If the law had been what the Justice Malimath Committee had recommended way back in 2003, the legal representatives of the victims in each of these two cases would have had the right to be impleaded as parties in the criminal proceedings and to take active part in them. Unfortunately the entire part of the report, titled “Justice to Victims” has just not been implemented — no excuses offered, no reasons given.

The government has selectively picked and chosen whatever legislation suited its whim of the moment. At a time when major structural changes are required in certain areas of the criminal law, only cosmetic changes have been made. One of these areas is in cases where the accused is charged with culpable homicide not amounting to murder (as the principal accused in the BMW case was charged) — punishable with imprisonment for up to ten years - and in cases where there are grave allegations about witnesses being tampered with because of the importance of the people involved. In such cases the right of the accused to remain silent (a right conferred by Section 313 of the criminal procedure code) has often been an impediment to justice.

The Malimath Committee had recommended that the court (mark you, only the court) should be empowered to question the accused. And if the accused continued to remain silent and refused to answer any questions put to him, the court was permitted to infer things from that silence, “including adverse inferences as it considered proper in the circumstances”. This most useful recommendation was not accepted by Parliament. During the debate on the CrPC amendment bill in May 2005 I pleaded with the home minister in the Rajya Sabha to incorporate a provision covering this recommendation, but to no avail: there was opposition from almost all political parties.

It is time we all recognise that in heinous offences like murder and culpable homicide not amounting to murder the right to silence must be regarded as a privilege. Although every accused has a right to be presumed innocent till he is proven guilty, the accused also has a duty and obligation to assist the judge in the discovery of the truth; a criminal trial is not a game in which the accused can remain a mere spectator.

One of the important proposals of the Malimath Committee was about “hostile” witnesses. This still remains only a proposal. The government has tried to introduce measures designed to prevent the evil of witnesses turning “hostile” by being suborned or won-over. A new clause in the bill provided that the evidence of material witnesses in the case — not all witnesses, but only material witnesses —should be recorded by the magistrate himself where investigation was into an offence punishable with death or imprisonment for seven years or more: Which meant that in all homicide cases, material witnesses had to be examined by the magistrate, not the police. They would be required to make statements before the magistrate on oath, making them subject to quick perjury prosecutions if their subsequent statements were inconsistent. Unfortunately these salutary provisions were not passed by Parliament: the members of the select committee decided that these provisions should be “dropped”: no reasons were given. Laws are sometimes enacted, or not enacted, simply at the whim of the powers-that-be.

All of this is reminiscent of what a distinguished statesman of Sweden — Count Axel Oxenstierna who held office as lord high chancellor, the modern equivalent of prime minister, for an unparalleled period of forty-two years — wrote in 1648 in a letter to his son: “thou dost know my son, with what little wisdom the world is governed.” Substitute “India” for “the world”, and you will know why our criminal law has not kept pace with society’s needs.

The writer is an eminent jurist