10-02-2008, 10:31 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin--><b>Nation could lose battle against terror, says Malimath </b>
Pioneer.com
Rajesh Singh | New Delhi
'Centre ignoring my panel recommendations'
Justice VS Malimath is a disappointed man. The eminent jurist who headed a committee on criminal justice reforms that recommended far reaching amendments to criminal laws dealing with terror among other crimes, fears the nation could lose its battle against terrorism if tough options were not exercised by the UPA Government.Â
The former Chief Justice of Karnataka and Kerala High Courts recently met Union Home Minister Shivraj Patil and conveyed his apprehensions, requesting him to act on the panel recommendations without further delay.
Speaking to The Pioneer on Wednesday, Justice Malimath said, <b>"I met the Home Minister to tell him it was not possible to deal with terrorists under existing provisions. Our recommendations for revamping the laws should be brought in force.''</b>
On the Home Minister's response to his appeal, he said, "Shivraj Patil was convinced but expressed helplessness saying the Government would have to take a political call since the views of the allies and the human rights activists had to be considered.''
Justice Malimath said the meeting took place at his initiative as he wanted to brief the Home Minister on the gravity of the developing situation and the urgency for firm and immediate action. "While I had publicly stated my willingness to meet political leaders and explain the need for quick affirmative action, none from the Government responded. So I took the first step,'' he revealed.
The Malimath committee comprising five other members besides Justice Malimath had suggested a series of measures to strengthen the system to provide "justice to victims'' and "protect the innocent.'' The comprehensive report commissioned by the NDA regime assumes importance in the backdrop of the increased terrorist attacks and a debate on ways to tackle the menace.
Strongly refuting the claim by some political leaders that present laws were adequate, he stated, <b>"Today's laws do not ensure conviction. Terrorism has become profitable since terrorists, knowing they cannot be punished put in repeat performances.'' </b>
Pointing out that, not only was there a spurt in terrorist attacks but that such attacks were "of an increasingly gruesome nature'', the former Chief Justice advocated a no-holds barred approach against such crimes.
Referring to criticism of his recommendations by human rights activists, Justice Malimath remarked, "Terrorists violate human rights and when the law is set in motion, activists begin demanding the rights of the accused,'' adding he was primarily concerned about victims while the activists had regard for the accused.
The former Chief Justice said the panel had considered the rights of the accused and suggested all rights under the law be put in a Schedule as part of the CrPC.
Justice Malimath's dismay underlines the dithering attitude of the Centre in the face of repeated terror attacks. Neither can it decide on tough legislations nor a revamp of existing criminal laws to combat the menace more effectively. It has been sitting on the panel recommendations for four-and-a-half years since assuming power.
In tandem with Justice Malimath's views, former Union Law Minister Arun Jaitley, during whose tenure the committee was established, favoured immediate implementation of the recommendations and added some of the suggestions had been incorporated in the statutes during the NDA rule. "The Union Home Ministry before whom the matter rests should act promptly and implement the suggestions,'' he told The Pioneer.
<b>The two most important recommendations of the panel having a direct bearing on terrorism-related cases are on `right to silence' and `burden of proof. ' Since Article 20 (3) of the Constitution provides a citizen the right to remain silent during questioning in a trial, the accused get away by simply maintaining silence when questioned since no adverse inference can be drawn. While recognising the right to silence, the panel suggested the court could draw an adverse inference from such silence, and recommended the substitution of section 313 of the CrPC with 313(B) where silence could attract the court's adverse conclusion.</b>
<b>The present concept of `burden of proof' is truly a burden for the investigating agencies and the prosecution in terror-related cases since the accused is considered innocent until proved guilty. The Malimath panel suggested the courts determine the burden of proof based on defence and prosecution statements.</b>
The contentious definition of `proof' which becomes vital in terror-related trials was also considered by the panel. While the Indian Evidence Act does not precisely define `proof,' the standard understanding of proof is one `beyond reasonable doubt.' The panel felt it to be extremely stringent probably because `beyond reasonable doubt' rarely happens and the accused invariably escapes. It suggested replacement of `beyond reasonable doubt' with `clear and convincing' proof that would assist investigations and conviction in terror cases.
<b>The panel suggested the law authorise audio and video statements, confessions and dying declarations, adding Section 25 of Indian Evidence Act be amended to make confessions recorded by the rank of superintendent of police and above as admissible in a court of law. This has been a contentious issue vociferously opposed by human rights activists since it is similar to provisions in the scrapped POTA and equally strongly demanded by those who believe terror can be best fought through tough provisions</b>.
Yet another bone of contention is the recommendation to amend Section 167 of the Code which gives 90 days to the investigating authorities for filing charge-sheet failing which the accused gets bail. Clearly bringing in its fold crimes of terror, the committee suggested the period be extended to 180 days for offences punishable with imprisonment above seven years. The extension would be a boon to agencies probing terror attacks since they find the 90 days an inadequate period to tie up loose ends in a crime that often has inter-State ramifications.
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Pioneer.com
Rajesh Singh | New Delhi
'Centre ignoring my panel recommendations'
Justice VS Malimath is a disappointed man. The eminent jurist who headed a committee on criminal justice reforms that recommended far reaching amendments to criminal laws dealing with terror among other crimes, fears the nation could lose its battle against terrorism if tough options were not exercised by the UPA Government.Â
The former Chief Justice of Karnataka and Kerala High Courts recently met Union Home Minister Shivraj Patil and conveyed his apprehensions, requesting him to act on the panel recommendations without further delay.
Speaking to The Pioneer on Wednesday, Justice Malimath said, <b>"I met the Home Minister to tell him it was not possible to deal with terrorists under existing provisions. Our recommendations for revamping the laws should be brought in force.''</b>
On the Home Minister's response to his appeal, he said, "Shivraj Patil was convinced but expressed helplessness saying the Government would have to take a political call since the views of the allies and the human rights activists had to be considered.''
Justice Malimath said the meeting took place at his initiative as he wanted to brief the Home Minister on the gravity of the developing situation and the urgency for firm and immediate action. "While I had publicly stated my willingness to meet political leaders and explain the need for quick affirmative action, none from the Government responded. So I took the first step,'' he revealed.
The Malimath committee comprising five other members besides Justice Malimath had suggested a series of measures to strengthen the system to provide "justice to victims'' and "protect the innocent.'' The comprehensive report commissioned by the NDA regime assumes importance in the backdrop of the increased terrorist attacks and a debate on ways to tackle the menace.
Strongly refuting the claim by some political leaders that present laws were adequate, he stated, <b>"Today's laws do not ensure conviction. Terrorism has become profitable since terrorists, knowing they cannot be punished put in repeat performances.'' </b>
Pointing out that, not only was there a spurt in terrorist attacks but that such attacks were "of an increasingly gruesome nature'', the former Chief Justice advocated a no-holds barred approach against such crimes.
Referring to criticism of his recommendations by human rights activists, Justice Malimath remarked, "Terrorists violate human rights and when the law is set in motion, activists begin demanding the rights of the accused,'' adding he was primarily concerned about victims while the activists had regard for the accused.
The former Chief Justice said the panel had considered the rights of the accused and suggested all rights under the law be put in a Schedule as part of the CrPC.
Justice Malimath's dismay underlines the dithering attitude of the Centre in the face of repeated terror attacks. Neither can it decide on tough legislations nor a revamp of existing criminal laws to combat the menace more effectively. It has been sitting on the panel recommendations for four-and-a-half years since assuming power.
In tandem with Justice Malimath's views, former Union Law Minister Arun Jaitley, during whose tenure the committee was established, favoured immediate implementation of the recommendations and added some of the suggestions had been incorporated in the statutes during the NDA rule. "The Union Home Ministry before whom the matter rests should act promptly and implement the suggestions,'' he told The Pioneer.
<b>The two most important recommendations of the panel having a direct bearing on terrorism-related cases are on `right to silence' and `burden of proof. ' Since Article 20 (3) of the Constitution provides a citizen the right to remain silent during questioning in a trial, the accused get away by simply maintaining silence when questioned since no adverse inference can be drawn. While recognising the right to silence, the panel suggested the court could draw an adverse inference from such silence, and recommended the substitution of section 313 of the CrPC with 313(B) where silence could attract the court's adverse conclusion.</b>
<b>The present concept of `burden of proof' is truly a burden for the investigating agencies and the prosecution in terror-related cases since the accused is considered innocent until proved guilty. The Malimath panel suggested the courts determine the burden of proof based on defence and prosecution statements.</b>
The contentious definition of `proof' which becomes vital in terror-related trials was also considered by the panel. While the Indian Evidence Act does not precisely define `proof,' the standard understanding of proof is one `beyond reasonable doubt.' The panel felt it to be extremely stringent probably because `beyond reasonable doubt' rarely happens and the accused invariably escapes. It suggested replacement of `beyond reasonable doubt' with `clear and convincing' proof that would assist investigations and conviction in terror cases.
<b>The panel suggested the law authorise audio and video statements, confessions and dying declarations, adding Section 25 of Indian Evidence Act be amended to make confessions recorded by the rank of superintendent of police and above as admissible in a court of law. This has been a contentious issue vociferously opposed by human rights activists since it is similar to provisions in the scrapped POTA and equally strongly demanded by those who believe terror can be best fought through tough provisions</b>.
Yet another bone of contention is the recommendation to amend Section 167 of the Code which gives 90 days to the investigating authorities for filing charge-sheet failing which the accused gets bail. Clearly bringing in its fold crimes of terror, the committee suggested the period be extended to 180 days for offences punishable with imprisonment above seven years. The extension would be a boon to agencies probing terror attacks since they find the 90 days an inadequate period to tie up loose ends in a crime that often has inter-State ramifications.
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