The Hindu : Crime and politics

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Thursday, May 22, 2003

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Crime and politics — I

By K.G. Kannabiran

Instead of providing for a rigorous framework of law with procedures, presumptions and deterrent punishments, the Malimath Committee offers loosely-worded advice to Governments.

IN A stagnant society, all efforts are focussed on the preservation of the status quo and this fierce protection of the status quo will lead to large-scale crime. Gigantic scams and the growth of gangsterism are direct by-products of this stagnant society. Politicians and Governments do not want these uninvestigated, though registered, crimes to stand in the way of their efforts to occupy the seat of power.

How could they forego their right to stand for elections on the basis of mere accusations? Between accusation and judgment, the time span is a decade. Why do you prejudge our case? Have you not seen all the stalwarts who are and who have been in governance either acquitted or discharged?

Criminals get away very easily under the existing law, said our Deputy Prime Minister. Quite true. It is in this background that the Committee on Reforms of the Criminal Justice System, headed by Justice V. S. Malimath, came to be appointed.

In the preface to the questionnaire, the Committee tells us "on the one hand, there is a steady increase in violent and organised crimes, and a pronounced rise in the nature and complexity of financial crimes, while on the other, there are innumerable complaints of misuse of powers by the police including arbitrary arrests and unnecessarily long detention, not to mention the large-scale violations of human rights".

It recognises that the operation of the justice system is not even and that the rich and the powerful get away with crimes. In fact, it refers to the latest United Nations report, which categorises India as one of the most corrupt countries.

What has the Malimath Committee done about it? What has it done about this kind of crime which has destroyed almost all the institutions of governance? The Committee perceived the terms of reference as wide enough and so emphasised the need for urgent attention. It was briefed to examine the fundamental principles of jurisprudence and the Constitution and rewrite the laws touching criminal adjudication.

The Committee does deal with organised crime. Several States including the State in which the Committee was sitting have enacted statutes to control organised crime. It could have looked into these enactments and made recommendations.

It recommended that the Government should release a paper delineating the origin, growth and consolidation of organised crime in the country. The Committee did not suggest amendments to the laws governing the criminal justice system, but left it to the Government.

It did not suggest a special mechanism or the procedure that should be followed in the inquiries against the Prime Ministers and other Ministers, Chief Ministers and elected representatives.

The Committee had enough material to formulate a deterrent criminal code. There was the Jain Hawala case; the JMM parliamentary bribe case; there were the cases against the Chief Ministers of Tamil Nadu and Bihar. It had before it the Special Courts Act, the Presidential Reference and later the unceremonious repeal of the Special Courts Act. It also obviously had a brief to deal with economic offences, and look at the way they were dealt with. The Committee had the UTI, the fodder, the fertilizer and other scams to examine. It had before it the case of banks, cooperative banks, chit funds and financial shops swindling money without any compunction of the savings of middle class families in almost every State. This plunder of middle class families, who save principally for their sons' education and daughters' weddings, went unchecked. Instead of providing for a rigorous framework of law with procedures, presumptions and deterrent punishments, the Malimath Committee offers loosely-worded advice to Governments.

The Committee came into existence at a time when minorities in the country were under attack. Crimes against the minorities were on the increase. The slaughter of the Sikhs in 1984 and the appointment of several commissions of inquiry and the terms of reference and the material gathered for the purpose were all available. Not a single reference is made either to the attack on the Sikh community, the Staines murder or the attack on churches. Nor is there a reference to the holocaust in Gujarat.

The conflict in our plural society is visible and menacing. Part of the conflict is the Dalit and tribal question. The Committee raised relevant questions about specialised courts but never examined the functioning of the statute specially enacted to prevent atrocities on the Dalits and tribals. Nor was this problem adverted to. There were a few questions pertaining to human rights violations but were not even referred to in the recommendations.

Having dealt with the major actors and forces operating in the criminal arena, the Committee went on to handle the ordinary criminal and the poor who are likely to revolt against the maintenance of the status quo. It started with a grandiloquent preamble which provides for a philosophy for criminal law. The object is not to bring about a society free of crime, but to rid the stagnant society of its criminals.

Therefore, the Committee felt it was necessary to constitute a criminal justice system for punishing the guilty first and protecting the innocent thereafter. The quest for truth shall be the fundamental duty of all functionaries associated with the criminal justice system from the judges of the Supreme Court down to the class IV employees in a magistrate's court.

None of them seems to have realised that the word truth is difficult to interpret, particularly in a caste-ridden society where there are bound to be several versions of truth. Just as there are now several versions of justice. Pursuant to the "quest for truth" being made the fundamental duty, several major departures have been recommended.

This active pursuit of truth (these are the words used in the statute) is a collective endeavour of every functionary of the criminal justice system and everyone associated with it in the administration of justice. The end product of this rigorous pursuit of truth is the protection of the innocent. The innocent referred to here is not the accused making an effort to prove his innocence.

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