Thursday, February 9, 2012

Lest the people kill the law that kills justice

Lest the people
 kill the law that kills justice

In August 2010, two young girls from high profile families had their unchallenged right to drink, to drink till they lost their senses. Then, they had the right to drive in that inebriated state and to enter into a race between themselves on a road near the residence of Haryana chief minister in Chandigarh. Under intoxication and in their zeal to excel the other they struck down a motor-cyclist shuttling the two cousins – one elder, the other in his teens – into the air. Then they had the sense and the right to flee from the scene of the accident. For them it was not their duty to help their unfortunate victims. Had they been kind enough to try to extend human help, perhaps, a life could have been saved. Then they had the right to elope and hide themselves for about twenty hours. They had to surrender only after it was no longer possible for them to continue to escape the police dragnet. But, in the process, they did exercise their right to evade a medical test to prove that they were drunk at the time of the accident.
“Nobody killed Jessica”
“Nobody killed Jessca.”  That was the heading The Times of India gave to its report when the Delhi sessions judge acquitted the persons accused of murdering the model Jessica Lall. The heading had a logic. Had anybody murdered her, he/they would have been punished? It was only on appeal that the accused were punished.
Arushi murder mocks at our law
The much hyped Arushi murder case is mocking at the kind of criminal jurisprudence we have in India and at the investigating agencies which have during the last more than about two years failed to nail the culprit despite having thrown out various theories. At the end the CBI filed a closure report with the court stating that her parents remained suspect but the investigating agency had no proof. When the court refused to entertain the closure report, a case has been filed against her parents and now CBI claims it has proof.
Guilty who?
We have hundreds and thousands of cases of murders and other crimes where the investigating agencies either fail to identify the culprit or fail to prove him/her guilty. The courts give out the verdict of “not guilty”.  Everybody admits – the courts, the prosecuting agency and the defence – that the heinous crime of murder, rape, theft or the like had been committed but the accused was not guilty. Then who did commit this crime? Surprisingly nobody – neither the investigating agency, nor the prosecution agency, nor the defence, nor the courts – comes out with truth. The crime gets buried under the debris of our system of law. Whose duty is it to nail the culprit? By acquitting the person accused and not identifying the person who actually did it, we are only creating a situation where slowly and steadily people will gradually start losing faith in the system of justice in which the guilty gets scot free and the aggrieved is denied justice.
A strange law
Our law gives a person the right to commit a crime and at the same time, paradoxically, the right to claim and prove his ‘innocence’. A person has the right to voluntarily surrender before the police make a statement before a police officer and even before a magistrate confessing his crime, stating that he is doing so of his own will without any extraneous pressure or influence. This happens mostly when in the heat of the moment a person commits a crime on instant provocation. Then he repents and wishes to confess his crime and seek justice. But as days pass by, he has the right to resile from his statement and to claim innocence giving the impression as if his earlier statement before the police and the magistrate had been made under duress. The police and courts then are reduced to institutions of no significance and no consequence, unreliable and unbelievable because a statement before them has no legal sanction to convict on that confession. 

Our native system of justice
Our modernists may laugh at our native, primitive law yet that was more effective and did usher real justice. There were hardly doubts about the quality and quantity of justice.
We have heard of the saying “Look, there is a straw in the beard of the thief” (Dekho, chor ki dadhi mein tinka). A number of suspects who were suspected to have committed the theft were brought before the qazi. None of them was confessing to have committed the crime. Suddenly, the qazi shouted, “”Dekho, chor ki dadhi mein tinka” . The person who had actually committed the theft immediately rubbed his beard to shake off the straw. And there he was. He was the thief and given punishment.
Similarly, a raja was faced with a piquant situation. Two women claimed the one newly born baby as their own. The raja was at a loss to decide who the real mother was. There were no DNA tests those days. An idea struck him. He ordered that the baby be cut into two halves and one each given to both the mothers. The real mother immediately started bewailing and praying, “My lord, give the child to her. I will be content seeing my baby live and grow up with her”. The raja thus could find who the real mother was. He immediately ordered the child to be handed over to the bewailing mother.
We certainly cannot have such primitive ways of dispensing justice. Yet, we can do use it to enlighten our path to dispensing real justice.  
Tells truth to lawyer, Denies in court
When an accused goes to a pleader to engage him for his defence, he narrates, truly and faithfully, in bits and pieces the whole story of the commission of the crime. It is only after putting some counter-questions and seeking clarifications that the lawyer works out the defence strategy.  It is on the basis of the loopholes in the statements of the prosecution and defence witnesses as also legal arguments that a criminal gets out of the clutches of law and brags about his ‘innocence’. He thus puts the law and his accusers in the dock as the villains who had unnecessarily harassed him and harmed his reputation.
Pores in law
About 50 years back, a patwari was caught red-handed accepting a bribe of  Rs. 100 from a person. During the trial, his defence lawyer asked the thanedar, who had arrested him for the crime at the spot, whether he had conducted a search of the complainant’s pocket who claimed to have had given the hundred rupee note marked by the police. The thanedar said no; there was no need, he argued, because he recovered that very currency note from the possession of the patwari. The defence lawyer retorted, “It is here you committed a wrong and became a party to the conspiracy against my client (patwari)”. How? the court asked. “My Lord”, the lawyer explained, “The complainant knew my client. He went to my client and asked whether he had a change for Rs. one hundred? My client said ‘yes’. On this the complainant gave him a Rs. one hundred note given by the police and in return got 10 Rs. ten notes in exchange. Had the thanedar searched the person of the complainant, he would have recovered 10 Rs..ten notes. My client has been falsely implicated as per a conspiracy and thus trapped.” The court acquitted the patwari giving him the benefit of doubt.
Whom did the law favour — only the criminal and not the innocent?
Lest a bad precedent
Long back, there was a story of a British judge in The Indian Express. A judge from the balcony of his house witnessed a murder being committed before his own eyes. Incidentally, that very case was put up before him for trial. The judge was astonished to see that the police had hauled up a person other than the one he had seen committing the crime. The police made out a very strong case against the accused and the judge was left with no alternative but to order the accused to be hanged.
This situation pricked the conscience of the judge. One moment he thought of transferring the case to another judge offering to appear himself as a witness to save the innocent man. Then it struck to him that he would be setting a bad precedent. Tomorrow, he thought, a corrupt judge could emulate his example and volunteer, like him, to save a guilty person. Therefore, the judge convicted the accused and sentenced him to death. Let an innocent man, he said to himself, be hanged lest a bad precedent is created.
It is the same system of criminal jurisprudence we are following in India.
There are innumerable similar instances where the process of law has been subverted by tricks of the trade and the accused have been ‘honourably acquitted’ even after committing heinous crimes.
Terror cases fail in courts
One of the reasons why cases against militants, terrorists, Naxalites, Maoists and the like fail in courts is the sense of terror the dreaded accused strike in the minds of eye-witnesses. If they spill the beans against the hot heads, they and their families are in far serious reprisals. This makes eye-witnesses keep their mouth shut. This situation provides the culprits the right to claim that police had harassed them for no fault of theirs although they were innocent.
Helps the rich, harasses the poor
According to unconfirmed reports, about 2 lakh persons are languishing in various jails of the country without trial for years together. One Machung Lalung was released after detention for more than 50 years from Assam jail waiting for his trial and that also on the intervention of a civil rights group. A whole life of an innocent was thus sacrificed at the altar of our law
There are thousands of under-trials from poor families languishing in jails for years together because they cannot afford to secure bail as they have no money with themselves or with their relatives to present personal sureties/bonds desired by courts.
On the other hand, we have numerous cases of elite, high profile and well-connected individuals charged with heinous crimes either getting interim bails or bails immediately after their arrest. In the alternative, we have cases where accused instantly complain of chest pain, heart or other serious ailments immediately after their arrest to evade grilling by police and get themselves admitted to five-star private wards in expensive hospitals at the expense of the government or at their own. Later events make it appear as if their ailment is nothing else but their arrest. The moment they are released on bail, they are hail and hearty attending to their normal routine. The latest is the case of the Satyam Computers fame CEO Ramalinga Raju who was shifted to a hospital the day he was arrested and remained there in the posh hospital till released on bail. When released, he straight went home and not to a hospital. It is a different matter that his bail was later cancelled by the Supreme Court.
Taking law into own hands
This system of law is not promoting the cause of justice. It is hindering the process of justice – helping the criminal and tormenting the innocent. That is why every other day we come across news where people beat up – and even lynch – a person they catch hold of having committed a murder, killed pedestrians in an accident, raped a woman or even a small time thief. People have lost faith that justice will be done in the normal course and in time. That is why they prefer to dispense justice themselves and instantly.
It is time our politicians and those involved in dispensing justice put their heads together and attune our law to the reality and needs of the present Indian situation, lest people take the law into their own hands to kill the law that kills justice.

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