Prime Minister Manmohan Singh has said (IE, November 26) that India stands “firmly committed to enforcing zero tolerance to terrorism within the framework of our existing legal system”. Fine. But there is need for reform within the system — without re-enacting repressive laws like Pota which had been grossly misused in many states.

When suggesting reforms one must suggest something which remains anchored in the rule of law, a concept which we all — all in the common-law world — profess to uphold. To do this we also need to look more closely at some old concepts. Take, for instance, the basic premise of our criminal law: that no man or woman can be guilty of a crime unless it is so proved beyond reasonable doubt. But the proof-beyond-reasonable-doubt standard is one that defies measurement: it is often approximated to between 80 per cent to 90 per cent, never 100 per cent certainty. The late Professor Wigmore in his classic treatise on Evidence (1940), when discussing attempts by courts to define how convinced one must be to be “convinced beyond a reasonable doubt”, wrote: “the truth is that no one has yet 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 does make a difference.”

And 30 years later in the year 1970, long before terrorism frightened the wits out of the US criminal justice system, Justice Harlan of the US Supreme Court had soberly explained in a judgment how a beyond-reasonable-doubt burden was so designed as to ensure that erroneous judgments will more often set guilty defendants free than send innocent defendants to prison!

... contd.