Basil Fernando

With a view to revamping its criminal justice system, which is on the verge of collapse, the Indian Ministry of Home Affairs constituted the Committee on Reforms of the Criminal Justice System. The committee prepared a questionnaire to elicit suggestions and recommendations from knowledgeable people. On behalf of the Asian Human Rights Commission (AHRC), I have submitted answers to the committee of which the following are a selection.

1.1 Do you think that the adversarial system as followed in our country has contributed to a satisfactory dispensation of criminal justice? If not, what changes do you suggest?

The unsatisfactory state of criminal justice in India has nothing to with the adversarial system. The reason for the unsatisfactory situation lies elsewhere. India¡¦s social structure and attitudes are very much conditioned by entrenched habits of discrimination. There are various forms of discrimination, among which one may mention caste discrimination, discrimination of indigenous (tribal) people and minorities. Discrimination weighs heavily on the justice system. This has created severe obstacles to the development of India¡¦s justice system in general and the criminal justice system in particular. The investigative machinery regarding crimes is terribly crude, both in terms of attitudes as well as facilities. Furthermore, the justice that one may get is also associated with poverty. The level of poverty in India is so appalling that the poor cannot afford justice. In addition, the management of the criminal justice system is inefficient and obsolete. Poor human resources and technical resources affect every area of the system.

The adversarial system in India, which was a backdrop to British rule, brought changes in the pre-colonial justice systems. The new system could not incorporate the history and culture of the nation though and to an extent failed to prove its merits.

However, the effect of abandoning the adversarial system will be negative for the people who have been less powerful in society throughout Indian history. Under the pretext of abandoning the adversarial system, what seems to be under way is an effort to, in fact, abandon the more progressive aspects of the law for the purpose of getting easier convictions.

Hong Kong has an adversarial system. There is no move to change it. Instead, much has been done to improve it by creating better police and a system of control of corruption by means of an independent investigative body.

1.2 Do you favour the investigation of cases being done under the supervision of the judge as in the inquisitorial system in France?

First, it should be noted that many aspects of the inquisitorial system have come under heavy criticism in the European Court of Human Rights and also from many French jurists. Now the tendency is to modify the inquisitorial system by incorporating many aspects of the adversarial system.

It is naive to think that the civil law system merely involves having an inquiring judge. That system has had its own historical development, and one of its major advantages is its mechanism to guide police investigators to act legally. That system requires a very highly developed police force. If India could develop such police, then there would be no need for any change because the adversarial system itself would function well with such an advanced policing system.

It must also be noted that a civil law system would be more expensive. In the place of one judge required for a court, there would have to be two ¡X one inquiring judge and a trial judge ¡X doubling the problem of finding good magistrates in India.

Therefore, it would be better to seriously address the defects of operation in the adversarial system in a comprehensive manner and improve its real operation. This would mean improving the policing system, prosecution system and judicial system, particularly in the lower courts and those exercising criminal jurisdiction.

1.3 In the system presently followed, the accused enjoys the "right of silence," which often comes in the way of the search for the truth in criminal cases. Should this be changed, requiring the accused to disclose his defence once the prosecution case or charge being levelled is made known to him?

The rule against self-incrimination is the cornerstone of personal liberty and forms part of the basic structure of the Constitution of India. The duty of the prosecution is to prove guilt beyond a reasonable doubt and not to gain at the expense of the defence of the accused. The shift of the burden of proof on the accused will create unfavourable circumstances. Given the Indian condition of a lack of accessibility to competent lawyers, the situation can cast a shadow on personal liberty. The coveted principle of the "presumption of innocence" will be dethroned to the detriment of the marginalised.

Demanding a defence beforehand will also reduce criminal trials to civil standards and blur the difference between the two. Given the fact that a person¡¦s life and liberty are at risk, reducing criminal trials to the same level as civil ones is immoral. To me, this suggestion implies a great departure from the principles and practices of criminal law.

2.1 Do you favour proof on the basis of a preponderance of probabilities, as in civil cases, instead of proof beyond a reasonable doubt?

I am absolutely opposed to it. To effect such a change goes against the very fundamentals of a criminal trial, which deal with the life and liberty of individuals. Civil disputes deal mainly with property matters, and criminal trials deal with the life and liberty of people. If a person is to be sentenced to death on the preponderance of probabilities, that is a mockery of justice. The same applies to imprisonment. Such a change to the standard of proof would trivialise criminal justice. A direct outcome would be the further degeneration of the police investigators and prosecutors.

2.2 If no presumption of innocence or guilt of the accused is drawn, do you think that such neutrality would affect unfairly or lead to a failure of justice?

Of course, neutrality would destroy the very fabric of the criminal justice system. As the presumption of innocence of the accused was developed after a long struggle against very barbaric practices, not long after the removal of this presumption the system would surely fall back into such black practices.

2.3 In some laws, the burden of proof is placed on the defence by raising certain rebuttable presumptions against the accused. Do you think that similar presumptions should be raised in respect of other offences? If yes, please indicate such offences.

The practice of placing rebuttable presumptions on the accused should be limited as much as possible, especially in India (South Asia) where the police are yet to establish a reputation for acting in a fair manner.

3.1 Do you favour the introduction of the concept of "plea bargaining" as is practised in the United States?

While the concept of plea bargaining itself need not be rejected, some preconditions should be set out, such as representation by a competent counsel. Given the social context of India where many poorer people become accused, they can be pressured into bargaining even when they have had nothing to do with the offence. In such circumstances, the threat is that "you may lose the case and, if you fight, you¡¦ll be punished severely so why not bargain for a lesser punishment?" Thus, a legally weak position of an accused without a competent counsel can be exploited, even when the prosecution is aware that its case is a weak one.

3.2 Do you favour the scheme of "concessional treatment for offenders who, on their own initiative, choose to plead guilty without any bargaining" as recommended by the Law Commission of India in Chapter IX of its 142nd report?

This statement merely restates a practice that has existed for a long time. It is also supported by such considerations as self-remorse and regret for wrongdoing. However, even in these instances, it is the duty of the judge to ensure that the accused is, in fact, acting freely and is well advised legally. Again, in the Indian social context, this must be a primary consideration.

3.3 Do you favour enlarging the number of offences compoundable with or without the permission of the court? If yes, indicate such offences.

This should not be allowed for serious crimes. In particular, the compounding of offences should not be allowed for crimes where offenders are state officers, for example, acts of torture by the police.

3.4 Do you favour incorporating a general provision in the Criminal Procedure Code (CrPC) to the effect that, unless otherwise expressly provided, all offences under special enactment shall be compoundable?

No. The general principle should be that the compounding of offences is not allowed unless specifically stated otherwise. Once again, what is at stake is the very nature of a criminal trial. Criminal trials will be trivialised if all criminal actions can be compounded. It will also encourage further corruption in which the police in particular will try to make greater profit. This will also adversely affect offences against people belonging to specially protected groups, such as women and "low castes." Furthermore, it will affect the judicial mentality, which, for the purpose of easily disposing of cases, will develop bargaining habits instead of judicial habits. The same will also happen to the quality of lawyers.

3.5 Do you favour enlarging the scope of Section 206 of the CrPC by making it applicable to all offences where the penalty prescribed is a fine with or without imprisonment?

This should become a general principle. The threat of imprisonment is necessary for the prevention of crime. More serious crimes, if proved, must result in imprisonment. The payment of fines is not enough. The payment of fines as the only punishment will also benefit the rich, not the poor. Even now many people go to prison for the non-payment of fines. Finally, the special offences for the protection of weaker social groups will become meaningless without the threat of possible imprisonment.

4.1 The predominant global view, including international conventions, appears to favour the abolition of the death penalty. The Supreme Court of India has ruled that the death penalty is not unconstitutional and may be imposed in the rarest of rare cases. Do you favour the abolition of the death penalty? If so, please indicate the reasons.

Yes. Life imprisonment exists as an alternative, and this is quite enough punishment. Furthermore, more and more cases are coming to light that indicate a miscarriage of justice in a significant number of cases ending in death sentences. The discovery of a miscarriage of justice after the execution is futile for the person concerned and their family. Moreover, the people who are given death sentences are usually the poor.

4.2 In the absence of a statutory definition for "imprisonment for life," the said expression has "imprisonment for life" to mean imprisonment until death as is in vogue in several countries?

The legal definition should leave much discretion to the judges in determining imprisonment until death, subject to an absolute fixed minimum term. However, it is also necessary that in cases of serious crimes the term of imprisonment should not be subjected to easy reductions. In the future when such offences as crimes against humanity are likely to enter into criminal codes, it will be necessary that a difference in punishment be maintained depending on the nature and the gravity of the crimes. A set of guidelines can be developed to this end.

4.3 The punishments provided under Section 53 of the Indian Penal Code (IPC) are death, imprisonment for life, imprisonment ¡X rigorous or simple, forfeiture of property and fine. In many countries, there are other types of punishment, including rendering community service. What new forms of punishment do you suggest for various offences?

For less serious crimes involving offenders who are not hardened criminals with demonstrably bad records and young offenders, community service is a better form of punishment. Working for voluntary organisations dealing with humanitarian issues is even better, and orders to take compulsory courses on humanism conducted by approved groups can also be useful and may contribute to rehabilitation. The State can develop more creative rehabilitation programs which can combine basic moral and ethical education with skills training.

Where offences are against specially protected groups, such as women and "low castes," convicts can be ordered to go through special orientation courses and, where possible, to do community service related to the victims of this social group. This can help reduce the levels of prejudice and improve tolerance.

Kindly note that my comments for this section are subject to the overall consideration that the improvement of the institutions of justice ¡X the courts, police and prosecutors ¡X depends on weeding out corruption and ensuring that the system really works. Improvement of this or that part of a system in order to avoid existing problems will only lead to the reappearance of the problem under the new arrangement.

The matters you present in your questions under this part all speak to one overall concern: CONFIDENCE IN THE SYSTEM. All parties ¡X judges, police, prosecutors and the public ¡X need to have real confidence. For this confidence to exist, it is necessary to break the demoralisation that presently pervades all these segments of society, particularly among the public.

To illustrate how confidence can be built, I offer the example of Hong Kong where the system has really been improved. In Hong Kong, improvement has been based on the development of an outside agency ¡X outside the police in particular ¡X which deals with corruption in a very comprehensive manner.

Below I include a brief history of Hong Kong¡¦s Independent Commission against Corruption (ICAC) taken from its web site at www.icac.org.hk.

The ICAC was set up in February 1974. Since its inception, the commission has adopted a three-pronged approach of investigation, prevention and education to fight corruption. With the support of the government and the community, Hong Kong has now become one of the least corrupt places in the world.

How serious, however, was the problem of corruption in Hong Kong before the ICAC was established? What was the reason for setting up an independent body to fight graft? Let us now take a look at the history of the setting up of the ICAC.

Hong Kong was in a state of rapid change in the 1960s and 1970s. The massive growth in population and the fast expansion of the manufacturing sector accelerated the pace of social and economic development. The government, while maintaining social order and delivering the bare essentials in housing and other services, was unable to satisfy the insatiable needs of the exploding population. This provided a fertile environment for the unscrupulous. In order to earn a living and secure the services which they needed, the public was forced to adopt the "backdoor route." "Tea money," "black money," "hell money" ¡X whatever the phrase ¡X became not only well-known to many Hong Kong people but accepted with resignation as a necessary evil.

At that time, the problem of corruption was very serious in the public sector. Vivid examples included ambulance attendants demanding "tea money" before picking up a sick person and firemen soliciting "water money" before they would turn on the hoses to put out a fire. Even hospital amahs (maids) asked for "tips" before they gave patients a bedpan or a glass of water. Offering bribes to the right officials was also necessary to apply for public housing, schooling and other public services. Corruption was particularly serious in the police force. Corrupt police officers covered up vice, gambling and drug activities. Social law and order was under threat. Many in the community had fallen victims to corruption, and yet, they swallowed their anger.

Corruption had no doubt become a major social problem in Hong Kong, but the government seemed powerless to deal with it. The community¡¦s patience was running thin, and more and more people began to express their anger at the government¡¦s lukewarm attitude towards tackling the problem. In the early 1970s, a new and potent force of public opinion emerged. People pressed incessantly for the government to take decisive action to fight graft. Public resentment escalated to new heights when a corrupt expatriate police officer under investigation succeeded in fleeing Hong Kong. The case provided the straw that broke the camel¡¦s back.

6.2 Do you think that the present level of equipment and experience of the judges of the criminal courts is adequate and satisfactory? If not, suggest appropriate improvements.

What is required at the moment is a change of mentality. Judges must be able to use modern communication and administration methods. However, for that, they must feel that the system they are leading is really working. Above all, they need higher morale. It is a common principle that every profession needs improvement. How you bring it about is another matter.

6.3 In the present system, judicial magistrates first class are recruited from among lawyers having about four years of practice at the Bar. Do you think this experience is inadequate?

If proper managerial training can be provided, four years of experience should be enough, but how do you measure experience? There must be an objective measurement through tests. Some serious tests can be developed to go into all areas of ability before recruitment.

6.16 Witnesses are often subject to serious threats to their life and property by the accused or their supporters. What measures do you suggest to protect witnesses?

The causes of such threats can be removed only by strong anti-corruption measures as suggested above. Systematic threats and intimidation take place due to the weaknesses of the system. The people who intimidate feel that law enforcement is weak and they can do what they like. Without improving the overall system, it is not possible to change such a mentality.

6.20 Do you subscribe to the view that judges should be accountable? If so, suggest measures.

The immunity of judges for actions taken in their official capacity and in good faith is a concomitant part of the independence of the judiciary. At the same time, a judge who lives in a society open to the "pulls and pressures of the cosmos" cannot be left unaccounted too. An independent and efficient body should be devised to monitor the judiciary.

7.2 What measures do you suggest to improve the quality of investigations by the police?

The quality of investigations will depend on accountability. Improving the police is a very hard nut to crack. A strong anti-corruption strategy, completely outside police control, is essential. In addition, there should be education and training.

7.3 Should there be a cadre of investigating officers devoted exclusively to the investigation of cases? If so, what should be their qualifications and rank?

There should be such a group, but this group must be under the supervision of officers of higher rank. In the long term, without a strong anti-corruption agency, such a group can turn out to be very dangerous. When crime is organised by the police, it is this type of special group that becomes its hard core. The control of the police must be through an outside source, such as the ICAC in Hong Kong.

7.5 It is becoming more and more difficult to obtain reliable oral evidence. The use of modern scientific evidence has therefore become indispensable for proof, but unfortunately, the forensic science techniques available in our country are neither adequate nor up-to-date. What measures do you think should be taken to improve the situation?

The introduction of forensic facilities of the highest quality is essential. Funds must be provided for this ¡X in fact, they are a priority. Attempts to improve the system will fail if more adequate forensic facilities are not provided.

7.17 Do you favour the confessional statements made by the accused during an investigation being video recorded in the presence of an officer not below the rank of deputy superintendent of police (DSP)?

Until the whole system undertakes a thorough reform, it would be dangerous to do this. The police act as a group. High-ranking officers will only be used to give credibility. The problem as it stands now is that many high-ranking officers are not reliable. If they were reliable, the system would not be bad. Their subordinates would not do wrong things. If the subordinates are not reliable, then the superiors too are not reliable. A higher rank often means higher craftiness and not higher morality.

8.1 Do you think that the level of prosecution is far from satisfactory? If so, what improvements do you suggest?

In AHRC¡¦s understanding of criminal justice in Asian countries, the weakest link in the system is the prosecution. We have particularly studied Sri Lanka where this weakness is very obvious. There we have been making recommendations for changes during the last few years. The major defect lies in not incorporating the changes that have taken place in common law countries during the 20th century and instead keeping the same practices that the British introduced in the 19th century, which the British have since changed in their own country. I believe this is also the case in India. In our view, it is more appropriate to adopt these changes rather than trying to adopt aspects of the inquisitorial system. The adversarial system has improved its prosecution systems during the last century. The prosecutor¡¦s branch in the United Kingdom, United States and Australia has developed more sophisticated prosecution strategies. One area of improvement is that investigators must keep prosecutors informed of cases from the very start and be guided by their legal advice. To achieve this, the prosecutor¡¦s branch has spread competent prosecutors throughout all parts of the judicial system in these countries. The central body provides guidelines and supervises the work. This way the excesses of investigators can be prevented and negligence addressed. Thus, bringing criminals before courts becomes the joint responsibility of prosecutors as well as investigators. Hence, the improvements of these common law jurisdictions must be studied and adopted.

8.2 Do you agree that prosecutors are often appointed on political and other irrelevant considerations and not on merit? If yes, what measures do you suggest to ensure the appointment on merit of competent lawyers as prosecutors?

The presence of political influence is a common perception. A real alternative to this is the ICAC-type of strategy suggested above. Without such an alternative, there will be no change as better people will find that they are not allowed to work professionally by others motivated by different factors. The recruitment of better people must be accompanied by serious reforms to deal with corruption.

8.11 What in your opinion are good and proper grounds for withdrawal from prosecution?

A prosecution case should be filed only when there is a likelihood of a successful prosecution. Thus, in principle, there can be no grounds for withdrawal. However, a settlement arrived at in court or in a manner acceptable in law may be grounds for withdrawal. Withdrawal at will only shows that the prosecution should not have been undertaken at all. The prosecutors owe serious explanations if they are to withdraw a prosecution.

8.13 Are you in favour of notifying the victim before granting permission to withdraw from the prosecution and to give them an opportunity to continue the prosecution if they so desire?

Absolutely. At all stages, the prosecution must keep the victims aware of all that is happening to their cases. Victims¡¦ rights must not be taken away by the prosecutors. The last word on these issues must be left to the victim.

10.9 The protection of human rights of citizens is one of the important responsibilities of the criminal justice system. Do you think that the performance of the criminal justice system in protecting human rights is satisfactory? If not, suggest improvements.

It is not satisfactory at all. Systemic problems must be corrected by addressing them in a decisive way and introducing an ICAC-type institution. Meanwhile,

legal redress must be provided to victims of human rights violations,

India must ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),

torture must be made an offence with serious punishment provided to offenders,

human rights claims must receive priority in the courts,

more compensation must be granted to victims and

violators should be debarred from the civil service.

10.10 Do you think that the existing laws dealing with crimes against women, children, Dalits and disadvantaged people do not adequately safeguard their interests? If yes, suggest appropriate amendments.

There needs to be more improvements. Details can be provided later. The most important aspect is the implementation of existing laws. For example, there are many laws relating to Dalits, but they are hardly implemented. The reasons for non-implementation should be studied. One obvious reason is the attitude of the law enforcement agencies. Radical change is needed in this area.

10.24 What measures do you suggest to employ information technology for improving the functional efficiency of the administration of the criminal justice system?

All aspects of the criminal justice system must be revolutionised by the introduction of computers, data processing equipment, web sites and other communication systems. The advice of experts must be sought. A whole new department in the justice system must be established to this end.

10.25 If there are any aspects not covered by the above questions, feel free to offer your suggestions.

My feeling is that the questions must be reworked to provide greater emphasis on overall fundamental changes rather than small changes here and there. What is needed is an overarching strategy for improvement of the criminal justice system. For this, I consider the following most important:

• address corruption,
• change the prosecution system and
• radically change the communications system.