Committee on Reforms of Criminal Justice System

[Ed. Note: The Asian Human Rights Commission (AHRC) and Jananeethi, a legal aid non-governmental organisation (NGO) for the poor in the Indian state of Kerala on issues related to constitutional rights and gender justice, have responded to the recommendations of the Committee on Reforms of the Criminal Justice System that was created by the Indian government in November 2000 through their publication of the booklet Crime and Justice. This issue of Human Rights SOLIDARITY reproduces the contents of this booklet through the magazine¡¦s first six articles to bring to our readers this important, but largely unknown, issue and to explain the undermining of the Indian justice system in the name of reforming it.

Though the Committee on Reforms of Criminal Justice System was constituted by the Government vide its notification dated 24.11.2000, the Committee became functional only from 1.6.2001 when it was provided with the office and staff. The Report was finalised within 22 months.

Crimes are increasing rapidly and new types of crimes are proliferating. There is huge pendency of criminal cases in the Country. As per the figures for 2000 published by the National Crime Record Bureau, there were 49,21,710 criminal cases under the IPC [Indian Penal Code] pending at the end of the year 2000. During that year only 9,33,181 cases were disposed of. So far as criminal cases under the special local laws are concerned, 36,49,230 cases were pending at the end of 2000 out of which only 25,18,475 cases were disposed of during that year. In many Session¡¦s Courts innumerable serious cases are pending for trial for more than 15 years. The rate of conviction of cases under the IPC during the year 2000 is 41.8%. The rate of conviction of serious crimes is much lower. The rate of conviction in countries like USA, Australia, Singapore, France, Germany, Japan is more than 90%. Criminal Justice System is virtually collapsing under its own weight. As it is slow, inefficient, ineffective and costly people are losing confidence in the System. The System that is followed in India was inherited from the Colonial rulers more than 150 years back. Over the years the system has proved grossly inadequate to meet the new challenges. Realising the seriousness of the problem, the Government of India, Ministry of Home Affairs constituted the Committee to recommend measures to revamp the Criminal Justice System. It was called upon to examine the fundamental principles governing the system. The Committee has made many as 158 recommendations in its Report. A brief summary:

Quest for Truth: The Committee felt that the ultimate objective of the system is to render justice. Justice should ideally be founded on Truth. Hence the Committee has recommended that "Quest for Truth" shall be the guiding star of the entire Criminal Justice System. The duty of every one is to actively pursue it. For this the court shall be empowered to summon and examine any necessary person as a witness and to issue relevant directions to the Investigating Officers to assist the court in its search for truth. The Committee has recommended conferment of inherent power on every criminal court which is presently restricted to the High Court. The Courts, the police and the prosecution have to play a dynamic and proactive role in search for truth.

Search for Truth and Role of Accused: Without affecting the precious right of the accused under Article 20(3) of the Constitution (not to be compelled to be a witness against himself) the Committee has suggested empowering the court to question the accused during trial with the object of ascertaining truth and to draw appropriate inferences including adverse inference if the accused refuses to answer.

Accused to File Defence Statement: To ensure fairness in trial it is recommended that the prosecution should serve a statement on the accused containing all relevant particulars about the alleged crime and on charge being framed. The accused shall be required to file a defence statement meeting the allegations against him. The accused who wants to claim the benefit of any general or special exception should plead the same, failing which he shall be precluded from claiming benefit of the same. Allegations which are admitted or not denied are not required to be proved.

Standard of Proof: It is a fundamental principle of criminal jurisprudence that the accused is presumed to be innocent and the burden of proving that the accused is guilty is on the prosecution. So far as standard of proof is concerned, it is governed by the judicial precedents that the standard in criminal cases shall be "proof beyond reasonable doubt". The Committee has come to the conclusion that this places a very unreasonable burden on the prosecution. In Continental countries the standard of proof is much lower namely "preponderance of probabilities". The Committee has recommended that standard of "proof beyond reasonable doubt" should be done away with and in its place a standard higher than ¡¥preponderance of probabilities¡¦ and lower than ¡¥proof beyond reasonable doubt¡¦ namely ¡¥clear and convincing¡¦ standard of proof should be statutorily prescribed.

Focus on Justice to Victims: The Committee felt that the Criminal justice system does not adequately focus on justice to victim. It is therefore recommended that the victim should be given the right to be impleaded as party in criminal cases involving serious offences punishable with imprisonment for 7 years and above to enable him to participate in the trial. It is further recommended that a law should be enacted to provide reasonable compensation to the victim. As the victims are often subjected to serious threats it is recommended that a law should be enacted to provide adequate protection to them.

Better Investigation: So far as investigation is concerned it has made several recommendations to improve professionalism and efficiency of the Investigating Officers. Proper use of modern techniques provided by Forensic Science and involvement of forensic scientists from the inception of investigation is recommended.

Separation of Investigation from L & O: In order to improve efficiency, the Committee has endorsed the recommendations of the National Police Commission that investigating wing should be separated from Law and Order functions and deal exclusively with investigating work.

Security Commission: To insulate the investigating agency from political and other influences and to ensure fair treatment to them the Committee has recommended constitution of National Security Commission and State Security Commission on the lines suggested by the National Police Commission.

Admissibility of Statements & Confession: These measures would ensure a high level of credibility to the investigating offices. On that basis the Committee has recommended that the statements of witnesses examined during investigation should be recorded and got signed by the witnesses and made admissible in evidence by suitably amending Sections 161 and 162 of the Cr.P.C [Criminal Procedure Code] etc. The Committee has recommended amendment of Section 25 of the Evidence Act to provide recording of confession by an officer of the rank of Superintendent of Police or above with simultaneous audio/video recording and to render it admissible as evidence on the lines of Section 32 of POTA [Prevention of Terrorism Act] 2002.

All Offences to Be Registered & Investigated: The distinction between cognisable and non-cognisable offence shall be done away with, thereby requiring the police officer to register and investigate every crime that is reported to him.

New Police Act and Crime Intelligence Bureau: The Committee has also endorsed the recommendations of the National Police Commission for a new Police Act. It has recommended setting up of an Apex Criminal Intelligence Bureau for collection, collation and dissemination of criminal intelligence.

No Arrest for Minor Offences: The Committee has recommended that no arrest shall be made in cases where fine is the only or an alternate punishment. In cases where punishment is less than 7 years arrest can be made only under an order of the court.

For Better Prosecutions: To achieve independence, efficiency, better coordination and supervision, the Committee has recommended that an officer of the rank of Director General of Police should be appointed as Director of Prosecution by the Government in consultation with the Advocate General to function under the general guidance of the Advocate General.

Need for Specialisation: The Committee felt that specialisation in criminal law will contribute to expedition and improvement in the quality of justice. Therefore it has recommended creation of permanent criminal benches in the Supreme Court and High Courts to be presided over by judges specialised in criminal work.

For Better Discipline: For ensuring discipline and better code of conduct the Committee has recommended conferment of certain powers on the Chief Justice on the lines of the US Judicial Council Reforms and Judicial Conduct and Disability Act 1980.

More Cases for Summary Trial: To speed up the trial of cases involving less serious offences, it is recommended that all cases in which the punishment prescribed is 3 years or below should be tried summarily with power to the Magistrate to award punishment up to 3 years. It is further recommended that every Magistrate shall have the power to try summarily.

More Petty Offences: Section 206 which prescribes the procedure for dealing with ¡¥petty offences¡¦ is recommended to be liberalised.

Witnesses - Rights and Obligations: The Committee has recommended that witnesses should be treated with due dignity and courtesy and be provided with facilities for their seating, resting, toilet, drinking water etc. The rates of travelling and other allowances should be reviewed and arrangements should be made for prompt payment. As witnesses involved in serious cases are often subjected to threats, the Committee has recommended enactment of a law for giving protection to the witnesses.

As a large number of witnesses gives false evidence in the court, the Committee has recommended a summary procedure for trial and enhancement in. It is further recommended that before the evidence of the witnesses is recorded the judge should caution the witness that it is his duty to tell the truth and if the court finds that he is telling lie in the court is punishable.

Arrears Eradication: The Committee has recommended an Arrears Eradication Scheme on the lines of the Fast Track Courts scheme to deal with arrears of cases pending for more than 2 years. For effective implementation of the scheme it is recommended that a retired judge of the High Court proficient in criminal work and known for quick disposal of cases should be in charge of this work.

Increase in Fine: The Committee has recommended amendment of the Penal Law to increase the fine amount.

Sentence Higher than Life Imprisonment: The Committee has recommended sentence of imprisonment of life without commutation, remission should be added as an alternative sentence.

Save Innocent Child from Prison: As it is wrong to inflict punishment on an innocent child by its remaining with the mother who is imprisoned, the Committee has recommended that when a pregnant woman or a woman who has a child below 7 years is sentenced to a term of imprisonment that sentence should be carried by directing her to remain under house arrest. The Committee has also recommended community service for a specified time sentence in default of payment of fine.

Sentencing Guidelines: As there is no uniformity and consistency in the matter of imposing sentence, the Committee has recommended creation of a statutory Committee to prescribe guidelines in the matter.

Settlement of Cases: The Committee has recommended implementation of the recommendations of the Law Commission in regard to the settlement of cases without trial so that more number of cases can be settled.

Offences against Women: The Committee has recommended modification of section 498-A to the effect that the offence should be made bailable and compoundable.

No Death Penalty for Rape: The Committee is not in favour of imposing death penalty for the offence of rape for in its opinion the rapists may kill the victim. Instead, the Committee has recommended sentence of imprisonment for life without commutation or remission which is higher than the punishment of imprisonment for life now prescribed by the statute.

Liberalising S.125 of Cr.P.C: The Committee has recommended that a woman who is living with the man like his wife for a reasonably long period also be entitled to the benefit of maintenance under S.125 of the Cr.P.C.

Non-penile Penetration to Be a New Offence: As several forms of non-penile penetration are not adequately punishable under present law the Committee recommended creation of a separate offence prescribing punishment on the lines of S.376 of the IPC.

Sensitising Magistrates: The Committee has recommended special training to Magistrates in regard to trial of cases of rape and other sexual offences to instil in them sensitivity to the feelings, image, dignity and reputation of the victims.

Organised Crime, Terrorism & Federal Crime: The Committee recommended enactment of a federal law to deal effectively with organised crime and terrorism. It has recommended amendment of the domestic law to conform to UN Convention Transnational Organised crime. The Committee has recommended a federal law to deal with crimes of inter-State and/or International/Transnational ramification by including them in List 1 of the Seventh Schedule of the Constitution. The Committee has recommended that the Nodal Group recommended by the Vohra Committee be given the status of a National Authority with legal frame-work with adequate powers including powers to freeze accounts of the suspects/accused etc and to attach their property.

Economic Crime: Several measures have been recommended to effectively deal with growing menace of economic crimes. With the emergence and complexity of giant industries and the capitalist modern economic system, economic crimes have risen in numbers, size and complexity. A strong, quick and fair disposal of economic crimes with sufficient protection for the weaker parties will help reduce the rigors of the market economy. The peculiar problem as created by the proliferation of crimes involving finance and drugs with possible connections to organised crime terrorism can be dealt with only by new laws and new procedures. Apart from laws, equally important is to put in place specialized investigation and prosecution teams to handle complicated cases of fraud. Regulation and regulators institutions need to be appropriately strengthened with clear demarcation of regulatory functions and non-regulatory activities. The Committee has recommended legislation on proceeds of crime on the lines of similar legislation in the UK and Ireland and also creation of Asset Recovery Agency at the federal level. The Committee has recommended establishment of a mechanism by name "Serious Fraud Office" by an Act of Parliament with adequate power to investigate and launch prosecution with utmost speed.

Creation of Asset Recovery Agency: The Committee has recommended creation of Asset Recovery Agency to deal with forfeiture, confiscation etc. on behalf of courts and Govt. departments. The Committee has recommended that serving representatives or regulators should not be appointed on the Board of Directors of financial institutions to avoid conflict of interests.

The Committee has recommended that violation of environmental laws which has serious economic and public health consequences should be dealt with effectively and expeditiously. The Committee has also recommended enactment of a law to protect informers, covering all kinds of major crimes.

Training: For the purpose of improving the quality of performance of all the functionaries of the Criminal Justice System, the Committee has recommended training should be adopted as an important strategy.

Vision for the Future: The Committee has recommended that a provision should be made in the Constitution for appointment of Presidential Commission to periodically review the functioning of the Criminal Justice System. There is need for the Govt. to come out with a policy statement on criminal justice and in particular implementation of the Committee¡¦s recommendations.