In any society, there cannot be two Governments and two sets of laws. But in Manipur, there are plenty of Governments and various sets of laws. These unofficial but more powerful Governments issue diktats and enforce their laws. Some are shot in the calf or in the thigh, after due warning as they claim. Some unfortunate ones are tried by their courts of justice and given capital punishments.
It may sound like Ripley’s ‘Believe it or not’ story, but it is fascinatingly true that many old people, a generation or so ahead of us, do come for drafting a letter addressed to Her Majesty The Queen of The United Kingdom to request her to come back to Manipur and rule again. These old people said that they would bear the expenses for typing and dispatch of the letter by post to London . They do not want the kind of freedom and independence we are enjoying now. They prefer British Rule. What is wrong? Are the labors and sacrifices of Mahatma Gandhiji, Netaji Subhas Chandra Bose and others, who fought for Indian independence, come to naught? What was so remarkable about British Rule?
My generation of people had not experienced direct British rule, as we were busy schooling in our teens. Nevertheless, we had seen the Second World War and the British Rule through a peephole of a school student. When Indian independence came, we were just starting education in colleges. So we can remember the kind of law and order situation, the swiftness of dispensation of justice and above all the general tranquil atmosphere prevailing then. These old people naturally compare life under Maharaja with British Rule and life now. Let us contrast the two situations.
In any society, there cannot be two Governments and two sets of laws. But in Manipur, there are plenty of Governments and various sets of laws. These unofficial but more powerful Governments issue diktats and enforce their laws. Some are shot in the calf or in the thigh, after due warning as they claim. Some unfortunate ones are tried by their courts of justice and given capital punishments.
When anyone steps out of one’s house, there is no knowing as to what may befall on you. One can be caught in the crossfire between security forces and underground elements and in the bargain, the innocent ‘you’ may get killed. Or you may be a victim of a bomb blast. Or you may have to turn back your car without going to Churachandpur when you face a wildcat bandh or strike at Bishnupur. Life is uncertain.
Recently, I was horrified to read a news item in The Sangai Express on ‘Taxes imposed on Imphal-Moreh route’ by various (unlawful?) organisations. The taxes here are plainly extortion money. It knocks daylight out of one’s brain to learn that the list of organisations included Government Departments, as if they are also terrorist organisations. Actually, there is terrorism all around including State terrorism. The policemen are not people friendly. It would be naive to assume that my freedom ends when your freedom starts.
During the days of the Maharaja under British domination, there were idiosyncratic rules but not oppression. For example, Maharani Dhanamanjuri Devi liked ‘Thambal machu phanek’ (pink lotus colored Manipuri sarong dress of ladies) and no one was permitted to wear it except the Maharani. Or ladies were told, nay ordered to cover their heads with a piece of cloth in front of the Maharaja as uncovered head was considered as display of disrespect and arrogance. The punishment was scissoring off of the hairs. That was not exactly Talibanization of the society, as brutality was not involved. In the Talibanized society of Riyadh, about four months ago, some fifteen school girls came out running in panic with their heads uncovered from a school building which was in flames. They were forced again inside the burning school for not covering their heads. Eight of them perished. That was brutality. The Government and the public of Saudi Arabia condemned it.
C. Gimson, the British Political Agent used to walk around alone in a khaki half pant and shirt in Imphal town. No one could dare harm him. In May 1942, soon after the Japanese bombing of Imphal, T.A. Sharp, the president of Manipur State Durbar came alone and unarmed on horse back just to look up how well Shri Shri Govindajee was, when He was a Divine War Refugee with members of the royal family at Uchekon. Every village had a chowkidar with a big shield on his waist belt, whose job it was, to settle disputes with the help of village elders. The very presence of ‘Koyet Angangba’ (lal pagri), which was the headdress of a constable used to strike terror and awe. Retribution was sure and swift for any wrongdoer. Government was visible in flesh and blood. No wonder, older generation of people had a longing for Maharaja’s rule under British.
What kind of society one desires to find? An Utopian social order is such where a citizen may enjoy freedom and liberty as respects permitted by law, total absence of fear complex, observance of a proper social order, a helping hand from the society when one is in distress or meet with an accident, no violation of human rights and above all, acceptance of ‘me’, who may be a foreign tourist as one of ‘us’ in a big, humane society.
During the days of the past, if any local goon were found harassing a stranger, any elderly person -man or woman – would intervene and stop the harassment. If the goon disobeyed, everyone would join the fight and compel him to obey. Now, the current social attitude seems to be never to get involved and risk your own safety. I suspect the society has to react to the wake up call.
Of all the countries in the world, Sweden is ranked highest in terms of liberty and human rights. Over there, a single sign board like ‘One way traffic’ is good enough to instill discipline, because any law breaker becomes an odd man out in their civilized society. Everyone will stare at him. The State also swings into swift action. Therefore the authority of the State Government to assert itself is the necessary sheet anchor for the society to respond.
The State must inspire confidence, not diffidence. During the British days, State response to lawbreakers or perpetrators of simple acts of goondaism was fast. Captive Government cannot enthuse the society to vindicate. The State must assert itself first, only then the society will respond.
Malimath panel finds reform vital but rights dispensable
In April 2003, the Committee on Reforms of Criminal Justice System (headed by Justice V.S. Malimath) submitted its report to the Ministry of Home Affairs, and asserted that thanks to the “commitment” of the Home Minister and the Law Minister who had pledged to implement its recommendations, the report would be spared the dust of the Government archives.
The self-assurance and candor are refreshing, coming from a Government-ordained panel; however, a close look at the report reveals that several recommendations contained in it may well be allowed to mix with the dust.
The Malimath Committee recommends an overhaul of the criminal justice system. It proposes to do this, however, by eviscerating many fundamental rights guaranteed by the Constitution.
The report attempts to address the “huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other” in two main ways. First, the Committee quite reasonably seeks to root out incompetence and corruption among the police, prosecutors, and judges by improving training, standards, and accountability and to increase the overall efficiency of the court system.
It is the second aspect, however, that is disconcerting. The Committee seeks to dramatically increase the power of judges and the police by altering the fundamental principles of the criminal justice system and obliterating many of the rights of the accused, and by disregarding the injustice of false convictions. This, after bemoaning the corruption and incompetence in the judiciary.
An alarming feature of the report is the Committee’s attempt to introduce some of the most controversial and problematic aspects of the Prevention of Terrorism Act (POTA) into the general criminal justice system. For instance, despite the Committee’s concerns about police corruption, and despite widespread reports of torture and mistreatment of suspects by the police, the Committee seeks to erode the safeguards in sections 25-29 of the Indian Evidence Act which prevent confessions to the police from being admissible in court, unless they were made in the presence of a magistrate. Even though the Committee is concerned about the need to reduce incentives to the police to “resort to compulsion or trickery to obtain a confession”, it is essentially providing the police with the strongest such incentive possible: the knowledge that statements by the accused will be admissible in court and could lead to conviction.
Further, the Committee seeks to introduce POTA provisions allowing the police to intercept “wire, electric or oral communication for prevention or detection of crime”. Human rights activists and jurists have repeatedly pointed to the draconian nature of such provisions. However, the Committee does not appear to have taken them into account.
The most radical suggestions of the Committee would obliterate most of the basic principles of Indian justice system, rendering it unrecognizable. First, the Committee seeks to move the system away from the adversarial type (where the prosecution and defense each present their cases to a passive, unbiased judge) and towards an inquisitorial one, where a judge actively directs the proceedings. This, of course, would give tremendous powers to India ’s judiciary, despite the Committee’s admission that “adequate attention is not paid to look for competent (judges) proficient to handle criminal cases”.
Next, the Committee would like to have the required burden of proof lowered -from ‘proof beyond a reasonable doubt’ to allowing a fact to be considered proved “when, after considering the matters before it, the court is convinced that it is true”. Rather than addressing the reasons, judges may be unable to find guilt beyond a reasonable doubt in many cases – such as poor investigations and incompetent prosecutors – the Committee seeks to make it easier to convict in spite of these weaknesses.
The Committee frequently resorts to gratuitous predictions and grandiloquence rather than set forth arguments to convince readers of the need for this “reform”. It claims that the ‘beyond-a-reasonable-doubt’ standard (rather than corruption, limited resources, and incompetence) is the cause of guilty people going free, and that soon many guilty people will “occupy important and sensitive position (sic) in public life.”If criminals start ruling the country one can imagine the consequences,” it observes. “If crimes go unchecked,” it adds ominously, “anarchy will not be in the distant future.”
Therefore, the Committee implies, the burden of proof must be lowered, and it is irrelevant that many innocent defendants may be imprisoned with the guilty, if a judge need only be “convinced” of a defendant’s guilt to convict him or her.
The right to silence
The next seismic change to a fundamental principle of the criminal justice system is the Committee’s proposed evisceration of the right to silence. The Committee recommends obliterating the right to silence by allowing judges to draw adverse inferences from a defendant’s refusal to answer questions at trial. However, both Article 20 (3) of the Constitution of India and Article 14 (3) (g) of the International Covenant on Civil and Political Rights, 1966, to which India is a party, expressly forbid testimonial compulsion. Article 20 (3) guarantees that “no person accused of any offence shall be compelled to be a witness against himself”. Article 14 (3) (g) guarantees that the defendant “not be compelled to testify against himself or to confess guilt.” The Committee attempts to play semantic games with the word “compel”, maintaining that because silence would not result in punishment for contempt of court, no compulsion exists.
The accused however have very good reason to fear the adverse inferences and will feel compelled to avoid them by testifying at trial. To claim otherwise is disingenuous. Just because the accused will not be directly punished for failing to testify, but rather indirectly punished by the drawing of adverse inferences, does not mean that Article 20 (3) will not be violated. The Committee, however, does not provide any support for its position, instead merely repeating its conclusion as though it were an argument: “Drawing of adverse inference against the accused will not offend the fundamental right granted by Article 20 (3) of the Constitution as it does not involve any testimonial compulsion”.
Other countries which have also guaranteed the right against self-incrimination, such as the United States (in the 5th Amendment to the Constitution) and Canada (in section 11 (c) of the Charter of Rights and Freedom) have refused to undermine the right to silence and have prevented courts from drawing adverse inferences from silence. Only countries which have failed to enshrine the right, such as the United Kingdom and Israel , have allowed it to be eviscerated. The Malimath Committee conveniently ignores the difference in constitutional protections provided by India and the UK and recommends following the British lead in dismantling the right.
The British first abolished the right to silence in cases in Northern Ireland , with the Criminal Evidence ( Northern Ireland ) Order 1988, and followed that by ending the right to silence in England and Wales as well with the Criminal Justice and Public Order Act (UK) 1994. These acts, though their reach is broader than that recommended by the Committee (the British acts allow the drawing of adverse inferences from silence both at trial and during investigation; the Committee recommends adverse inferences only from silence at trial), have failed to increase the overall conviction rate. The most thorough study of the effect of either of the acts was carried out for the Northern Ireland Office by faculty at the Queen’s University of Belfast . This study found that even for trials without juries, guilty plea rates fell after the introduction of the act. “The research also could find no support for the conclusion that conviction rates improved during the period following the introduction of the Order.” Thus, even though more defendants testified at trial this has not led to any of the improvements foreseen by the Malimath Committee: the right to silence does not, it appears, help the guilty.
Not only has the Committee failed to survey the results of the obliteration of the right to silence in countries whose constitutions, unlike India’s, allow it, the Committee has also failed to examine any of the academic work on the right to silence, relying instead on faulty platitudes about the right to silence helping only the guilty. An article in the Harvard Law Review employing game theory and the Nobel-prize-winning theory of the pooling of bad information with good information, demonstrates that the right to silence helps the innocent by lending credibility to their stories. When there is no right to silence, the guilty “pool” their lies with the true stories of innocent defendants, lessening the general credibility of the stories of innocent defendants. While the right to silence does not help the guilty by shielding them from conviction, it does help the innocent by increasing their chances of going free.
Although these are solid reasons not to abandon the right to silence, the most important reason resides in the Constitution. It is, simply, a violation of Article 20 (3) to force a defendant to testify. It is alarming that fact alone does not stop the Malimath Committee from pursuing this issue.
In fairness, the Committee’s goals of rectifying judicial delay and improving the conviction rate are laudable, and some of the reforms suggested are quite welcome. For example, it recommends better training for police, judges, and prosecutors. The Committee is particularly concerned with excessive judicial vacations and poor handling of dockets and with public distrust of police. There are good suggestions regarding specific crimes, and some of the results of blurring the distinction between cognizable and non-cognizable crimes would be beneficial.
However, the implicit proposal to alter the fundamental principles of the criminal justice system would dismantle basic human rights guaranteed by the Constitution. Given that the Committee consisted of at least two eminent names in Indian jurisprudence, it is appalling that certain issues were even taken up for discussion.
AGENT OF CHANGE 
We bettr struggle for indipendence from indian rule