How To Improve The Quality And Speed Of Justice Delivery System? A Retired Judge Provides Solution

The people should demand that courts should start re-interpreting the meaning of the “99:1” principle

Most of us are frustrated with the quality and speed of our justice delivery system. But, are there any solutions?

During a discussion with some readers of the Tamil magazine Thuglak, Retired High Court Judge Sri. T. N. Vallinayagam (a judge of repute), said, “A basic principle of our legal system is that 99 criminals may escape, but one innocent should not be punished. So, we hear lots of voices of human rights activists. In today’s context, I believe this premise should be changed.

“Today, if someone is charged in a case, the burden of proof of guilt is on the complainant/ prosecution. If this is changed to place the burden of proof of innocence on the accused, I believe resolving cases will become very simple.

“For example, let’s say there is a theft in a house, and there is a CCTV footage of a thief jumping over a wall in the house; there is also a fingerprint of the thief at the spot of theft. On this basis, a case is registered against him. Law says that still, when the accused is produced in a court, the burden of proof is on the complainant/ prosecution to establish that he is the culprit, with sufficient witness and evidence.

“This creates a lot of practical difficulties in getting a conviction. Instead, in the context of the prima facie CCTV footage and fingerprint evidence, if the onus of proof of innocence as to why he jumped over the wall and how his fingerprints were in the spot of theft were on the accused, the case would be solved easily.

“If only the onus of proof of innocence were placed on the accused once a prima facie case is established, most of the criminal cases will be closed easily.”

“Let’s say someone beheads his wife and surrenders in a police station with the beheaded head in hand. Even then, the police should prove that she was his wife, he beheaded her, produce the weapon, explains the motive for the murder, and produce witnesses to get a conviction. Even if there’s a small inconsistency, the murderer will go scot-free. In such cases, the onus of proof of innocence must be on the accused.

“Similarly, if you are caught with Rupees 2 crores of unaccounted money, under the Income Tax Act, the onus of proof of your source of income must be upon you. Similarly, if you imported any item, the onus of proof should be on you about the bona fide nature of the transaction.

“If only the onus of proof of innocence were placed on the accused once a prima facie case is established, most of the criminal cases will be closed easily.”

Has our “99:1” outlook led to higher quality of judgments? Do we believe we get the right judgments, even discounting wrong judgments due to corruption? What is the % of times when a case is judged the same way up the chain of courts? When this % is low, how can we claim 99 criminals may escape, but even one innocent is not punished?

Let me highlight how outrageous the logic of “let 99 criminals escape; one innocent should not be punished” is a hypothetical example. Let’s say a judge knows that out of a group of 100 people, one is innocent and 99 are terrorists. There is no clue as to who is innocent, but it is clear that 99 of them are terrorists. Should he acquit all the 100?

Let’s say those who argue in favour of the “99:1” principle own a business in which they know that 99 employees in a group of 100 have been cheating the business of crores of rupees; they don’t know who is the innocent one. Will they retain all the 100 giving the benefit of the doubt?

Even in the case against Ms Jayalalithaa, former CM of Tamilnadu and her accomplices (including Ms Sasikala), while finally judging the case upon appeal, the Hon’ble Supreme Court said in DA Cases, the onus of proof of the source of income is on the accused. So, they have set a very good precedent.

Criminal cases are typical ‘Tom and Jerry’ game, where Jerry always (well, almost always) wins. We tie down the hands and legs of the complainant, the police, the prosecution and the judiciary, and give wings to the accused, and expect a high rate of conviction. When this doesn’t happen, we blame the police, prosecution or judiciary.

Under pressure to get at least some convictions, police subvert the law in many low-profile cases, planting evidences and witnesses, to punish the innocent.

I was listening to an interview with Mr P. Chidambaram by Rangaraj Pandey of Thanthi TV. PC said all the money that has returned to banks post-demonetisation is white money; just because the Government has identified Rs 3.8 lakh crores of unaccounted money in banks, it doesn’t become black. The Income Tax Department has to serve notices to the lakhs of such people, receive their replies, seek clarifications, and where not admitted by the depositors, each of the cases has to go through the several tribunals and courts, proved beyond doubt that they are indeed black money, and then only the money become black.

Technically he is right. This is how liberals, criminals, and legal fraternity have joined hands to subvert our legal system. No wonder, under pressure to get at least some convictions, police subvert the law in many low-profile cases, planting shreds of evidence and witnesses, to punish the innocent, defeating the very purpose of the principle of “99:1” easily.

In an increasingly criminalised and radicalised world, we, the people, should demand that courts should start re-interpreting the meaning of the “99:1” principle, that this applies only up to the point of establishing a prima facie case; after that, the onus of proof of innocence should be on the accused.

Many senior lawyers will protest; regardless, we the common people and well-meaning retired judges like Sri. Vallinayagam should fight and bring about this change in legal interpretation.

This one change will have far-reaching consequences to justice delivery system in India, speeding up case closures, yet enhancing the quality of judgments, and bringing down crime.

Note:
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

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Ganesan Subramanian

An Engineer-entrepreneur and Africa Business Consultant, Ganesan has many suggestions for the Government and sees the need for the Govt to tap the ideas of its people to perform to its potential.

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