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LAW REFORMS
SHORT NOTES: –
- Law Reform. Apr. 06.
SYNOPSIS
- Need for Reforms
- Adversarial System: –
3) Right to Silence-Article 20(3)-
4) Schedule of Right: –
5) Justice to the victim of crime: –
7) Police investigation: –
- Training to the Prosecutors: –
- Increase the number of Judges: –
- Summary Proceedings: –
- Protection of witnesses: –
- Vacations for the courts: –
13) Arrears Eradication Scheme: –
14) Offences, Sentence, Sentencing and Compounding-
- Classifications of Offences: –
16) Law relating to women: –
17) Organised Crimes Federal Crime and Terrorism-
18) Economic Crimes: –
CONCLUSION
RECOMMENDATIONS OF THE MALIMATH COMMITTEE ON REFORMS OF THE CRIMINAL JUSTICE SYSTEM.
1) Need for Reforms
The State must protect the fundamental as well as property rights of the citizens. The State has constituted the criminal justice system to protect the rights of the innocent and punish the guilty. However, the system devised more than a century back has become ineffective; many guilty go unpunished in many cases; the system takes years to bring the guilty to justice and has ceased to deter criminals. Crime is increasing rapidly every day, and the types of crimes are proliferating. The citizens live in constant fear. It is, therefore, that the Govt. of India, Ministry of Home Affairs, constituted the Committee under the chairmanship of Justice Malimath, on reforms of the Criminal Justice system to make a comprehensive examination of all the functionaries of the Criminal Justice System, the fundamental principles and the relevant laws.
2) Adversarial System: –
The Committee has given its anxious consideration to the question as to whether this system is satisfactory or whether we should consider recommending any other system. The committee examined, in particular, the inquisitorial system followed in France, Germany, and other Continental countries. The inquisitorial system is efficient because the judicial magistrate supervises the investigation, which results in a high conviction rate. The Committee, on balance, felt that a fair trial and, in particular, fairness to the accused are better protected in the adversarial system. However, the Committee felt that some of the good features of an Inquisitorial System could be adopted to strengthen the Adversarial System and to make it more effective. This includes the duty of the Court to search for truth, assign a proactive role to the judges, give directions to the investigating officers and prosecution agencies in the matter of investigation, and lead evidence with the object of seeking the truth and focusing on justice to victims.
3) Right to Silence-Article 20(3)-
The right to silence is a fundamental right guaranteed to the citizen under Article 20 (3) of the Constitution, which provides that no person accused of any offence shall be compelled to be a witness against himself. In most cases, an accused is the best source of information; the Committee felt that while respecting the right of an accused, a way must be found to tap this critical source of information. The Committee feels that without subjecting the accused to any duress, the court should have the freedom to question the accused to elicit the relevant information and, if he refuses to answer, to draw an adverse inference against the accused. At present, the participation of the accused in the trial is minimal. He is not even required to disclose his stand and the benefit of special exception to any claim he makes. This results in great prejudice to the prosecution and impedes the search for truth. The Committee has, therefore, felt that the accused should be required to file a statement to the prosecution disclosing his stand.
4) Schedule of Rights: –
The accused has several rights guaranteed to him under the Constitution and relevant laws. The decisions of the Supreme Court have liberally extended them. The accused has the right to know about all his rights, how to enforce them, and whom to approach when there is a denial. The Committee, therefore, felt that all the rights of the accused flowing from the laws and judicial decisions should be collected and put in a Schedule to the Code. The Committee also felt that they should be translated by each State into the respective regional languages and published in the form of a pamphlet for free distribution to the accused and the general public.
5) Justice to the victim of crime: –
An important object of the criminal justice system is to ensure justice for the victims. Yet, he has not been given any substantial right, including the right to participate in the criminal proceedings. Therefore, the Committee feels that the system must focus on justice for victims. Therefore, the committee has made several recommendations, including the victim’s right to participate in cases involving serious crimes and adequate compensation.
6) Police investigation: –
The machinery of the criminal justice system is put into gear when an offence is registered and then investigated. Therefore, a prompt and quality investigation is the foundation of an effective Criminal Justice System. Police are employed to perform multifarious duties, and quite often, the important work of expeditious investigation gets relegated. A separate wing of investigation with a clear mandate to be accountable to the Rule of Law is the need of the day. Most of the substantive and procedural laws were enacted more than 100 years ago. Criminality has undergone a tremendous change qualitatively as well as quantitatively since then. Therefore, the apparatus designed for investigation must be equipped with laws and procedures to function in the present context. If the existing challenges of crime are to be met effectively, not only do the investigators’ mindset need a change, but they have to be trained in advanced technology, knowledge of the changing economy, new dynamics of social engineering, efficacy, and use of modern forensics, etc. The Investigation Agency is understaffed and ill-equipped; therefore, the gross inadequacies in basic facilities and infrastructure also need attention on priority. There is a need for the law and society to trust the police and the police leadership to ensure improvement in their credibility.
7) Training to the Prosecutors: –
Prosecutors are court Officers whose duty is to assist the court in the search for truth, which is the objective of the Criminal Justice System. Any good investigation would not succeed unless the institution of prosecution has persons who are of merit and committed to the foundation of well-structured professional training. This important institution of the Criminal Justice System is weak and somewhat neglected. Its recruitment, training, and professionalism need special attention to make it synergetic with other institutions and effective in delivering good results.
8) Increase the number of Judges: –
Judges’ gross inadequacy to cope with the enormous pendency and new flow of cases. The existing Judge population ratio in India is 12 to 13 per million against 50 judges per million in many parts of the world. The Supreme Court has given all States directions to increase the judge strength by five times in a phased manner within the next five years.
9) Summary Proceedings: –
The Committee is concerned with the enormous delay in decision-making, particularly in trial courts. At present, many cases in which punishment is two years or less are tried as summons cases. If exercised properly, the summary procedure prescribed by Sections 262 to 264 of the Code would considerably increase the speed of justice. However, the number of cases presently tried summarily is quite small, and the maximum punishment that can be given after a summary trial is three months. To speed up the process, the Committee feels that all cases in which punishment is three years and below should be tried summarily, and punishment that can be awarded in summary trials should be increased to three years.
10) Protection of witnesses: –
The prosecution mainly relies on the oral evidence of witnesses to prove the case against the accused. Unfortunately, there is no dearth of witnesses who come to the courts and give false evidence with impunity. This is a major cause of the system’s failure. The procedure prescribed for taking action against perjury is as cumbersome as it is unsatisfactory. Many witnesses give false evidence either because of inducement or threat to them. There is no law to protect the witnesses subject to such threats, similar to witness protection laws in other countries. Unfortunately, the system treats the witnesses very badly. There are no facilities for the witnesses when they come to the court, and they have to wait for long periods; often, their cross-examination is unreasonable and occasionally rude. They are not given their TA / DA promptly. The witnesses are not treated with due courtesy and consideration, nor are they protected. Witnesses must come to the court unnecessarily and repeatedly, as many cases are posted and adjourned on frivolous grounds.
11) Vacations for the courts: –
In view of the large pendency and mounting arrears of criminal cases, the long vacations for the High Courts and Supreme Courts also contribute to delays in decision-making. Hence, in the larger public interest, the Committee feels that vacations should be reduced.
12) Arrears Eradication Scheme: –
The recommendations made by the Committee in this report would help in reducing the arrears and speeding up the trials, but to tackle the huge arrears, a complementary strategy is recommended: The Government of India, Ministry of Law and Justice, has created a ‘fast track courts’ scheme for dealing with sessions cases. Though the scheme is good, it is beset with many practical problems besides being limited to dealing with session cases. The Committee is in favour of working out an ‘Arrears Eradication Scheme’ to tackle all the cases that have been pending for more than 2 years on the appointed day. To carry out the scheme, the Committee feels that a retired judge of a High Court known for effective and expeditious disposal of criminal cases should be in charge of the Arrears Eradication Scheme as the sitting judges may not find the time for it.
13) Offences, Sentence, Sentencing, and Compounding: –
Since the IPC was enacted in 1860, many developments have taken place: new forms of crimes have come into existence, punishment for some crimes is proving grossly inadequate, and the need for imposing only a fine as a sentence for smaller offences is felt. The variety of punishments prescribed is limited. Thus, there is a need to have new punishments such as community service, disqualification from holding public offices, confiscation orders, imprisonment for life without commutation or remission, etc. Hence, the Committee is in favour of reviewing the IPC. The IPC prescribes only the maximum punishments for the offences; in some cases, minimum punishment is also prescribed. The judge exercises wide discretion within the statutory limits. There are no statutory guidelines to regulate his discretion. Therefore, in practice, there is much variance in sentencing. There is no clear indication as to what factors should be considered when assessing the sentences to be imposed. In many countries, there are laws prescribing sentencing guidelines. The Committee is, therefore, in favour of a permanent Statutory Committee being constituted to prescribe sentencing guidelines. As the fines were prescribed more than a century ago and the rupee’s value has since decreased considerably, the Committee feels that it should be suitably enhanced. The practice of jailing women who are pregnant or having a young child: The committee feels that it is cruel and unreasonable to virtually put an innocent child in prison for no fault of the child, which will also affect his future life. Therefore, pregnant women or women with children (below 7 years) should be ordered to be under house arrest instead of being sent to prison. What the Committee feels is not a charity but the legitimate right of unborn and young children. The Committee feels that the law should lean in favour of the settlement of cases without trial, where the interest of society is not involved.
14) Classifications of Offences: –
It is recommended that non-cognizable offences should be registered and investigated, and arrestability shall not depend on cognizability. The present classification has further lost its relevance. However, the Committee feels that when reviewing the Indian Penal Code, it may be examined whether it would be helpful to make a new classification into i) The Social Welfare Code, ii) The Correctional code, iii) the Criminal Code and iv) Economic and other Offences Codes?
15) Law relating to the woman: –
Several shortcomings or aberrations in dealing with the offences against women need to be addressed. The Committee feels that a man who marries a second wife during the subsistence of the first wife should not escape his liability to maintain his second wife under Section 125 of the Code because the second marriage is neither lawful nor valid. The Supreme Court has held that to prove bigamy, it is to be established that the second marriage was performed in accordance with the customary rites of either party under personal laws, which is not easy to prove. Therefore, the Committee feels that evidence regarding a man and a woman living together for a reasonably long period should be sufficient to draw the presumption that marriage was performed according to the customary rites of the parties. As a man can be punished under Section 497 of the IPC for adultery, i.e., for having sexual intercourse with the wife of another man, it requires that the wife should also be punished if she had intercourse with another married man. There is a general complaint that Section 498 A of the IPC regarding cruelty by the husband or his relatives to the wife is subjected to gross misuse and often operates against the wife’s interest. This offence is non-bailable and non-compoundable. Hence, the husband and other family members are arrested and put behind bars, which may result in the husband losing his job. Even if the wife is willing to condone and forgive the husband’s lapse and live in matrimony, this provision comes in the way of spouses returning to the marital home. This hardship can be avoided by making the offence bailable and compoundable. As instances of non-penal penetration are on the increase, and they do not fall in the definition under the offence of rape under Section 375 of the IPC, the Committee feels that such non-penal penetration should be made an offence prescribing a heavier punishment. The Committee is not in favour of imposing the death penalty for rape because, in its opinion, rapists may kill the victim to destroy evidence. Instead, the Committee recommends a sentence of imprisonment for life without commutation or remission. The Committee, however, feels that investigation and tria1 of rape cases should be done with most expeditions and with a high degree of sensitivity.
16) Organised Crimes, Federal Crimes, and Terrorism: –
Organised Crime and Terrorism have been growing globally, and India has not escaped their pernicious effect. The nexus between organized crime and terrorism has also been a cause of serious concern to the Country. The Committee has given deep consideration to intertwined and interdependent professional crimes in Indian as well as international backgrounds. The task of dealing with organized crime and terrorism becomes more complicated as a structured group in organized crime is enmeshed with its counterpart (of the structured group) in terrorism. Financial/commercial propositions actuate the former, whereas the latter is prompted by a wide range of motives depending on the point in time and the prevailing political ideology. The Committee has given deep consideration to the growth of organized crime, terrorism, and their invisible co-relationship with the vowed objective to destroy the secular and democratic fabric of the country. The Committee feels that the time has come to sink political differences for better governance of the country and address the task of dealing with these menaces. In the backdrop of the States’ reluctance to share political power through legislatures for the enactment of federal law to deal with certain crimes, the Committee has made recommendations to deal with (a) organised crime, (b) terrorism, and (c) enactment of central law to tackle federal crimes.
17) Economic Crimes: –
Despite well over 70 laws, apart from earlier laws in the Penal Code, the magnitude and variety of economic crimes are growing at a fast speed. The number of agencies for regulation and investigation has also increased, yet the need for rigorous laws and strong regulatory enforcement and investigation agencies cannot be more obvious. The attempts made in the last few decades to legislate on the matter have not been quite successful. Our judicial processes have not been helpful either. It is essential that these crimes are tackled urgently through legislative and other measures.
CONCLUSION: –
Society changes, and so do its values. Crimes are increasing, especially with changes in technology. Ad hoc policy-making and piecemeal legislation are not the answer. The Committee, therefore, recommends that the Government develop a policy statement on criminal justice and incorporate a provision in the Constitution to provide for a Presidential Commission for a periodical review of the functioning of the Criminal Justice System.
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