Criminal justice reform in India: ICJ position paper

Position Paper of the ICJ submitted on the occasion of the National Conference jointly organized in New Delhi by Human Rights Law Network (HRLN) and the ICJ.
Executive Summary:
“The following review has been prepared by the International Secretariat of the International Commission of Justice (ICJ) on the occasion of a two-day national conference jointly organized by the ICJ and the Human Rights Law Network. It seeks to create a public and political debate on the recommendations made by the Justice Malimath Committee on Criminal Reforms in light of international human rights standards and the international legal obligations of India.
The Committee on Reform of the Criminal Justice System headed by Justice V. S. Malimath has proposed important changes to various aspects of administration of justice with a particular focus on the principles of evidence and conduct of criminal trials. The Malimath Committee was constituted on 24 November 2000 by the Union Government.
The Report was submitted to the Union home ministry in April 2003 for further consideration and action. It is the first time in 150 years of Indian legal history that such wide-ranging reforms are being proposed.
The Committee sought to expedite the criminal process as it considers that “the criminal justice system is virtually collapsing under its own weight as it is slow, inefficient and ineffective” and that “people are losing confidence in the system.” The recommendations, however, have far reaching consequences for the rule of law in India.
The changes proposed by the Committee represent a turn from a system that had been rooted in jurisprudence prevalent in India for more than a century. If the suggested changes are implemented by the Government, there will be serious consequences for the protection of human rights of individuals, and particularly members of the weaker sections of society. The recommendations may also interfere with international human rights norms and with safeguards established by the Supreme Court of India and various State High Courts.
The Committee proposes a lesser proof criterion for the finding of guilt than has been followed until now, namely a standard of “court’s conviction that it is true” rather than proof beyond reasonable doubt. Another important recommendation concerns the right to silence of the accused during trial. This right is a corollary of the right against self-incrimination, a basic postulate of well-settled international jurisprudence.
Last but not the least, the Committee proposes that courts be permitted to accept as evidence the statements or confession made by the accused to a police officer, overturning a provision in the Indian Evidence Act to the contrary.
Human rights groups and legal organizations have already expressed their concern with regard to the major recommendations, and there is a discussion within the legal community. However, by and large, the recommendations have not given rise to the public debate they warrant.
The ICJ would like to intervene in the legal debate to draw attention to the international standards concerning the right to a fair trial. The ICJ, in partnership with the legal community and human rights NGO’s, wishes to address the debate from the perspective of international human rights, and raise public and political debate about the implications of such proposals on the rule of law. Therefore, this joint National Conference at the initiative of the Human Rights Law Network (HRLN) will be the first national event focusing on the Justice Malimath Committee Report from a human rights angle. The Conference will create a forum for judges, human rights and criminal lawyers, representative of human rights organizations and other legal professionals.”

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