Recognised as a basic right and guaranteed
by the Indian Constitution, the right to remain silent is now under
debate and may soon be snatched away.
You have the right to remain silent.’ This statement, made familiar by
Hollywood courtroom dramas, and read out to a person under arrest as
among his rights as a prisoner, essentially informs a person accused of
a crime that he can keep his mouth shut if he wants to. He doesn’t have
to answer questions pertaining to the commission of the crime. Not
under police interrogation. Nor even in a court of law when his case is
being tried. Recognised as a fundamental right and guaranteed by the
constitutions of most democratic countries around the world, including
the Constitution of India, this right, however, is now under debate and
may soon be snatched away. That is, if a recommendation by a national
legal committee is approved. Called the Committee on Reforms on
Criminal Justice System in India, the committee is attempting to reform
the criminal justice system in the country.
“Our criminal justice system places too much emphasis on the rights of
a person accused of a crime,” explains Justice V.S. Malimath, former
Chief Justice of the Karnataka and Kerala High Courts, who is the
chairman of the committee. “Sometimes this is at the cost of delivering
justice to the victim of a crime.” He argues that by exempting a person
accused of a crime from being cross-examined by a prosecuting lawyer or
from answering questions pertaining to the crime at the time of police
investigation, “you severely limit the scope of getting to the bottom
of the truth. The accused could be the most vital source of information
and may be able to provide the most incriminating evidence under
interrogation. In order to strengthen the criminal justice system to
ensure that justice is delivered, it is imperative to review laws that
allow an accused person the option of refraining from giving evidence”.
The recommendation has many takers in the legal community. In support
of the committee’s recommendation, a Calcutta High Court criminal
lawyer, speaking on condition of anonymity, expressed his frustration
at the courts having to allow a man, accused of rape, to walk free,
because of insufficient evidence. “As things stand, the onus of having
to prove an accused person guilty lies on the prosecution. That means,
the defendant, accused of a crime, can just sit back and say, ‘Ok,
prove, it’. So it’s basically the victim who has to get out there and
try to offer proof of a person’s guilt. In the case that I am referring
to, I was convinced that the man was guilty as charged and I am certain
that under repeated cross-examination he would have cracked and come
out with the truth. Unfortunately he had the legal option of keeping
silent.”
In fact, according to Justice Malimath, one of the main reasons for
coming up with this recommendation, which comes under the category
‘justice to victims,’ is his own experience as a judge for many years
of seeing what he perceived were ‘the guilty’ getting away scot-free.
He said that there were many instances of people literally getting away
with murder because of insufficient evidence. “We could do nothing to
prevent them,” he says, “We were hindered by the law from making them
speak about their crimes.”
While legal experts provide many more real life examples of what they
call the “need to make it mandatory for the accused person to speak,”
the power of cross examining an accused has been brought out in reel
life too. In the Hollywood courtroom drama A Few Good Men, which is
based on a true story, the character of the prosecuting lawyer in a
murder case, played by Tom Cruise, pins all his hopes on cross
examining the character of Jack Nicholson, who, Cruise’s character
believes, has committed the crime. When the case is about to be rested
for lack of evidence, Nicholson’s character’s sudden outburst under
aggressive and provocative cross examination brings out the truth.
But there is also strong opposition to the recommendation made by
Malimath’s committee. Among those who argue against compelling
under-trial prisoners from having to testify in court or be forced to
answer to questions they don’t want to during police investigations is
Calcutta High Court criminal lawyer Joymalya Bagchi. He says, “It is
anybody’s guess what kind of torture an accused person may be subjected
to, to make him or her confess to a crime he or she may or may not have
committed. As things stand, such a confession has no legal bearing in a
court of law because of the possibility that it could have been
obtained through intimidation. An Indian citizen, whether he has been
accused of a crime or not, is protected by Article 20 of the
Constitution of India which gives him the right of silence if he feels
that what he speaks may go against him. But if it becomes legally
permissible to force an accused person to answer to questions put
forward by investigating police officers and prosecuting lawyers in law
courts, extracting confessions would be rampant.”
Human rights lawyer and the head of Calcutta-based human rights group
Manabadhikar Suraksha Mancha (MASUM), Kiriti Roy too, upholds an
individual’s right to remain silent. “Making it legal to compel an
individual to speak whether under police interrogation or in a law
court is tantamount to an individual testifying against himself. The
evidence may be used against him and it is unconstitutional to compel a
person to give evidence against himself.”
Roy points out furthermore that even given the prohibitive nature of
the laws “there is ample evidence of custodial torture to extract
confessions or leads for purposes of investigation”.
According to a senior police official, however, investigating officers
have to abide by specific regulations. He explains, “Right now, the law
permits a prisoner to be interrogated for reasons of police
investigation while in police custody as well as be asked to testify in
court, but it is the individual’s right to decline. For purposes of
investigation, it is permissible for the police to repeatedly ask, coax
or cajole to try and persuade a prisoner to provide leads. But the use
of physical force, whether electric shock treatment or other forms of
third degree torture or mental threat of any kind, is prohibited by
law.”
Still, he admits that the line that separates persuasion from pressure
is “very thin” and it leaves scope for physical and mental abuse.
Critics of Malimath’s recommendation fear that making it legal for the
police to make prisoners speak and use it as legal evidence in a court
of law, thereby investing more power with the police, will result in
further human rights violations. They uphold the legal premise that it
is better to let a 100 guilty men go free than to wrongfully convict
one innocent man.
But the gist of Malimath’s recommendation is, as he himself puts it,
“Why should a single criminal be allowed to walk free? A strong
criminal justice system means delivering justice to every single
citizen whose rights have been violated by a crime.”
http://www.telegraphindia.com/1080213/jsp/opinion/story_8896085.jsp
Copyright © 2008 The
Telegraph.
