Insights into Editorial: A road map for criminal justice reforms
The government aims to revamp Indian Penal Code which was drafted by the British.
The Home Ministry has constituted two committees comprising legal luminaries to overhaul the IPC introduced by the British in 1860.
After it was framed, the IPC has never been amended in totality. Some additions and deletions have been made.
Rebooting the code introduced by the British in 1860 was considered as necessary as it is primarily based on the spirit of “master and servant”.
Home Minister has recently asked Bureau of Police Research and Development to work on a proposal to amend various sections of the IPC and the Code of Criminal Procedure after seeking suggestions from people across the country.
About Criminal Justice System (CJS):
The Criminal Justice System (CJS) includes the institutions/agencies and processes established by a government to control crime in the country. This includes components like police and courts.
The aim of the Criminal Justice System (CJS) is to protect the rights and personal liberty of individuals and the society against its invasion by others.
The Criminal law in India is contained in a number of sources – The Indian Penal Code of 1860, the Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
CJS can impose penalties on those who violate the established laws.
The criminal law and criminal procedure are in the concurrent list of the seventh schedule of the constitution.
Justice V.S. Malimath Committee on reforming the criminal justice system:
This committee appointed for:
Task of examining the fundamental principles of criminal law so as to restore confidence in the criminal justice system.
This involved reviewing the Code of Criminal Procedure (CrPC), 1973, the Indian Evidence Act, 1872, and the Indian Penal Code (IPC), 1860.
The 158 recommendations of the committee, arrived at after examining several national systems of criminal law, especially the continental European systems, essentially propose a shift from an adversarial criminal justice system to an inquisitorial system, where the objective is the “quest for truth” and the judicial officer controls the investigation of offences.
Centre’s decision to revisit the 2003 report:
Centre’s decision to revisit the 2003 report of the Justice V.S. Malimath Committee on reforming the criminal justice system needs to be examined through the prism of civil rights.
It includes controversial recommendations such as making confessions to a senior police officer admissible as evidence, and diluting the standard of proof required for a criminal conviction.
It also contains valuable suggestions to revamp the administration of criminal law, covering the entire gamut of the justice system from investigation to sentencing, from matters of policy to the nuances of criminal procedure and the law of evidence.
Recommendation of the Malimath Committee:
The committee made 158 recommendations, and since then some of these have become law. Its suggestion on permitting videography of statements has been implemented.
Some of the important recommendations of the committee were:
- Malimath Committee report recommends making confessions made to a senior police officer (SP rank or above) admissible as evidence.
- Confessions to police have repeatedly come under scrutiny because of allegations of custodial torture, instances of custodial deaths, fake encounters and tampering with evidence.
- The definition of rape has been expanded and new offences against women have been added.
- Its advocacy of substantial witness protection has not been realised, but victim compensation is now part of law.
- The Centre would do well to ignore the recommendations relating to making confessions to high-ranking officers admissible, and increasing the period of police custody from 15 to 30 days.
- These provisions were available only in anti-terrorism laws that are now no more in force. There is no need to bring them into general criminal laws.
- The Malimath report suggests a standard of proof lower than the current ‘beyond reasonable doubt’ standard.
- Justice to the victims: The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation.
- If the victim is dead, the legal representative shall have the right to implead himself or herself as a party, in case of serious offences.
- The State should provide an advocate of victim’s choice to plead on his/her behalf and the cost has to be borne by the state if the victim can’t afford it.
- Victim Compensation Fund: A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated from organised crimes can be made part of the fund.
New standard of proof suggested:
The Malimath report suggests a standard of proof lower than the current ‘beyond reasonable doubt’ standard.
It moots a ‘clear and convincing’ standard, that is, it is enough if the court is convinced that something is true. Such a measure would have adverse implications for suspects, and requires considerable deliberation.
There is some understandable disquiet about the state of criminal justice administration in the country and there is a crying need for a wide range of reforms.
As the Madhava Menon Committee’s ‘Draft National Policy on Criminal Justice’ (2007) noted, such popular dissatisfaction arises from the low rate of conviction, the apparent role of money and influence in the outcome of cases, delayed and denied justice, lack of protection to witnesses and inadequate attention to crime victims.
The widespread perception that there is corruption on the one hand and a deep nexus between crime syndicates and politicians on the other, has added to the erosion of public confidence in the justice delivery system.
Despite all these considerations, any move to make substantive changes in the way criminal justice is administered will have to be done with great circumspection, lest vital constitutional safeguards against abuse of police and judicial powers are violated in the process.
In the name of revamping the law, investigation and trial should not be altered in a way that undermines the principles on which the justice system was founded.
The state needs to avoid unprincipled criminalisation and rather focus on developing a guiding principle for re-classification of offences.
This is because unprincipled criminalisation often leads to not only the creation of new offences on unscientific grounds, but also arbitrariness in the criminal justice system.
There is also need for simultaneous reforms in police, prosecution, judiciary and in prisons.
Thus, Criminal Justice Reform Committee must be constituted with a mandate to evolve criminal justice policy in India.
The Committee needs to carry forward the work done earlier by Menon Committee on Criminal Justice System, the Malimath Committee, and the Law Commission.
It is not a bad idea to revisit old committee reports with a view to considering their possible implementation. However, such an exercise must be pursued with care and caution.
Therefore, the proposed amendments must be done in a principled way based on identification of old laws which needs to be removed.