INDIA: Sign the Online Petition; Protest against the proposals to destroy the foundations of Indian criminal justice system 

INDIA – Due process; administration of justice
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This urgent appeal relates to the proposal by of the Committee on Reforms of the Criminal Justice System. The major reforms proposed are:

1. To reject the proof beyond reasonable doubt in criminal cases and to introduce “a lesser standard;”
2. Virtually do away with presumption of innocence;
3. Reduce criminal trial into civil arbitration;
4. Remove obstructions to make confessions obtained under torture admissible in evidence;
5. To appoint a police officer as the Prosecutor General and thus bring entire prosecution system under police control;
6. To create independence police intelligence services and thus make extensive surveillance on the population possible.

The implementation of recommendation will result in removal of all basic civil rights contained in the Indian Constitution and the International Bill of Rights, especially the International Covenant on Civil and Political Rights (ICCPR), which India is a state party to.

ACTION NEEDED

Please sign the online petition at: http://www.ahrchk.net/ua/india_cjs/index.html

By signing it you will be sending the following open letter to the president, deputy prime minister and the chairperson of the National Human Rights Commission of India.

OPEN LETTER

Reject the Recommendations of the Committee on Reforms of the Criminal Justice System

The Asian Human Rights Commission has today released a detailed statement on how the Government of India plans to undermine the foundations of criminal justice there via the recommendations of the Committee on Reforms of the Criminal Justice System (AS-17-2003). The statement notes that the “Quest for Truth” proposed by the Committee as the guiding principle of criminal justice in India is nothing more than centuries-old bunk that has served to reinforce, rather than challenge, social inequality and injustice. It is also appears to mimic China’s “Finding Truth from Facts”, which in practice means the denial of fundamental principles of fair trial.

The “Quest for Truth” violates the Constitution of India by undermining the presumption of innocence. It demands that the accused present statements of defense before being prosecuted. It waters down the burden of proof from “beyond reasonable doubt” to a “clear and convincing” standard, thereby trivializing criminal procedure and reducing it to the level of civil trials. It permits police control over both criminal investigation and prosecution, by making a police officer the public prosecutor. It incites torture by admitting confessions in trials without safeguards to prevent its use to extract them. It proposes a state security and surveillance apparatus of unprecedented proportions with frightening consequences. It will totally undermine the role of judges and lawyers, giving police absolute supremacy. It will reduce the value of human life to that of mere property. It will make the police force a much more powerful tool to suppress popular demands and political dissent than it has ever been. It will impose silence on vast numbers of oppressed struggling to break free from the inhuman conditions in which they live, particularly Dalits, by denying them the only rights they have: to protest, and to shout in court.

In short, the “Quest for Truth” invites the establishment of a draconian police state. It proposes an end to the fundamental human rights included in the Constitution. Instead of constitutional rights and the rule of law, India will return to the Law of Manu, the ruthlessly authoritarian style of rule it suffered for most of its history.

I  call on the Government of India to utterly reject the recommendations of the Committee on Reforms of the Criminal Justice System, by signing this open letter and taking all other steps necessary to avert their implementation. Instead of opting for flagrant violation of fundamental human rights, the Government of India must instead do all it can to uphold fair trial principles and the rule of law. Above all, it must ratify the Convention against Torture and make torture a crime under domestic legislation. By taking such steps it will uphold the principles of the Constitution and the international human rights norms and standards rather than mimic the practices of dictators.

A Statement by the Asian Human Rights Commission – AHRC
23rd May 2003

Reforms Committee recommendations will throw the Indian criminal justice system back into the dark ages

In November 2000 the Government of India set up the Committee on Reforms of the Criminal Justice System, purportedly to fairly assess and propose changes to the way criminal trials are conducted in India. This April, the true objectives of the Committee have been revealed. A summary of its 158 recommendations shows that despite its smart of expression of noble sentiments, the Committee has in fact been intended as a means for the government to attack the very foundations of criminal justice in India, and give enormous powers to the police.

Were proposals to demolish the fundamental principles of criminal justice in India to have come from the government itself, they would have been met with great resistance. The Reforms Committee, then, is a neat and carefully crafted vehicle to drive through the government’s agenda with the subtle language of ostensibly independent experts. If its recommendations are implemented, it will be unnecessary for India to introduce new anti-terrorism laws or emergency legislation: their cumulative effect will far exceed the powers of such regulations. The Asian Human Rights Commission’s initial assessment of these recommendations is as follows.

To begin with, the Committee has suggested that the Indian criminal justice system be guided by a “Quest for Truth”. The Committee may feel like this is a reasonable proposition, and perhaps even an original one, but the “Quest for Truth” is nothing new to India. Every humbug politician trying to look pious begins with the popular refrain Stayam Sivam Sundaram. Notwithstanding, the inequalities and untruths that continue to consume India have few parallels in world history. That is because this “Quest for Truth” has been de-linked from the search for justice and thus this “truth” permits cruel rampant inequality. Now the old ideal is being recalled to undo the system of criminal justice. The “Quest for Truth” also recalls the motto of the Chinese judicial system: “Finding Truth from Facts”. Whereas the Committee is pretending to introduce practices from continental European legal systems it is in fact borrowing the motto and practices of an authoritarian system that only now is developing new and less primitive judicial methods.

To achieve this “truth”, the Reforms Committee has in fact launched an assault on the Constitution of India, without making mention of it. Article 20(3) of the Constitution ensures that an accused not be compelled to act as a witness for the prosecution. The Committee is effectively proposing that this article of the Constitution should be discarded, as it recommends the accused present a statement of defence at the beginning of the trial. This is not unlike what is done in China, although there the right of the accused to remain silent is not recognized at all. This clever proposal aims to reduce criminal trial to civil trial standards. In India, where the poor lack access to competent lawyers, it will mean a growth in criminal convictions without adequate defence. The number of innocent persons languishing in jail due to ignorance and lack of resources will increase immeasurably.

The Committee has also proposed a change to the burden of proof, from “proof beyond reasonable doubt” to a “clear and convincing” standard of proof. The Committee has justified its decision on the grounds that “beyond reasonable doubt” is too high a standard for prosecutors to meet. In fact, this is a proposal to undo the presumption of innocence itself. Lower standards of proof and the presumption of innocence cannot coexist. This was observed by Basil Fernando, Executive Director of the Asian Human Rights Commission, in his response to the questionnaire distributed by the Committee in 2002: “To effect such a change goes against the very fundamentals of criminal trial, which deal with the life and liberty of individuals… [It] would trivialise criminal justice. A direct outcome would be the further degeneration of the police investigators and prosecutors. It would open the road for miscarriages of justice…” (Published in article 2, vol. 1, no. 2, April 2002, online at [http://www.article2.org/mainfile.php/0102/26]). Once again, this is nothing other than a devious attack on one of the pillars of criminal justice.

Another of the Committee’s remarkable suggestions is for an officer at the rank of Director General of Police to be appointed as Director of Prosecution. This appointment would virtually end the separation of the criminal investigation and prosecution functions, as both would be in the hands of the police. Civilian control of the system by way of an independent public prosecutor would be lost. Such a model is typical not of more developed systems but rather more primitive ones.

On the other hand, the Reforms Committee has refrained from making recommendations in a number of important areas, including the use of torture by the police. India has not ratified the UN Convention against Torture and nor has it made torture an offence, unlike several other Asian counties, and despite strong recommendations by the National Human Rights Commission. Meanwhile, the police continue to be responsible for endemic torture and extrajudicial killing. Although the Committee has acknowledged this situation, it has failed to make a specific corresponding recommendation. Under these circumstances its proposal that confessions be made admissible by amending section 25 of the Evidence Ordinance is a dangerous incitement of further torture. That such a statement would have to be made to an officer not below the rank of Superintendent of Police, or recorded on tape, is no safeguard without legal provisions to prohibit statements taken through torture being used in trials.

The Committee is also silent about the extreme corruption prevalent among the police. It has ignored suggestions that an independent commission to monitor corruption be established. Again, this means that its recommendations to strengthen the position of police investigation through a National Security Commission and State Security Commission is dangerous. Together with a proposed Apex Criminal Intelligence Bureau, such agencies could become a surveillance system threatening all independent organizations. Moreover, in the hands of a state inimical to the interests of some specific groups in society, they could prove lethal. The Gujarat massacre is not long passed, and the threat of such state-managed violence yet hangs over millions in India.
What is needed is not more freedom for the policing agencies to encourage and commit further atrocities, but rather independent bodies to monitor and control the police.

In conclusion, if these recommendations are implemented, the consequences will be that:
1. The judiciary and lawyers will be subordinated to the police. Judges hold an important place in society due to the high standards they must uphold. Once they become mere arbiters of civil-style cases, they will also be viewed as nothing more than that. Judges—and the lawyers presenting cases—will lose respect, to the short-term benefit of the executive.
2. By applying civil law standards to criminal trials, the value of life and liberty will be reduced to same position as that of property. In India, where society has been built upon graded inequalities, the removal of the little recognition of human equality given by the law can only have very sad consequences. The vast number of Indians, and particularly more discriminated groups—such as women, tribal groups, low castes and Dalits—will lose the small gains they have made since independence.
3. Powerful groups will use the police as a tool without fear of challenge. Given the already naked use of power by some political groups associated with the ruling party, it is frightening to think of what could happen next.
4. Ultimately, degenerating criminal justice will in turn affect the basic democratic system enshrined in the Constitution. The electoral system will be weakened, as opposition groups will face new and unprecedented police powers. Again, those who represent minority interests will experience the gravest problems.

Accordingly, the Asian Human Rights Commission urges all democratic-minded persons to do whatever they can to expose and fight the attack on criminal justice and democracy contained in the recommendations of the Committee on Reforms of the Criminal Justice System. These are not forward-looking reforms but a carefully concealed attempt to throw India back to the primitive Law of Manu under which it had subsisted for most of its history. There must be full and open public debate on the Committee’s findings. To be silent now is to accept the possibility of silence for a long time to come.

Asian Human Rights Commission – AHRC, Hong Kong

 

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