Law of evidence and democracy

Fyodor Dostoevsky said, “The degree of civilization in a society can be judged by entering its prisons”. The rigor with which the law of evidence is applied and the demand is made on the state to discharge its burden of proving guilt determines whether the prisons are populated by political victims or by criminals. Thus, we can play with Dostoevsky’s words and claim that the degree of democracy in a country can be judged by looking at its law of evidence in theory and practice. Dictators do not bother to labour unearthing evidence against their enemies. In China, most of the convictions are based on confessions. Surprisingly, many societies that stand out as democratic fail on this count, showing that democracy can be just thin gilt on an essentially undemocratic society. “Innocent unless proved guilty” is a gift of the Romans to the civilised world. It is attributed to the Roman jurist Julius Paulus Prudentissimus (usually called Paul) but was incorporated in the legal Digest by the Byzantine Emperor Justinian in the 6th century. “Proof lies on him who asserts, not on him who denies”, it states. Many totalitarian regimes incorporate it in their codes but treat it as a dispensable requirement. In democracies, this fundamental axiom of the rule of law dominates not only criminal procedure but also civil disputes. When a civil court frames issues, the court has to simultaneously order who has the burden of proof, with the rule of thumb putting the burden on the party that asserts it. In criminal law, it is the accuser, whether the state or an individual, who has to discharge this burden. Benefit of the doubt goes to the accused, resulting in acquittal, even though the accused may not have uttered a word in his defence.

Like everything else, there is no perfect democracy. The state has the obligation to protect the rights of individuals as also to protect the society against individuals inimical towards social order. It is extremely difficult, if not impossible, to reconcile these two goals. When society is unjust to an individual it is difficult to punish society. As a result, the person develops an antipathy, or even indifference towards the society and may feel no qualms of conscience in hurting others. The state takes the easier path of requiring the individual to follow the law even if the society has been unjust to him or her. Simultaneously, society expects the state to find perpetrators of crime and ensure that they get due punishment. Failure of the state on this front becomes a reason for change through the ballot box.

As any investigator knows, the bulk of crime is committed when no one is watching and hence, solving it has always been compared to looking for a needle in a haystack. China may have a conviction rate exceeding 99 percent but it is always much lower in democracies. If we leave aside, for the moment, the effect of the personal malfeasance of investigators then scientific methods of interrogation and investigation can improve the success rate in arriving at correct decision for conviction or acquittal. This requires financial and human resources including an investigator dedicated to his work unencumbered by any other influence that may be brought upon him. In poor countries, these requirements are rarely met and hence, there is a temptation to take short cuts. The short cuts range from illegitimate actions by the investigator, the prosecutor and sometimes even the judge, who may “believe” the accused was guilty but enjoying the benefit of failure of the other two actors in the game. Instances of short cuts adopted by the judiciary because of media frenzy and so-called “public pressure” are also not unknown. All these are aberrations and amenable to corrective action through supervisory control. The danger to democracy arises when the legislature, under a belief that criminals going scot-free hurt the political support, amends the law thereby legalising a short cut. Thus, the failure of the system to perform is sought to be remedied by chiselling at the founding principle of the law of evidence viz. presumption of innocence. This started with the laudable objective of ensuring the “security of the state”. The Freedom Movement had necessitated preventive detention laws, like the Bengal Regulation of 1812, allowing preventive detention, permitting the state to deprive people of liberty without discharging the burden of proving guilt. These efforts culminated in the Defence of India Regulations Act of 1915 permitting indefinite detention without legal recourse and trial by special tribunals which could dispense with cross examination of witnesses on behalf of the accused and other provisions of the Indian Evidence Act. This dark legacy was perpetuated in independent India as the Preventive Detention Act, 1950, making India part of the blacklist of democracies having such a provision. Other similar enactments, most notable being the Maintenance of Internal Security Act during the emergency, boosted the power of the state to curtail individual liberty without any burden of proof. Ironically, the Unlawful Activities Prevention Act, 1967, was enacted on the recommendations of The National Integration Council, making it another instance where the failure of the state to ensure national integration through policy measures was covered up through reducing the burden on the state of proving guilt before depriving an individual of his or her liberty.

The trend has never looked back. Since society was justifiably indignant that rapists were getting acquitted because of inefficacious investigation and prosecution, the golden rule of presumption of innocence can be replaced by presumption of consent. Dowry death and the suicide by a married woman within seven years of marriage may lead to presumption of guilt and the accused may have to prove themselves innocent. The Prevention of Money Laundering Act may presume that the wealth is ill-gotten, shifting the burden to the accused to prove that it is otherwise. Even the status of ‘approver’ conferred on a confessed accused to facilitate conviction of the other accused will fall outside the pale of expected state morality. The motive in none of these cases is evil. The state is willing to bend the time-honoured rule of taking on itself the task of proving the guilt of the accused only to facilitate sending the guilty behind bars or to the gallows. Yet, it rings bells warning of a bigger danger to democracy and the rule of law than mere acquittal of a guilty person particularly when that acquittal could be prevented by due diligence. A case from Japan will illustrate the issue more clearly. Former Nissan CEO Carlos Ghosn jumped bail in Japan and escaped on a private plane to Lebanon resulting in severe criticism of all involved. Ghosn justified his escape citing widespread presumption of guilt in the Japanese criminal system. The Justice Minister Masako Mori’s response to this criticism seemed to unwittingly confirm this assertion of Ghosn. “If he is as clean as he says he is”, she said, “then he should fairly and squarely prove his innocence in the court of law”. She was mocked for turning the law on its head by putting the burden on the accused, even though she is a lawyer. Yet, she does not seem to be an aberration in Japan. One of her predecessors, Nagase Jinen had said infamously in 2012 that the concept of basic human rights was imposed on Japan by McArthur and the country had to get rid of it. It is not surprising that Japan’s conviction rate is 99.9 percent. Does India want to move towards that “success”?

Source : Daily World

The writer RN Prasher is a retired IAS officer of Haryana cadre | Personal Opinions

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