Document - India: Report of the Malimath Committee on Reforms of the Criminal Justice System: Some observations

Table of Contents

Foreword by the Director of Amnesty International India

Introduction……………………………………………………………………………….….1

I. The weakening of safeguards for those in detention…………………………………….4

i) Increasing periods of police remand………………………………………………………...5

ii) Making confessions admissible as evidence……………………………………………….6

iii) Fingerprints / Saliva……………………………………………………………………….9

II. The weakening of safeguards for fair trial……………………………………………..10

i) Speedy justice and release on bail………………………………………………………….10

ii) The right to silence………………………………………………………………………...11

iii) The presumption of innocence……………………………………………………………13

iv) The burden of proof……………………………………………………………………….14

v) Reduction of standard of proof…………………………………………………………….15

vi) Increase in summary trials and punishment……………………………………………….16

III. The normalisation of special legislation………………………………………………..17

IV. The weakening of protection of women’s rights……………………………………….18

i) Weakening of the law against cruelty……………………………………………………….18

ii) Women judges……………………………………………………………………………....21

iii) Adultery………………………………………………………………………………….....22

V. Limited and dangerous reforms of criminal justice institutions…………………….....22

i) The police……………………………………………………………………………………23

ii) The prosecution……………………………………………………………………………..25

iii) The judiciary……………………………………………………………………………….27

Conclusion…………………………………………………………………………………….28

FOREWORD BY THE DIRECTOR OF AMNESTY INTERNATIONAL INDIA

The Politics of Reform

Of ‘Rights’ & 'Wrongs' in the Criminal Justice System

A criminal justice system does not function in a vacuum. The system and the actors, be they police, prosecutors, judges or lawyers, are all embedded in specific social, economic, political and cultural contexts. Moreover a criminal justice system is 'just' only to the extent that it can protect the human rights of the most vulnerable or the disadvantaged. In India, like elsewhere, class, caste, gender, religious, ethnic and sexual identity and other (dis)abilities greatly influence the working of the criminal justice system.

In this respect, in the introduction to its report on Custodial Crimes, the Law Commission of India observed:

“Members of the weaker or poorer sections of society are arrested informally and kept in police custody for days together without any entry of such arrests in the police records… The relatives or friends of the victim are unable to seek protection of law on account of their poverty, ignorance and illiteracy… This situation gives rise to a belief that the laws’ protection is meant for the rich and not for the poor. If the incidents of custodial crimes are not controlled or eliminated, the Constitution, the law, and the State would have no meaning to the people which may ultimately lead to anarchy de-stabilizing the society.”¹

Thus it is critical that the purpose, sincerity and significance of any proposed reforms of the criminal justice system be judged by:

1. The extent to which the process of drawing up the reforms was participatory and inclusive;

2. The extent to which they are intended to enhance the capacity of the system to be more just, and

3. The extent to which they address social vulnerability and disadvantage and enable the system to better protect the human rights of those most discriminated against.

The purpose of this foreword is to subject the Malimath Committee report to this test, mainly by examining its methodology, interrogating its premises and unravelling its exclusions and silences.

Who will decide what to reform?

“The Committee is convinced that a comprehensive review of the IPC is long overdue and should be undertaken on a priority basis by a high power committee. This is not an exercise to be carried out only by lawyers and Judges. Public men and women representing different walks of life and different schools of thoughts, social scientists, politicians etc should be on such a committee to recommend to the Parliament a better and progressive penal law for the country.”²(Report, p.175, 14.6.3)

While the Committee is rightly concerned that a comprehensive review of the Indian Penal Code (IPC) must be an inclusive and representative process, it seems to ignore the fact that its own constitution and membership fails these standards.³ That this Committee was addressing the entire criminal justice system (not just the IPC) should have made it more important that is was widely representative. Let alone being that this Committee could not even find place for a single woman member!⁴

Another aspect in which the question of representation is valid is in authorship of the “research papers” that the Committee appears to have commissioned from various ‘experts’.⁵Six of the sixteen papers were written by serving or retired Police and other such agency officials.⁶Interestingly these included vital issues that are not normally associated with the police - “Burden of Proof”, “Sentences and Sentencing”, “Investigation and Prosecution”, and also issues that are intrinsically political - “Terrorism – Organised Crime - Mafia Transcending State and National Boundaries – Threat to Internal Security – Challenges to Criminal Justice System”.⁷The remaining ten papers are covered by a spattering of legal academics and lawyers and judges. Once again the Committee fails to live up to its own set standards.

The Methodology of the Malimath Committee

The Committee claims to have consulted broadly in drawing up its report and recommendations. However, concerns about the limited nature of its consultation process, have been widely expressed in India.⁸The Committee’s report indicates that only a small number of government officials responded to the Committee’s calls for input and the participation of non-state functionaries appears to have been extremely limited.⁹It is noticeable that there appears to have been little input from criminal lawyers dealing with cases within the criminal justice system on the ground. Members of the Committee visited France to examine the criminal justice system there and the Committee appears to have been given a detailed brief about aspects of the criminal justice systems in the United States of America (USA) and the United Kingdom (UK).

Unfortunately the report itself does not provide the material on the basis of which the bulk of the recommendations appear to have been made.¹⁰Amnesty International India is concerned that recommendations appear to have been made without independent analysis of specific areas of the criminal justice system. For example, Amnesty International India is not aware of any independent study of the prosecution service on which the Committee’s recommendations about the service are based. The Committee refers to the “poor performance” and “poor competence” of the current prosecution service but does not incorporate a thorough analysis of the problems, some of which have been highlighted by recent events in Gujarat. Its conclusion that appointing a senior police official as the head of prosecution services is the answer to the service’s problems is not only of serious concern (see below, Section V), but the rationale is not clearly explained.¹¹

Similarly, the Committee recommends an increase in the number of summary trials and fast track courts in the country as a means of dealing with the backlog of criminal cases. However, Amnesty International India is not aware of any independent studies of the operation of fast track courts or the processes in summary trials, particularly any studies focusing on whether they ensure human rights standards including those for fair trial.

The Committee appears to have been extremely selective in its reference to studies on the criminal justice system, which have been numerous. The report indicates that it has referred to a selected number of reports, which all appear to be those of government-appointed Committees, primarily looking at issues of national or internal security. Several commentators have pointed to numerous relevant reports by other bodies that have been inexplicably ignored.

Finally, Amnesty International India notes that the Committee has made several very broad and vague recommendations – for example recommending a witness protection scheme, tagging of pregnant women prisoners and the videoing of confessional statements made to police – without providing any detailed analysis of how such recommendations could be implemented, or in the latter case, setting out necessary safeguards which should accompany such recommendations.

The ‘truth’ about the Committee’s ‘Reforms’ - Convictions not Justice

According to the Committee "quest for the truth shall be the foundation of the Criminal Justice System" (Report, p.266, (1)). This laudable philosophical goal is justified by an assertion that "For the common man truth and justice are synonymous" (Report, p.28).

The truth about the Committee however is that it is more concerned about convictions than about truth or justice. The Committee proceeds on the assumption that "….the system is in favour of the accused." (Report, p.27, 2.15) And it is this assumption that informs the discussions and recommendations in the report.

“More specifically, the aim (of the criminal justice system) is to reduce the level of criminality in society by ensuring, maximum detection of reported crimes, conviction of the accused persons without delay, awarding appropriate punishments to the convicted to meet the ends of justice and to prevent recidivism.” (Report, p.21, 1.40, emphasis added)

This is particularly telling since it does not even acknowledge ‘determination of guilt’, let alone emphasize it as a vital aim of the criminal justice system.

The Committee thus proceeds to recommend a series of measures to enable easier convictions; reduce the threshold of evidence, effectively remove the right to silence, reverse the burden of proof, make confessions made to police officers admissible as evidence and increase summary trials. On the other hand the Committee has little or nothing to say about ensuring greater justice and so is silent on issues of excessive and wrongful arrest, torture and custodial violence, the large number of under-trials, impunity, endemic corruption in the criminal justice system, the crisis in legal aid, protecting the rights of the poor, dalits, minorities and other disadvantaged communities. These are all issues that Amnesty International and numerous Indian human rights organisations have raised over a number of years and which unless addressed, will perpetuate some fundamental shortcomings in the criminal justice system which have so far resulted in a failure to provide proper justice for all citizens.

Criminal Justice Reforms - For Whom?

The Report concludes the introduction to the Recommendations section with:

“The Committee, having given its utmost consideration to the grave problems facing the country, has made its recommendation in its final report, the salient features of which are given below.” (p.265)

Though the Committee claims to have applied its mind to the “grave problems facing the country”, there is little to suggest that it considered the grave problems facing the most vulnerable sections of Indian society vis-à-vis the criminal justice system. This is clearly reflected in the deafening silence in the report on the criminalisation of poverty, the crisis in legal aid and the abject failures of the criminal justice system in protecting the human rights of the poor, dalits, minorities and other vulnerable sections of society. By ignoring the enormous challenges and sufferings endured by the most vulnerable in seeking redress from the criminal justice system the Malimath Committee ignores the problems of not just at least 50 per cent of the 'people' of India, but also a large majority of those who enter the criminal justice system.

It is well known that the poor constitute a disproportionately large number of the criminal defendants going in and out of the criminal justice system.¹²A large percentage of the 2.7 lakh prisoners in India¹³belonging to the economically weaker section of society, are by and large illiterate and unaware of the law or working of the legal system.¹⁴

The exclusions of the poor and the vulnerable are not accidental but are informed by certain assumptions that the Committee seems to make about the social, economic status of the people entering the criminal justice system.

“The accused now-a-days are more educated and well informed and use sophisticated weapons and advance techniques to commit offences without leaving any trace of evidence.” (Report, p.19, 1.33).

"The accused is normally represented by very competent lawyer of his choice."(Report, p.19, 1.34).

“In practice, the accused on whom the burden is very little hires a very competent lawyer, while the Prosecution, on whom the burden is heavy to prove the case beyond reasonable doubt, is very often represented by persons of poor competence.” (Report, p.125, 8.1).

The Committee makes these statements as if they were axiomatic truths, not in need of any empirical evidence or basis, none being referred to in the report.¹⁵ For instance the Committee completely ignores the fact that more than 70 per cent of those in jail are undertrials most of whom, if one goes by the Committee's assumption, should not have been languishing since they have competent legal defence.¹⁶

A brief illustrative discussion of the crisis in the criminal justice system in the areas of legal aid and caste and religious discrimination is sufficient to highlight the gravity of this exclusion.

The Criminalisation of Poverty, the Poor and Legal Aid

The criminalisation of poverty coupled with the complete inability of the poor to negotiate the criminal justice system is a major human rights crisis. For instance, the laws relating to beggary and vagrancy and the bias against the poor render at least 200 million people across India, a large number of them being homeless or destitute, vulnerable to threats, harassment and outright criminalisation.¹⁷

Once the poor enter the criminal justice system the severe crisis in India's legal aid system ensures that they stay in there despite the right to legal aid enshrined in Article 39A of the Constitution. Even though the judiciary has read the right to legal aid as forming part of the fundamental right to life and used Article 39A to define its scope and content,¹⁸the access to quality legal aid has by and large remained a pipe dream for the poor and marginalised who enter the criminal justice system in large numbers.

Legal aid is a severely underdeveloped component of the Indian legal system and in dire need of reform. There is no system of legal counselling in police stations or prisons and the rules do not give the accused the choice of a lawyer or provide for a change of lawyer if the accused is not satisfied.¹⁹The fees provided for by most states are extremely low and never attract competent lawyers to offer their services.²⁰

It also needs to be stressed that legal aid is an issue of extreme importance not just to the poor but also for other groups who are vulnerable such as undertrials, those in preventive detention, sex workers and the mentally ill, just to name a few.

Dalits and the Criminal Justice System

There is no substantive discussion anywhere in the Malimath Committee report on the challenges faced by dalits in ensuring that the criminal justice system works to protect their rights.²¹Institutional prejudices within the police and the judiciary or the problems with the implementation of the Schedules Castes/Schedules Tribes (Prevention of) Atrocities Act or the working of the Special Courts and many other issues significant to the protection of dalit human rights are not of the least significance to the Malimath Committee.

Police inaction and even direct complicity and participation in atrocities against dalits is a major human rights concern. A large number of cases of torture and custodial violence, rape and sexual abuse, forced evictions, excessive use of force are reported on a regular basis.²²In its report on caste violence, Human Rights Watch noted, "Laws designed to ensure that Dalits enjoy equal rights and protection have seldom been enforced. Instead, police refuse to register complaints about violations of the law and rarely prosecute those responsible for abuses that range from murder and rape to exploitative labour practices and forced displacement from Dalit lands and homes."²³

In the reviewing of India’s tenth to fourteenth periodic reports under the convention, the Committee on the Elimination of Racial Discrimination (CERD) called on India to ensure effective investigation, prosecution and just and adequate reparation in cases of caste discrimination.²⁴The CERD Committee specifically called for steps to make it “easier for individuals to seek from the courts just and adequate reparation or satisfaction for any damage suffered as a result of acts of racial discrimination, including acts of discrimination based on belonging to caste or a tribe.”²⁵

The extent of the failure of the criminal justice system to combat caste discrimination seems to have totally escaped the Malimath Committee.

Minorities and the Criminal Justice System

The failure to provide equal protection of the law to and safeguard the rights of minorities has been a major human rights issue dogging the criminal justice system for decades now. In light of the Committee’s silence it is appropriate to recall some of India's worst kept secrets²⁶:

1970-71:

"The working of Special Investigation Squad is a study in communal discrimination. The officers of the squad set about systematically implicating as many Muslims and exculpating as many Hindus as possible irrespective of whether they were innocent or guilty."

[Justice D.P. Madon Commission on the Bhiwandi, Jalgaon and Mahad riots of 1970]

"So far as the minorities are concerned, it is the feeling among them that they are not getting justice, that they are discriminated against in the matter of appointments in the Public Services, that they do not get equal protection of the law….It is of the greatest importance that appropriate steps are taken by the government to remove the cause for such feelings in minorities. There is so much truth in saying that if you want peace you must work justice."

[Justice Joseph Vithyathil Commission on the Tellichery riots, 1971]

And 13 years later:

"The riots occurred broadly on account of the total passivity, callousness and indifference of the police in the matter of controlling the situation and protecting the Sikh community…"

[Justice Ranganath Misra Commission on the 1984 Delhi riots]

And 10 years after:

"Police officers and men, particularly at the junior level, appeared to have an in-built bias against the Muslims which was evident in their treatment of the suspected Muslims and Muslim victims of riots. The treatment given was harsh and brutal and, on occasions, bordering on the inhuman."

[Justice B.N. Srikrishna Commission on the Mumbai riots 1992-93]

In early 2002, while the Committee was contemplating the "grave problems facing the country" and engaged in drawing up "comprehensive criminal justice reforms" more than 2000 people, predominantly Muslims were massacred in Gujarat²⁷, thanks in no small measure to a criminal justice system that seemed more criminal than just. The National Human Rights Commission, among many others, detailed police inaction and even complicity that enabled the killings, rape, arson and destruction of Muslim homes and establishments.²⁸ The NHRC not only called for the most 'serious' cases to be investigated and prosecuted by the Central Bureau of Investigation, but also recently moved the Supreme Court to even try these cases outside of Gujarat.²⁹

Despite the repeated failure of all arms of the criminal justice system in ensuring effective protection, investigation, prosecution and justice to victims and survivors of communal violence it is regrettable that the Committee finds no space in its report to discuss these concerns.³⁰

The Committee's silence on the protection of the human rights of the poor, dalits and minorities are by no means the only ones. A "comprehensive reform" of the criminal justice system was an opportunity to overhaul the system in a manner that could also address major human rights concerns of other vulnerable groups. These include decriminalizing consensual same sex relations while criminalizing child sexual abuse and addressing the serious challenges faced by the mentally ill, all areas in which the prevailing standards are way behind internationally accepted standards of protection.³¹

The preamble of the Constitution enjoins the state to secure social, economic and political justice to all its citizens. The Directive Principles of State Policy declare that the state should strive for a social order in which such justice shall inform all the institutions of national life (Art 38 (1)). This is elaborated by specifically adding that “The State shall secure that the operation of the legal system promotes justice... to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities” (Article 39A).

While interpreting this provision the Supreme Court has held in the case of Babu v. Raghunathji³²that “social justice would include 'legal justice' which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for realization of justice by all section of the people irrespective of their social or economic position or their financial resources.”³³Such commitments appear to have been ignored by the Committee.

Criminal Justice Reforms - To what end: Security or Justice?

True to its Home Ministry parentage the Malimath Committee report seems dominated by concerns of security rather than justice. The Committee's report devotes three pages to the discussion of Pakistan and its role in promoting “terrorism”. The discussion on Pakistan ranges from the activities of the ISI, the military, domestic politics, jehad and Bhutto’s politics. Some of the references in this discussion are worth recalling:

“Pakistan has not given up on Kashmir because its very existence depends on keeping up a confrontation with India. It has accordingly, continued with the dispute one way or the other.” (p.218)

Describing Pakistan as an “epicenter of global terrorism” the Report goes on to note:

“They train them as terrorists not only for infiltration into Kashmir and other parts of India but also for export of terrorism to other parts of the world in the name of ‘jehad’.” (p.219)

The discussion on “terrorism” is almost entirely focussed on Pakistan in general and Islamic fundamentalism in particular. This part of the Malimath Committee’s report reads like an extract from an Annual Report of the Home Ministry of the Government of India and less like an extract from a Committee mandated to go into the question of reforms of the criminal justice system in India.³⁴

Needless to say, the Committee completely fails to reflect on the failure of a plethora of security and anti-terrorist legislation in dealing with “terrorist” crimes. Further, it also makes no attempt to assess the large volume of information and research available in India and worldwide indicating systematic abuses and failures of anti-terrorist and security legislation.³⁵The Committee also completely ignores the National Human Rights Commission’s opinions and statements on this matter.³⁶

Instead the Committee reaches the conclusion that the answer is more stringent legislation, 'special' procedures i.e. more powers to the police, lower standards of evidence, reversal of burden of proof, preventive detention and 'special' courts. The Malimath Report argues for not just more stringent anti-terrorist legislation but to actually mainstream several draconian provisions of the Prevention Of Terrorism Act, 2002 in the CrPC.

The Committee seems to reflect little understanding of the nature of “terrorism”. Even while acknowledging that “terrorism” is “prompted by a wide range of motives” and “prevailing political ideology,” the Committee then proceeds to club “terrorism” with organised crime ignoring the clear ideological divisions between the two.

“The Committee has given deep consideration to the growth of organised crime, terrorism and their invisible corealtionship (sic) with the avowed objective to destroy secular and democratic fabric of the country. The Committee feels the time has come to sink political differences for better governance of the country and address the task of dealing with these measures. In the backdrop of the States’ reluctance to share political power through legislatures, for enactment of federal law to deal with certain crimes, the Committee has made recommendations to deal with (a) organised crime (b) enactment of central law to tackle federal crimes and (c) terrorism.” (p.292, 17, 18 & 19)

The discussions on security conclude with the Committee advocating more law and less politics, i.e. use the law as a means of rejecting contested meanings and divergent interests -- which are now interpreted as security threats.

Conclusion

In its acknowledgements, the Committee expresses its gratitude to the Home Ministry’s vision of “comprehensive reforms of the entire criminal justice system”. The Committee notes that previous efforts were made “to reform only certain set of laws, or one particular functionary of the system in piecemeal”. The Committee bemoans this “compartmental examination” and seems to suggest that it would undertake a holistic study of the criminal justice system.

Having set for itself such an ambitious agenda, the Committee falls woefully short of offering either a comprehensive examination or comprehensive reforms. The approach of the Committee and the premises and assumptions it rests on are not only faulty but also appear exclusionary and biased in nature. The nature of discussions on the problems facing the criminal justice system and the direction and content of the reforms recommended and, equally importantly, the silences in the Report suggest that the Committee is actually attempting to undermine the entire normative framework of the criminal justice system rather than address the real systemic problems facing the criminal justice system today.

What the Committee ends up doing is projecting the criminal justice system today as being too 'soft' and making several prescriptions to render it 'hard'. In doing so the Committee seems to endorse specific political views rather than advance human rights standards. Amnesty International India believes that irrespective of the nature of specific recommendations, these grounds alone are sufficient for the human rights community to reject the Malimath Committee report.

INDIA

Report of the Malimath Committee on Reforms of the Criminal Justice System: Some observations

INTRODUCTION

The Committee on Reforms of the Criminal Justice System was constituted by the Ministry of Home Affairs, Government of India, on 24 November 2000.

The terms of reference were as follows:

1. To examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence and see if any modifications or amendments are required thereto;

2. To examine in the light of findings on fundamental principles and aspects of criminal jurisprudence as to whether there is a need to re-write the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act to bring them in tune with the demand of the times and in harmony with the aspirations of the people of India;

3. To make specific recommendations on simplifying judicial procedures and practices and making the delivery of justice to the common man closer, faster, uncomplicated and inexpensive;

4. To suggest ways and means of developing such synergy among the Judiciary, the Prosecution and the Police as restores the confidence of the common man in the Criminal Justice System by protecting the innocent and the victim and by punishing unsparingly the guilty and the criminal;

5. To suggest sound system of managing, on professional lines, the pendency of cases at investigation and trial stages and making the Police, the Prosecution and the Judiciary accountable for delays in their respective domains.

6. To examine the feasibility of introducing the concept of “Federal Crime” which can be put on List I of the Seventh Schedule of the Constitution.

The Committee, headed by former Chief Justice of Kerala and Karnataka, and former member of the National Human Rights Commission (NHRC), Justice V.S. Malimath, submitted its report - including 158 recommendations - to the Ministry of Home Affairs, apparently, on 21 April 2003.³⁷

Amnesty International is concerned that the Committee’s report has not to date been made publicly available or widely circulated.³⁸ There has been sporadic media coverage of selected recommendations in the report, and on 11 August 2003 it was reported that the government was introducing a Bill to amend the Code of Criminal Procedure, reflecting a few of the Committee’s recommendations.³⁹ However, there has been no official government response to the report indicating the government’s position. Given the importance of the issue of reform of the criminal justice system and the impact of any reforms on all members of society, Amnesty International believes that the discussions should be transparent and broadly consultative.

The focus of the Committee’s report

Amnesty International’s concerns focus on two particular aspects of the Committee’s report.

Firstly, the Committee has failed to take into account international human rights standards which establish a framework for human rights protection within criminal justice systems throughout the world. It also disregards those human rights treaties to which India is a party and which it is therefore bound to uphold. Several of the suggestions made in the report, if implemented, would find India in violation of those standards, including Articles 7 and 14 of the International Covenant on Civil and Political Rights (ICCPR). The Universal Declaration of Human Rights (UDHR) enshrines the principles of equality before the law, presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal. Moreover, a criminal justice system should ensure a proper balance between the rights of individual offenders, the rights of victims and the concern of society for public safety and crime prevention.⁴⁰The Committee appears to demonstrate a preoccupation with speedy conviction as a means of crime control at the expense of due process and recognition of the rights of the accused.

Secondly, it has failed to address a vast range of important concerns about the current functioning of the criminal justice system. The report fails to address adequately or in some cases at all, issues including: the problems of access to the criminal justice system for marginalized communities; lack of access to legal aid; endemic corruption, discrimination and bias within institutions of the criminal justice system;⁴¹non-implementation of safeguards against police abuses; impunity for human rights violations committed by state actors, among others. These are all issues which Amnesty International and numerous domestic human rights organisations have raised over a number of years and which unless addressed, will perpetuate some fundamental shortcomings in the criminal justice system which have so far resulted in a failure to provide proper justice for all citizens.

The analysis in the following five sections does not purport to represent a comprehensive study of the report and recommendations of the Malimath Committee. Each section contains observations on specific areas of the criminal justice system in which Amnesty International has carried out research and has raised concerns with government authorities in India in the past.

This report was produced in cooperation with staff of AI India⁴²and input from staff of the International Centre for the Protection of Human Rights (Interights).

I. The weakening of safeguards for those in detention

II. The weakening of safeguards for fair trial

III. The normalisation of special legislation

IV. The weakening of protection of women’s rights

V. Limited and dangerous reforms of criminal justice institutions

I. The weakening of safeguards for those in detention

Amnesty International is concerned about recommendations of the Committee to incorporate several provisions of the Prevention of Terrorism Act (2002) which violate international human rights standards or which if implemented would lead to a heightened risk of human rights violations, in the ordinary criminal law in India, thereby making them permanent (POTA will expire in October 2004). The Committee’s recommendations if implemented would place India in breach of its obligations under international human rights law, notably the ICCPR. Specifically, Amnesty International fears that they would lead to an increased risk of torture or ill-treatment.

As a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment India has committed itself not to do anything which is inconsistent with its object and purpose.⁴³ The prohibition of torture is absolute and may not be suspended no matter how heinous the crime for which someone has been arrested. It is a right from which, under Article 4 of the ICCPR, the Government of India is not permitted to derogate, even in situations of emergency.

The Committee appears to ignore a significant body of evidence which indicates that police routinely abuse their powers of arrest and detention and that police and other members of criminal justice institutions, including members of the judiciary, routinely fail to implement safeguards in law designed to protect the human rights of both victims and the accused. Similarly, the Committee’s discussion of powers of arrest appears to ignore the comprehensive review of the law relating to arrest issued by the Law Commission in recent years which attempted to limit these powers and increase safeguards against their abuse.⁴⁴ The Law Commission, referring to the guidelines on arrest and detention laid down by the Supreme Court in DK Basu v State of West Bengal, has recently stated:

“One may ask the question as to in how many cases Police Officers in India are strictly following the rules laid down by the Supreme Court in D.K. Basu’s case? In a pending public interest litigation in the Supreme Court, it was reported by the amicus very recently that, according to the information received from various States, it was clear that D.K Basu guidelines are not being followed in most of the States.”⁴⁵

Not only that, but there is evidence to indicate that judicial officers are failing in their responsibilities to monitor implementation of these guidelines and issue sanction against officials violating them. There are similar concerns about non-implementation of provisions designed to safeguard the rights of detainees contained in POTA referred to below. Despite this, the Committee fails to address the problem of non-implementation or refer to the importance of safeguards, while recommending the granting of increased powers to the police. Further comment on the Committee’s recommendations relating to policing is provided in Section V of this report.

i) Increasing periods of police remand

Section 167 of the Code of Criminal Procedure (CrPC) currently provides that if a person is arrested and detained in custody and the investigation cannot be completed within a period of twenty-four hours, the person should be sent to appear before the nearest judicial magistrate who can remand that person for a period of police custody of not more than 15 days and beyond that can authorise further detention (not in police custody) for up to sixty or ninety days depending on the seriousness of the offence. The Committee has recommended that the period of police remand be extended from 15 to 30 days for grave offences (where punishment is more than five years), given that “It is not possible to fully investigate serious crimes having interstate ramifications in this limited period”. The recommendation also allows the transfer of detainees from judicial custody back into police custody if further investigation is necessary. Amnesty International is concerned that this extension of the time period from 15 to 30 days leaves detainees more vulnerable to torture or ill-treatment.

Amnesty International believes that torture and other cruel, inhuman and degrading treatment continue to be endemic throughout India, denying human dignity to a large number of people. The organisation continues to receive numerous complaints of torture and ill-treatment from all states of India which indicate that Supreme Court orders, NHRC guidelines and official sanctions have not deterred officials from inflicting torture on individuals in their custody. Unfortunately the safeguards of records of detention, access to legal representation and prompt and regular judicial review of detention are widely abused, either through the use of illegal detention or through non-implementation.⁴⁶

The Supreme Court has observed that the essence of section 167 lies in “individual liberty” and that the law “disfavors the detention of any person in the custody of police”.⁴⁷While the Supreme Court has recognized the inherent dangers of detention without charge and even reminded the Government to act keeping in mind the spirit of section 167,⁴⁸the Malimath Committee ignores the problems faced with police custody and remand and instead recommends that the period be doubled.

ii) Making confessions admissible as evidence

The Committee recommends that section 25 of the Indian Evidence Act should be amended on the lines of Section 32 of POTA to make a confession recorded by a Superintendent of Police (or officer above him) which is also audio or video-recorded admissible in Indian courts as evidence, subject to the condition that the accused was informed of his right to consult a lawyer.

Section 25 of the Indian Evidence Act currently provides that no confession made to a police officer shall be admissible in a court of law. The section is broadly worded and it absolutely excludes from evidence against the accused, a confession made by him to a police officer under any circumstances, while in custody or not. The reason for such exclusion is to avoid giving the police any benefit from resorting to threat and use of violence to extract a confession from the accused. The Courts too have observed this in a number of judgments. Thus in an early case, Mahmood, J noted, “The legislature had in view the malpractice of police officers in extorting confessions from accused persons in order to gain credit by securing convictions and those malpractices went to the length of positive torture.”⁴⁹

Yet, as indicated above, the use of torture remains widespread in India. Statistics published by the NHRC highlight the problem of torture in custody despite the fact that presently confessions taken in police custody are not admissible as evidence.

Section 32 of POTA is similar to the previous section 15 of the Terrorist and Disruptive Activities (Prevention) Act [TADA] (1985) which lapsed in 1995. In its judgment on the constitutionality of TADA, Kartar Singh v. State of Punjab in 1994,⁵⁰two out of five judges on the bench gave dissenting judgments in regard to section 15. K Ramaswamy, J. in this dissenting judgment was of the opinion that section 15 was unconstitutional on the grounds that it was violative of Article 14, 21 and 50 of the Constitution of India. While agreeing that the legislature could certainly enact a different procedure for dealing with “terrorists”, he clarified that the procedure must still meet the test of Article 21 of the Constitution. The Judge noted that even the Superintendent of Police had an inherent interest in solving a crime and was liable to take all kinds of harsh measures. He observed further that if the police officer were entrusted with recording a confession, the appearance of objectivity in the discharge of his statutory duty would be suspect and would not inspire public confidence. Such erosion would be against the rule of law.⁵¹

The majority of the judges in the Kartar Singh case, even while upholding the constitutionality of section 15, recognized the danger inherent in this section of TADA. The Court observed:

“Whatever may be said for or against the submission with regard to the admissibility of a confession before a police officer, we cannot avoid but saying that we… have frequently dealt with cases of atrocity and brutality practiced by some over zealous police officers resorting to inhuman, parabolic, archaic, and drastic methods of treating the suspects in their anxiety to collect evidence by hook or crook and wrenching a decision in their favour…”

The NHRC’s opinion on the Prevention of Terrorism Bill, 2000 (which was a precursor to POTA – and included the same section) commenting on the provision of Section 32 noted:

“… this would increase the possibility of coercion and torture in securing confessions and thus be inconsistent with Article 14(3) (g) of the ICCPR which requires that everyone shall be entitled to the guarantee of not being compelled to testify against himself or to confess guilt. This provision is consistent with Article 20(3) of the Constitution of India… It would also imperil respect for Article 7 of the ICCPR which categorically asserts ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’”⁵²

Amnesty International’s concerns about provisions of POTA, including section 32, are set out in its report, Briefing on the Prevention of Terrorism Ordinance, published in November 2001.⁵³ Its concerns appear to have been realised in practice. In Gujarat there have been several allegations made by detainees in court that confessions have been extracted forcibly from them. There is no evidence that any of the “safeguards” in section 32 were followed in these cases or that the allegations have been independently investigated as required under Articles 12 and 13 of the UN Convention against Torture. The UN Special Rapporteur on Torture has recommended that “where allegations of torture or other forms of ill-treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture or similar ill-treatment.”⁵⁴

Amnesty International is concerned that the Malimath Committee has ignored the fact that there is no provision for sanctions against police where “safeguards” are not complied with contained in POTA. This reflects what appears to be a consistent lack of concern by the Committee about abuses of human rights within the criminal justice system and impunity for those abuses.

The Supreme Court also laid down in Kartar Singh certain guidelines to ensure that confessions were in conformity with fundamental fairness. Some of these guidelines have been incorporated in section 32 of POTA as “safeguards”.⁵⁵There is little reference by the Malimath Committee to these safeguards and they are not specifically mentioned in the recommendations section. Instead, there is passing reference to the requirement that the accused be informed of the right to consult a lawyer (see below) and the requirement that the confession be audio or video-recorded. With regard to the latter, Amnesty International is concerned that audio or video recording is not an answer to torture or ill-treatment, particularly in the absence of clear guidelines for its use or independent overview mechanisms to ensure against misuse or manipulation (both of which are absent from the Committee’s recommendations).

The assistance of a lawyer

Amnesty International has been concerned for many years that despite Supreme Court jurisprudence requiring the presence of a lawyer during interrogation, this has not been included in legislation or implemented in practice. ⁵⁶ It notes that the Malimath Committee comments that “The suspect has a right to counsel during interrogation and should be allowed to meet his counsel, but the counsel need not be present throughout the interrogation.”

Referring to the “safeguard” of the accused being told about his right to consult a lawyer present in section 32 of POTA, the Law Commission has noted, “Can anybody assure that in India, the Police invariably would inform a person in detention that he has a right to call a lawyer at the time of his interrogation? Even if we introduce a rule to that effect and even if the Police record in their diary that such an opportunity was given, one cannot say how much credence can be given to such a noting in India”.⁵⁷Amnesty International’s research indicates that it is common practice for police to deny detainees access to lawyers while in police custody, particularly in the case of those detained under special legislation, and certainly during interrogation. This was also underlined by practicing lawyers who attended the National Consultation on the Malimath Committee Recommendations held in New Delhi in August 2003. In addition, the legal aid system in India does not offer legal aid at the stage of police remand, thereby ensuring that consultation with a lawyer for the majority of economically disadvantaged individuals is entirely unrealistic in the Indian context.

The UN Special Rapporteur on Torture has made clear that confessional statements are only valid if made before a competent judicial officer and in the presence of a person’s lawyer. With respect to Brazil, he noted, “No statement or confession made by a person deprived of liberty, other than one made in the presence of a judge or a lawyer, should have probative value in court.”⁵⁸In the case of Mexico, the Special Rapporteur has observed, “Statements made by detainees should not be considered as having probative value unless made before a judge.”⁵⁹Principle 1 of the Basic Principles on the Role of Lawyers states “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings [emphasis added].” The UN Special Rapporteur on Torture has underlined this and with regard to Kenya noted that, “Confessions made to police without presence of a lawyer should not be admissible against the person.”⁶⁰

iii) Fingerprints / Saliva etc

The Committee recommends that the Identification of Prisoners Act 1920 be amended to authorize taking the accused’s fingerprints, footprints, photographs, blood sample for DNA, fingerprinting, hair, saliva or semen along the lines of section 27 of POTA. Section 27 of POTA provides that where such samples are refused by the accused, an adverse inference can be made against the accused. It also provides for such samples to be given by the accused person “through a medical practitioner or otherwise”. Amnesty International has placed on record its concern that section 27 should specify that the intervention of a medical officer or other person in order to collect such samples should take place only with the written consent of the accused, to avoid the possibility that torture or cruel, inhuman or degrading treatment is used to obtain samples. In addition, drawing adverse inference for refusal to provide samples further violates the accused’s right to be presumed innocent enshrined in Article 14(2) of the ICCPR (see also below).

II. Weakening of safeguards for fair trial

Amnesty International is concerned that the recommendations of the Committee relating to trial processes - specifically those relating to the right to silence, admissibility of “bad character”, standard of proof and burden of proof together – are aimed at increasing convictions at the cost of internationally recognised standards for fair trial. The Committee’s solution to its perceived problem that “the guilty” are too often being acquitted is to reduce the rights of accused at trial, rather than to ensure proper and professional investigative and prosecution processes free from abuse, coupled with due process at trial which assures human rights. By increasing the burden of proof on the accused and compelling evidence against him/her self, while at the same time reducing the threshold of evidence required to be proven by the prosecution, the Committee is striking at the jurisprudential essence of criminal law.

This section does not provide a comprehensive response to the full impact of the Committee’s recommendations on issues of trial. Notably, the Committee recommends that India adopt elements of inquisitorial systems, blaming India’s adversarial traditions for problems identified with the criminal justice system. However, some of the recommendations of the Committee discussed below suggest clearly an assault on internationally recognized standards of fair trial. Amnesty International notes that several of the issues relating to fair trial contained in the Committee’s report and recommendations have been elaborated on by the International Commission of Jurists (ICJ) in its review of the recommendations made by the Malimath Committee issued in August 2003.⁶¹

i) Speedy justice and release on bail

The Malimath Committee recommends the amendment of section 167 CrPC so that the maximum period of 90 days to file charge-sheets against an accused be extended by another 90 days. Amnesty International is concerned that the extension of police and judicial remand would be violative of India’s obligations under Article 9(3) of the ICCPR. The article requires that all accused persons should be brought to trial “within a reasonable time” or be released. It also warns against making a general rule of holding persons awaiting trial in custody.

In the landmark Hussainara Khatoon judgment, the Supreme Court noted that “speedy trial” is an “integral and essential part of the fundamental right to life and liberty.”⁶² In another case the Court noted that delays would amount to “denial of justice.”⁶³ In the Maneka Gandhi case the Apex Court once again read the right to speedy trial within the Constitution, noting, “there can be no doubt that speedy trial -- and by speedy trial we mean a reasonably expeditious trial -- is an integral and essential part of fundamental right to life and liberty enshrined in Article 21.”⁶⁴ In this respect any move to delay further the charging of a detained person would be contrary to the spirit of the right to speedy trial.

The Malimath Committee also seeks to double the period in remand after which if no charge sheet is filed, the person detained must be released on bail. Under the existing provision the maximum period of detention is 90 days and the release on bail is referred to as an “order of default” by the Supreme Court.⁶⁵ Recognizing that the release on bail in such cases is an absolute right, the Courts have been stringent in maintaining the importance of awarding bail where charge sheets are not filed to avoid further harassment of the detained person.⁶⁶ It is evident that a further delay of 90 days in an already lengthy judicial process would amount to an “unreasonable” delay and violate the Supreme Court guidelines on speedy justice and India’s obligations under the ICCPR.

ii) The right to silence

The Committee recommends that “the court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused”.

The Committee is of the opinion that if this questioning is done “without duress”, the right to silence available to the accused under Article 20(3) of the Constitution of India would be respected as would the procedural provision in the CrPC (section 161(2)).⁶⁷ In Para 3.40 of the Report, the Committee states that the drawing of adverse inference does not offend the right granted by Article 20(3), as “it does not involve testimonial compulsion.”

As a state party to the ICCPR, India is obliged to respect Article 14(3)(g) which refers to various “minimum guarantees” and states that everyone has a right not to be compelled to testify against himself or to confess guilt. Similar provisions are also found in Principle 21 of the UN Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment and Article 61(1)(g) and 67(1)(g) of the Rome Statute of the International Criminal Court.

The prohibition against compelling an accused to testify or confess guilt is broad. It prohibits the authorities from engaging in any form of coercion, whether direct or indirect, physical or psychological. It prohibits torture and cruel, inhuman and degrading treatment. It prohibits treatment, which violates the right of detainees to be treated with respect for the inherent dignity of the human person. A leading commentator on the ICCPR observes that even the imposition of judicial sanctions to compel the accused to testify would be prohibited.⁶⁸

Since at no time does the Committee seek to challenge the constitutional right, the issue thus remains as to what constitutes compulsion. The Committee’s position that drawing adverse inference when the accused remains silent is not “compulsion” ignores the object of the right and undermines the spirit of the fundamental right to silence.

In its 180^th report issued in May 2002, the Law Commission of India has stated unequivocally that any move to amend the provisions of the CrPC (in the manner that the Malimath Committee has suggested) would be “ultra vires of Article 20(3) and Article 21 of the Constitution of India”. In its report, the Law Commission noted:

“Apart from the above statutory consideration, there is a constitutional implication if we take into account the observations of the dissenting Judges in Adamson vs. California (1947) 332 US 46…If you cannot compel an accused to make a statement against himself, you cannot draw any inference against him because he remains silent, since that would obviously oblige him to speak, rather than remain silent.

To draw an adverse inference from the refusal to testify is indeed to punish a person who seeks to exercise his right under Art. 20(3). Just as no inference of guilt can be made from the fact that the accused is invoking the protection of Art. 20(3), so no inference of guilt can be made from the mere fact that he refuses to answer or to make a statement.” ⁶⁹

The principle against self-incrimination and adverse inferences is considered a principle of fundamental justice in Canada and is protected by the 5^th and 14^th amendments of the US Constitution. Similar provisions also exist in New Zealand and South Africa. In Ireland the right to silence has been guaranteed in Article 38 of the Constitution. However there are limited exceptions in relation to certain offences against the state and drug trafficking. In order for such adverse inference to be authorized though, the accused must be warned at the time of questioning what the effect of such silence might be. In the UK, the right against adverse inferences has been eroded in practice.⁷⁰However, it is still subject to stringent restrictions⁷¹and the UK has been criticized by UN human rights mechanisms in this regard.⁷²

iii) The Presumption of Innocence

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. [Art. 11 (1), UDHR]

The Committee recommends that section 54 of the Evidence Act be amended to include theprovision that “in criminal proceedings the fact that the accused has a bad character is relevant.” It further explains that a previous conviction would be relevant as evidence of “bad character.” The present law stipulates that previous bad character is not relevant, except in responding to cases in which evidence has been led to show good character of the accused.

The Committee has argued that since the accused has a right to give evidence of good character (s.53 of the Evidence Act), it is only fair that the Prosecution be able to give evidence of bad character, even where evidence of good character has not been led. This superficial parity ignores the essence of the provision of presumption of innocence of the accused. The Committee’s stated aim is to “neutralize” the “advantages” of the accused and move towards shifting the burden to the accused requiring him/her to prove their innocence.

The requirement that the accused be presumed innocent unless and until proved guilty in the course of a trial which meets all guarantees of fairness has enormous impact at a criminal trial. It means that the prosecution has to prove an accused person’s guilt. It requires that judges and juries refrain from prejudging any case. It also applies to all other public officials, particularly prosecutors and police, who should not make statements about the guilt of an accused before or during the trial.⁷³Particular attention should be paid that no attributes of guilt are borne by the accused during the trial, which might impact on the presumption of their innocence. The reason why the discourses on criminal jurisprudence make the presumption of innocence so strong is to ensure that miscarriage of justice never takes place due to frivolous allegations against the accused. This is relevant in India where there are concerns about the use of politically, socially or communally motivated criminal charges filed against individuals as a means of harassment.⁷⁴

Amnesty International’s focus on the presumption of innocence of the accused, as also the general principle of criminal law that requires that an accused should not be judged on his past reputation and deeds but only on the matter that is before the court on its own merit. The argument has been made succinctly by Willes, J:

“If the prosecution were allowed to go into such evidence, we should have the whole life of the prisoner ripped up, and, as has been witnessed elsewhere, upon a trial for murder you might begin by showing that when a boy at school the prisoner had robbed an orchard, and so on through the whole of his life; and the result would be that the man on his trial would be overwhelmed by prejudice, instead of being convicted by that affirmative evidence which the law of the country requires.” ⁷⁵

A leading commentator on the Law of Evidence notes: “When character is not in issue, to admit character evidence in proof or disproof of other issues would be to cause surprise and to create a prejudice or bias for or against a person.”⁷⁶ The same has also been held in a series of landmark judgments before various Indian and British courts.⁷⁷ Provisions against admission of “bad character” in the first instance exist in the laws of the UK, USA, Australia and Canada. In Ireland and New Zealand admission of information about previous convictions is excluded in the first instance.

iv) The burden of proof

The Committee has recommended placing an increased burden on the defendant to defend him or herself early in the trial, with consequences if the defence is weak. For example, the Committee recommends the preparation of a statement of prosecution and a statement of defence. However it notes that where the reply of the defence is general, vague or devoid of material particulars, the Court shall deem that the allegation is not denied. Prior to this it may give the accused an opportunity to rectify the statement (para 9 vi of the Recommendations). Once again the right of the accused to remain silent with regard to certain facts that may incriminate him/her self is in danger of being violated

The Committee also suggests, “on considering the prosecution and defence statements, the Court shall formulate the points of determination that arise for consideration” (para 10i, Recommendations), and these points for determination shall indicate on whom the burden of proof lies (para 10 ii, Recommendations). This is an attempt to reverse the burden of proof and may require the accused to prove his innocence, violating a basic tenet of criminal law – that a person is innocent until proven guilty.

General Comment 13 of the Human Rights Committee on Article 14 of the ICCPR points out that in accordance with the presumption of innocence, the rules of evidence and conduct of a trial must ensure that the prosecution bears the burden of proof throughout a trial. Article 67 (1)(i) of the ICC Statute also lays down minimum guarantees to the accused including no imposition of “any reversal of the burden of proof or any onus of rebuttal”. The law in a number of countries, including the UK and the US, is similar to the existing law in India. In Australia, no adverse inferences will be drawn if the defendant does not make a statement. In New Zealand the defendant has no positive obligation to speak or to give evidence at any point in the proceedings, other than to plead guilty or not guilty at the preliminary hearing.

Para 143a of the recommendations also recommends, “presumption of burden of proof in the case of economic crimes should not be limited to explanation of the accused who must rebut charges conclusively”. This too clearly violates the afore-mentioned Article 67(1)(i) of the ICC Statute. The law in other common law countries including UK, Ireland, Canada, Australia and New Zealand does not differentiate economic crimes from other crimes.

v) Reduction of Standard of Proof

The Committee recommends that the standard of proof required presently in criminal law i.e. “beyond reasonable doubt”, be reduced to a lower standard, described as “the courts conviction that it is true.” Amnesty International’s concerns about this recommendation mirror those of the International Commission of Jurists (ICJ) which has commented that it “carries the risk of unhinging the whole criminal justice system of India, but also one of the fundamental universal values of criminal justice, in a national, international and comparative law perspective”.⁷⁸The standard of proof lies as a corollary to the presumption of innocence. While the prosecution attempts to prove the guilt of the accused, if there is reasonable doubt, the accused must be found not guilty. The Law Commission of India in its 180^th Report referred to earlier states that dilution of the basic principle that the prosecution has to prove the guilt against the accused beyond reasonable doubt “would be contrary to basic rights concerning liberty”.

The Human Rights Committee has stated, “By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.”⁷⁹Article 66(3) of the Statute of the International Criminal Court (ICC) reads, “In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.”

Amnesty International is particularly concerned about the potential for an increase in wrongful convictions if such a reform was introduced. In addition, the organization is concerned about the scope for discrimination - present within institutions of the criminal justice system, including the judiciary – to impact on the rights of the accused.

vi) Increase in Summary Trials and Punishments

The Malimath Committee recommends that sections 262-264 of the CrPC be amended “to speed up the process” of summary cases. The Committee recommends taking away the discretion of judges on whether a case should be tried as a summary case, thus clearly indicating its preference for summary trials. It significantly expands the number of cases which would be tried summarily. The Committee goes even further to recommend that the maximum punishment in such summary trials should be increased from 3 months to 3 years.

The Malimath Committee also recommends amendment of section 344 CrPC to require a court to try a witness summarily where it is of the opinion that the witness has knowingly or wilfully given false evidence of fabricated false evidence in a matter before the Court (at present the court has the discretion on whether to try the case summarily or not). The Committee blames the widespread prevalence of perjury as justification for such an amendment.

While summary trials are used in the UK, in Ireland and Australia, relevant provisions require that the defendant must consent to being tried summarily.⁸⁰ In New Zealand the defendant has a choice where punishment is more than three months imprisonment. In the US, summary trials exist only in admiralty law.⁸¹

Summarizing proceedings should never affect the guarantees of a fair trial and due process guaranteed in Article 14(3) of the ICCPR. Amnesty International is concerned that the proposed increase in summary proceedings for offences other than petty offences, where the majority of individuals facing summary trials could plead guilty, might adversely affect such right to fair trial.

III. The normalisation of special legislation

As noted above (Section I), the Malimath Committee recommends the inclusion of certain sections of POTA in the Evidence Act and CrPC and other legislation. The Committee claims that “provisions allegedly misused/likely to be misused are deleted from the new legislation [POTA]”. The Committee refers here to widespread criticism of previous “anti-terrorist” legislation which led to the inclusion of some “safeguards” in POTA. As indicated above however, Amnesty International believes that provisions of POTA continue to violate international human rights standards and that the “safeguards” remain ineffective and unimplemented.

TADA, POTA’s predecessor, was withdrawn in 1995 after it was widely perceived to be a blot on India’s democracy and its criminal justice system. In the period between 1987 and 1995 TADA was reportedly used to put 77,000 people in prison of which only 8,000 people were tried and an abysmally low 2 per cent convicted.⁸² POTA today threatens to overtake its predecessor TADA in terms of notoriety.⁸³ State governments have used POTA to arrest and detain political opponents, particular communities and even minors.⁸⁴ POTA gives the police sweeping powers to arrest and detain anyone on mere apprehension. The Committee pays scant attention to the various complexities and problems in the implementation of POTA - often in cases that have nothing to do with “terrorism” and has also virtually ignored legal challenges to POTA, constituting mounting evidence of its misuse. ⁸⁵

The recommendation to include a “comprehensive and inclusive definition of terrorist acts, disruptive activities and organized crimes” in the Indian Penal Code is justified by the Committee on the grounds that such a provision would avoid a legal vacuum after the lapsing of special laws (to date legislation such as POTA has been temporary and has had to be renewed by parliament periodically). Amnesty International notes that the definitions of “terrorist”, “terrorist activities” and “terrorist organizations” (and support and membership of the latter) under section 3 of POTA are extremely broad, and potentially dangerous. They are not in line with international law which prescribes that criminal offences must be clearly defined, free from ambiguities, and not extensively construed to an accused’s detriment. The definitions are extremely susceptible to misuse.⁸⁶

In addition to provisions focusing on “terrorism”, Amnesty International notes that the Committee is recommending enactment of Special Central Legislation to fight organized crime in the country, referring to legislation such as the Maharashtra Control of Organized Crime Act (1999). While the organization has not carried out an analysis of this legislation or research into its implementation, it notes concerns raised by several domestic human rights organisations about provisions in this legislation in various states and urges that their implementation be reviewed before any central legislation is considered.

IV. The weakening of protection of women’s rights

Amnesty International is concerned about recommendations of the Committee relating to the treatment of women in criminal law which demonstrate a lack of consultation with members of the women’s movement in India and an insensitivity to current national and international debates on the protection of women’s human rights through law - for example while recommending a redefinition of rape as mentioned above, the Committee rejects the criminalization of marital rape. Amnesty International believes that the Committee would have done well to examine recent debates on the Domestic Violence Bill as also the consultative process that was followed in the preparation of the Bill.

Amnesty International recalls the UN General Assembly resolution urging Member States “to promote an active and visible policy of integrating a gender perspective into the development and implementation of all policies and programmes in the field of crime prevention and criminal justice which may assist in the elimination of violence against women so that, before decisions are taken, an analysis may be made to ensure that they entail no unfair gender bias”.⁸⁷

i) Weakening of the Law against Cruelty

The Committee has recommended that the offence of cruelty if committed by a husband or relative of a husband of a woman (section 498A IPC) be made compoundable⁸⁸ and bailable. Amnesty International notes that this amendment has reportedly been included in legislation recently drafted by the Union Government and that an amendment along these lines has already been made to state legislation in the state of Andhra Pradesh.⁸⁹

The amendment has been recommended ostensibly to enable a woman who has filed a police complaint against her husband’s family for cruelty and harassment to return to the house. The Committee notes that there is a “general complaint” that section 498A is subject to gross misuse and uses this as justification to amend the provision. It is pertinent to note that the Committee provides no data to indicate how frequently the section is being misused. It suggests that the Committee is acting upon rumour rather than research or independent study that either the Committee or any other party has conducted.

Amnesty International delegates visiting Rajasthan and Uttar Pradesh in December 2000 were concerned to hear of a large number of cases of violence against women which after the filing of a First Information Report (FIR) were subsequently logged as found "false" after investigation. In fact, government officials explained that it usually meant that the victim had reached a compromise with the perpetrator of violence, witnesses had turned hostile or there were other reasons for withdrawing the complaint. The Rajasthan government indicated that 30% of all cases of crimes against women in the state had been found to be "false" after investigation. The Rajasthan government further told Amnesty International delegates that around 40% of cases filed under section 498A result in "final reports" being filed ("Final reports" indicate that a complainant has formally withdrawn a complaint).

The labelling of these cases as "false" is itself a concern as it implies that women have falsely or maliciously filed the cases and plays into the hands of those who argue that legislation against domestic violence is misused by women. This unproven rumour of “misuse” is given further credence by statements by members of the police and the judiciary.⁹⁰

The Committee’s reasoning that the amendment is required to enable easier forgiveness of the husband and return of the woman to the matrimonial home and to ensure against the husband losing his job ignores the pressure under which women are placed in this situation. The Committee observes, “For the Indian woman marriage is a sacred bond and she tries her best not to break it (she is willing to suffer insults and harassment in silence). As this offence is non-bailable and non-compoundable it makes reconciliation and returning to marital home almost impossible”.

The Committee’s insistence on reconciliation and compromise raises concern. While the prevalence of compromise in cases of domestic violence in India is overwhelming, this is perhaps due to the absence of choice for women trying to escape violent situations. Inevitably, a large percentage of women who approach the state or even non-governmental organizations for help are sent back into continuing violent situations following a process of "mediation" between husband and wife in which the woman is at a severe disadvantage because of the patriarchal nature of the process.

Amnesty International was concerned to hear from Rajasthan police officials that police officers are encouraged to seek a compromise between the two parties in cases under section 498A. In many cases the husband was called to a police station and a compromise agreed. In a study of domestic violence which involved study of the operations of the Delhi Crime Against Women Cell, it was found that in many cases police had closed files after compromises were apparently reached, husbands having given a statement that they would desist from abusing their wife.⁹¹However, in cases where mediation achieves such a result and the parties return home, there appears to be little follow-up action by police to ensure that the agreement is being adhered to by both parties. This places the woman in an extremely vulnerable position without protection. The Committee’s recommendation would not only condone but encourage such “solutions”.

In its report the Malimath Committee has completely ignored the above issue as also several other practical constraints that prevent women from obtaining justice through section 498A. Filing a case under this section does not protect a wife’s right to the matrimonial home or offer her shelter or protection during court proceedings. Often the woman may have no choice but to withdraw a complaint against a violent husband as a precondition for a settlement or the husband’s family may propose withdrawing the case as a precondition for an easy divorce.

Factors such as these ensure that the conviction rates under this law are very low. Analysis of court decisions in one particular district of Maharashtra, Yavatmal, for example, shows that only 2.2 percent of the cases brought under 498A during the period of 1990-96 resulted in conviction.⁹²

Amnesty International is concerned that the Committee instead of strengthening the law has proposed to make it toothless, by suggesting that the offence be made compoundable and bailable.

Finally, issues relating to bail need careful consideration and the interests of the victim of violence and any dependents (i.e. children) need to be paramount. It is significant to note that countries like Australia and New Zealand that have legislations on domestic violence in place have made the offence non-bailable. In Australia the presumption in favor of bail is removed for most domestic violence offences (Bail Act 1978, s 9A). The offence of cruelty or domestic violence is also not bailable in New Zealand (Criminal Procedure Law, Para 79).

The law on domestic violence (as it now stands) does have a strong, though limited, deterrent value. It is extremely important that the issue of domestic violence be brought into the public from the private sphere by stressing its criminal content instead of projecting it as an exclusively internal family matter. Amnesty International note that the Government of India being a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)⁹³ is obliged to respond with legitimate and significant legal strategies to fight domestic violence.

ii) Women judges

The Committee recommends that in areas where there are a number of trial courts, some courts should have women judges who would be assigned criminal cases relating to women. While the concern shown by the Committee for cases relating to women is creditable, such a move raises concern since it risks leading to women judges being limited to only hearing cases relating to women, leading to ghettoisation in the criminal justice system.

Concerns about ghettoisation were previously raised when the National Commission for Women (NCW) proposed a separate criminal code for women in 1995-96. This was intended to make the trial less traumatic for women, speed up the criminal judicial process, and it was expected to raise the conviction rate.⁹⁴ The proposals were shelved however due to widespread objections.

Studies of all-women (mahila) police stations established in various parts of India illustrate the problem. Commenting on the All Women Police Stations (AWPS), one author notes, “women's issues are not seen by police officers as hard core police work and, hence, there is a tendency to dismiss the work of the AWPS as secondary.”⁹⁵The same report continues:

“Opportunities for training and skill development are few, and, since there is limited interface between mainstream police officials and women who work in the Mahila Police Thanas, exposure to other aspects of policing is minimal. This is later held against policewomen in matters of promotion. Mahila police stations appear in fact to be seen as punishment postings, outside the ambit of real police work, both by male officials and female officials.”

Amnesty International is concerned that the ghettoisation of offences against women as a problem that only women can deal with sufficiently becomes an excuse to postpone gender sensitization of male officials. It can never be a substitute for effective gender sensitisation which is needed throughout all levels of the judiciary and other institutions of the criminal justice system. Further a significant assumption here is that women would treat other women differently. This assumption ignores women’s position and the inherent role of power in any patriarchal set-up.

iii) Adultery

The recommendation of the Malimath Committee for amendment of section 497 IPC to punish for adultery a woman as well as a man for sexual intercourse with a spouse of any other person is ostensibly to maintain gender-parity in the law (previously only men were liable for punishment for adultery). Amnesty International however rejects this recommendation and calls for the de-criminalisation of sexual relations between consenting adults.

V. Limited and dangerous reforms of criminal justice institutions

As indicated in the introduction to this report, Amnesty International is concerned about the limited nature of the recommendations of the Committee as much as the potential human rights impact of several of the recommendations made. In particular, the organization seeks to underline the concerns of a number of delegates at the National Consultation on the Malimath Committee Recommendations⁹⁶ who commented on the fact that communal and other forms of discrimination which are present within institutions of the criminal justice system have not been addressed at all by the Committee. In recent months, the issue of communalisation within institutions of the criminal justice system has been highlighted in Gujarat, where police, prosecution services and the judiciary have been accused of exercising communal bias when investigating, prosecuting and presiding over trials of those accused of involvement in communal violence in the state in early 2002. Given such a situation, it is of some considerable concern that the Committee has not only failed to address this issue but that its recommendations seek increased powers for police to arrest, detain and interrogate suspects and to the judiciary to decide cases, and seek to weaken the independence of the prosecution services.

Similarly, in discussing problems within criminal justice institutions, the Committee has failed to address a raft of problems within the formal court system which discriminate against the most economically disadvantaged. In a paper presented on Alternative Dispute Resolution (ADR) highlighting the danger of introducing ADR mechanisms without addressing problems within the formal court system, Supreme Court Advocate Dr S. Muralidhar has recently highlighted the “hidden and other costs” of justice for the majority of victims:

“One disincentive for a person to engage with the legal system is the problem of uncompensated costs that have to be incurred. Apart from court fees, cost of legal representation, obtaining certified copies and the like, the system fails to acknowledge, and therefore compensate, bribes paid to court staff, the extra ‘fees’ to the legal aid lawyer, the cost of transport to the court, the bribes paid (in criminal cases) to the policemen for obtaining documents, copies of depositions and the like or to prison officials for small favours. In some instances, even legal aid beneficiaries may not get services for ‘free’ after all.”⁹⁷

While the Malimath Committee has to some extent addressed the “acknowledged” costs of the formal court system, recommending speedy payment of transport costs for victims and witnesses for example, it has entirely ignored the hidden costs and impact of corruption.

The situation of witnesses within the criminal justice system in India is an extremely complicated one. The Committee has raised some important issues about the failure of the system to recognise the role played by witnesses, recommending adequate compensation for the time and effort incurred, and a reduction in the number of un-notified adjournments. The Committee has also raised the issue of the importance of protection for witnesses, although it has not suggested any concrete ideas for how to implement a protection scheme in practice. Amnesty International is concerned that the Committee’s recommendation to make it easier to try witnesses for perjury does not fully take into account the ground realities which include the harassment which witnesses often suffer to force them to provide false testimony and the practice of police using stock witnesses to testify to crimes.⁹⁸

The following sections, raise some specific concerns about what is present and what is missing from the recommendations of the Committee in relation to the core institutions of the criminal justice system: the police, the prosecution service and the judiciary.

i) The Police

Amnesty International fully endorses the view of the Law Commission of India which has reiterated the growing demand for police reform in the face of official inaction, commenting "we must reiterate our view in this regard, so that the cause of personal liberty and other fundamental rights may not suffer, merely by reason of official lethargy or inaction."⁹⁹ From its experience in advocating human rights reforms, Amnesty International believes that the first step towards changing from a culture that facilitates the violation of human rights into one that safeguards those rights is through the exercise of political will throughout the political hierarchy.

Amnesty International is concerned however about some of the recommendations made by the Committee in relation to the police. The Committee appears to focus on the lack of resources of police rather than squarely addressing the problems of abuses within the policing system and acknowledging the strong stake that all those involved in policing have in maintaining the status quo, which has to date ensured against reform. No amount of resources – and AI acknowledges that the policing system in India is in need of increased resources - will ensure a professional and effective police force if there are inherent abuses within the system. In this context, the importance of an independent oversight mechanism for policing is vital. However, the Committee appears to suggest that the police monitor their own impartiality.

While the Committee appears to a limited degree to endorse long-standing recommendations that the investigation and law and order aspects of policing should be separated, it goes on to recommend that “serious crimes” are placed in the domain of the “Crime Police” (trained in investigative techniques), but that “remaining crimes including crimes under most of the Special and Local laws” are handled by the Law and Order Police. This division appears arbitrary and would prevent the institutionalisation of professional investigative policing and the proper separation of police functions as a means of preventing abuses. Amnesty International also endorses comments made by the International Commission of Jurists in its commentary on the Committee’s report, that as important in preventing abuses is the separation of the investigation and detention aspects of policing.

Amnesty International notes that the Committee has indicated that the Police Act, 1861, with its colonial origins, is under review by the present government. Amnesty International urges that any such review is open and inclusive and that human rights protection must be at the core of any efforts towards police reform. However, the absence of human rights protection at the core of the proposed reforms of the Malimath Committee gives some cause for concern about any ongoing police reforms. Amnesty International takes this opportunity to reiterate its belief that reform of the police would provide an opportunity to ensure that a human rights culture is incorporated into police operations and its conviction that human rights are not an impediment to effective policing but, on the contrary, vital to its achievement.¹⁰⁰

Given the need for wholesale reform of the police to ensure that safeguards against human rights violations are implemented, and the need to address impunity for those human rights violations, Amnesty International is concerned that the Malimath Committee appears to believe that making a few very limited changes referred to above would justify giving them greater powers and trust.¹⁰¹

ii) The Prosecution Service

The Committee has dealt in some detail with the role of the Public Prosecutor. It recommends the creation of the post of Director of Prosecution which should be “filled up from among suitable police officers of the rank of Director General of Police”. Amnesty International is extremely concerned about this regressive recommendation by which the Committee seeks to hand over the role of prosecution to the Police, who are not “officers of the court” but an interested party in the criminal justice system. This retrograde step will adversely affect the perception of prosecutors and undermine public confidence in them.

Sections 24 and 25 of the CrPC provide for the offices, appointment, functions, powers and duties of the Public Prosecutor and the Assistant Public Prosecutor. The function of the Public Prosecutor relates to a public purpose entrusting the office with the responsibility of acting only in the interest of the administration of justice. The Public Prosecutor must be impartial since in India the Public Prosecutor is not a protagonist of any party though in theory he stands for the State in whose name all prosecutions are conducted. ¹⁰²The Public Prosecutor is appointed by the State or Central Government and the prosecution machinery is to be completely separated from the investigation agency. In 1995, the Supreme Court ordered in SB Sahane v. State of Maharashtra that the prosecution agency be autonomous, having a regular cadre of prosecuting officers.¹⁰³Also on earlier occasions the Court has categorically laid down that the Public Prosecutor is not a part of the investigating agency, but is an independent statutory authority.¹⁰⁴The Court has also noted that the duty of a Public Prosecutor is to represent not the police, but the State.¹⁰⁵

In certain states (Bihar, Maharashtra, Kerala, Madhya Pradesh, Tamil Nadu, Andhra Pradesh, Orissa, Rajasthan and NCT of Delhi) the Directorate of Prosecution has been placed under the Home Department. In Haryana, Himachal Pradesh, Karnataka and Goa, the Law Department has administrative control over the Directorate. In some of the States, the Director of Prosecution is an officer belonging to the higher judicial service in the State. In Gujarat, there is no separate Directorate of Prosecutions and in Tamil Nadu and Uttar Pradesh police officers of the rank of Director General of Police/Inspector General of Police hold the post of Director of Prosecution.

While mechanisms to allow a better coordination between the work of the prosecution and the police are welcome, Amnesty International is concerned that in certain states the demarcation between the two agencies is being blurred by appointment of senior police officials to head the prosecution. This demarcation to maintain independence of the prosecution is essential to ensure that the trial is not laden with biases that could go against the right to a fair trial of the accused. It is unfortunate that the State Governments of Tamil Nadu and Uttar Pradesh have ignored the various court judgments that have categorically stressed that the prosecution should be independent of the police.

In this light the recommendation of the Malimath Committee to further this process of blurring the distinction between the police and the prosecution raises great concern. The Committee apparently concurs with the view of “several police officers” that this would not affect the independence of the prosecutors, which, it admits, “is essential for ensuring fairness in prosecution”. It is clear that while the Committee agrees, in principle, that the prosecution should be independent of interference by the police, it is of the opinion that this independence would not be affected by it being headed by a senior police officer. While this faith in the police is consistent with the Committee’s high opinion of the police in various respects, it ignores vast data on police abuse of power and the opinion of numerous police officers that the system of policing as it stands invites abuses.

Given that the political influence over the Police in India has been acknowledged from even amongst senior police officials, having the prosecution headed by the police would also leave scope for greater political pressure on the prosecution. Recent events in relation to the trial of those accused of involvement in communal riots in Gujarat have led to concerns about the politicized nature of the prosecution in that state. Amnesty International recommends a thorough and independent review of the prosecution service prior to any reforms being implemented and urges that any reforms be made in line with the UN Guidelines on the Role of Prosecutors.¹⁰⁶

The law in England & Wales does not recognize the police as having prosecuting functions in criminal cases and the role of the police is purely investigative.¹⁰⁷In various jurisdictions the head of the prosecutions are far removed from the police. Thus in New Zealand the director of prosecution is the Solicitor-General of the Ministry of Justice, who reports only to the Attorney General. Under Irish law the Director of Public Prosecutions is an independent government appointee and he/she must be a practicing barrister or solicitor. Similarly the Attorney General who is the head of prosecutions in Canada must be a lawyer. In South Africa too, the new Constitution creates a single national prosecuting authority led by the National Director of Public Prosecutions who is to be “appropriately qualified”. The first, and current, Director is a qualified lawyer. In the United States, the federal, local prosecution offices are independent of their equivalent police forces - Federal Bureau of Investigation (FBI), state and city police departments. Attorneys for the prosecution are independently hired and not supplied from the ranks of the police.

In a number of other jurisdictions, even though the police and the prosecution work in close cooperation, yet both are still able to maintain their independence. This has been achieved largely due to the prosecution playing a “senior role” in the relationship. Thus in Scotland, the decision to prosecute is not one for the policeand “… in relation to the investigation of offences the Chief Constable shall comply with such lawful instructions as he may receive from the appropriate prosecutor.”¹⁰⁸Under French law the investigative police are answerable to the prosecutor who directs their investigative activities. Similarly in The Netherlands prosecutors are responsible for the investigative outcomes of the police. As such, prosecutors have authority over the police with regards to criminal investigation. Police officers conduct criminal investigations under the supervision of the relevant public prosecutor. Belgian law too makes the prosecutor in charge of the judicial police for the purposes of conducting a criminal investigation. In effect, this means that prosecutors are very close to the investigative process since the police investigate criminal matters under the direction and supervision of a prosecutor.¹⁰⁹

The above comparative law positions very clearly indicate the universal trend in the criminal justice systems of countries where there is a clear demarcation in the areas of work of the police and the prosecution. The need for such demarcation is to maintain independence of the prosecution so that investigation is not laden with biases that could go against the right to a fair trial of the accused.

iii) The Judiciary

Amnesty International endorses the Committee’s recommendation that all levels of the judiciary should be intensively trained, not only to ensure against discrimination but to ensure that they fulfil the extremely important role they play in protecting the human rights of detainees and the accused during trial, as well as victims and witnesses.¹¹⁰ However Amnesty International is concerned that beyond this the Committee restricts itself to broad generalisations and rhetoric rather than addressing judicial reforms comprehensively.

While the Committee’s stress on enquiring into background and antecedents with respect to “proven integrity and character” may be valid, it falls short on other grounds. The Committee ignores the issue of ensuring broad social representation in the judiciary at all levels. Further, discussing the appointment of judges, the Committee states that it is “more concerned in ensuring quality in appointment rather than who makes the appointment.” Such an approach ignores the importance of making transparent appointments and ensuring accountability of judges. The Committee also fails to acknowledge the important role of civil society, and human rights organisations in respect of ensuring a representative, accountable and effective judiciary.¹¹¹

CONCLUSION

Amnesty International is concerned that there is more to be feared than gained from the recommendations made by the Committee as a whole. The overall failure of the Committee to address fundamental systemic failings in the criminal justice system which affect human rights – perhaps most glaringly that of discrimination – rings alarm bells about the political commitment within the government which appointed this Committee to address these issues with the same zeal that it is addressing issues of internal and national security.

The Committee’s report is just one of a number of reports on the criminal justice system which have made recommendations for reform over a number of years. Few reforms have been instituted and despite the Committee’s optimism that its recommendations will be implemented by the Government of India, there is to date little sign of this. Despite this, Amnesty International does not believe that this gives grounds for complacency about those recommendations which threaten human rights contained in the Committee’s report. It is therefore placing its concerns on record, beside those of several other domestic and international human rights organizations and individuals and hopes that these will be given serious consideration.