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FAIRNESS TO THE ACCUSED: With Special Reference to Malimath Committee Report

Article for Blog Post Writing Competition 2011 | by Anish Jaipuriar and Sarita Rout

April 25th, 2011 7:03 pm 0

Art. 20 and 21 (Constitution of India) provide the basis for Human Rights of an accused under the Indian Criminal Jurisprudence. These rights mentioned in the two articles cannot be suspended even in the proclamation of emergency. The rights of accused has been realized and established both internationally and nationally throughout various countries. In India specifically keeping in mind this growing debates and the current worsening position of the criminal justice system, the Supreme Court of India has by way of interpretation found and laid down various mandates towards the rights and fairness to the accused few being humane treatment, not subjected to torture or degrading punishment under the police or judicial

custody, life and dignity etc., the idea behind such trend is the very concept of accused. Accused as defined in the Whartons Law Lexicon means: The person or persons against whom a charge of crime or misdemeanor is brought. [Whartons Law Lexicon, 24 (15th ed., 2009)]
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In other words it has been impliedly incorporated that, innocent until proved guilty and hence the person must and should be provided with not just the rights under Art 21 and 20 but with those rights as well that improves the life and dignity mandate. The rights of accused has been a globally debated topic and various scholars, criminologist, jurists have talked and debated it on the Human rights basis. In India mostly this topic has caught eyes of various eminent people, mainly because of the added importance of such fairness to accused owing to the current stand of India in terms of corruption, police brutality, political influences and under-table settlements etc. the idea is that accused is the one who suffers the most. But the question is this true, or accused is the one who takes advantage of human rights advocates and gets away easily from the hands of Indian criminal justice system. Malimath Committee report deals with this area specifically and has suggested various methods to repair the justice system. This response paper shall deal with few such suggestion and comment upon the viability owing the Indias critical criminal justice condition. The committee has suggested with a motive to improve the criminal justice system, but what the committee fails to take into account the basic premise of improvement. An improvement if undertaken will have the expected result if the current environment and conditions are taken into account. An improvement in such area must portray a realistic approach and be able to strike a balance between [Jaishree Jaiswal, Human Rights Of Accused And Juveniles: Delinquent In Conflict With Law, 17 (2005)]: The rights and liberties and privileges of a single individual (the accused) on the one hand and the duties, obligations and responsibilities towards the individuals collectively (society) on the other The committee overalls strikes the balance but subjects it back to the market conditions which here is the Human Rights issues, Jurisdictional issues, system stability etc. so, if we keep the constraints to be constant then the committee will strike that requisite balance. The two basic questions that committee tries to answer is: 1. Whether the principle proof beyond reasonable doubt is legal and constitutional? 2. Should there be right to silence and as a consequence right against selfincrimination at all given to the accused? The committee as a response answers both in negative, to discuss the first question. The committee says and reasons out the illegality of the principle proof beyond reasonable doubt and advocates presumption as laid down in the law of evidence. The committee reasons out that such principle has not been laid down anywhere in the statute and this to some extent is true as well. The Idea of presumption is well laid down in the evidence act, but the proof beyond reasonable doubt is principle that cannot be attributed to any section,

instead only proof to the extent the court is convinced is what the evidence law lays down. The recommendation question and seeks to obliterate 200 years of criminal system of India. Now, considering the question is whether this is unfair to the accused? The answer simply is yes. But the effect of the answer is neutralized by the balancing act that the recommendation tries to achieve. The society as we know is victim in a criminal act and our current criminal system is more accused centric rather than victim centric, as result the very pillar of the criminal justice system i.e. victim is vulnerable and is always at a loss. The report takes into consideration this plight of victims and therefore suggests such drastic shifts in the system. The recommendation if incorporated then it will certainly be unfair to the accused when being compared to the earlier system but when referred to the Home Office of UK in a strategy document stressed on the need to focus on victims and witnesses because they are essential to the success of the entire criminal justice system [Mrinal Seth, The Role of the Victim in the Indian Criminal Justice System in Support for Victims of Crime in Asia, 160 (Wing Cheong Chang, 2007)], therefore the need of the society overshadows this unfairness. The committee also recommends for establishing witness and victim protection programs in order to bring a more effective system through a victim centric approach. The idea in totality stands fine, but the basic demerit that it faces is the rationale behind such heavy burden on prosecution, which says state is the most powerful body and therefore such burden seems justified, this rationale gives a heavy challenge to the recommendations and makes such drastic shift inappropriate. In a very recent case of 2010 in Sathyavani Ponrani v. Samuel Raj (CRL.O.P.(MD)NO.5474 OF 2010, Available at: http://www.indiankanoon.org/doc/1604525/) not only did the court expand the definition of the term victim but also held that a victim is entitled to be heard and take part in a criminal proceeding or not. It upheld the principle of Viscount Simon in Stirland v. Director of Public Prosecutor ((1944) 2 ALL ER 13): A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties Therefore it is safe to conclude that the effect of the Malimath committee is getting it due recognition, but the need of time is to speed the progress and get justice to society as a whole, as it justice to accused and victim will automatically follow. The committee in its next question recommends a complete repealing of sections 25-29 of the Indian Evidence Act and advocates that confessions made to police officers must be made admissible. Another recommendation is to do away with the right to remain silent of the accused and also the right against self-incrimination should also be removed. Now such recommendation strikes the basic structure of the Indian Constitution, Art 20 (2), and to implement them might just involve the amendment of constitution which certainly is not possible. The question now is how useful this right is towards accused and towards state or society? The answer is the basic concept of any is right is to provide relaxes against the state, but such rights instead has been infringing the rights of the society and certainly creating an obstacle in the path of justice. These rights except creating delay in the system have done little to anyone except advantage for the accused. So, the recommendation is again pro-victim and hence is unfair to the accused. The point of debate should not be fair or unfair rather it should be comparatively fair or comparatively unfair. The idea of utilitarianism can be easily deducible in these recommendations as they seek to provide benefit to the larger mass of society and causing certain unfairness to a meager section of society. The argument stands

that an accused even without these rights viz. right to silence and right against selfincrimination should not be afraid at all if the innocence factor actually exits. Another difficulty is the strong international treaties and customary principles against say ICCPR provides the right to silence and against self-discrimination and India being a party to it has to follow it. Also, customary international law has established widely say in US, Ireland, Canada, New Zealand, South Africa all have coined these rights as fundamental and crucial to criminal justice system. So, if India wants to adopt the recommendation of the committee it might just have to face heavy criticism and pressure both nationally and internationally, but this does not change the fact and necessity of time to have such pro-victim principles laid down as this will give rise to a new era of criminal justice system. Article byAnish Jaipuriar and Sarita Rout 2nd Year Students, BBA.LLB (Hons) NATIONAL LAW UNIVERSITY ORISSA. [Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

For Further Reading:

1. 2. 3. 4.

Fairness to the Accused Fairness to the Accused with respect to the Indian Evidence Act, 1872 Essentials of a First Information Report (FIR) Rights of the Accused

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Applicability of ADR in Criminal Cases.

Fairness to the Accused

Plea Bargaining: Victim-Oriented Reform

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