Asian Human Rights Commission

In November 2000, the government of India set up the Committee on Reforms of the Criminal Justice System, purportedly to assess fairly and propose changes to the manner in which criminal trials are conducted in India. In April 2003, the true objectives of the committee have been revealed. A summary of its 158 recommendations shows that, despite its smart expression of noble sentiments, the committee has, in fact, been intended as a means for the government to attack the very foundations of criminal justice in India and to give enormous powers to the police.

If the proposal to demolish the fundamental principles of criminal justice in India was initiated by the government itself, it would have been met with great resistance. The Reforms Committee then is a neat and carefully crafted vehicle to drive home the government¡¦s agenda. If its recommendations are implemented, it will be unnecessary for India to introduce new anti-terrorism laws or emergency legislation: their cumulative effect will far exceed the powers of such regulations. The Asian Human Rights Commission¡¦s (AHRC) initial assessment of these recommendations is as follows.

First of all, the committee has suggested that the Indian criminal justice system be guided by a "Quest for truth." The committee may believe that this is a reasonable proposition, and perhaps even an original one, but the "Quest for truth" is nothing new to India. Ironically, however, every humbug politician trying to look pious begins with the popular refrain stayam sivam sundaram (the truth is always beautiful). Notwithstanding, the inequalities and untruths that continue to consume India have few parallels in world history. This is because the "Quest for truth" is delinked from the search for justice, and thus, it permits cruel, rampant inequality. Now the old ideal is being recalled to undo the system of criminal justice. The "Quest for truth" also recalls the motto of the Chinese judicial system: "Finding truth from facts." Whereas the committee is pretending to introduce practices from continental European legal systems, it is, in fact, borrowing the motto and practices of an authoritarian system that only now is developing new and less primitive judicial methods.

To achieve this "truth," the Reforms Committee has, in fact, launched an assault on the Constitution of India without making mention of it. Article 20(3) of the Constitution ensures that an accused not be compelled to act as a witness for the prosecution. The committee is effectively proposing that this article of the Constitution should be discarded as it recommends that the accused present a statement of defence at the beginning of the trial. This is like what is done in China, although there the right of the accused to remain silent is not recognised at all. This clever proposal aims to reduce a criminal trial to civil trial standards. In India, where the poor lack access to competent lawyers, it will mean the growth of criminal convictions without an adequate defence. The number of innocent people languishing in jail due to ignorance and a lack of resources will increase immeasurably.

The committee has also proposed a change to the burden of proof, from "proof beyond reasonable doubt" to a "clear and convincing" standard of proof. The committee has justified its decision on the grounds that "beyond reasonable doubt" is too high a standard for prosecutors to meet. In fact, this proposal is to undo the presumption of innocence itself. Lower standards of proof and the presumption of innocence cannot coexist. This was observed by Basil Fernando, executive director of AHRC, in his response to the questionnaire distributed by the committee in 2002: "To effect such a change goes against the very fundamentals of criminal trial, which deal with the life and liberty of individuals. . . . [It] would trivialise criminal justice. A direct outcome would be the further degeneration of the police investigators and prosecutors. It would open the road for miscarriages of justice." Once again, this is nothing other than a devious attack on one of the pillars of criminal justice.

Another remarkable suggestion of the committee is that an officer at the rank of director general of police be appointed as director of prosecution. This appointment would virtually 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. Such a model is typical not of more developed systems but rather more primitive ones.

On the other hand, the Reforms Committee has refrained from making recommendations in a number of important areas, including the use of torture by the police. India has not ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) nor has it made torture an offence, unlike several other Asian counties, despite strong recommendations by the National Human Rights Commission (NHRC). Meanwhile, the police continue to be responsible for endemic torture and extrajudicial killings. Although the committee has acknowledged this situation, it has failed to make a specific corresponding recommendation. Under these circumstances, its proposal that confessions be made admissible by amending Section 25 of the Evidence Ordinance is a dangerous incitement of further torture. That such a statement would have to be made to an officer not below the rank of superintendent of police or recorded on tape is no safeguard without legal provisions to prohibit statements taken by means of torture.

The committee is also silent about the extreme corruption prevalent among the police. It has ignored suggestions that an independent commission to monitor corruption be established. Again, this means that its recommendations to strengthen the position of police investigations through a National Security Commission and State Security Commission is dangerous. Together with a proposed apex Criminal Intelligence Bureau, such agencies could become a surveillance system threatening all independent organisations. Moreover, in the hands of a State inimical to the interests of some specific groups in society, they could prove lethal. The Gujarat massacre has not long passed, and the threat of such state-managed violence yet looms large over millions in India.

What is needed now is not more freedom for the policing agencies to encourage and commit further atrocities. Independent bodies to monitor and control the police are the need of the hour.

In conclusion, if these recommendations are implemented, the consequences will be that:

1. The judiciary and lawyers will be subordinated to the police. Judges hold an important place in society due to the high standards they uphold. Once they become mere arbiters of civil-style cases, they will also be viewed as nothing more than that. Judges - and the lawyers presenting cases - will lose respect to the short-term benefit of the executive.

2. By applying civil law standards to criminal trials, the value of life and liberty will be reduced to the same position as that of property. In India, where society has been built upon graded inequalities, the removal of the little recognition of human equality given by the law can only have very sad consequences. The vast number of Indians, and particularly more discriminated groups, such as women, tribal groups, low castes and Dalits, will lose the small gains they have made since independence.

3. Powerful groups will use the police as a tool without fear of being challenged. Given the already naked use of power by some political groups associated with the ruling party, it is frightening to think of what could happen next.

4. Ultimately, degenerating criminal justice will, in turn, affect the basic democratic system enshrined in the Constitution. The electoral system will be weakened as opposition groups will face new and unprecedented police powers. Again, those who represent minority interests will experience the gravest of problems.

Therefore, AHRC urges all democratic-minded people to do whatever they can to expose and resist the attack on criminal justice and democracy contained in the recommendations of the Committee on Reforms of the Criminal Justice System. These are not forward-looking reforms but a carefully concealed attempt to throw India back to the primitive Law of Manu. There must be full and open public debate on the committee¡¦s findings.