12-07-2004, 01:33 AM
Unequal law
<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->3 December 2004: Court cases related to the post-Godhra Gujarat riots and J.Jayalalithaa are being tried outside Gujarat and Tamil Nadu. Yesterday, the BJP demanded in Parliament to try the Kanchi-Shankaracharya case also outside Tamil Nadu, where Jayalalithaa could not influence it. One witness in the case says he was tortured in police custody, his teeth broken, to implicate the seer in the murder of a Kanchi-Mutt employee, Sankararaman. Especially sensitive is Sushma Swarajâs allegation that the Shankaracharya is being ill-treated in custody, not being given proper food, and there being no arrangement for his daily prayers.
Meanwhile, the Best-Bakery case is in the doldrums, because one prosecution witness after another, commencing with Zahira Sheikh, has turned hostile in court. The trial outside Gujarat on a fast track has been further vitiated by Zahiraâs allegations that the anti-communal activist, Teesta Setalvad, and some others forced her to make eyewitness claims to the Best-Bakery carnage, and that she was shown photographs of the accused before police identification. Subsequently, Zahiraâs brother and sister have also turned hostile, and Teesta, besides suffering personal damage to her reputation, has also had to take anticipatory bail in fear of arrest by the Gujarat police.
But the Shankaracharya and Best-Bakery trials are not the only ones to invite suspicions. As we wrote in an earlier commentary (âLet truth prevail,â 31 October 2003), Kehar Singh was hanged for Indira Gandhiâs assassination on no ground or evidence other than criticising Operation Bluestar. On the other hand, Bharat Shah was acquitted for allegedly financing a movie, Chori Chori, Chupke Chupke, with underworld funds, while S.A.R.Geelani was set free by the Delhi high court because his cellphone conversation with two conspirators in the December-2001 Parliament attack was not enough to implicate him. Still earlier, there was the Jessica-Lal case, where three prosecution witnesses turned hostile in the murder of the fashion model.
What we have in all these cases is different or not-so-similar elements strung by a common thread. Witnesses turning hostile after alleging custodial torture, particularly grave in the Shankaracharya case. Flat state intimidation in some trials, forcing the Gujarat riot and Jayalalithaa cases to be tried outside the state. And the courts dismissing charges again key accuseds, Bharat Shah for receiving mafia funds, and Geelani as a co-conspirator in the Parliament attack. The common thread is all the crises in criminal-justice administration arises from India retaining the British adversarial system of justice, while most of the Western world is switching to or adopting key elements of the inquisitorial system.
<b>On an average, one-hundred-and-six criminal cases are daily registered with the courts all over India, out of which a shocking one-hundred-and-two cases are dismissed. Either the courts see through a frame-up, or the prosecution is unable to adduce sufficient evidence against the accused. </b> Most of the evidence is made up of statements of witnesses. Even standard scientific methods to strengthen an investigation are rarely employed. Once witnesses turn hostile, the case crumbles. Often, simple rules to collect evidence are not followed, like entries in the daily diary, mandatory under the NDPS Act, or sealing of seizures immediately after recovery. In their haste to get publicity, the seizures are shown to the press, and the defence immediately alleges tampering, leaving the courts no alternative but to dismiss the case.
The CrPC was amended in 1974 to separate police investigation from the prosecutorâs office. This has left the prosecutorâs office with little to no control over the investigations. He can advise the investigating officer about lack of compelling evidence, he can point to loopholes which will lead to dismissals, but this advice is not binding, with the result, prosecutors take cases to court against their better judgment. The US follows the pre-1974 system, where the district attorneyâs office has full control over every aspect of the case, each piece of evidence has many layers of support. Where the investigation is considered weak, further investigation is ordered. The DAâs office conducts mock trials to combat possible defence strategies. Naturally, the successful prosecutions are more.
But more advanced is the French inquisitorial system, where a juge dâinstruction supervises the criminal investigation, hears witnesses and suspects, orders searches and writes warrants, all with the aim not to prosecute a particular person but to find the truth. The juge dâinstructionâs decision may be appealed. Applied to the Shankaracharya case, the juge dâinstruction would have first determined to commit him to custody or not, then ensured his reverential treatment, certainly prevented third-degree torture of the witness, and by now would have concluded one way or another about the seerâs innocence. In Kehar Singhâs case, he would have been free and alive, but the fates of Bharat Shah and Geelani would be harder to determine. It is quite possible Geelani may not have undergone a rigorous, soul-destroying two-year imprisonment in Tihar under the inquisitorial system.
In April 2003, the Justice V.S.Maliamath committee recommended to graft some inquisitorial practices onto Indiaâs adversarial legal system, bringing police investigation under courts, separating investigators from law-enforcers, and a separate Supreme-Court and high-court benches with specialist judges to try criminal cases. Predictably, the recommendations are gathering dust. Much earlier, the law commission had suggested amending Section 164 of the CrPC so all statements from material witnesses had to be recorded on oath before a magistrate, one way to prevent witnesses from turning hostile or perjuring. This amendment though debated in the government has not been codified.
<b>Instead, makeshift solutions are being tried, trial outside a hostile state, fast-tracking trials, etc, but these have not dented the growing crises in criminal-justice administration. In broad daylight and before hundreds of eyewitnesses, one former Bihar MP instigated his supporters to lynch a district collector. The ex-MP himself struck deathblows, but is out free. The Shankaracharya is brought in a beat-up police van to the court while Pappu Yadav travels in a luxury car. If you are rich and powerful, you are more likely to get off than if you are poor but innocent. Consider the plight of thousands of undertrials while Laloo Prasad Yadav romps about despite the fodder scam. It cannot get worse.</b>
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<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->3 December 2004: Court cases related to the post-Godhra Gujarat riots and J.Jayalalithaa are being tried outside Gujarat and Tamil Nadu. Yesterday, the BJP demanded in Parliament to try the Kanchi-Shankaracharya case also outside Tamil Nadu, where Jayalalithaa could not influence it. One witness in the case says he was tortured in police custody, his teeth broken, to implicate the seer in the murder of a Kanchi-Mutt employee, Sankararaman. Especially sensitive is Sushma Swarajâs allegation that the Shankaracharya is being ill-treated in custody, not being given proper food, and there being no arrangement for his daily prayers.
Meanwhile, the Best-Bakery case is in the doldrums, because one prosecution witness after another, commencing with Zahira Sheikh, has turned hostile in court. The trial outside Gujarat on a fast track has been further vitiated by Zahiraâs allegations that the anti-communal activist, Teesta Setalvad, and some others forced her to make eyewitness claims to the Best-Bakery carnage, and that she was shown photographs of the accused before police identification. Subsequently, Zahiraâs brother and sister have also turned hostile, and Teesta, besides suffering personal damage to her reputation, has also had to take anticipatory bail in fear of arrest by the Gujarat police.
But the Shankaracharya and Best-Bakery trials are not the only ones to invite suspicions. As we wrote in an earlier commentary (âLet truth prevail,â 31 October 2003), Kehar Singh was hanged for Indira Gandhiâs assassination on no ground or evidence other than criticising Operation Bluestar. On the other hand, Bharat Shah was acquitted for allegedly financing a movie, Chori Chori, Chupke Chupke, with underworld funds, while S.A.R.Geelani was set free by the Delhi high court because his cellphone conversation with two conspirators in the December-2001 Parliament attack was not enough to implicate him. Still earlier, there was the Jessica-Lal case, where three prosecution witnesses turned hostile in the murder of the fashion model.
What we have in all these cases is different or not-so-similar elements strung by a common thread. Witnesses turning hostile after alleging custodial torture, particularly grave in the Shankaracharya case. Flat state intimidation in some trials, forcing the Gujarat riot and Jayalalithaa cases to be tried outside the state. And the courts dismissing charges again key accuseds, Bharat Shah for receiving mafia funds, and Geelani as a co-conspirator in the Parliament attack. The common thread is all the crises in criminal-justice administration arises from India retaining the British adversarial system of justice, while most of the Western world is switching to or adopting key elements of the inquisitorial system.
<b>On an average, one-hundred-and-six criminal cases are daily registered with the courts all over India, out of which a shocking one-hundred-and-two cases are dismissed. Either the courts see through a frame-up, or the prosecution is unable to adduce sufficient evidence against the accused. </b> Most of the evidence is made up of statements of witnesses. Even standard scientific methods to strengthen an investigation are rarely employed. Once witnesses turn hostile, the case crumbles. Often, simple rules to collect evidence are not followed, like entries in the daily diary, mandatory under the NDPS Act, or sealing of seizures immediately after recovery. In their haste to get publicity, the seizures are shown to the press, and the defence immediately alleges tampering, leaving the courts no alternative but to dismiss the case.
The CrPC was amended in 1974 to separate police investigation from the prosecutorâs office. This has left the prosecutorâs office with little to no control over the investigations. He can advise the investigating officer about lack of compelling evidence, he can point to loopholes which will lead to dismissals, but this advice is not binding, with the result, prosecutors take cases to court against their better judgment. The US follows the pre-1974 system, where the district attorneyâs office has full control over every aspect of the case, each piece of evidence has many layers of support. Where the investigation is considered weak, further investigation is ordered. The DAâs office conducts mock trials to combat possible defence strategies. Naturally, the successful prosecutions are more.
But more advanced is the French inquisitorial system, where a juge dâinstruction supervises the criminal investigation, hears witnesses and suspects, orders searches and writes warrants, all with the aim not to prosecute a particular person but to find the truth. The juge dâinstructionâs decision may be appealed. Applied to the Shankaracharya case, the juge dâinstruction would have first determined to commit him to custody or not, then ensured his reverential treatment, certainly prevented third-degree torture of the witness, and by now would have concluded one way or another about the seerâs innocence. In Kehar Singhâs case, he would have been free and alive, but the fates of Bharat Shah and Geelani would be harder to determine. It is quite possible Geelani may not have undergone a rigorous, soul-destroying two-year imprisonment in Tihar under the inquisitorial system.
In April 2003, the Justice V.S.Maliamath committee recommended to graft some inquisitorial practices onto Indiaâs adversarial legal system, bringing police investigation under courts, separating investigators from law-enforcers, and a separate Supreme-Court and high-court benches with specialist judges to try criminal cases. Predictably, the recommendations are gathering dust. Much earlier, the law commission had suggested amending Section 164 of the CrPC so all statements from material witnesses had to be recorded on oath before a magistrate, one way to prevent witnesses from turning hostile or perjuring. This amendment though debated in the government has not been codified.
<b>Instead, makeshift solutions are being tried, trial outside a hostile state, fast-tracking trials, etc, but these have not dented the growing crises in criminal-justice administration. In broad daylight and before hundreds of eyewitnesses, one former Bihar MP instigated his supporters to lynch a district collector. The ex-MP himself struck deathblows, but is out free. The Shankaracharya is brought in a beat-up police van to the court while Pappu Yadav travels in a luxury car. If you are rich and powerful, you are more likely to get off than if you are poor but innocent. Consider the plight of thousands of undertrials while Laloo Prasad Yadav romps about despite the fodder scam. It cannot get worse.</b>
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