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THE Committee on the Criminal Justice Delivery System headed by Justice V. S. Malimath has gone in for a clean break from the past as regards principles of evidence and trial governing criminal justice which were hitherto regarded as immutable and sacrosanct.

The changes proposed by the Committee represent a U-turn for a system that had been rooted in Anglo-Saxon jurisprudence and prevalent in this country for almost two centuries. If they are implemented by the Government by suitable legislation and upheld by the Supreme Court, the legal fraternity will be treading on an entirely new and unfamiliar terrain, grappling with rules and procedures radically altering the modes of investigation and prosecution of criminal cases.

It is indeed surprising that the report has received scant attention from the media and the Bar Associations. I want to highlight only three core areas.

The most revolutionary recommendation that will stand the criminal justice system, as we know it, on it head is the one that throws the onus on the accused to prove that he is innocent. The diamond-hard presumption, wherever the British model had been followed, was that an accused was innocent until he was proved guilty beyond all reasonable doubt, and the onus to establish the guilt was squarely on the prosecution.

Assuming the onus were to continue to be laid on the prosecution, for arriving at a finding of guilt, the Committee proposes the adoption of the criterion (as is already in vogue in civil cases) of "preponderance of probabilities" and not "beyond reasonable doubt". Countless criminals have gone scot-free by being given "the benefit of doubt". Another drastic recommendation is that the accused in a criminal case should be stripped of his right to silence during trial. This right is a corollary of the right against self-incrimination, another basic postulate of jurisprudence and also of our Constitution.

It means that the Court is barred from drawing any adverse inference from the unwillingness of the accused to answer any questions of the prosecution or the presiding judge. This protection would go, if the Malimath Committee has its way. Topping it all, the Committee would permit the courts to accept as evidence the statements made by the accused to a police officer, scrapping a provision in the Evidence Act to the contrary.

There is certainly enough justification for these and other reforms in the administration of criminal justice: There is no doubt that the system, as it has operated, tilts the scales so heavily in favour of the accused that maintenance of law and order and control of crimes are proving next to impossible.

Also, there is nothing in them that is inherently objectionable on merits, since they are part of the inquisitorial system of countries such as France and Italy for as long as one can remember. If they can be good for those, undoubtedly liberal, democracies, they can be good for India also.

B. S. Raghavan

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