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Association of Retired Senior IPS Officers (ARSIPSO)

This is with reference to my letter No. ARSIPSO/GS-BSD-4/2023 dated. 10/08/2023 on the 4th B.S. Das Memorial Lecture, which had to be rescheduled for unavoidable reasons.

The 4th B.S.Das Memorial Lecture to be delivered by Shri Anil Kumar Sinha, IAS (Retd.), on the subject Disaster Management: Creating Safer Communities, has now been rescheduled for October 14, 2023 as per the following:

Conference Room No. 2, India International Centre, Max Mueller Marg, New Delhi, October 14, 2023 (Saturday)

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The Committee on Criminal Justice Reforms constituted under the Chairmanship of Justice V.S. Malimath, former Chief Justice of Karnataka and Kerala High Courts, has made a number of important recommendations for revamping of the Criminal Justice System so as to restore the confidence of the common man in it by protecting the innocent and the victims and punishing unsparingly the guilty and criminals. It has also examined some of the fundamental principles of criminal Jurisprudence and recommended that in criminal case the standard of proof should be clear and convincing proof and not proof beyond reasonable doubt. This alongwith some other recommendations of the committee has sparked off animated debates and created differences of opinion among the jurists, lawyers and members of the public.

Proof beyond reasonable doubt has not been defined. Prof. Wigmore in his classic Treatise on Evidence highlights the difficulties in ascertaining how convinced one must be to become convinced beyond a reasonable doubt. He says that “the truth is that no one has invented or discovered a mode of measurement for the intensity of human belief. Hence, there can be as yet no successful method of communicating intelligibly a sound method of self-analysis for one’s belief. And yet the choice of the standard of proof makes the difference”.

In courts of law, civil cases are governed by the standard of proof prescribed by Section 3 of Indian Evidence Act, namely, preponderance of probabilities while the criminal cases are governed by higher standard of “proof beyond a reasonable doubt” as laid down by judicial decisions. Presumption of the innocence of the accused is a cardinal principle of Anglo-Saxon adversarial criminal justice system. Every person accused of crime is presumed to be innocent unless his guilt is established beyond reasonable doubt.
Some protagonists of criminal justice reform argue that proof beyond reasonable doubt is a vague, unreasonable, unfair and impractical standard that has done more harm than good to the society. They are of the view that lower standard of preponderance of probability should govern criminal cases. The truth of the matter is that proof beyond reasonable doubt places a heavy burden on the prosecution. It is vague and not very easy to define. Prof. Glanvill William in his book “The Proof of Guilt” says “what degree or quantum of proof is needed: is it mere likelihood or certainty or something in between these two extremes?” He also highlights the adverse effects flowing from the acquittal of the guilty persons in the following words: “the evil of acquitting guilty person goes much beyond the simple fact that one guilty person has gone unpunished. It frustrates the arduous and costly work of the police. If unmerited acquittals become general, they tend to lead to a disregard of the law, and this in turn leads to a public demand more severe punishment of those who are found guilty”. Further, it nullifies the hard work done by the police who in turn may resort to improper methods for obtaining conviction.

There is an urgent need to provide a clear procedure that does not allow an easy escape of guilty persons. In the case of Shivaji vs the State of Maharashtra, Justice Krishna Iyer was critical of the postulate that it is better that several guilty persons should escape punishment than making one innocent person to suffer. He expressed the view that public accountability is one of the most important responsibilities of the judiciary and if the accused person is acquitted on the basic of every suspicion or doubt then the judicial system will lose its credibility before the community. Indeed, proof beyond reasonable doubt clearly imposes a heavy responsibility on the prosecution to anticipate every possible defence of the accused and rebut it. Beyond reasonable doubt virtually becomes proof beyond doubt. Lord Denning observed (1950) in All ER458 “reasonableness of doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts……… Letting guilty escape is not doing justice according to the law”.

Malimath Committee in its report on “Reforms of the Criminal Justice System” observes correctly that “there will be in the course of time, more criminals in the society to cause more harm to innocent citizens. Such criminals may occupy important and sensitive positions in the society”. Indeed, the Supreme Court over the years has delivered judgments watering down the rigid requirements of proof beyond reasonable doubt. It held in case of West Bengal versus Orilal Jaiswal, “there was no absolute standard of proof in a criminal trial and the question must depend upon the facts and circumstances of the case”.

Further, as Malimath Committee’s report points out, proof beyond reasonable doubt “is not a standard of universal application”. France has not adopted this standard and relies on the ‘proof on preponderance of probabilities’. In USA, though the standard of proof to be provided in the criminal cases is ‘proof beyond reasonable doubt’, some of the states in USA have adopted a lower standard called the ‘clear and convincing standard’ in cases of fraud. Thus depending upon the local conditions and the needs of situation, the lawmakers have prescribed standards lower than “proof beyond reasonable doubt”.

The International Convention on Civil and Political Rights has prescribed in Article 14(2), the right of the accused “to be presumed innocent until proved guilty according to law”. Thus the presumption of innocence is universally recognized, but with regard to the standard of proof, the matter is left to be regulated by law made at the discretion of the respective states.

In the United Kingdom, in Woolmington’s case, the House of Lords accepted explanation of the trial judge to jury that “proof beyond reasonable doubt required a clear conviction of guilt and not merely a suspicion, even a strong suspicion”. But in case of Brown versus Stott 2001 (2) AII ER 17 PC, the Court of Appeals held that “there was need to maintain a fair balance between the general interest of the community and personal right of the individual”. Further in England, where the jury system is prevalent, the trial judge while explaining the case and evidence to the jury, always mentions that the requirements of prosecution is to prove the case beyond reasonable doubt. As the jury consists of laymen, they normally adopt the standard of the preponderance of probabilities, which a prudent man would apply.

Among the three standards of proof namely;
1. Preponderance of probabilities
2. Clear and convincing proof, and
3. Beyond a reasonable doubt

Malimath Committee has chosen the standard of clear and convincing proof as it makes a proper balance between the rights of the accused on one hand and public interest, rights of the victim on the other. The Committee has recommended that the standard of proof in the criminal cases should be higher than the preponderance of probabilities and lower than the proof beyond reasonable doubt. The Committee recommended that for this, a clause has to be added by amending section 3 of the Criminal Procedure Code in the following manner, “in criminal cases, unless otherwise provided, a fact is said to be proved when, after considering the matters before it, the court is convinced that it is true”. This recommendation of the Committee sparked off debates among the lawyers and jurists. But renowned lawyers like Fali Nariman have favoured the proposed modification of the principle of “proof beyond reasonable doubt”. A reasonable doubt burden is so designed as to ensure that erroneous judgements will more often set guilty defendants free than send innocent defendants to prison.

Indeed, a time has come to bring about basic changes in the criminal justice system by taking note of the problems and emerging challenges before our changing society. Criminal justice system should not remain static, and should adapt itself to the changing needs of time.

- Sankar Sen, IPS (Retd.)
Former Director General, National Human Rights Commission
Former Director, National Police Academy
Senior Fellow, Institute of Social Sciences

The views and facts stated above are entirely the responsibility of the author and do not reflect the views of this Association in any manner.

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