July 19, 2003

CENTRE CONSIDERING TO IMPLEMENT MALIMATH RECOMMENDATIONS
COUNTRYWIDE DISCUSSIONS, POLITICAL CONSENSUS NEEDED

New Delhi : One of the five proposed measures for tackling terrorism in Jammu and Kashmir, militancy in the North East, and left wing extremism in the various parts of the country is the implementation of recommendation of the Malimath Committee on Criminal Justice Administration. The Ministry of Home, Government of India has recently revealed this intention of the government during a presentation in the department related Consultative Committee of the Parliament. Another proposed measures seeks setting up a 'Federal Agency' to deal with the 'federal crimes.' However, such a measure needs constitutional amendment, which in turn requires building up a consensus among the various political parties.

These proposals of the Ministry of Home are of great consequences for the Criminal Justice System of our country, because the Malimath Committee recommendations seek to change the very concept of the present system. It sounds good when we are told that the fundamental philosophy of the Malimath's report was to find out the truth behind any criminal incident. However , the question arises out of the recommendations themselves whether it would be possible for our Criminal Justice System to getting at the truth, especially when performance of the prosecutions all over India is really bad.

The basic presumption of the Committee headed by V S Malimath, a former Chief Justice of the Kerala High Court is that unearthing truth is not the goal of the present Criminal Justice System. The Committee had submitted its report only in March 2003.

It said that the Criminal Justice System should aim at finding out the truth and not just sift through evidence to see whether the prosecution has established the guilt beyond reasonable doubt.

The question her arise that if the prosecution fails to prove the guilt of an accused beyond reasonable doubt, how can a judge be convinced that the arrested person in actually guilty ?

In the present system the prosecution fails to establish the guilt due to various reasons including corruption in the police or investigating agencies, arrests of the wrong persons who are not involved in the crime which is resorted to the investigating agencies of officers to save their skin, lacunae left knowingly to save the culprits, and inefficiency of the prosecution to collect sufficient evidence against a criminal or offender. Since the victims or witnesses live constantly under fear from the culprits and they do not find protection under present policing system, they invariably lie in the courts. Even in this scenario some of the culprits get punishments thanks to some courageous witnesses and judges. If any one is to blame for the failure of the present Criminal Justice System , it is primarily the police or the prosecution or the executive. However, the prosecution is being saved by diverting the attention of the people towards a perceived fault in the judicial process itself.

Under the proposed recommendations of the Malimath Committee, the Criminal Courts have to perform a pro-active role. If the judges feel that prosecution has failed to get at the truth, they can order a fresh investigation until the truth is revealed. Even now a judge can do that. But what can they do if prosecution itself does not take much interest is most of the cases.

We can cite an example of the witnesses who does not turn up or who become hostile or who lies in the courts. It is easy to blame the common people who are without protection that they do not support the prosecution. But what can be called about the armed police personnel themselves who as a witness do not support the prosecution. It is an open secret that maximum number of the acquittals are seen in those cases including in arms act in which police personnel are primary witnesses !

A judge or magistrate of the criminal courts are not so well protected as the police personnel. If the police or prosecution can not perform a pro-active role, how can one rely on judges to do the magic on behalf of the prosecution ? Courts , of course , can order for reinvestigation of a crime , but what if the quality of investigations remain very poor as it is in the present ?

It is good that the Malimath Committee has recommended for giving protection to the witnesses. However, merely this provision cannot assure their protection. We have seen it already. Under the Constitution of India, Government takes guarantee of protection of our lives and properties. Are our life and properties are save in the hands of the governments or their police ? If we want to protect lives of people , in the present case the witness, then we have to restructure the whole policing system of our country.

One of the major recommendations of the Committee is to make provisions of punishment to the witnesses deliberately giving false evidence. But , even in the present system the courts can punish the persons misleading them.

In the present system, a victim is only an informant and the state launches prosecution against criminal. Therefore, victims are not allowed to participate in the court proceedings except when deposing as witnesses. The Malimath Committee has given an important recommendation in this regard and says that the representatives of the victims should be given right to take part in the proceeding right from the beginning. The can send their own lawyers or can ask from the government to give them a lawyer of their choice at the government's cost. This recommendation may reign in the prosecution up to a great extent.

There are much more recommendations, good or bad , that our legislature, political parties, and people at large must examine before going for its implementation. It needs countrywide discussion. (EOM)