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Ramifications of
Mallimath report
PRESS
RELEASE
Asian Legal Resource Centre -- ALRC
ALRC-PL-27-2004
FOR IMMEDIATE RELEASE
Saturday, 3rd April 2004
For more information, please contact:
In Hong Kong, Sanjeewa Liyanage: + (852) - 2435-8961
Statement on 'The ramifications of the Report of the Committee on
Reforms of the Criminal Justice System in India (Malimath Committee
Report)' received by Commission on Human Rights
(Geneva, 3 April 2004) -- The written statement of the Asian Legal
Resource Centre (ALRC) on 'The ramifications of the Report of the
Committee on Reforms of the Criminal Justice System in India (Malimath
Committee Report)' (E/CN.4/2004/NGO/45) was distributed on the 31
March 2004 at the 60th Session of the United Nations Commission on
Human Rights in Geneva.
The full text of the statement follows.
This year, ALRC submitted 30 written statements to the Commission,
on topics as diverse as caste discrimination in Nepal, food scarcity
in Myanmar, custodial deaths and torture in India, extrajudicial
killings in Thailand, policing in Pakistan, the National Human
Rights Commission of Sri Lanka, and impunity in Asia.
The complete list of statements, with full texts and links to the
original versions, can be viewed on the ALRC website, at http://www.alrc.net/mainfile.php/60written/.
Asian Legal Resource Centre -- ALRC, Hong Kong
The ramifications of the Report of the Committee on Reforms of the
Criminal Justice System in India (Malimath Committee Report)
1. On 19 May 2003 at about 11am, officers from Bijpur police station
arrested Tamal Sanyal (alias Ghanta), aged about 42 years, residing
at Tentulta, Halisahar, West Bengal State, along with Lalan Basfore,
Sunil Haldar and Kumar Mallick. The police later accused the men of
consuming alcohol in a public place, but at the time of arrest they
were given no reason. They did not produce the men before a
magistrate. The local magistrate before whom the accused should have
been produced never insisted on seeing them before remanding them to
custody at Barrackpur. The local police exploited the situation and
never cared to produce any of the arrested before the magistrate
even days later. On May 25 there were some 250 prisoners in remand
cells intended to house 50. Tamal Sanyal was suffocated to death
there. His family received no compensation, and nor was there any
inquiry into his death, even though it occurred while he was in
police custody.
2. The law should begin operating at the moment of arrest or receipt
of information regarding a crime. In Mr Tamal's case, he should have
been brought before a magistrate within 24 hours of arrest, and
ought to have been freed on bail. This did not happen, as the
magistrate did not bother to meet him, resulting in his death.
Unhappily, such malpractice is common in India; another case will
serve to illustrate.
3. A sub-inspector of police arrested V L Joy, of Anthikkadu,
Thrissur District, Kerala State on 20 May 2002. He did not explain
to Mr Joy why he was being arrested. While in custody, the police
tortured Mr Joy and forced him to drink urine. They refused to let
his brother meet with him, and did not present him before the local
magistrate for four days. Later they released him after making him
sign some blank papers onto which they later wrote a confession and
charged him with a petty offence for which the fine prescribed is Rs
100 (US$ 2). Mr Joy filed a complaint before the local magistrate
court and the magistrate, 'as per law', forwarded the complaint for
enquiry to the same police who tortured him. The Asian Legal
Resource Centre has this year submitted a separate written statement
on the inadequacy of laws in India pertaining to torture. However,
in this case Mr Joy successfully contested his case in court and he
was acquitted.
4. If the Committee on Reforms of the Criminal Justice System in
India (the Malimath Committee) has its way, however, victims of
police abuses such as Mr Joy are far less likely to be acquitted,
let alone have redress for the wrongs done to them. Rather, many
more are likely to end up like Mr Tamal. In November of 2000, the
Committee was set up to review and suggest modifications for proper
implementation of criminal justice in India. In May 2003 it made 158
recommendations that show that despite its ex-pression of noble
sentiments, the Committee has in fact been intended as a means for
the government to attack the very foundations of criminal justice,
and give enormous powers to the police. Its report reveals that the
Committee is far more concerned with increasing statistics of
'successful' convictions than with the delivery of justice. If its
recommendations are implemented, they will result in a disastrous
failure of human rights norms in India, a country already suffering
from corrupt and inefficient officials and a failed criminal
investigation system.
5. Persons arrested under the existing legal provisions are already
sufficiently intimidated by the police that they do not want to
contest their case in court, even when they are innocent. In Mr
Joy's case he was afraid to meet with a lawyer as the torture had so
terrified him that he preferred to pay the small fine and keep
quiet, a common occurrence. After arrest, the detainee is tortured
to extract a confession, which is later produced in court to obtain
a summary verdict. Under the current system, however, where the
accused is prepared to contest the confession it will usually fail
the test of proof and result in acquittal. The Committee, however,
has proposed a change in the burden of proof to a "clear and
convincing" standard, on the grounds that "beyond reasonable doubt"
is too high a standard for prosecutors to meet. In fact, this is a
proposal to undo the presumption of innocence itself. Lower
standards of proof and the presumption of innocence cannot coexist.
Rather, lower standards of proof leave the police free to torture
victims and obtain confessions that will be used as 'evidence',
especially because the Malimath Committee recommends that a
confession should be held binding upon the accused.
6. The shift in presumption of innocence would have had a dramatic
effect in Mr Joy's case. Only after hours of counselling did he
consent to take up the case and file a separate complaint for
harassment and torture. The prosecutor knew nothing about the case
as he had not been provided with the facts. When a copy of the
charge was furnished, it was not supported with credible evidence.
The prosecutor dropped the case, partly because of lack of evidence
and partly because no interested parties bribed him to take it up.
7. The Malimath Committee has an answer to this also. It suggests
that the prosecution be brought under direct scrutiny of senior
police officers, by way of an officer at the rank of Director
General of Police being appointed as Director of Prosecution. This
appointment would end the separation of the criminal investigation
and prosecution functions, as both would be in the hands of the
police. Civilian control of the system by way of an independent
public prosecutor would be lost. As of now the prosecutor may
decline to take up a charge when it is presented before the court.
On implementation of the Committee's recommendations, the prosecutor
will lose all independence and be no more than a mouthpiece of the
police.
8. The Committee has also recommended that the accused should make a
written representation narrating a defense of the case at the early
stage in the trial. In Mr Joy's case, the trial was adjourned three
times, since the prosecution could not present a charge sheet. Under
these circumstances, what would be the justification for demanding
that the accused present a written defense? What is more, the
Committee has recommended that it be up to the magistrate to decide
whether or not the statement should be admitted. Such provisions, if
they are enacted into law, will allow corrupt and incompetent
judicial officers, such as the magistrate in Mr Tamal's case, free
reign to trample the basic principles of fair trial. They will in
fact undo article 20(3) of the Constitution, which ensures that an
accused not be compelled to act as a witness for the prosecution.
9. At the Wadakkanchery magistrate court, Thrissur District, Kerala
state, it takes more than two months to get a certified copy of a
court record. The reason for the delay is the absence of a photostat
machine in the court, so any document to be copied must be taken to
the district head quarters, which is 24 km away. As the head quarter
receives such application from various courts, only during a
specified week every month does it entertain applications from the
Waddakanchery court. The Malimath Committee has proposed introducing
an inquisitorial system of justice. In this it has assumed that the
adversarial system has failed. However, the unsatisfactory state of
criminal justice in India has nothing to with the adversarial system
itself. Its failure is due to India's social structure and attitudes
conditioned by entrenched habits of discrimination. These weigh
heavily on the justice system, and have been severe obstacles to its
development. Under these circumstances, it can be said that the
adversarial system has never stood a real chance in India. To the
extent it has been effective it has mitigated the operation of
traditional prejudices. However, India continues to subsist under
ancient primitive laws, instead of modern rules of justice. This
particular recommendation appears to be an effort to abandon the
more progressive aspects of law making for the purpose of getting
easy convictions.
10. The inquisitorial system also requires a highly developed police
force. If India were to develop such a police force, there would be
no need for any change because the adversarial system itself would
function well. It must also be noted that an inquisitorial system
will be more expensive, as more personnel are required. More
importantly, it would take a long time to create the mental habits
needed to operate this new system. Therein, it would be better to
seriously address the defects in the existing adversarial system.
11. Aside from all these nonsensical proposals, the Committee has
neglected to comment on a number of important areas, including the
use of torture by the police. India has not ratified the Convention
against Torture and Other Cruel and Inhuman Treatment or Punishment,
nor has it made torture an offence, despite strong recommendations
to do so by the National Human Rights Commission. Meanwhile, the
police continue to be responsible for endemic torture and
extra-judicial killings. The Asian Legal Resource Centre has this
year submitted a separate written statement on that topic to the
Commission. Although the Malimath Committee has acknowledged this
situation, it has failed to recommend anything. Under these
circumstances its proposal that confessions be made admissible by
amending section 25 of the Evidence Act is a dangerous incitement to
further torture. The Committee is also silent about the extreme
corruption prevalent among the police, and has ignored suggestions
that an independent commission to monitor corruption be established.
12. If adopted, the Malimath Committee recommendations would result
in an increase of police torture and extra-judicial killings,
impunity and gross human rights violations in India. These are not
forward-looking reforms, but rather a carefully concealed attempt to
throw India back into the dark ages, under which it had subsisted
for most of its history. The Asian Legal Resource Centre urges the
Commission not to be deceived. The Commission, and in particular the
Committee against Torture should:
a. Pressure the Government of India not to adopt the Malimath
Committee recommendations.
b. Propose that the Government of India not set up wasteful
committees devoid of any true intent, but instead use its resources
to strengthen existing legal provisions and institutions.
c. Suggest reforms that will ensure an independent and better
prosecution system that will adequately protect the rights and
interests of victims, and provide resources to this end.
d. Recommend ways to ensure that the judiciary be appointed on the
basis of merit, rather than political allegiance, and provide
resources to this end.
e. Encourage the Government of India to bring in legislation and
other appropriate measures that will make the criminal investigation
system publicly accountable, especially the police and public
prosecutor.
f. Assist in bringing state provided legal aid to a par with
international standards, especially considering the appointment of
legal aid counsels on their merits and not upon mere availability.
g. Use its influence to ensure that the Government of India act on
the thousands of overdue cases of under trial detainees within a
specified time, and to see to it that justice be rendered through
due process of law and not haphazard procedures.
h. Speak and act widely on this matter with deep ramifications for
approximately one fifth of humanity, so as to stimulate
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