“The proposals of the Justice Malimath Committee amount to an attack on the judiciary, prosecution and witnesses in criminal trial” said the ICJ.
“These proposals seek to save the criminal justice system by conferring disproportionate powers to the police,” the ICJ added, reacting to the recommendations of an Indian Government Committee on criminal justice reform.
“The Committee fails to tackle the root causes for the malfunction of the Indian criminal justice system: lack of resources and training, corruption, violent discrimination and the systematic resort to torture,” the ICJ further said.
The Justice Malimath Committee was constituted by the Union Government in order to draft proposals for a reform of the Indian criminal justice system and submitted its report in April. On 11 August the Union Cabinet cleared a number of the proposals, although the day before they had been severely criticized by prominent members of the legal community in a national conference.
In a legal review of the recommendations, the ICJ expressed warning that certain basic human rights in criminal trials would be discarded under the guise of an alleged shift from an adversarial to an inquisitorial system: the presumption of innocence, the right to silence of the accused and the burden of proof of the prosecution are under threat. These rights are the most fundamental principles of fair trial and their abandonment would constitute a clear violation of India’s international human rights obligations. They are enshrined in international treaties to which India is a party and in international customary law.
The ICJ is also worried about the intent to expand special measures, which have so far been confined to fight terrorism, into the ordinary criminal justice system. In 2002, the Indian Parliament enacted a new law on terrorism, allowing for extended police custody, intrusive police investigation, admission of police confessions in trial, and summary procedures in special courts. These provisions are themselves in violation of international law and should be discontinued rather than mainstreamed.
“Considering the widely documented human rights abuses committed every day in India, a reform of the criminal justice system must follow a rights-based approach and be built on an independent and incorrupt judiciary, with authority to review all actions of law enforcement officials and the prosecution”, concludes the ICJ.
The ICJ calls upon the Indian legislator to ensure full compliance with India’s obligations under international human rights law when adopting a criminal justice reform.
