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Committee on Reforms of Criminal Justice System Government of Report VOLUME I March 2003 Committee on Reforms of Criminal Justice System Government of CHAIRMAN Dr. Justice V.S. Malimath Formerly, Chief Justice of Karnataka and Kerala High Courts Chairman, Central Administrative Tribunal Member, National Human Rights Commission MEMBERS S. Varadachary, IAS, (Retd.) Amitabh Gupta, IPS, (Retd.) Formerly, Director General of Police, RAjasthan Jaipur 302 015 Prof. (Dr.) N.R. Madhava Menon Vice-Chancellor Kolkatta 700 098 D.V. Subba Rao Advocate Chairman, Bar Council of MEMBER –SECRETARY Durgadas Gupta Joint Secretary Ministry of Home Affairs, Government of STAFF OF THE COMMITTEE Sri C.M. Basavarya Formerly, District & Sessions Judge, Registrar & Director of Training, High Court of Karnataka. Sri K. Girither Inspector Central Reserve Police Force Personal Assistant Smt Binnu Menon Sub Inspector Central Reserve Police Force Stenographer Sri S.M. Reddy Asst. Sub-Inspector Central Reserve Police Force Clerk Sri V. Raja Constable Central Reserve Police Force Office Attender Sri M.K. Uthaiah Constable Central Reserve Police Force Office Attender Committee on Reforms of Criminal Justice System (Government of 12/ Vasanthanagar “Everything has been said already, but as no one listens, we must always begin again.” Andre Gide French thinker and writer CONTENTS PART – I FUNDAMENTAL PRINCIPLES 1. Need for Reform of the Criminal Justice System 3 2. Adversarial System 23 3. Right to Silence 39 4. Rights of the Accused 59 5. Presumption of Innocence and Burden of Proof 65 6. Justice to Victims 75 PART – II INVESTIGATION 7. Investigation 87 PROSECUTION 8. Prosecution 125 PART – III JUDICIARY 9. Courts and Judges 133 10. Trial Procedure 145 11. Witness and Perjury 151 12. Vacation for Court 157 13. Arrears Eradication Scheme 163 PART – IV CRIME & PUNISHMENT 14. Offences, Sentences, Sentencing & Compounding 169 15. Reclassification of Offences 181 16. Offences against Women 189 17. Organised Crime 195 18. Federal Law and Crimes 207 19. Terrorism 213 20. Economic Crimes 233 PART –V LOOKING AHEAD 21. Emerging Role of the Legal Profession 249 22. Training – A Strategy for Reform 253 23. Vision for Better Criminal Justice System 259 PART –VI RECOMMENDATIONS 24. Recommendations 265 ACKNOWLEDGEMENT The nation is grateful to Sri. L.K. Advani, Deputy Prime Minister and Home Minister, for his vision for comprehensive reforms of the entire Criminal Justice System including the fundamental principles and the relevant laws. Hitherto, efforts were made to reform only certain set of laws, or one particular functionary of the system in piecemeal. This type of compartmental examination missed the vital focus on justice to victims and national concern for peace and security. The commitment made by him and his distinguished colleague Sri. Arun Jaitley, Minister for Law and Justice, to implement the reforms, once the Committee makes its recommendations, is a fitting answer to the cynics that the Report on Reforms of Criminal Justice System will be one more addition to the several earlier reports that are gathering dust in the Archives of the Government. The Committee is beholden to the then Chief Justice of for calling upon all the High Courts to provide all information and assistance the Committee needs. Our grateful thanks to former Chief Justice Sri. B.N. Kirpal for ensuring that all the High Courts send the reports sought by the Committee on the State of The Committee is grateful to Sri Justice V.N. Khare, the Chief Justice of India for avincing keen interest in the Committee’s work. Justice P.V. Reddy, Judge Supreme Court, the then Chief Justice of Karnataka High Court, placed at the disposal of the Committee, the building for housing the Committee’s office in The Committee is grateful to all the State Governments, High Courts, Officers of the Police Departments, Prosecution Department, Law Departments and Home Department. Our sincere thanks to the Bar Association of India, Gandhi Institute of Development Research at Mumbai and Journalism, The Hindu in Chennai for collaborating with our Committee in organising seminars on different topics and to the National Law Universities at needed from time to time. Our thanks to Sri. Shivcharan Mathur, former Chief Minister Rajasthan, Sri. Justice N.L. Tibrewal, former Chief Justice of Rajasthan, Justice Dave, Sri. Rajendrashekhar, former Director CBI and DGP Rajasthan, Sri. K.P.S. Gill, former DGP Punjab and Media personality and Prof. P.D. Sharma for assisting the Committee in organising the seminar at Jaipur. Our sincere thanks to Chief Ministers, Ministers, Judges--- present and former, distinguished lawyers, Police Officers, media personalities, politicians, social scientists, institutions and organisations and NGOs who have assisted the Committee in organising or participating in seminars, group discussions or meetings. A word of special gratitude to the respected Dr. R. Venkataraman, former President of Former Chief Justices Ranganath Misra, Ahmadi and Kania, Justice Jagannatha Rao, Chairman, Law Commission of Chairman Press Council of Attorney General for Sri. Dipankumar Gupta, Sri. V.R. Reddi, Sri. K.N. Bhat, Sri. C. S. Vaidyanathan, Sri Lalit Bhasin, Lord Goldsmith, Attorney General of Sri Badri Bahadur Karki, Attorney General of Nepal and experts from Judge Kevin Burke, Mr. Robert Litt, Mr. Ranganath Manthripragada, Ms. Dianne Post from the Nadal, Mr.Roussin, Mme. Claude Nocquet and Mr. Lothion from The Committee appreciates the helpful gesture of the Governments of USA, Committee with the functioning of their respective Criminal Justice Systems and the reforms they are undertaking. The Committee could not go to brief the Committee about the American System. The Committee would like to record its deep sense of appreciation for the excellent dedicated service of Sri. C.M. Basavarya rendered as Executive Director of the Committee. The Committee is thankful to the Director General of CRPF for lending the staff consisting of Inspector K. Girither, Sub-Inspectors Binnu Menon and G. Yamini Rekha, Asst. Sub Inspector S.M. Reddy, Constables V. Raja and M.K. Uthaiah to work for the Committee. The Committee records its appreciation and conveys its thanks to each one of them for excellent service and help to the Committee to complete its task on schedule. PART – I FUNDAMENTAL PRINCIPLES NEED FOR REFORM OF CRIMINAL JUSTICE SYSTEM _ “Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. (Jennison v. Baker (1972) 1 All ER 997). COMMITTEE AND ITS WORK 1.1. The Committee on Reforms of the Criminal Justice System was constituted by the Government of India, Ministry of Home Affairs by its order dated 24 November 2000, to consider measures for revamping the Criminal Justice System. (Annexure-1). The terms of reference for the Committee are: i. To examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence and see if any modifications or amendments are required thereto; ii. To examine in the light of findings on fundamental principles and aspects of criminal jurisprudence as to whether there is a need to re-write the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act to bring them in tune with the demand of the times and in harmony with the aspirations of the people of iii. To make specific recommendations on simplifying judicial procedures and practices and making the delivery of justice to the common man closer, faster, uncomplicated and inexpensive; iv. To suggest ways and means of developing such synergy among the judiciary, the Prosecution and the Police as restores the confidence of the common man in the Criminal Justice System by protecting the innocent and the victim and by punishing unsparingly the guilty and the criminal; v. To suggest sound system of managing, on professional lines, the pendency of cases at investigation and trial stages and making the Police, the Prosecution and the Judiciary accountable for delays in their respective domains; vi. To examine the feasibility of introducing the concept of “Federal Crime” which can be put on List I in the Seventh Schedule to the Constitution. 1.2. The Committee was constituted under the Chairmanship of Justice V.S.Malimath, former Chief Justice of Karnataka and Kerala High Courts, Chairman, Central Administrative Tribunal and Member of the Human Rights Commission. The other members of the Committee are Sri S. Varadachary, IAS (Retd), former Advisor, Planning Commission of Gupta, former Director General of Police, Rajasthan. Sri Durgadas Gupta, Joint Secretary (Judicial), Ministry of Home Affairs was made the Secretary. On the recommendation of the Committee Justice Sri T.S. Arunachalam, former Judge of Bengal National University of Juridical Sciences were co-opted. Later, Justice Sri. T.S.Arunachalam tendered his resignation on personal grounds where-upon Sri D.V.Subba Rao, Advocate who also happens to be Chairman of the Bar Council of the Committee was made the Member Secretary of the Committee. Sri C.M.Basavarya, former District Judge and Registrar of the Karnataka High Court was appointed as Executive Director so that the Committee has the benefit of trial court experience in criminal matters. The term of the Committee, which was six months from the date of its first sitting, has been extended till 31 March 2003. Thus it may be noted that there is a wholesome combination of expertise of all the relevant fields --- the Judiciary, the Bar, the Police, the legal academic and administrator. 1.3. The notification constituting the Committee does not expressly state the reasons for constituting the Committee, obviously for the reason that they are too well-known. The statement in the notification that the Committee has been constituted “to consider measures for revamping the Criminal Justice System” implies that the Criminal Justice System is in such a very bad state as to call for revamping. A former Chief Justice of India warned about a decade ago that the Criminal Justice System in It is common knowledge that the two major problems besieging the Criminal Justice System are huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other. This has encouraged crime. Violent and organised crimes have become the order of the day. As chances of convictions are remote, crime has become a profitable business. Life has become unsafe and people live in constant fear. Law and order situation has deteriorated and the citizens have lost confidence in the Criminal Justice System. 1.4. The ultimate aim of criminal law is protection of right to personal liberty against invasion by others – protection of the weak against the strong law abiding against lawless, peaceful against the violent. To protect the rights of the citizens, the State prescribes the rules of conduct, sanctions for their violation, machinery to enforce sanctions and procedure to protect that machinery. It is utter selfishness, greed and intolerance that lead to deprivation of life, liberty and property of other citizens requiring the State to step in for protection of the citizens’ rights. James Madison writes in his book The Federalist that “if men were angels no government would be necessary”. It is the primary function of the government to protect the basic rights to life and property. The State has to give protection to persons against lawlessness, disorderly behaviour, violent acts and fraudulent deeds of others. cannot exist without protection of the basic rights of the citizens by the Government. 1.5. This is the first time that the State has constituted such a Committee for a thorough and comprehensive review of the entire Criminal Justice System so that necessary and effective systematic reforms can be made to improve the health of the system. Prison administration is one of the functionaries of the Criminal Justice System. However, it does not fall within the mandate of the Committee. All the earlier initiatives were of a limited character to bring about reforms in the relevant laws, substantive and procedural laws, judicial reforms or police reforms. The Committee is required to take into account the recommendations made by the Law Commission of India, the Conference of Chief Ministers on Internal Security, the Report of Task Force on Internal security and Padmanabhaiah Committee Report on Police Reforms. 1.6. The terms of reference are very wide and comprehensive. They require the Committee to examine the fundamental principles of criminal jurisprudence and relevant constitutional provisions and to suggest if any modifications or amendments are needed. If, on such review the Committee finds that any amendments to the Code of Criminal Procedure, the Indian Penal Code or the Indian Evidence Act are necessary to bring them in tune with the demands of time and the aspirations of the people, it can make necessary recommendations. The Committee is not called upon to take up a general review of all these three statutes. The mandate of the Committee is limited to recommending only such amendments to these statutes as may be necessary in the light of its findings on review of the fundamental principles of criminal jurisprudence. Therefore, the Committee has not undertaken any general review of these Statutes. 1.7. The well recognised fundamental principles of criminal jurisprudence are ‘presumption of innocence and right to silence of the accused’, ‘burden of proof on the Prosecution’ and the ‘right to fair trial’. Examination of ‘Adversarial System’ followed in trial’ falls within the purview of the Committee. Simplifying judicial procedures and practices, bringing about synergy among the judiciary, the Prosecution and Police, making the system simpler, faster, cheaper and people-friendly, and restoring the confidence of the common man are the other responsibilities of the Committee. This includes improving the investigation and trial procedures on professional lines for expeditious dispensation of justice and making the functionaries accountable. The Committee is also required to examine if the concept of ‘Federal Crimes’, can be put in List 1 of the Seventh Schedule of the Constitution so that it becomes the exclusive responsibility of the Central Government. STRATEGIES ADOPTED BY THE COMMITTEE 1.8. Realizing the importance and magnitude of the task, the Committee decided to reach out to every section of the society, which has a stake in the system, directly or indirectly. Accordingly the Committee decided to: - (1) Prepare a questionnaire and obtain responses from all walks of society. (2) Organize seminars on important issues in different parts of the country. (3) Participate in seminars or meetings organised by others. (4) Meet citizens from different States hailing from different walks of life. (5) Obtain the views of the State Governments. (6) Obtain the views of the High Courts and the Judges. (7) Obtain the views of Central and State Bar Councils and members of the Bar. (8) Seek the views of Attorney General and Advocate Generals of the States. (9) Obtain the views of the Heads of Police Departments. (10) Obtain the views of the Heads of Prosecution Departments. (11) Obtain the views of the Forensic Scientists. (12) Obtain the views of the academics in law. (13) Obtain the views of the media persons. (14) Get research done by scholars on important topics. (15) Study the relevant reports of the Law Commission of India, Report of Dharmavira Committee, Report of Padmanabhaiah Committee, Report of Vohra Committee, Report of Task Force on internal security, Report of Chief Ministers conference on Internal Security and other Commissions on topics relevant to the Criminal Justice System. (16) Study the Criminal Justice Systems in U.K, other countries and the reforms undertaken by them. (17) Make a comparative study of Criminal Justice Systems in 20 selected countries from different continents. (18) Interact with experts from different countries in the world. (19) Examine Reports of the National Crime Bureau upto 2000. 1.9. After an in-depth study of the problem facing the Criminal Justice System the questionnaire was prepared and sent to 3,164 persons enclosing a pre-paid envelope to enable them to respond without incurring any expenditure. The list includes the Prime Minister, Home Minister, Law Minister, Attorney General, Home Secretary, Law Secretary, Govt. of Home Ministers, Law Ministers, Chief Secretaries, Law Secretaries, Home Secretaries, Advocate Generals, D.GsP, Director of Prosecution, the Chief Justices of the High Courts, Senior District Judges, different Bar Associations and State and Central Bar Councils, Bar Association Lawyers. However the number of responses received is only 284. 1.10. Views of all the High Courts and information relating to institutions, pendency, disposal and other relevant information were sought from all the High Courts. As the response was not encouraging, the Chief Justice of India, on being requested by the Chairman, called upon all the High Courts to send their responses. As a result of the initiative of the Chief Justice, all the High Courts have sent their reports. (Refer Appendix 5, Volume II). However some of them have not furnished all the information sought, in the pro forma in regard to filing, disposal, pendency of criminal cases etc. 1.11. Similarly all the State Governments were requested to send their views. But only the States of Arunachal Pradesh, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh and Jammu & Kashmir have submitted their replies. Other States have not responded inspite of repeated requests. (Refer Appendix 6, Volume II). 1.12. Reports on the functioning of the prosecution system in all the States were sought from the respective heads of Police Departments. Reports have been received from the States of Arunachal Pradesh, Bihar, 1.13. The Committee organised seminars as follows: - Date Place Topic 9 February 2002 Chennai Media and Criminal Justice System 23/24 February2002 Jaipur Reforms of Criminal Justice System (Investigation, Sentencing and Prosecution) 22/23 March 2002 Mumbai Economic Crimes and Financial Frauds 26/27/28 April 2002 – A Fresh Look. 1.14. Several other seminars organised on the recommendations of the Committee by different organizations and many more seminars organised by different organisations on the topics concerning the Criminal Justice System in which the Chairman or members of the Committee actively participated are the following: -
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