|Popular opinion favours radical change, specially after a number of high-profile murder cases in which money and influence negated the rule
You commit a crime and there is a 93.5 per cent possibility-if it is heinous-that you’ll get away with it.” When Arun Jaitley, till recently the law minister and the force behind a number of newly instituted legal reforms including those in the Civil Procedure Code (CPC), made this observation, he effectively underlined the poor conviction rate in Indian courts as far as serious crimes like homicide are concerned-a mere 6.5 per cent of the cases put up for trial.
In 1973, the Indira Gandhi government attempted to make punishing crime simpler by amending the Code of Criminal Procedure (CRPC). But the Indian Evidence Act remained untouched. Today, the law vs flaw debate is at the fore again with the Committee of Reforms of Criminal Justice System, headed by former Karnataka and Kerala High Court chief justice V.S. Malimath, looking into the matter. And if its report-due in September-is implemented, it could change the paradigm of criminal trials in the country.
Popular opinion favours radical change, particularly after a string of high-profile cases when money and influence came together to negate the rule of law, such as the Priyadarshini Mattoo and Jessica Lal murder cases in Delhi, which remain unsolved despite overwhelming circumstantial evidence. Adding to the general disillusionment is the fact that a high percentage of the accused are directly linked to the privileged classes, particularly politicians and bureaucrats. Says Malimath: “They are the fake coins bankrupting our democratic system-our present system lets them have currency despite their misdeeds.”
|» A cadre of investigative magistrates that will supervise investigation to replace the current system of prosecutors being given the findings at the end.» A simple procedure for the prosecution of witnesses who commit perjury to end the common practice of lying under oath.
» Video-taping of statements by witnesses to ensure they do not change the original version in court. Confession of accused can also be video-taped to clearly show whether they are voluntary, thus making them admissible in trial.
» District judges rather than state law ministers as the authority for appointing public prosecutors; special training for prosecutors and judges.
While the committee is still collecting opinion-from 3,500 judges, lawyers, politicians and policemen-its reasoning is clear in its 39-page questionnaire. The questions are framed on the presumption that the criminal justice system is disproportionately weighted in favour of the accused. The crucial task, according to Malimath is “to bring the focus back from the accused to the victim”.
The Indian Evidence Act puts the burden of proving guilt on the prosecution which must prove it “beyond reasonable doubt”. Unfortunately in the present Indian scenario, this well-recognised principle, aimed at preventing misuse of power by government officers, leads to investigators being bribed, witnesses suborned and material facts altered. The committee would have it replaced by a simpler “preponderance of probabilities” principle, much in use in civil law. Article 20(3) of the Constitution says that no person accused of an offence shall be compelled to be a witness against himself. The committee is examining the relevance of this “right of silence” in criminal cases. It may also recommend that the burden of proof shift to defence, as in some special laws like POTA. However, defence lawyers have pointed out that such radical changes may do harm as well as good. Says Delhi-based criminal lawyer Rebecca Mammen: “Sweeping changes in the criminal justice system should not be made without considering the possible fallout-already there is a lot of criminal litigation that is purely aimed at harassing the person concerned. Dishonesty on the part of government officers, including use of third-degree methods by police officers who want to increase the graph of solved crimes, is a fact of life.”
However, the Malimath Committee also has some less controversial, if equally radical, suggestions. The victim of a crime at the moment “has no right to lead evidence, or cross-examine witnesses, or to advance arguments,” as the committee’s questionnaire reminds respondents. Apart from balancing out this skew, Malimath favours the creation of a Victim Compensation Fund.
Perjury-telling a lie under oath-continues to be a major headache for the prosecution. At present the magistrate in whose court a witness had lied must file a complaint before another magistrate, stand as a witness and be cross-examined. There is only one case of perjury since 1947 in the Supreme Court records, and it dates back to 1969 (Jyotish Chandra vs State of Bihar). Expectedly, the alleged perjurer was not convicted. Changes may now be proposed in the CRPC so that false evidence triggers prompt trial in the same court.
The low credibility of lawyers and the police contributes to the problem. “Every lawyer today is trained not to admit the truth,” says Jaitley. The police’s penchant for third-degree methods makes their investigations suspect. Section 162 of the CRPC says that nobody should write or sign a statement to the police without the full knowledge of the court. The committee suggests video-recording of all statements to prove they are voluntary, including confessions, before an officer not below the rank of deputy superintendent of police.
Other notable suggestions include:
» Creating a cadre of “investigative magistrates” who supervise investigation in place of the current system of underpaid public prosecutors who have to accept the finding of the police.
» Making the district judge rather than the state law minister the authority for appointing public prosecutors to ensure meritorious officers.
» Making judges accountable.
In this exercise may lie a solution to the huge courtroom arrears-20 million at present, two-thirds being criminal cases. Since a significant percentage of these consists of minor offences like traffic challans, the committee may reclassify offences into three categories: serious, medium and soft and lay a ground plan for making it possible to settle soft cases out of court.
These changes, however, will undoubtedly prove expensive. Specialised and independent investigative officers and “smart” court rooms complete with video-recording and video-conferencing facilities don’t come cheap. But, like the proverbial free lunch, there is no free justice.
-with Shuchi Sinha