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LAW REFORMS

SHORT NOTES: -

1. Law Reform. Apr. 06.

SYNOPSIS

1.

2.

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: -

8) Training to the Prosecutors: -

9) Increase the number of Judges: -

10) Summary Proceedings: -

11) Protection of witnesses: -

12) Vacations for the courts: -

13) Arrears Eradication Scheme: -

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14) Offences, Sentence, Sentencing and Compounding-

15) 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

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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

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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

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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

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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

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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

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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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