A few day-light shootouts in Mumbai have led to the inevitable and predictable knee-jerk reaction from the government - it is contemplating an Act like TADA to fight organised crime. But is that really the solution? Before jumping to any conclusions there are a few fundamental questions that need to be answered: Why was TADA enacted? Was its repeal justified? Even if there were some cases of excesses or misuse by the enforcement machinery, how true were the pronouncements generalising the misuse and was the Government justified in throwing the baby with the bath water?If the possibility of a few transgressions of law should lead to the repeal of a law, an extension of that could be winding up of the Government itself as transgressions are there at all levels. As such, repeal of rules and regulations is not the solution unless they were conceptually wrong or malafide. By the same logic, new rules will only work if they are put in proper perspective.The other day one minister expressing concern for thefairer sex and their exposure to violence said that the law would be amended to make rape punishable with life imprisonment. The news was splashed across front pages the next day and the gullible public thought something was being done for the welfare of women. Little did they realise that this was just an eye wash as the quantum of punishment was never a problem, but driving home the charge in a court of law was. The question of punishment arises only after somebody is found guilty. That stage is arrived at after traversing the torturous procedure under the Criminal Procedure Code (CPC) and the Indian Evidence Act. Substantive law has never been a problem. The problem, to a very large extent, is the Procedural law. Changing of the procedural law rather than enacting new laws should therefore be the answer.As one writer put it: ``Today our basic legal system belongs to the 19th century, with imported charges occasioned by compulsive imitations of the fashion of the day.'' And as if this wasn't enough CPCwas revised in 1973 tilting the procedure in favour of the accused further. The question raised by Justice Krishna Iyer - ``whether in the legal system's meticulous hypersensitivity to eliminate that rare innocent from being punished many guilty persons must be callously allowed to escape? ''- had hardly any impact though it came from the highest court of the land.The law-makers and the system clung on to Westminister system regardless of whether this suited the conditions prevailing in India. The Criminal Justice System thus came to be taken for granted. Those who need to, do not fear the law and if they happen to have the material resources they even show contempt for it. And yet the conservative judiciary feels that at best the system may only need a bit of tinkering here and there. Having witnessed the deteriorating crime scenario and having seen how impossible it is to drive home charges against an organised criminal under the present Anglo-Saxon system, I believe that one has to now look for analternative to the exclusionary rules and adversarial mode of trials.It is the inadequacy in the law and the legal system that has led to the enactment of laws like TADA. So long as the inadequacy of the existing laws remains, there is no justification in repealing or allowing laws to expire.From PD Act to Defence of India Rules to the MISA and COFEPOSA and then on to TADA, the inadequacy has been felt more or less continuously for five decades. This was because of our refusal to admit that the criminal laws introduced by the British had become anachronistic.Laws have to be conditioned to meet the needs of a society. Just as a society is not static and is constantly evolving, the law and the legal system should evolve too. It is here that we have to identify which area needs correction. Substantive laws have not been a problem in India, procedural laws have. The Westminister model of exclusionary rules of evidence has failed to work in today's India.The biggest casualty in our system is truth.Tampering with truth is commonplace. Suppression of truth or making false statements on oath has become the order of the day. One has to only refer to the appending note of the JPC report on Harshad Mehta scam to know how serious the problem is. The note says: ``Witnesses, bankers, brokers, public sector executives, bureaucrats and businessmen were quick to discover that they could bluff their way out of the witness box with impunity and aplomb.'' The situation in the courts is not very different.The time has come to heed the words of Justice Bhagwati: ``It is not unusual to find the Anglo-Saxon obsession with technical rules of evidence defeating the cause of truth and justice. In the European Courts, the accent is more on being convinced on the matter rather than the exclusionary rules of evidence.''And the cause of truth and justice has been defeated time and again. As Justice Chagla writes in Roses in December: ``I was however morally certain that the accused was guilty of taking the life of aninnocent child. But here was a case where law and justice did not coincide and to my chagrin I had to acquit the accused which I did most reluctantly.'' Justice Chagla was not alone in such a predicament. The Judges in India work within the framework provided by Macaulay's laws and are very often confronted with such a dilemma. And when an organised criminal is beneficiary of such a dilemma, and comes out of the court free, it has a stunning impact on the common man and his faith in the Rule of Law is demolished.The Maharashtra Government may not have much choice than enacting a TADA-like law. But it would be worthwhile to introduce inquisitorial procedure (a trial with one person or a group enquiring into the facts and acting as both prosecutor and judge) while enforcing this law as there will be little sense in enforcing the new law through old procedure. In fact the time has come to consider inquisitorial procedure for all crimes of violence, because the manner in which the law and order scenario isdeteriorating, we will not only need a tough law, but also a special procedure to go along with it. The revision of criminal law must also be taken on hand simultaneously. We must shed the blinkers provided by Macaulay and look around to produce laws that are simple to execute and are effective too.A word of caution is, however, necessary. The present state of things have suited many. They will do anything to scuttle the efforts to bring about a thorough change. Vohra Committee had spoken at length about the nexus between the Mafia dons on the one hand and the so-called elite segment of the society on the other and the resultant breakdown of law and order. The glimmer of hope is that the present Prime Minister as also his predecessor have echoed the same views while speaking on the need for revision of criminal laws. But, in a country where a sizeable number of people with criminal record are elected as law makers, this is not going to be an easy job.P R Parthasarathy is former Director General ofPolice
