The Delhi High Court issuing bailable arrest warrants against those acquitted in the Jessica Lall case, and the growing disquiet over the delay in the Priyadarshini Mattoo case, have thrown to public debate the issue of administration of the criminal justice system. Rules of evidence coupled with otherwise cumbersome procedures have loaded the system in favour of the accused and against both the investigation and the victim. The high acquittal rate leaves little doubt that crime is today a high-profit, low-risk business. Our criminal law jurisprudence is premised on distrust towards the police and the investigation. Procedural fairness has been the most relevant consideration in the matter of deprivation of liberty. There is a presumption of innocence even when the accused appears to be palpably guilty. The investigation has to discharge the onerous burden of proving the guilt of the accused beyond reasonable doubt. The accused has always the remedy of delaying a trial. A delayed trial ensures evaporation of evidence. With its inadequate evidence, the prosecution stands handicapped. The accused then punctures holes in the prosecution’s case and runs away scot-free with the benefit of doubt. This usually is the story of criminal law justice administration. Attempts in the past to reform the rules of evidence and simplify procedure have met with opposition from the Bar as also the civil libertarians. They always caution you that tightened provisions would lead to a higher conviction rate, which in turn strengthens an oppressive enforcement called the police. In essence the criminal law justice system now depends on two rules of practice. The police arrests and chargesheets a person on suspicion. The judge discharges the accused on the benefit of doubt. Success in a criminal law trial is very rarely achieved through the process of cross-examination. Management of witnesses in the absence of any witness protection scheme has become the most patent instrument available to a defence. Convictions or acquittals depend on whether witnesses depose or turn hostile. The hostility of witnesses, coupled with the unwillingness of several persons to depose, exhibits public indifference. Judges under this system are hardly expected to know the truth; they are expected to know only the evidence. The disconnect between truth and evidence is the stark reality of the legal system. How does one bridge this gap? The Law Commission of India in its 178th Report analysed the problem of the hostile witnesses. The Report stated: “To protect public interest and to safeguard the interests of society, measures need to be devised to eliminate, as far as possible, scope for such happenings.” The Justice Malimath Committee suggested changes in criminal law administration. The committee also made some meaningful recommendations. Both the above reports concluded that perjury in judicial proceedings and hostile witnesses, coupled with the backlog of the criminal cases, was a major problem which plagued our criminal justice system. I had an occasion to deal with both these reports in the ministry of law. The GOI in August 2003 introduced the Criminal Law (Amendment) Bill, 2003, which, among other things, sought to introduce section 164A in the Code of Criminal Procedure. The said provision required that a police officer, if he was dealing with a serious criminal case, shall produce all persons whose statements appear to him to be material and essential for proper investigation of the case, to the nearest metropolitan or judicial magistrate. The magistrate was required to record the preliminary statements of such persons on oath. Even if the witness turns hostile, his statement before the magistrate could be used, plus he would face the consequence of perjury. The above amendment was introduced in the Rajya Sabha. The amendment did not lapse with the dissolution of Lok Sabha. The Standing Committee considered this amendment and was of the opinion that this power would be misused by the investigating officer inasmuch as witnesses would be forced to make statements without knowing their full implications. The investigating officer would have to decide as to who the material witness was. In some cases witnesses may also be the accused and would violate the provision against self-incrimination. Magistrates are already overburdened and with this new job assigned to them it will only increase their burden. Parliament has accepted this view of the Standing Committee. This amendment was drafted by the law ministry and introduced by the home ministry in Parliament after analysing in depth the state of criminal law administration in India and the reports of the Expert Committee on the subject. The reasons given by the Standing Committee in Parliament for rejecting the proposal to add section 164A to the Code of Criminal Procedure do not appear to be valid. The mere ground that power can be misused is no ground for the denial of the power itself in law. The investigating officer will always have to decide who the material witnesses in a case are to be. Is it fair to stop a meaningful amendment which will restore the credibility of rule of law in the administration of criminal justice system? Obviously, if a witness is also an accused he would enjoy the protection of self-incrimination and his statement would not be recorded. That is elementary. Does that constitute a ground for Parliament disagreeing on a radical reform? The Jessica and Priyadarshini cases provide us with a historic opportunity to seriously introspect on the weaknesses of the existing system. What is at stake is the survival of the rule of law. What is at stake is the civilised jurisprudence where the guilty can be punished and the witnesses are protected. The judgment in the Jessica Lall case will now be debated in the appeal court. The media deserves to be congratulated on highlighting the weaknesses of our justice system. The Parliament would be failing in its duty once again if it fails to rise to the challenge of reforming the justice system. Parliament erred in the year 2005. An opportunity has confronted it in less than 12 months. May that not be lost. The writer is an MP and former Union law minister