Crime and politics — II

CERTAIN KEY changes have been recommended which replace the present Anglo Saxon liberal legacy, which enabled us to use liberal values in our freedom struggle. This legacy is different from the colonial legacy of repression, which had no sanction of the liberal values and which provided the philosophical background of the English Revolution.

It is interesting to note that nowhere is `truth' discussed as a jurisprudential concept. Nor is it discussed in the law on evidence as the end product of proof. The end product of proof is a fact, which is put in issue. We use evidence to ascertain a disputed fact. Evidence is defined as that which court permits to be made before it relating to matters of fact under enquiry. The fact proved must be so probable that a prudent person can act on it.

The endeavour of the entire law of evidence centres around the establishment of facts. There has always been some scepticism over the capacity to arrive at a correct judgment. Judicial discipline inculcates in the judge from day one that the verdict of the institution is only finial and does not claim to discover the truth. All the effort is for as close an approximation to the truth as possible by a proper assessment of evidence.

In this crusade against crime, the Malimath Committee looks at justice as one-dimensional. Punishing the guilty, says the Committee, is justice. The initial presumption in favour of the accused is discarded quite unequivocally. It recommends that the standard of proof must be located between "proof beyond reasonable doubt" and "preponderance of probabilities".

Consequently, it tampers with one of the finest documents viz., the Evidence Act, remarkable for its precision. It recommends a special definition of "fact". In criminal cases, unless otherwise provided, a fact is said to be proved, when after considering the matters before it, "the court is convinced that it is true".

Ever since the Constitution was put into use, the Executive and the Legislature have been concertedly making inroads into personal liberty and other associated freedoms and the Judiciary has been validating these inroads by its interpretive expertise. The Committee has relied on this tradition of the court in suggesting inroads into Article 20 (3) of the Constitution (no accused shall be compelled to be a witness against himself.) "While respecting the right of the accused a way must be found to tap this critical source of information''. The Committee is of the view that at present there is a minimal participation of the accused in his trial.

To increase the participation of the accused, the Committee suggests that the prosecution file a statement of facts. It is not clear whether it is in addition to the charge sheet to be filed under Section 173 of the Criminal Procedure Code. The statement of facts should contain all the particulars regarding the accusation. The defence should file within two weeks the defence statement and the judge will determine the points for determination and these will determine on whom the burden lies.

By such legerdemain, the centuries-old presumption in favour of the person accused of an offence is neatly excised. A criminal trial has been equated with the usual property litigation governed by the Civil Procedure Code without realising that the criminal justice system informs us as to the nature of the political system we are living under. The statement of the defence suggested here is yet another novel inroad into Article 20 (3). This formulation takes us back to pre-nineteenth century development of burden of persuasion in private law disputes, when criminal law still remained in private domain governed by private law.

The burden of proof was largely governed by the Latin maxim, which said that a party which asserts a fact should prove it and not the person who denies it and matters of exception are to be proved by the defendant. We have moved away from this simplistic position.

Criminal law has become an index of the political system we are in. It also reflects the social and moral philosophy of governance and its central question is the justification of the use of coercive force against individuals and human collectives. There is a decided shift from an objective assessment of guilt to dangerousness of the criminal and it enlarges the area of all concerned with the administration of criminal law and administration.

Thus, the thrust of the Report is a concerted movement towards the suspect who is presumed guilty. Once the presumption is drawn, the Constitutional guarantee becomes irrelevant and he has to file a defence statement. And failure to traverse the prosecution statement will lead to a mandatory adverse inference.

The statement of the accused under the proposed Sections 313A & B are further inroads into Article 20 (3). Under Section 313A, which is to replace Section 313, the court will call upon the accused to generally explain personally the circumstances appearing against him in evidence. The emphasis is on "personally explain" and allows no room for a lawyer's intervention.

After the examination under 313A, Section 313B empowers the court to question the accused without giving any notice to him and his silence or refusal to answer the questions or his failure to answer the questions will empower the court to draw an adverse inference. The accused has been assured that he will not be additionally punished for such refusal or silence. The Committee recommended that all the criminal courts should have inherent powers to discover truth. Pursuit of truth cannot be the exclusive privilege of the High Court.

The Indian inquisitorial system is complete with certain sections of POTA. They are Section 27, which enables a Chief Judicial/Metropolitan Magistrate to obtain finger and footprints, specimen handwriting, semen and saliva and blood samples etc. from the person of the accused with an adverse inference attached to refusal; Section 32 making confessions to a police officer the general law in place of Section 25; violation of the Right to Privacy by making interceptions of telephonic conversations part of the general law by incorporating the entire Chapter V of POTA into the proposed Code.

To grant these extraordinary powers ordinarily is a sad comment on the Committee's understanding of criminal law and its limitations and the Government's understanding of governance.


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