Indian Journal of Human Rights Volume-7, Nos, 1&2, Jan-Dec. 2003 Colonial Power and Production of Truth: A Critique on the Report of the Malimath Committee! * B. Chandra Sekhar Thomas Hobbes, Leviathan ‘The Anglo-Saxon legal system that was imposed on Indians by the British has been persisting even afier the Independence. This is also true with regard to other institutions of administration. The British, who considered Indians sub-humans, disseminated a feeling that they were trying to graduate Indians into a new civilization and to a domain of knowledge, which they felt ‘white man’s burden’, In his speech in the House of Commons on 10 July 1833. on the India Bill, Macauley said, “The destinies of our India Empire are covered with thick darkness. ...It may be that the public mind of India may expand under our system till it has outgrown that system; that by good government we may educate our subjects into a capacity for better government; that having become instructed in European knowledge they may, in some future age, demand European institutions. Whether such a day will ever come, I know not. But never will I attempt to avert or retard it. Whenever it comes, it will be the proudest day in English history.” For H.M. Seervai “the proudest day in English history of which Macaulay spoke, dawned on 26 January 1950 when the Constitution of India came into force.”* ‘The Constitution is more Western than Indian, Hence, “the passing of the constitution did not stimulate a revival in Indian studies of law. To the practitioner the new idiomatic phrases, used in the Constitution were a means, and an opportunity, to reinforce their declining status. To the judge, the new constitutional doctrines provided an opportunity to display his cosmopolitan understanding and learning. A new comprehensive literature was developed which mechanically cross-referenced Engli Indian Constitution. While Indian law was caught in it being manipulated by the more advantaged sections. The result was as piquant as it was purposive. Dressed in Western garments, Indian public and private law served emerging interests with an untidy integrity.’ Indigenous jurisprudence has been the worst casualty in this process. In law, American, and Australian citations for analogous provisions in the s also ‘craze for foreign things’, it w: * ‘This paper is « revised version of the paper presented at the seminar organized by the Bar Council of Andhra Pradesh in collaboration with the Guntur District Bar Federation in Guntur on 29* September, 2003. The author is thankful to Dr. B. Thirupathi Rao for his valuable suggestions.191 native is dead, and there are no mourners’. Orient is discarded and usurped. Occident is revered and emulated. This is done in the name of Modern/Pre-modern. The Pre-modern has always been the other of colonial ‘modern’. ‘The colonial masters showed several fundamental things to eulogize their criminal justice ‘more civilised than the pre-modern criminal justice delivery mechanisms*, Contextually, the major distinguishing features are: 1) the presumption of innocence of the accused, and the burden of proof, beyond reasonable doubt, on the prosecution, and 2) inadmissibility of confession toy in the custody of police. Report of the Malimath Committee (MC) on criminal justice would like o make, to invoke Bentham’s phrase, nonsense upon stilts”, and is for total substitution of the two basic canons that made us to fall in love with the colonial justice system. We were made to believe that the two cannons are magic sticks of fairness that were lacking in the native legal mechanisms which was why they were not just or civilised ways of administering criminal justice. ‘The anomaly is that the Report of the MC and its supporters are for smashing the magic sticks on the altar of the so-called ‘truth’. Their peers bolstered procedural justice of the colonial legal system, which was supposed as the hallmark of faimess and equity. Now they propose to further colonise the Indian legal system by bringing into play the inquisitorial methods of France and US's plea-bargaining means of confessions and convictions. In fact, the report pays lip service to procedural justice only to destroy it*. Considered important are, convictions by fast forwarding the tial procedure, allowing confessions, and. “ping off the presumption of innocence, and MC also proposes to replace ‘proof beyond reasonable doubt’ with ‘clear and convincing’ standard of proof. “The Committee after careful assessment of the standards of proof came to the conclusion that the standard of proof ‘beyond reasonable doubt’ presently followed in criminal case should be done away with, and recommended in its place a standard of proof lower than that of ‘beyond reasonable doubt’ and higher than the standard of “proof on preponderance of probabilities.’ The Committee therefore favours a mid level standard of proof of ‘court’s conviction that itis true.”” It recommended that a clause be added in Sec. 3 of the CrP-C. on the following lin otherwise provided, a fact is said to be proved when, after considering the matter before it, the ourt is convinced that it is true."® Tis the subjective satisfaction of the judge instead of the objective criterion that guides him/her to shepherd the accused to the penal colony. What all judge thinks will be considered as rational. Reason is equated with what all appears to the judicial authority as convincing. Truth is that which convinces it. The enlightenment utopia of replacing God by Reason has been proven, once again, as unfinished as itis considered Utop based on objective criterion with the reason of the judge. There are no criterion to decide what 's convincing and what is not. With this, the judge’s mind occupies the centre stage of the trial Process with his present function of umpiring taken away, and will be given freehand to decide the fate of the captive-at-the bar, and there are no rules of the assessment of guilt except the personal preferences of the judge. Faith and belief are rejuvenated. Jn criminal cases, unless "° by this transmogrification of the reason192 Colonial Power and Production of Truth: A Critique om the Report of the Malimath Committee Acting on faith and belief does not belong to the realm of Reason. It belongs to the province of the Pre-modem. The modem judg or, to invoke the concept of Savigny"', Volks; affinity to the truth. Malimath’s judge forms belief not basing on the community’s knowledge. Denuded of his/her innocence, faith and belief in the accused will be evaporated. It will end up ina situation where in every accused would be under constant threat to be penalised. ith and belief have no basis in the community the spirit of the people that had the organic Nevertheless, Mr. Justice Malimath and his men assume that the proposed system is more cit lised/rational than the legatee of colonialism and the native/pre-colonial ways. Instead of sticking on to justice and procedural fairness, they now switched over to the discourse of ‘truth’! which is more elusive than the abstract criminal himself, for we see only “the other’ as the criminal and the criminality in the ‘otherness’ of ‘the other’ who makes us fixated at him/ her." There is no love lost for both the cannons, which are considered foundations of the criminal justice system, as case by case ended up in acquittal due to the hostility of witnesses to the . which should not in all cases be taken as embodiment of truth. The impatience of being unable to convict sufficiently, made us to disrespect the foundational principles of justice. The morality of delivering legal justice according to legal evidence has been progressively replaced with what is called moral judgment in legal corridors. In the legislative discourse a trend is set in to give the Hobbesian eviathan a sympathetic treatment, to the disadvantage of the individual accused, to get rid of the burden of proving the case. Innocence is replaced with guilt in practice by certain criminal laws'*. Evidence is not weighed in the same scales in which it was in 1950s, 60s or even in 1970s. We started reducing the quantity and quality of eviden required to adjudge the accused as guilty, Now the colossal burden of carrying the guilt and suffering the sentence to satiate the public'* has been shifted by moral judgment to the accused who could not get witnesses hostile to the prosecution. Even then, rate of convictions are far less than the rate of acquittals. prosecution There developed a tension between the legal text and the ‘truth’ to be produced to maintain the strength of prison populace, and to feel protected from ‘the criminal’ without whom there is no ‘we'!®, Adjudication has become more an act of power than of cognition, Long back it ceased to be an act of epistemology. Legal text!” that is to be abided is taken as obsolete and considered stumbling block in between the punishment and the criminal. The procedural fairness and the safeguards are regarded as more useful to the guilty to escape penalty. Obedience to the legal text is no more considered worthy in all contexts. “The morality of the judicial obedience to an objective text depends upon the morality of the objective text that is obeyed’."* The text is not moral convicting accused by violating the text has been considered moral. Thus, its respect has been thoroughly fractured. The interpretive authority of the judiciary has been spent to reconstruct ‘and deconstruct the legal text time and again in conflicting ways. In essence, the MC proposes the replacement of the text itself, which is in consonance with, to use Roscoe Pound's concept,— B. Chandra Sekhar 193 Living law. There need not be moral judgments hereafter. There will be only legal judements. Most Of the non-legal elements employed in the production of judgments would be made legal. The Proof of ‘court's conviction that itis true” operates as a camouflage to the moral judgment. De Facto will be made de jure, It will ultimately relieve the judiciary from the pain of Freudian guilt. The problems of the colonial legacy have becn shown salvage by the colonial potion Packaged by Dr: Justice. Malimath et. al. The colonial negation of the confessions to police/ in the custody of the police was negated in 1987, after 200 years of its existence, in the TADA: the Apex Court upheld it.” After superannuating of TADA, it was reincarnated in the POTA.2” MC Fecommends it to be adapted in all cases making the Indian Evidence Act a confession manual of middle ages.” This I call potaisarion of the entire criminal law. The confession, after all climinates the need for dispute and-adjudication.® The very protection of the Constitution will be abrogated with no amending process.” The Constitution Review Committee had not even dared to touch the fundamental rights, But MC has done it, Report of the MC is nothing but the subversion of the Constitution under the guise of truth seeking. The questions posed by the MC™ divulged its mind of undermining the Constitution “much prior to the drafting of the report: ‘In the system presently followed, the accused enjoys the “right 10 silence,” which often somes inthe way-of search for ruth in criminal cases. Should this be changed requiring the accused ‘o disclose his defence, once the prosecution case/charge leveled is made known to him? After asking this question, the Committee seeks stiggest mea respondents, in the next question, to s of bypassing the guaranteed constitutional right. ‘Do you think that Article 20 (3) (which confers right against self-inerimination), or any other provision of the Constitution omes in the way of the above changes? If So, please suggest how this can be overcome? 's there any other way to overcome it except amending the Constitution itself? Is the MC So naive to pose such a question? “the accused remains silent, do you favour adverse inference being drawn by the Court, if other circumstances permit?” Revealed nakedly in the questionnaire was the intention of the MC to sidestep the Constitutional safeguards, while its legerdemain in bypassing the Constitution is mirrored in the report: “Right to silence is a fundamental right guaranteed to the citizen** under Article 20 (3) of the Constitution which says that no Person shall be compelled to be a witness against himself. As194 Colonial Power and Production of Truth; A Critique on the Report of the Malimath Committee the accused isinmosteases the best source of information, the Commitee felt that while-respesting sed a way must be this critical source of information. The Committee feels that without subjecting the accused to any duress, the court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused.”° How could one respect the mutually exclusive categories? How could there be a respect for the right to silence when there is the Damocles sword of adverse inference hanging on the head of the same right bearer?” The MC’s quest for ‘truth’ ends up in the mouth of the accused. In its search for the exiled truth, it finds several blockages: the right to silence, the presumption of innocence, and the inadmissibility of confessions to Police. It undauntedly went on axing all that came in its long march for ‘truth’. In order to make the accused confess hivher crime, MC went to the extent of bereaving the accused of the presumption of innocence, and burdening him with proving innocence, that is no more presumed. Truth will be chauffeured into courtroom from the mouth of the accused, MC recommends for breaking down the silence at the interrogation stage and making the confessions. admissible in evidence, requiring the accused to state his/ her defense, introduction of the concep of admitted facts, and plea-bargaining which itself is confession by other means. Drawing adverse inference if the accused is silent on questioning in court is employing fiction to produce the truth” Ultimately the country will be made a penal colony. “Truth does not belong to the order of power, but shares an original affinity with freedom. ...[I]ts production is thoroughly imbued with relations of power. The confession is an example of this.” Threatened by authority “one may confess without being guilty.” When procedure itself doubly operates as a means as well as an end in itself Le., as a means to determine the guilt or otherwise (in the case of MC to achieve the avowed object of ‘truth’) and as a punishment, fear of procedural justice, in some cases, may make innocent accused plead guilty, Truth is no guarantee in confession, But, power is always ready to swing into action to subjugate the accused to get confession. Gandhi’s experiments with truth resulted in non-violent path in his struggle against colonialists. MC's experiment with truth, on the contrary, will legalise state violence by making admissible what all beaten out and/or attributed to the accused in the first person narrative in the police records. This is a paradigmatic shift in the perceptions. As Gandhi tried (to relate truth and non-violence, we are moving to relate truth with violence. The more violence is used the more the silence of the accused is broken down and truth will come out of its hiding place to bring in reason to punish him’. MC is unmindful of the Kafkaesque scenario emerging in this process: Itis nothing but juxtaposing Goliath against David. But this time David is destined to be defeated. ‘There are no umpires. For MC. judge is no more an umpire but a truth seeker, and the truth is persona® epitomising truth. With the other propositions of the MC cutting into the adversarial system, the choreography of trial process is proposed to be deconstructed as a struggle over narratives.”* There will be only one “true narrative’, the narrative of the prosecution. that David is guilty. He is counterfeited on the stage of the trial — court,B. Chandra Sekhar 195, Truth ofthe prosecution case is undoubted version of the truth of the crime as, the judge 's also, unlike under the present procedure, is also a producer of it. MC is for involving of the Judge in the investigation stage of the case to give directions to the investigator “so as to assist the Court in search for tuth.”™ The truth of the accusation against the accused be made the offspring the judiciary also. The labour pains of delivering such a truth by the Judge, though not the same judge who tries the accused, makes himvher to sce that it is vindicated. ‘The truth belongs to the judge. Accused is seen as an antithesis of the truth. He should be shattered to accept itand invite punishment — the price of the truth that is negotiable. If will not, he will be SnY Way Punished because not only his/her culpability is “clear and convincing” for the judge ‘who had par taken in the production ofthe truth of the prosecution case, but also he/she is taken as ying, and awarded punishment which is non-negotiable. Defence lawyer would be conceived as the demolisher of this truth discourse. His/her metamorphosis into a bargainer on behalf of the prisoner, who is caught in the discourse of truth, would be complete. In near future defence lawyers would be becoming an extinct species. Criminal justice system reconstructs a past fact—the crime. Its function is akin to that of historian who culls out history with the help of archeological evidences. Both the judge and the historian involve in producing truth, But, unlike the historian’s, the truth produced by the judge in criminal cases, has far reaching consequences on the liberty of the individual adjudged as Suilty™ though the ‘uth’ of the erime declared by the judge is not the absolute truth. I is one of the truths of the crime A fact is pronounced as the fact by the judge, and it becomes a fact/truth because a judicial authority declared so. This Frankian concept, if logically elaborated, could be reduced {oE-H.Carr’s statement that “there are no facts [but] only perceptions about facts." For Jerome Frank facts are guesses. “What is F? Is it what actually happened between Sensible and Smart?” Posing this question Frank answers: “Most emphatically not. At best, it is only what the trial court...thinks happened.”*7 “What the tial court thinks happened may, however, be hopelessly incorrect. But that does not matter—legally speaking. For court purposes, what the court thinks about the facts is all that matters. The actual events, the real objective acts and the words of Sensible and Smart, happened in the past. They do not walk into court. ‘The court usually leams about this real, objective, past facts only through the oral testimony of fallible witnesses Accordingly, the court, from hearing the testimony, must guess at the actual, past facts, Judicially, the facts consist of the reaction of the judge or jury to the testimony. ‘The Fis merely a guess about the actual facts. There ean be no assurance that F, that guess, will coincide with those actual, past facts.” Butithas the edge of a judicially pronounced truth. The effects of the ruth produced by Judge draws its force from the authority/powers that he/she has. Thus the courts are centres of Production of judicial truths. They are expected to produce required quantity of ‘truth’ in order {0 Prodiice certain amount of judicially proclaimed culpability and penalty. Foucault explains the relationship between power and truth and their interdependence:196 Colonial Power and Production of Truth: A Critique on the Report of the Malimath Committee “We are subjected to the production of truth through power and we cannot exercise power except through the production of truth. This is the case of every society, but I believe that in ours the relationship between power, right and truth is organised in a highly specific fashion. _.. We are forced to produce the power that our society demands, of which it has need, in order to function: We must speak truth: we are constrained and condemned to confess or to discover the truth. Power never ceases its interrogation, its inquisition, its registration of truth: it institutionalises, professionalises and rewards its pursuit. In the last analysis we must produce truth as we produce wealth, indeed we must produce truth in order to produce wealth in the first place. .. Inthe end we are judged, condemned, classified, determined in our undertakings, destined to certain modes of living and dying, as a function of the true discourses which are the bearers of the specific efforts of power”. By making the judge as ‘truth’ seeker MC strengthens the relationship between juridical power and production of truth. The real problem of the colonial criminal justice system is that it is alienated from the people. Isolation is the qualification of it. In the same logic it is located far away by space and time from the crime and the proof of crime. It is not only physically separated and mentally estranged but also semantically distinct from the masses of this country that are still pre-modem. Secondly, it is qualified to avoid certain human qualities, like love, passion and compassion ete. Indian Evidence Actis structured to ward off such qualities from courtroom. Reason is the basis, s is further departure from the Pre-modemnity ‘on which modern legal justice is administered.” Thi in law's empire. ‘To compensate the alienation of judicial process from the locus of truth, and in order to make it appear more just, procedural justice is invoked. Unmindful of genealogies of the modern gal system, MC proposes the withdrawal of the consent manufacturing/compensatory basic cannon duo from the law. In contrast to the modern criminal justice system, in pre-colonial/pre-modem criminal justice delivery mechanisms the adjudication is at the locus of the truth itself. Itis neither spatially nor by time separated from the locus of truth, Evidences and witnesses are not in mystified form, ‘They are there and in most cases, certain. The accused need no representation of a forensic expert. For them, adjudication is not akin to writing history. Therefore, they need no/litile procedural safeguards as are necessary to the modem legal process of determining guilt."' As magic sticks taken away, the present system will hand down more unfreedom, and becomes more inequitably disposed towards people. In the process the worst sufferers are the marginalised Pre-modem masses of the country who are ‘the other’ of the Modern self. ‘The MC report is a neo-liberal onslaught on Pre-modern masses. It is released at a time when the ideologues of neo-liberalism are aiming at globalisation in the domain of law and legalB. Chandra Sekhar 197 system in consonance with that of economy®. It is the second great war on the legal justice that exists here, The first one was waged by the East India Company, and later continued more vigorously and systematically by the British Crown, Neither the present legal system nor the Proposed one have roots in the Indian experience. Shall we think of other alternatives? Shall we Pursue genuinely local/native/aboriginal alternatives? They have no existential problems and are living in the day-to-day life of the majority of the folks depriving the statist legal system of its aspired status of being the legal grand narrative Shall we plead a case fora legal community opposed to the colonisation/marketisation of Juridical institutions, and committed to decolonisation? How long shall we bear the colossal colonial burden? ~Notes and References: * Constituted on 24" November 2002 by the Home Ministry of the Government of India, it was christened as Committee on Reforms of Criminal Justice System. Its Chairman was Dr. Justice VS. Malimath, former Chief Justice of Kamataka High Court and Chairman of Central Administrative ‘Tribunal, and former member, National Human Rights Commission. The members were Mr, Justice TS, Arunachalam, former Acting Chief Justice of Madras High Court, Mr. Varadachary, formerly Advisor, Planning Commission of India, Mr. Amitabh Gupta, former DGP, Rajasthan and Prof. NLR. al Sciences. The Committee submitted its report in April 2003 containing one hundred and fifty eight recommendations. Madhave Menon, Vice Chancellor of West Bengal National University of Juri Quoted from H.M.Scervai, Constitutional Law of India, (Universal Book Traders, 1999), 1 * Ibid. Rajiv Dhavan, Introduction to Law and Society in Modern India, Mare Galanter, (Oxford University Press, 199! This is true in respect of the modern/westernised Indians. But, for vast of the masses of this country, even today, the modern legal system is as alien as it was under colonial rule. Native law is still alive in their praxis. 1 do not want to call them systems, and prefer to use plural. Some people with vested interest in modemity believe in the emancipatory capabilities of the Reason, conveniently equate the pre-British Jaw with the Manu’s despite the fact that it had a minority existence here. They have a colonial Perception of “the Hindu’ which itself is the offspring of the colonizer. But in reality there were several provincial and/or caste/tribal traditions in law that are coalesced with the myth, magic, belief in god etc. This plurality was disturbed with the advent of the colonial in Indian law:198 Colonial Power and Production of Truth: A Critique on the Report of the Malimath Committee Criticising the concept of non-legislated rights Jeremy Bentham wrote that those rights were “nonsense upon silts’ and fictions like the ‘belief in witches and unicorns’. See: Costas Douzinas, The End of Human rights ~ Critical Legal Thought at the Turn of the Century, (Hart Publishing, 2000), 11. “The Committee on balance felt that a fair trial and in particular, fairness to the accused, are better protected in the adversarial system. However, the Committee felt that some of the good features of the Inquisitorial System could be adopted to strengthen the Adversarial System and to make it more effective.” The Report has not explained could adversarial system be strengthened if that is done? © The Malimath Committee, Combat Law, Vol.2 Issue.2, 48. Reinhart Koselleck argues that the “Enlightenment itself became Utopian and even hypocritical... [And] succumbed to a Utopian image which, while deceptively propelling it, helped to produce contradictions which could not be resolved in practice and prepared the way for the Terror and for dictatorship.” Rein hart Koselleck, Critique and Crisis ~ enlightenment and the Pathogenesis of Modern society, (Berg, 1987), 1-2. Savigny considered “legal system was part of the culture of the people. Law was not the result of an arbitrary act of a legislator but developed as a response to the impersonal powers to be found in the people's national spirit. This Volksgeist “a unique, ultimate and often mystical reality” was, Savigny believed, linked to the biological heritage of a people’. See: Lloyd's Introduction 10 Jurisprudence, (Sweet and Maxwell Ltd., 1994), 785-786. The 41 report of the Law Commission of India submitted in 1969 consequent upon which the Code of Criminal Procedure, 1973 was enacted, fairness to accused was stated as one of the basic considerations. It was recommended that ‘an accused person should get a fair trial in accordance with the accepted principles of natural justice.’ See: Statement of Objects and Reasons in The Code of Criminal Procedure, 1973. ‘The Report of the MC now shifts the focus from the fairness to the truth, It proposes a preamble to the Code on these lines: “Whereas quest for truth shall be the foundation of the criminal justice system, “Where as it shall be the duty of every functionary of the criminal justice system and every one associated with it in the administration of justice, to actively pursue the quest for truth.” The Committee also recommends for a separate section above Sec.31 lof the Code: “Quest for truth shall be the fundamental duty of every court.” Power of the court to examine a witness or recall a witness already examined for the reason that it is “essential to the just decision of the e: Now it would like to get the words ‘essential to the just decision of the case” replaced with “necessary for discovering truth in the case.” Its aversion to justice and its adoration of truth are visible and annoying. It also proposes for inherent powers to all courts to discover truth See: Combat Law, ibid, 46. © Wet never sees criminal within it, The State can never be a criminal under its own laws. The more “we* eludes the truth of crime from within it, the more the eriminal and the truth appears to be elusive to it. | For example NDPS Act, TADA, POTA, and provisions relating to dowry deaths.B. Chandra Sekhar 199 ‘* “Public” is not an uncontested word. In judicial discourse it is used as if it were a synonym for ‘people’, the general populace of the country. But, ‘public’ is a western/modem conception. Our In a country where pre-modem people constitute ‘public’ is comprised of westernised/modem section the majority “public” denotes none of them. "© Karl Marx saw criminal as the raison d’étre of an exploitative society: ‘A philosopher produces ideas. a poet verses, a parson sermons, a professor textbooks etc. A criminal produces crime. But if the relationship between the later branch of production and the productive activity of society is examined alittle more closely one is forced to abandon a number of prejudices. The criminal produces not only crime but also the criminal law; he produces the professor who delivers lectures on this criminal law, and even the inevitable textbook in which the professor presents his lectures as a ‘commodity for sale in the market. ... The criminal produces an impression now moral, now tragic, and renders a ‘service’ by arousing the moral and aesthetic sentiments of the public. He produces not only textbooks on criminal law, the criminal law itself, and thus legis it itors, but also art, literature, novels, and tragic drama, ...The criminal interrupts the monotony and security of life in capitalism, Thus he protects it from stagnation and brings forth that restless tension, that mobility of spirit Without which the stimulus of competition would itself become blunted. He therefore gives a new impulse to the productive forces. ...The criminal therefore appears as one of the those natural “equilibrating forces’ which establish a just balance and open up a whole perspective of ‘useful’ occupations.” Karl Marx, Theories of Surplus Value, Vol. 1 (Progress Publishers, 1975), 387-388, Kannabiran adds thus: “Apart from juri and prosecutors, Who have eared fortunes and achieved fame. It has provided jobs in chemical technology, ballistics and the like sciences. Entrepreneurs have invented ways of storing wealth, which were advertised as burglar proof. The impetus to productive has been tremendous. When we ook at the impressive infra structure for which the criminal is responsible we may very well doubt ‘Whether crime is as dispensable to this society as is made out by its ideologues.” Crime and Punishment, KG. Kannabiran in Sumantha Banerjee, Capital Punishment: Legal, Political and Human Dimensions, (Bhoomaiah Kista Goud Memorial Committee, 1979), ime has produced an impressive array of defence lawyers, T mean the laws proper und include the precedents, "Robin West, Narrative, Authority and Law, (The University of Michigan Press -1993), 92, " Kartar Singh y. State of Punjab (1994 CRLEJ. 3139 S. * Section 32 of POTA reads as follows: “wD of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from ont of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made there under, ‘onfession made by a person before a police officer not lower in rank than a Superimtendent (2) A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him:200 Colonial Power and Production of Truth: A Critique on the Report of the Malimath Committee Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession (3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it. (4) The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along With the original statement of confession, written or recorded on mechanical or electronic device within forty-eight hours, (5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a ‘Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be shall be sent to judicial custody. It was argued by the supporters of the POTA that the sub-section (5) were said to be safe guard against abuse of the process of law. But, in reality the signature of the accused puts a hermeneutical seal on the confession if police intimidation also makes the confessor to state that he was not tortured ‘and the confession was real and not under duress. 2) Recommendation No. 37 of the MC is for amending Sec.25 of the Indian Evidence Act. Combat Law, ibid, 50. 2 Elaine Searry, Speech Acts in Criminal Cases in Law's Stories, edited by Peter Brooks and Paul Gewirtz, (Yale University Press, 1996), 167. ® ‘The Terms of Reference of the MC are: #10 ex inciples of criminal Justice. ‘and amendments are required there to; # to examine in the light of findings of fundamental principles and aspects of criminal jurisprudence as to whether there is a need to rewrite the Code of Criminal procedure, the Indian penal code and the Indian Evidence Act to bring them in tune with the demand of the times and in harmony with the aspirations of the people of India; # To make specific recommendations on simplifying judicial procedures and practices and making them the delivery of justice to the common man closer, faster, uncomplicated and inexpensive: # to suggest ways and ‘means of developing such synergy among the judiciary, the prosecution and the Police as restores the confidence of the common man in the Criminal Justice system by protecting the innocent and the im and by punishing unsparingly the guilty and the criminal; # to suggest sound system of ‘on professional lines, the pendency of cases at investigation and trial stages and making the police, the prosecution and the judiciary (Emphasis added) (Source: www.cjsreformscommittee.org). untable for delays in the respective domains. 2 The Committee released its questionnaire containing 127 questions in 4 parts. Part A titled “Law & Principles’ contains 4 sections: 1. Adversarial System & Right to Silence, II. Burden of Proof, ITL Plea- Bargaining/ Settlement without Trial/ Compounding of Offences, IV. Sentences and Sentencing,B. Chandra Sekhar 201 V Victim Participation and Compensation; Part-B (Institutions) deals with Section VI. Trial/Couris! Judges, VIL Investigation, VIII. Prosecution, Part-C is on Federal Crimes, and Part-D is on “General” issues. ibid, Questionnaire had been sent to 3.164 individuals. There were less than 300 responses. Out of 28 states, only seven state governments and only nine state police bodies submitted responses. Source: www.amnesty.org. This right is guaranteed non-citizen subjects also. See; Nandini Satapathy v. PL. Dani (AIR 1977 SC 1025). Combat Law, ibid, 46-47. ‘The hypocrisy of MC is seen from the comic cameo appearance of rights of the accused its discourse. Having taken away the very fundamental rights of the accused it advocates for codification of ‘rights of the accused flowing from the laws and judicial decisions’ to be placed in the Schedule of the Code of Criminal Procedure. See: ibid, 47. Mr. K.G. Kannabiran introduced the concept of criminalisation through fiction in a recent seminar organised by the Indian Association of Lawyers & Bezawada Bar Association in Vijayawada, Michel Foucault, The History of Sexuality (Vol-1), (Penguin, 1978), 60. In Telugu fiction, Ravi Sastry’ Kathalu, when questioned by a magistrate whether committed the crime, the accused says she admits short stories, provides classic examples, In a story in Arusaara it. The perplexed young judicial officer, who sees a difference in committing crime and admitting crime, on repeated questioning, gets the same answer from the pre-modem prisoner-at-the bar. Is ita Freudian slip in the MCR when it spoke about conviction of accused persons, but not preferring neutral words like “determination of guilt’? See the following extract from the report of the committee: “More specifically, the aim (of the criminal justice system) is to reduce the level of criminality in society by ensuring, maximun detection of reported crimes, conviction of the accused persons without delay, awarding appropriate punishments to the convicted to meet the ends of justice and to prevent recidivism.” (Report, p.21, 1.40, emphasis added), Source: www.amnesty.ory. Persona int signifies the disguise, or outward appearance of a man/women, counterfeited on a stage Law and literature movement considers the rival claims in the trial process as opposing stories and narratiy . “The goal of story telling in law is to persuade an official decision maker that one’s story is true, to win the case, and thus to invoke the coercive force of the state on one’s behalf.” Paul Gevirtz, Narrative and Rhetoric in the Law in Law's Stories, edited by Peter Brooks and Paul Gewirtz, (Yale University Press, 1996), 7. ~A provision on the following lines be added immediately below Section 311 of the Code: Power to issue directions regarding investigation: - “any Court shall, at any stage of inguiry or tial under this, Code, shall have such power to or to direct the Supervisory Officer to take appropriate action for proper or adequate investigation so sue directions to the investigating officer to make further investigation a8 to assist the Court in search for truth.”x6 Colonial Power and Production of Truth: A Critique on the Report of the Malimath Committee Reminding the forgotten force of the word of judge by the jurists who turned to hermeneuti semiotics and literary theory, postmodernist jurists Costas Douzinas and Ronnie Warrington says: “Legal judgments are both statements and deeds. They both interpret the law and act on the world. A conviction and sentence at the end of trial is the outcome of the judicial act of legal interpretation, But, it is also the authorisation and beginning of a variety of violent acts. The defendant is taken away (o a place of imprisonment or of execution, acts immediately related to, indeed flow from the judicial pronouncement’. Quoting Cover (“Violence and the World” Yale Law Journal 95 (1986)- 1601) they add: “But Cover has reminded us, in our obse “legal interpretation takes place in a field of” pain and death”. The main if not exclusive function of ‘many of the judgments is to legitimise and trigger off past or future acts of violence. ...Judges, what ever else they do, deal in fear, pain and death’ Costas Douzinas and Ronnie Warrington A Well Founded Fear of Justice: Law and ethics in Postmodernity in Legal Studies as Cultural Suudies —A Reader in (Post) modern Critical Theory. (State University of New York Press, 1995), 197-199. n with hermeneutics we forget that EH. Carr, What is History?. (Penguin Books, 1970). Jerome Frank, Courts on Trial - Myth and Reality in American Justice, Princeton Unive sity Press, 1949), 15. For a discussion on American Legal Realism see: Lloyd's Introduction to Jurisprudence, (Sweet and Maxwell Lid., 1994), 655-723 Ibid, 49-50. Michel Foucault, Two Lectures in Power/ Knowledge ~ Selected Interviews and Other Writings: 1972-1993, (Pantheon Books, 1980), 93-94. For that matter, itis to be borne in mind that Modernity itself had been heralded in the 17 Century Europe with reason replacing the God as the center of human social praxis. Reason has been given an elevated status in the legal truth seeking, and thus, the juris claimed to be a science. 1 am not romanticising the pre-modern as a just one in all aspects. In it too, there are class/easte/ But the point is, whatever may be the deficiencies, they are closer to the people and more humane than the existing one. gender bias From 1990 onwards, international capital has started engineering the legal and judicial reforms n Bank and Asia about 26 countries. targeting third world countries. Between 1993 and 1997 WB, Inter-Ameris Development Bank had together spent/lent US$50O million under this aecount i Governments of Japan, Switzerland, France, and German GTZ and American Bar Association are also participants of this colonial project. Africa Development Bank and European Investment Bank are the direct partners. Now the legal and judicial reform hit-list of the Bank contains 84 countries and over 45 specialised areas including “assessment of legal system for private sector development, judicial reform, administration of courts, legal education, legal training for the legal profe: ion, legislative drafting, land reforms, and computerisation of laws and legal information. To date WB has supported, accor projects and total lending under this account worldwide is over USS380 million. (There was an abortive attempt by the USAID and Ford foundation in 1960s to implant American legal culture in ng (0 its President, 480 activities in 84 countries including 35 freestandingB. Chandra Sekhar 203 India. The legal brains of the Wisconsin Law Society took up the project christened as ‘Law and Development Movement’. Mark Galanter of Competing Equalities fame settled down in Bombay and tried his best to discharge the ‘white man’s burden’. This project had been the outcome of racist ideology that believes in the superiority of American laws and legal system). WB hosted two conferences one at Washington (2000) and the other at St, Petersburg (2002) craving for ‘globalising legal systems’ and ‘market friendly judiciary.’ A research project of rewriting Indian laws in the wake of globalisation was initiated in 1993 by UNDP and Finance Ministry, GOI with the initial involvement of legal scholars of the National Law School of India, Bangalore. Its titled as LARGE (Legal Adjustments and Reforms for Globalising the Economy). See: www.worldbank.org.