The Hindu : Justice denied

Online edition of India's National Newspaper
Sunday, Nov 10, 2002

Opinion

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Justice denied

The lethargic legal system acquiesces by allowing an illegal system of "administration of justice" to flourish, writes Neena Vyas.

THERE ARE not many who would disagree that the criminal justice system is virtually in a state of collapse. It is the criminals who benefit most from this state of affairs, and conversely, the innocent, who have a brush with the law through no fault of their own, are the ones to suffer.

To give the devils their due, the police are overstretched. They have to serve summons going personally from door to door, they have to appear in court in connection with thousands of cases, they have to provide security for all and sundry, and the most important work they are supposed to do — protecting the common man and thoroughly investigating crime and putting together scientific proof of guilt — suffers.

It is perhaps the police, after the criminals, who take the maximum advantage of a collapsed criminal justice system. Privately, senior police officers often point to the collapse of the system to justify encounter deaths. The argument is: the police risk life and limb to chase dreaded criminals, catch them and put them behind bars, and all that happens is acquittals after long delays in courts. Encounter deaths is quick justice, they say.

To get around the law, the police often fake encounters, carefully planting the evidence of a shootout when in fact the "criminals" may have been pulled out of their homes and taken to a spot where the encounter is "staged". As for everyday murders, dacoities and burglaries, quite often the police see these as an opportunity to make some extra money. After all, as the prosecuting agency, it is in their power to ensure that key witnesses do not turn up or even turn hostile, that forensic evidence is not gathered and other evidence is destroyed.

In any case, why bother with all that when the courts are not going to pass judgments for ten years or more and when at the end of it the criminals will be acquitted and the police would have egg on their face? Instead, why not make some money?

The eminent jurist, Fali S. Nariman, feels that much of the blame for this state of affairs has to be taken by the increasing politicisation of the police force. "The police have no autonomy. Therefore, no movement forward in cases related to the Gujarat massacres, for example.''

Eight months after vicious rioting took more than 1,000 lives, only a few chargesheets have been filed. Not a single trial has started, and many named in first information reports (FIRs) move about freely; possibly they will be given tickets to contest the coming elections.

The lack of political will, the stink of corruption which results in hostile witnesses and the disappearance of key evidence could well be the reasons for the very low rate of conviction, officially put at 6.5 per cent, for heinous offences in India.

"The low rate of conviction leads us to the conclusion that crime in India is a very high profit and a low risk proposition. You commit a heinous crime and there is a 93.5 per cent possibility that you will get away with it," says Arun Jaitley, former Union Law Minister.

Can this state of affairs be allowed to continue? Can such a system inspire confidence? Can we get rid of or reduce violent crime in this country when most offenders get away with a few years in jail as undertrials?

Conversely, the police get their day of glory not by getting convictions but by "claiming" success in solving cases long before those are brought to trial and the guilt is proven conclusively. The lethargic legal system acquiesces by allowing an illegal system of "administration of justice" to flourish by holding criminals in prisons for long periods without a trial.

Mr. Nariman suggested that a large majority — as much as 90 per cent — of even criminal cases could be "settled", as in the United States, by allowing defendants to plead guilty on lesser offences when the prosecution knows it does not have enough evidence to press the more serious charge. "But plea-bargain, as it is called, is non-existent in our system. And any system would collapse under the weight of the sheer numbers of cases, if this practice was not followed."

Almost everyday from one part of the country or another there is a report about a custodial death. And yet, how many policemen have faced a murder trial and been convicted by the system? In communal and caste riots thousands die, as in Gujarat and Bihar, but where are the guilty, where are the convictions or even the trials?

"Our enforcement agencies are not up to the mark. Investigation work has become poorer and poorer over the years; scientific investigation especially is almost non-existent. Everybody thrives on confessions before the police which is not admissible evidence," said Mr. Nariman. Even the simple safeguard of recording confessional statements before a judicial officer is not taken to ensure that the confession is admitted in a court as evidence, he added. The perjury laws are in place, but more often than not these are not enforced and implemented. The result is that in many sensational criminal cases key witnesses turn hostile, for there is no deterrence, he said.

Mr. Jaitley could not agree more. "This area needs a radical change. At present it does not cost anything to lie before an Indian court. We have to put action for perjury into motion. And the reason why perjury actions have failed is that the procedure is very cumbersome," he said. "Judges do not want to initiate perjury action when witnesses have given false evidence or made a false statement on oath as they would have to file a complaint elsewhere, probably leave their own work and depose in another court." The remedy could be simple. A notice to the party, a summary trial at the time of the judgment in the main case with the same judge coming to the perjury hearing, he suggested. And of course, deterrent punishment.

It is not as if the climate in India prevents things from changing for the better. In Maharashtra, it is pointed out, cases were being heard within a few months of chargesheets being filed, and trials were on within a year. As for cases of two-year vintage and more, they were moved to fast track courts. It took us 40 years and more to go beyond the accepted three per cent "Hindu rate of growth" and perhaps it will take us four more decades to speed up the judicial process.

The fact is that police credibility is at an all-time low. Whether it is CRPF men firing in panic on Amarnath pilgrims in Kashmir, or members of the Provincial Armed Constabulary killing with impunity in Malliana in Meerut, or beating the life out of suspected thieves and then dumping their bodies somewhere, or extorting money from ordinary road-side vendors, the police can and do get away with it all. And the criminal justice system simply watches in silence, rarely, if ever, punishing the marauders of law posing as its protectors.

But reform is not only a must, it can be done. After all, because of pressure from women's groups not only did the laws on rape and dowry deaths undergo a change, the police and the legal system were also forced to change their attitude somewhat, even if not to the extent desirable. We have, after all, traversed quite a distance since the time of the Mathura rape case, which forced Parliament to change the system weighted against rape victims.Given political will, the dark labyrinthine corridors of the criminal justice system can be lit up and straightened out.

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