India's System of Justice on Trial
Going by certain instances in India since Independence 65 years ago, the system of criminal jurisprudence enforced by the alien British government has it looks, in numerous cases, failed to come up to independent India's expectations to deliver justice to all. On the contrary, it has appeared impotent to punish the guilty and give justice to the aggrieved and bereaved families. In fact, it has proved to be more beneficial and helpful to those who commit crime and yet can get away with it with an honourable acquittal or with a benefit of doubt than punishing the guilty. It is proving to be atrocious on the law abiding citizens. Fear of the rod of law on the common citizens to desist them from committing crime is vital in the interest of peace and justice. And this is what is disappearing very fast at the present juncture of time.
It is a tribute to our indigenous leadership that while Lord Macaulay could give us the Indian Penal Code after putting in a few years’ labour, independent India has failed to attune this English system of law to the changing scenario in the country during the last 65 years despite having constituted a number of commissions for the purpose.
This system has given wide opportunity to the people with resources to exploit the system to their advantage to delay investigation and prosecution of matters in courts. Mr. N. D. Tiwari could delay his DNA test for two years despite court orders by appealing to this court or that on various excuses.
The trial in the murder of the then railway minister Lalit Narain Mishra could not be taken to its logical conclusion because of delaying tactics adopted by the persons concerned. Ultimately, the accused knocked at the Supreme Court door praying for quashing of the proceedings just on the ground that the trial stands vitiated by this inordinate delay of 37 years.
Powerful and influential Gopal Kanda wanted in the suicide case of Geetika Sharma could dodge the police for 12 days – and in the words of her brother “destroy” vital evidence – seeking anticipatory bail.
Further, 14 retired Supreme Court and High Court judges have recently written to the President of India to turn the 9 death penalties into life sentences alleging “miscarriage of justice”.
Further, there are reports of hundreds of persons rotting in jails without trial, numerous of them because they cannot afford to raise money or help to get bails.
These instances are just a tip of the iceberg. Let us take up just the recent cases.
There is irony and fact in the words of Geetika’s brother Ankit who following the arreest of main accused and former Haryana Minister Gopal Kanda on August 18 said, "12 days is enough to destroy evidence. Whatever power Kanda could have used to tamper with evidence he has”. Terming the drama behind Kanda’s surremder and arrest, he said it was “a planned and well thought out” one and “my only fear is that the investigations will be impartial or not. The investigation should be transparent.", he demanded. His apprehensions are not unjustified. He wants “his (Kanda’s) interrogation to be done before camera and a retired judge so that he does not change his statement." Ankit said Geetika's Facebook account has been deactivated and alleged that Kanda was behind it. "I have informed the DCP about it. I don't know who or how it was done. Kanda is behind it," he said.
A VIP accused
Is it not strange that the Delhi police’s long hands of law fell too short before Kanda to lay its hands on this VIP accused for more than 10 days despite their having claimed to have conducted more than 60 searches in various states. If it proves Delhi police short armed to catch hold of a person like Kanda, can one expect it to instantly nab a person accused of a terror crime where it is clueless about the persons allegedly involved in the heinous crime?
Despite the Times of India and some news channels having flashed out on the 17th August 2012 evening that Kanda was likely to surrender, Delhi police kept just waiting for his supporters to stage a drama in front of the media to proudly claim that he came on his own “to join the investigation” as desired by the Delhi police. But facts are otherwise. He didn’t come on police ‘invitation’ but at a time of his own choosing. He was keft with no other options but to surrender after his anticipatory bail application had been rejected by the Delhi High Court. He wanted – and succeeded -- to create a scene before the electronic media and celebrate his surrender. He succeeded; Delhi police just looked as a helpless spectator waiting to welcome him at the gate of the police station.
The impression that for Delhi police and law Kanda is no ordinary an accused who has to be interrogated but a VIP guest was proved when the Zee news channel on the 18th evening showed how a more than 70 year old elderly woman was foecibly made by Delhi police to vacate for Kanda her seat in a hospital where he was taken for a medical check-up.
For 37 years no murder trial
How our legal system is being taken for a ride by influential people came to light on August 16 when the Supreme Court dismissed a plea by the accused in the then Railway Minister Lalit Narain Mishra murder case who was killed 37 years ago. The accused had been successful in stalling the trial in a court of law, for one reason or the other, for that long. This inordinate delay has provided the accused the excuse to plead with the court to altogether quash the proceedings as the trial stood vitiated by the inordinate delay for the last 37 years. The court fell short of condemning the weaknesses of our legal system and ordered that the case be tried expeditiously.
These are no isolated instances. This is true of every other case in which influential politicians and bigwigs of industry and business or their family members or supporters are involved.
Article 14 of the Constitution of India provides that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
The way the investigation and prosecution of the two cases mentioned above is proceeding does not inspire confidence that Geetika and L. N. Mishra or their families will ultimately ever get justice. If VIP politicians and those in trade and industry can be allowed the liberty to fiddle with the process of law and justice, it only makes a mockery of the constitutional provision that everybody, high or low, is equal before law. A provision of the constitution we cannot enforce in letter and spirit should altogether be removed from the statutue book instead of allowing it to be made a laughing stock of the people and the world.
Now another instance has surfaced where, in the opinion of 14 retired judges of the Supreme Court/high courts, there had been a miscarriage of justice that motivated them to appeal to President Pranab Mukherjee to turn the capital punishment imposed on nine persons into life sentence. Led by former SC judge P B Sawant, the 14 retired judges signed up separate letters to the President pointing out that the death sentences given to these nine persons by various two-judge benches of the SC were "contrary to the binding dictum of rarest of rare" propounded in the 1980 five-judge bench verdict in Bachan Singh vs State of Punjab. These former judges were responding to a campaign launched by human rights lawyer Yug Mohit Chaudhry.
"Rather they pertain to the administration of the death penalty in a conscientious, fair and just manner," the ex-judges said. "Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system. This matter goes to the very heart of our Constitution because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court."
These certainly unprecedented appeals made by former judges have highlighted many issues. First, I would address my oft-repeated argument and question to our human rights organisations, like human rights lawyer Yug Mohit Chaudhry: Do the convicts, like the 9 ones mentioned earlier, only have human rights and not those innocents who became victims of their crimes? Did human rights activists do anything to bring justice to the bereaved families and help them in any way financially or legally?
This appeal by eminent jurists and former judges strikes at the very root of our system of justice. "Executions of persons wrongly sentenced to death", they argue, "will severely undermine the credibility of the criminal justice system." It may or may not have, but their making an appeal to the President of India "will severely undermine the credibility of the criminal justice system". What is the guarantee that "miscarriage of justice" (after their appeals had been heard by the highest court of the country) had taken place only in the 9 cases mentioned by them and not in other cases earlier? What prevents people raising a finger of "miscarriage of justice" in other cases too on the same logic advanced by the learned former judges? In that case, how will the latter be wrong in doing so?
If today14 judges can make an appeal, who will present others from presenting similar appeals in future in other cases too? Will there be any finality in our system of justice then?
I am reminded of a piece I read in The Indian Express about 40 years back. It stated that in England a judge witnessed with his eyes from the balcony of his house a person being murdered. Incidentally, the case came up to his court for trial. The judge saw that the person accused of murder was not the same whom he had seen with his own eyes. He allowed the case to proceed. The police made out a very solid case and proved that the murder had been committed by that very accysed person. The judge was in a dilemma. How should I hang an innocent for a crime he had not committed but proved by the police? For a moment he thought of transferring this case to some other court and volunteering to appear himself as a witness. But then he thought, he would be setting a bad precedent. Tomorrow, some corrupt judge may try to save a guilty person by emulating a precedent set by him. He decided not to do that. Not to establish a bad precedent, he thought, let this innocent man die.
These former judges need to look inwards. Are they not setting up a bad precedent for others to follow for some extraneous considerations? Are they not themselves acting to "undermine the credibility of the criminal justice system" which they, otherwise think, they are trying to prevent by submitting their appeal to the President?
Former President Mrs. Pratibha Patil just about a month before demitting office commuted the death sentences of a record 35 cases in one go (http://articles.timesofindia.indiatimes.com/2012-06-22/india/32367604_1_pardons-mercy-petitions-molai-ram). This raised many eye-brows. Her action was questioned. Ultimately, she had to issue a clarification that all this was done on the recommendation of the then Home Minister P. Chidamabaram.
In fact, the very power of the President under Article 72 of the Constitution to grant clemency in consideration of the mercy petition of the convicts is itself anomalous. All decisions of the President to grant or not to grant pardon to the accused are based on the recommendation of the Cabinet. This virtually amounts to the political executive sitting judgement over the judicial verdict of the highest court of the country. In other words, it appears as if the political executive is more humane, considerate and judicious than the highest court of the country in given circumstances.
It is a normal judicial practice that after a court convicts a person for a charge like murder, it announces the quantum of punishment only after hearing, once again, both the prosecution and the defence. It, therefore, follows that the accused should have placed before the court all the extenuating facts, evidence, circumstances and legal precedents to seek minimum punishment less than a death sentence. Therefore, it follows that before a court awards death sentence to an accused, it takes into consideration all the evidence, arguments and other human considerations. Similarly, in appeal the high court and the Supreme Court must also have gone through the same procedure before upholding the death sentence.
Therefore, what are the new considerations that weigh so heavily with the political executive as to overrule the judicial verdict that it feels impelled to grant clemency to the accused from death sentence to life term of imprisonment? If the convict had not failed to put in the logic before the court which he raises with the executive, the fault lies with the convict and not with the courts.
Just as it is imperative, as the 14 retired judges argue, not to act "contrary to the binding dictum of rarest of rare" propounded in the 1980 five-judge bench verdict in Bachan Singh vs State of Punjab", it is equally imperative for the political executive headed by the President of India too that while considering any case it should equally not go "contrary to the binding dictum of rarest of rare" in clemency cases too. Otherwise, we not only make the political executive (which does not always go by the merits of each case) to sit judgement over the judicial verdict of the highest court of the country but also make our judicial system open to the charge of "miscarriage of justice" and a laughing stock of the nation and the world.