In 2000, the then Union Government appointed a panel headed by the former Chief Justice of Kerala and Karnataka, Justice V.S. Malimath, to suggest reforms to the existing Criminal Justice System. The Committee submitted its report two years later, in which it criticised Indian system which was always favouring the rights of accused rather than focussing sufferings of the victim. There were 158 recommendations and was submitted to the then Deputy Prime Minister L.K. Advani, who was also the Home Minister.
The main recommendations of the six member panel includes;
a) Adopt inquisitorial system
In countries like Germany and France, the entire procedure of investigation is supervised by a judicial magistrate. The system is termed as inquisitorial. The panel recommended the adoption of ‘good points’ of the system to India modifying the existing adversarial system. According to the report these ‘good points’ includes;
- The duty of the Court to ‘search for truth’
- Assignation of ‘pro-active role to the Judges’
- Empowering judges further with the duty of ‘leading evidence with the object of seeking the truth and focussing on justice to victims’.
The recommendation was solely based on the jurisdiction of France. But the panel failed to enquire whether the Indian system is similar to the French one or not while recommending to imitate the system. So the recommendation attracted wide criticism.
b) Recommended modification to Art. 20(3)
The panel recommended a modification to Art. 20(3) of the Constitution that protects the accused from being compelled to be a witness against himself/herself. The Committee suggested that the court be given freedom to question the accused and if he refuse to answer or if kept mum, adverse inference must be drawn against him/her. [1]
The Committee shows little regard for the text and interpretation of the right to fair trial in supranational and international human rights conventions.[2] Furthermore, the Committee ignores the differential access to legal services available to the Indian accused.[3]
c) To revamp presumption of innocence
The Committee also recommended to revamp the existing presumption of innocence and burden of proof. Thus, the report totally ignored all International Human Rights documents and principles of justice. The Report insists that there is something flawed about the presumption of innocence and seeks to modify the standard of burden of proof.
How may we come to know, further that many accused/ convicted persons regard the presumption of innocence as license of committing more crimes with impunity? The panel made the conclusion without conducting any stratified survey of acquittal and recidivist population. The panel lacked adequate representation. There was no female member in the panel.
d) Rights of the accused
The Committee suggested that a Schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.
e) Justice to victims
The Committee recommended to ensure participation of victims in serious crimes and also be given adequate compensation. If the victim is dead, the legal representative shall have the right to implead himself or herself as a party, in case of serious offences. Further, recommended to appoint a pleader for the victim at State cost. Recommended to constitute a Victim Compensation Scheme, whether the offender is apprehended or not, convicted or acquitted.
This paved way for the constitution of Victim Compensation Scheme under Section 357A CrPC.
e) Stringent Investigation Procedure
To improve quality of investigation, the Committee suggested to set up a National Security Commission and State Security Commission and also recommended to appoint an Addl. SP in each district to maintain crime data, organisation of specialised squads to deal with organised crime, and a team of officers to probe inter-State or transnational crimes, and setting up of a Police Establishment Board to deal with posting, transfers, and so on.
Now, the police custody is limited to 15 days. The Committee suggested this be extended to 30 days and an additional time of 90 days be granted for the filing of charge sheet in case of serious crimes.
f) Dying declaration
The Committee favoured dying declarations, confessions, and audio/video recorded statement of witnesses be authorised by law. It also sought amendments to the law to allow thumb impression only if the witness is illiterate.
g) Recommendation as to Public Prosecution
The Committee suggested a new post, Director of Prosecution, be created in every State to facilitate effective co-ordination between the investigating and prosecuting officers under the guidance of the Advocate General. In accordance with the recommendation under Section 25A of CrPC Directorate of Prosecution was established. Recommended to appoint Assistant Public Prosecutor and Public Prosecutor through competitive examinations with a rider that they were not to be posted in their home district and the places where they were already practising.
h) Need of more courts and judges
The report pointed out the need for appointment of more judges who are specialised in criminal law and to increase number of courts and judges in accordance with the population ratio.
i) Trial Procedures
The Committee felt that all cases in which punishment is three years and below should be tried summarily and punishment that can be awarded in summary trials be increased to three years.
j) Witness protection and protection to informers in Economic offences
Only through genuine witnesses criminal justice can be dispensed. So the Committee recommended to allow witness allowance on the same day itself and adequacy of providing seating and resting facilities for them and also to treat them with dignity. Also suggested to establish a witness protection mechanism as has been done in US.
The Committee also suggested that sentences in Economic offences must run consecutively rather than concurrently. Further recommended to enact a law to protect informers.
k) Perjury
If during the trial, the witness is found to have given a false evidence with an intention to affect the case, he/she must be summarily tried and be liable to fine up to Rs. 500 or up to three-month prison or both.
l) Arrears Eradication Scheme and reducing court vacation
The Committee recommended that no case should be allowed to lag beyond two years. If so, it must be settled in Lok Adalaths and such cases should be speedy tried in a day to day basis without adjournment.
The Committee recommended reducing the period of vacation by 21 days, keeping in mind the long pendency of cases. If implemented, the Supreme Court will work for 206 days and High Courts will function 231 days.
m) Recommended alternative methods of punishment
The Committee recommended the constitution of a permanent Statutory Committee to prescribe sentencing guidelines. Pregnant women and women with child below seven years can be kept under house arrest instead of being lodged in prison, keeping in mind the future life of the child.
In cases in which public interest is not involved, the Committee favoured settlements. Recommended imposing huge amount as fine and in cases of inability to pay fine, engage them in community service programs.
The Committee also favoured substituting death sentence with imprisonment for life without commutation or remission. And also recommended to include alternative methods of punishment into The Indian Penal Code. Thus the provisions as to plea bargaining got included.
n) Reclassification of offences
Offences are currently classified as cognisable and non-cognisable. Instead, the Committee recommended classifying offences as social welfare code, correctional code, criminal code, and economic and other offences code.
o) Offences against women
The Committee made some recommendations which seems strange to Indian society which includes decriminalisation of bigamy, women must also be made punishable under S. 497 of IPC (now became unconstitutional after Joseph Shine V. Union of India[4]), offence under section 498A IPC to be made bailable and compoundable.
Another notable recommendation is regarding the offence of rape. Non-penal penetration and any forcible penetration should also be considered as rape and must carry a greater punishment. Also recommended for the expeditious trial of such cases. The recommendations got place in our penal code later on.
p) Recommended for the Central involvement in terrorism
Even though crime is a state subject, the Committee recommended a greater involvement of Union Government in cases of terrorism and such other offences involving national importance.
q) Periodic review
The Committee has recommended providing for a Presidential Commission for a periodical review of the functioning of the Criminal Justice System.
The recommendations of the Committee attracted a wide spread protest from the part of the Human Rights activists since it stood against presumption of innocence and favoured inquisitorial legal system. They even looked the recommendations as a document disregarding developments after Maneka Gandhi V. Union of India[5]. At the same time the Committee favoured speedy trial, establishment of new courts and above all many alternatives to punishment such as home arrest to female prisoners with children. These all are much worthy and our penal system adopted many of its recommendations which includes establishment of Victim Compensation Scheme and Directorate of Prosecution. Above all, the Panel Report marked a starting point to all other subsequent Criminal Justice Reforms.
[1] www.the hindu.com, visited on 11/2/2021.
[2] For example, Article 14(3)(g) of the International Covenant on Civil and Political Rights, the provisions relating to right to silence in the Yugoslav Tribunal, and the recommendations of the International Law Commission concerning the right to silence in the Draft Treaty on International Criminal Court. Amnesty International and kindered human rights organizations canvassed this fully before the European Court of Human Rights.
[3] The (Malimath) Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for Human Rights, Amnesty International India. at https://www.legal-tools.org/doc/70dIc6/. Visited on 11/2/2021.
[4] 2018 SC 1676.
[5] AIR 1978 SC 597.
SUMITHA M S
UGC NET -JRF HOLDER
RESEARCH SCHOLAR at
GOVERNMENT LAW COLLEGE THIRUVANANTHAPURAM
