Revisiting the Malimath Committee Report

The Ministry of Home Affairs, in early May 2020, constituted a five-member committee, headed by Professor Ranbir Singh, to recommend criminal reforms in the Indian legal system. This development revives the long-debated issue of the need for reforms in criminal law in the country and brings to surface the debates started by earlier committees formed for the same purpose. The most talked about and significant amongst these is the Malimath Committee, which submitted its report in 2003 but the recommendations were eventually not considered. The recent development makes the Malimath Committee recommendations relevant and pushes one to analyse the report in light of the present scenarios in the criminal justice system.

The committee report challenged the adversarial system of justice followed in India, where a judge maintains an impartial stance and the discovery and presentation of facts and evidence is left to the counsel. The committee suggested the adoption of some features from the inquisitorial system, in which the judge plays an active part in the examination and gathering of evidence. Some of the suggestions in this regard were: i) extending the inherent powers of the High Court to make orders that may be necessary to secure justice (referred to in Section 482 of the Code of Criminal Procedure, 1973) and conferring the same to all criminal courts; ii) making amendments to the various sections of the CrPC to pave the way for increased interference of the judge in summoning witnesses and examining evidence. The committee further suggested amending Section 54 of the Indian Evidence Act, 1872 to make the ‘bad character’ of the accused relevant in all criminal proceedings, although the section already defines certain exceptions to this rule, i.e., ‘bad character of accused’ is relevant in reply and if the bad character of a person itself is a fact in issue. These exceptions ensure that relevant information required for a just trial comes to light. These recommendations, if adopted, could lead to bias against the accused, which might hamper the process of justice. These would also lead to a rather mismatched system of justice, struggling to find the balance between the established procedure and the wide powers vested in the judge. With respect to the inherent powers of the High Court, the Supreme Court has held that these are “in the nature of extraordinary powers to be used sparingly”[i] and the exercise of power under Section 482 of the Code “is the exception and not the rule”[ii]. These powers have an extremely wide scope and are, therefore, provided only to the High Courts and not to the lower courts, so that justice is served with great caution and regard to due process. If the powers recommended by the committee are given to the lower courts, it would lead to a system prone to bias and inconsistencies in the procedure. Research reveals that the inquisitorial system may be better at uncovering the truth, but may also be more prone to biased decisions by the judge, as compared to the adversarial system. Other researchers hold the view that both the adversarial and inquisitorial systems have inherent problems due to several issues, like the inefficient working of the defence or police officials, wrongful testimonies and expert evidence, bias etc.

Tackling the existing difficulties by adding other complicated and incompatible concepts will only compound the problems of the Criminal Justice System. Instead, there is a need to strengthen the police and prosecution; cogent recommendations for which have been made by the committee itself. The recommendations include separation of the investigative wing from the law and order wing of the police, appointment of Additional SPs at the district level to overlook crime investigation, better training and infrastructure to be given to investigating officers and better use of forensic sciences.[iii] Similarly, recommendations for strengthening the prosecution include the appointments to the post of Assistant Public Prosecutors be made through a competitive examination, reports of all cases ending in an acquittal be sent to the Director to ensure accountability and better training to be given to the prosecutors.[iv]

The Malimath Committee opined that one of the big problems with the Indian criminal justice system is the low rate of conviction and this observation is quite true in today’s time as well, as India’s conviction rate for cognizable IPC crimes was about 43% in the year 2018. Recommendations such as those suggested to strengthen the investigative strategies of the State should be seriously considered, as these would reform the system and make it efficient without putting too much autonomous power in the hands of the judge. This is especially important as certain sections of the CrPC already assign certain powers and duties to the Court and the Judge, such as the power to examine the accused at any time (Section 313) and to examine any person as a witness (Section 311). Similarly, Section 165 of the Indian Evidence Act, 1872 gives the Court the power to examine any person as a witness. All these measures, put together with a strong investigative effort from the State will ensure that the Indian criminal justice system becomes one that endeavours to find the truth without any bias or preconceived ideas against the accused.

The Malimath Committee had suggested certain changes to the standard of proof required to convict the accused in a criminal trial. The committee recommended lowering the standard of proof in criminal cases from ‘beyond reasonable doubt’. This suggestion is rather controversial as it undermines the rights of presumption of innocence and fair trial, which are protected under Art 21 of the Indian Constitution as per the Apex Court.[v]The committee had also adopted a contentious stance and suggested that confessions recorded by a police official of the rank of Superintendent of Police and above should be admissible in the court of law.[vi] This could be a dangerous step as India hasn’t fared well in terms of the rights of prisoners. The Supreme Court stated, “Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law…”.[vii] This deficiency has been pointed out by several organizations over the years, be it Amnesty International’s report in 1992 or the Law Commission of India’s report in 2017. These organizations have pointed to rampant use of torture to persons in custody, negligible convictions in cases of custodial deaths and have pointed to the need to adopt measures to curb such activities. The Malimath Committee even made a suggestion with regards to the right of the silence of the accused. As per the Committee:

“Without previously warning the accused, the Court may at any stage of trial and shall, after the examination under Section 313-A and before he is called on his defence put such questions to him as the court considers necessary with the object of discovering the truth in the case. If the accused remains silent or refuses to answer any question put to him by the court which he is not compelled by law to answer, the court may draw such appropriate inference including adverse inference as it considers proper in the circumstances.” (emphasis supplied)

The fact that the court would be allowed to draw inferences based on the silence of the accused would make the trial extremely biased.In light of these issues, the recommendations made by the Malimath Committee in this regard seem highly perilous to the criminal justice system of the country. Consequently, this approach would considerably weaken the right against self-incrimination, protected under Art 20(3) of the Indian Constitution

A major challenge that the Criminal Justice System has faced over the years is the pendency of cases and delay in deliverance of justice. There is an inadequacy in the number of judges handling the enormous number of cases. As of December 2017, the judge to population ratio on all levels stood at 19.61 per million of the population, while the Law Commission, in its 120th report, recommended a judge strength of 50 judges per million. These are alarming numbers, and the problem of inadequacy in the number of judges has been observed in the judicial system over the years. Keeping this in mind, the Committee had suggested increasing the Judge strength by 5 times, in a phased manner. The enormous rates of case pendency too have plagued the Criminal Justice System. As of April 2018, about 3 crore cases were pending across courts in India. The Malimath Committee had suggested the adoption of case management system proposed by the Law Commission to tackle the problem of case pendency. Subsequently, the Supreme Court approved the National Court Management System scheme in 2012, to deal with the problem of backlog of cases but there is still a need to improve the functioning of courts and adopt a comprehensive method to deal with the problems of pendency.

The Malimath Committee report also suggested drafting laws with regards to witness protection. Finally, in the year 2018, the Supreme Court approved the Witness Protection Scheme,[viii] as the justice system did not even have a witness protection program for all these years. Even the current scheme suffers from certain loopholes and the Malimath Committee had suggested changes that would mean treating witnesses with the dignity and respect they deserve. The Malimath Committee also made suggestions for increased involvement of victims in the proceedings and recommended that the rights of accused be given out in regional languages.

The recommendations of the report suggest that the committee took a strong stance against the rights of the accused and looked for quick dispensation of cases, which could be dangerousand lead to bias and wrongful judgements. However, the report also made some good recommendations for revamping the investigative process and strengthening the State’s machinery in dealing with criminal cases. Therefore, the Committee Report must be analyzed so that the recommendations leading to better judicial reforms can be implemented in the future.

[i]Arun Shankar Shukla v. State of Uttar Pradesh, AIR 1999 SC 2554 [ii]State of Punjab v. Kasturi Lal, AIR 2005 SC 4135 [iii]Ministry of Home Affairs, Government of India, Committee on Reforms of the Criminal Justice System, at 272-274. (March, 2003) (J. Malimath Committee Report). [iv]Id, at 278-279. [v]Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, Varkey Joseph v. State of Kerala, AIR 1993 SC 1892 [vi]Supra note 3, at 276. [vii]D.K. Basu v. Ashok K. Johri, AIR 1997 SC 610 [viii]Mahender Chawla v. Union of India, 2018SCC OnLine SC 2679