Act on Malimath report on pro-active role for judges
When actor Salman Khan was acquitted by the Bombay High Court last year in the drunken driving case—in which he was convicted by the lower court for running over five people and killing one—apart from the public anger against the police and the prosecution for doing a shoddy job, the question uppermost on most minds was why the judge did nothing. If Salman’s lawyers tried to cast doubt on the allegation that he was drunk, surely the judge needed to have asked them about the restaurant bill charged to the actor which showed drinks had been bought? If key prosecution witnesses turned hostile, disappeared and then reappeared while claiming he was being hounded, surely this is something the judge needed to consider? And how did case files and original statements so critical to the case disappear? While the sad twists and turns of this and other such cases made for riveting cinema of the Jolly LLB type—that was actually based on the Sanjeev Nanda hit-and-run case, though—the fact that the Salman acquittal is not unique is a sad reflection on the justice system.
It is to take care of precisely such eventualities that, more than 13 years ago, the Justice VS Malimath committee on reforming the criminal justice system suggested a series of far-reaching reforms, the most important of which was to combine the best of the adversarial system that we follow in India with elements of the inquisitorial system followed in European nations like France and Germany. At its heart is the recommendation that the code of criminal procedure be amended to ensure that it is the duty of ‘every functionary of the criminal justice system …to actively pursue the quest for truth’. There are, and will always remain, the issue of shortage of judges and inadequately staffed police forces that need to be dealt with, but Malimath’s main recommendation was that the law be changed to allow judges to direct the investigation to prevent the abuse of process. This includes supervising the inquiry by the police, asking for more investigations into certain aspects of the case and finding ways to ensure witnesses don’t turn hostile—one possibility is that certain types of witnesses give their evidence in the form of affidavits and these be challenged primarily by way of counter-affidavits.
In the Malimath scheme of things, the judge is free to question the accused to elicit relevant information and draw his conclusions if there is no response—in the Salman case, in a post-Malimath situation, the judge could have confronted the actor with his restaurant bill and the key witness statements; he could have asked Salman how his driver surfaced so long after the event and claimed he had been at the wheel. Had judges been empowered to ask such basic questions—the judge in Jolly LLB, in fact, expressed frustration over his inability to take charge—in the Salman case, it is possible the case would have ended differently. Asking for a statement of prosecution to be served on the accused at the beginning of the trial and a defence statement replying to each specific allegation—another Malimath recommendation—will not only speed the trial, it will ensure no sudden surprises in the middle of the trial. When the advisory council of the national mission for justice delivery and legal reforms meets later this week to consider the Malimath recommendations along with others, hopefully, a quick decision will be reached—the country cannot afford to wait another 13 years.