranges from the activities of the ISI, the military, domestic politics, jehad and Bhuttos politics. The discussion on terrorism too is almost entirely focussed on Pakistan in general and Islamic fundamentalism in particular. This part of the Malimath Committees report reads like an extract from an Annual Report of the Home Ministry and less like an extract from a body mandated to go into the question of reforms of the criminal justice system in India.
Needless to say, the Committee completely fails to reflect on the failure of a plethora of legislation in dealing with terrorist crimes. Further, it also makes no attempt to assess the large volume of information and research available in India and worldwide indicating systematic abuses and failures of anti-terrorist and security legislation. The Committee also completely ignores the National Human Rights Commissions opinions and statements on this matter. Instead the Committee reaches the conclusion that the answer is more stringent legislation, 'special' procedures i.e. more powers to the police, lower standards of evidence, reversal of burden of proof, preventive detention and 'special' courts.
The Malimath Report argues for not just more stringent anti-terrorist legislation but to actually mainstream several draconian provisions of the Prevention Of Terrorism Act, 2002 in the CrPC.
The Committee seems to reflect little understanding of the nature of terrorism. Even while acknowledging that terrorism is prompted by a wide range of motives and prevailing political ideology, the Committee then precedes to club terrorism with organised crime ignoring the clear ideological divisions between the two. The discussions on security conclude with the Committee advocating more law and less politics, i.e. use the law as a means of rejecting contested meanings and divergent interests -- which are now interpreted as security threats.
In part II of this series, the authors discuss some of substantive recommendations in detail. Listed below are some of the recommendations.
• Increase in period of police custody
In its acknowledgements, the Committee expresses its gratitude to the Home Ministrys vision of comprehensive reforms of the entire criminal justice system. The Committee bemoans previous attempts at compartmental examination to reform only certain set of laws, or one particular functionary of the system in piecemeal and suggests that it would undertake a holistic study of the criminal justice system. Having set for itself such an ambitious agenda, the Committee falls woefully short of offering either a comprehensive examination or comprehensive reforms.
The approach of the Committee and its premises and assumptions are not only faulty but also appear exclusionary and biased in nature. Without prejudice to the members of the commission, it must be said that the direction and content of the recommendations could actually undermine the entire normative framework of the criminal justice system rather than address its real systemic problems. It ends up projecting the criminal justice system today as being too 'soft' and making several prescriptions to render it 'hard'. In doing so, it seems to endorse specific political views rather than advance human rights standards. Irrespective of the nature of specific recommendations to be examined in the next article, these grounds alone are sufficient for the human rights community to reject the Malimath Committee report.