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"Oh God, put away justice and truth for we do not understand them and do not need them." - W. H. Auden. These words should be widely disseminated among the countless millions who sit everyday in our "temples of justice" with hope and great expectations that are routinely dashed by the brutalisation of truth and justice in our system. Auden's words may help these tormented souls accept the reality.
Securing justice - social, economic and political - to all citizens is one of the key mandates of the Indian Constitution. This has been explicitly made so in Article 39-A of the Constitution, that directs the State "to secure equal justice and free legal aid for the citizens." But the experiences of the last 58 years show that the State has failed squarely on addressing some very basic issues - quick and inexpensive justice and protecting the rights of poor and the vulnerable. The justice delivery system is on the verge of collapse, with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal.
The criminal justice system is at its worst. The poor man in this country has no faith in the efficacy of the criminal redressal system. A brief look at some of the juridical statistics would tell the true story of the state of justice in India today:
On an average, 50 lakh crimes are registered every year which are sought to be investigated by the police.
The pendency of criminal cases in subordinate courts is in the region of 1âˆ™32 crore and the effective strength of judges is 12,177.
The number of under-trials in criminal cases pending in the courts are 1Â·44 crores and of these, over 2 lakh persons are in prison.
Around 63 lakh persons get arrested every year and over 2500 are victims of custodial violence, including deaths and torture in police custody.
On an average, courts are able to dispose off 19 per cent of pending cases every year.
One reliable estimate puts it that clearance of all pendency in the courts in the next three years would require a six fold increase in the numbers of judges, which, in turn, would need six times increase in infrastructure and support staff.
But the resource allocation to the judiciary tells a different story. In the Tenth Plan, out of an allocation of Rs. 8,00,000 crores, the allocation made for the judiciary is 0Â·078 per cent; that is less than one-tenth for the coming years.
The situation today is so grim that if a poor is able to reach the stage of a High Court, it should be considered as an achievement. Justice for a vast majority of our population has become a mirage.
The delay caused in the disposal of cases and detention of the poor accused pending trial is one of the most neglected aspects of our criminal justice system. Procrastination of trials may sometimes result in injustice because of a duly prolonged process, as much of the material evidence may perish when situations are altered. Justice Nanavati found it difficult to collect clinching evidence against the perpetrators of the '84 riots primarily due to the time lag.
Long incarceration without trial is not only violative of the Constitution, but is also against India's commitment to the Universal Declaration of Human Rights, 1948.
Article 3 of the declaration reads, "Everyone has a right to life, liberty and security."
Article 5 states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
Article 8 envisages, "Everyone has a right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted to him by the constitution or by the law."
Article 9 says, "No one shall be subjected to arbitrary arrest, detention or exile."
Article 10 declares, "Everyone is entitled in full equality to fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."
Article 11(1) stipulates, "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense."
Thus, the letter of law recognises the right of an accused to speedy trial, but the problem is that it has never become a reality. Merely passing a law is not enough. Our judicial system, even in grave cases, suffers from a slow motion syndrome which is lethal to "fair trial", whatever the ultimate decision might be. Speedy justice is a component of social justice, since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable period of time and the innocent being absolved from the inordinate ordeal of criminal proceedings. The right to speedy trial is a fundamental right implicit in Article 21 of the Constitution. The consequence of violation of fundamental right to speedy trial would mean that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.
An important reason for reluctance of the public to cooperate with the criminal justice system is the fact that their attendance in court entails a lot of inconvenience and harassment.
This reminds me of a gruesome incident which happened in a Mumbai local train on August 15, exactly three years ago. A young, mentally challenged girl was raped in a compartment where over half a dozen people were seated.
The subject came up during a students' debate organised in a leading college of Mumbai on Independence Day last year. "What should people do when they see something wrong being done; when a crime is being committed before their eyes?" was the question raised. Some of the youngsters suggested intervention only if they were sure that they wanted to be involved in the "long" process of getting justice. If they did not want the "hassle", then it was better not to be "distracted", said some of them.
We must ask what is happening in this country if ordinary people are losing faith in the ability of the law-enforcing machinery and the courts to deliver justice.
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.
After the criminals, it is perhaps the police 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!
Did you know that two women are raped somewhere in India every hour and one in every five is not even a woman, but a child? How many rapists do you think are brought to book? Not even a fraction!
We have a ridiculously low rate of conviction, officially put at 6.5 per cent, for heinous offences in India. It 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.
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.
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?
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. 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. 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.
It does not cost anything to lie before an Indian court. And the reason why perjury actions have failed is that the procedure is very cumbersome. 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.
Free India's history is a history of failure - to administer justice. Riot after riot has challenged the idea of "justice for all and in all its facets" as implied in the Preamble of the Constitution of India. Institutions meant to protect constitutional guarantees of political and social freedom have been trampled upon repeatedly by the mainstream political class. Delhi '84 and Gujarat '02 are evidences of collapse of our legal system. Such memories erode the belief of Indians in Indian democracy.
More than half a century after India became a secular democratic republic promising justice and equality to all under the law, we continue to murder and mutilate each other in the name of religion, caste, creed or gender. And while a single murder can see you behind bars for life, the murder of hundreds, especially if done en masse, can usually guarantee your safety. At least, that seems to be the message we are sending out. As is evident from our past, those who start riots, those who slaughter and rape and pillage and carry out the most gruesome acts of violence against humanity, are seldom brought to justice.
In keeping with the rest of our social and political lives, there is little or no accountability. How else could Chief Minister Narendra Modi, widely believed to be the architect of the horrifying violence that ripped Gujarat apart in 2002, reclaim his throne in a resounding electoral victory soon after thousands had been killed, and still be projected as a valid leader? Modi and several of his ministers, Vishwa Hindu Parishad general secretary Praveen Togadia, as well as several members of the police and administrative services - those who enjoy privileges because they are supposed to protect the common man - have been named in reports for their complicity in this frenzy of sectarian violence. That is, when the victim is allowed to lodge a formal complaint. We are not always allowed to take even that first step to justice.
A successful prosecution is based on accurate records and an impartial investigation into the crime. Every cog in the machine needs to work - from that first step of recording the crime, through the faithful presentation of evidence and eyewitness accounts, to the process of analysing the available data under free and unbiased conditions so as to reach justified conclusions of guilt or innocence. The main witness in the Best Bakery case, Zahira Sheikh, daughter of the murdered bakery owner, and her mother went on record saying that they were threatened by Madhu Srivastava, BJP member of the Legislative Assembly, and were forced to change their statements and bear false witness. This intimidation of witnesses and distorting evidence, practised frequently by defendants with political clout, severely undermines the process of justice and breeds cynicism among citizens that can undermine the very foundations of civil society. The mechanism of justice delivery has become dysfunctional.
Remember the Delhi riots of 1984, where Sikhs were massacred following the assassination of Prime Minister Indira Gandhi by her Sikh bodyguards? Over four fateful days, more than 3,000 Sikhs were hunted, humiliated, and massacred in an organised killing spree carried out with the active involvement of the police and Congress leaders and with the tacit approval - if not worse - of those in charge of the country at the highest level. After all, the massacres took place not in some dark and distant corner of the country, but in Delhi - the very seat of political power and a place where the reins of national security and law enforcement have always been tightly held. Several Congress politicians were accused by eyewitnesses and surviving victims of complicity, ranging from leading the mob to identifying Sikh families from voters' lists they carried with them to rewarding each member of the murderous mob with a bottle of liquor and Rs. 100, to finally pulling them out of police stations if apprehended by the law. The accused included then Union minister HKL Bhagat, members of Parliament Sajjan Kumar, Jagdish Tytler, Dharam Das Shastry, and metropolitan councillor Lalit Makan. Even after more than twenty years of trials, not one of them has been reprimanded by law.
Or take the Bombay riots in the aftermath of the Babri Masjid demolition on December 6, 1992. They left at least 1,000 dead and almost 3,000 wounded in two phases of bloodshed. Then the retaliatory bomb blasts in March 1993 killed another 300, and left about 1,000 wounded. The Srikrishna Commission report indicted Bal Thackeray and the Shiv Sena for leading the attacks on Muslims. Even the errant police officials charged with complicity, let alone Mr. Thackeray, remain unpunished.
Like in Mumbai in 1992-93, or in Gujarat in 2002, the police of Delhi in 1984 were also accused of complicity in the riots, from Assistant Commissioners down to sub-inspectors and constables. The charges against the police were similar in all these cases: protecting and supplying weapons to the mob, pulling out policemen who were trying to contain the riots, disarming the marked victims, refusing to protect targeted communities and abetting the violence against them in various ways, including, as in Bombay, shooting them dead. Not much has been done to bring them to book either.
Of course, all these allegations may be incorrect. All of these policemen and politicians may be falsely accused, they may be completely innocent, the victims of killer mobs in Delhi, Mumbai and Ahmedabad may have been repeatedly mistaken. We may never know.
What we do know is that the riot accused routinely go free. And that doesn't inspire confidence in our judiciary. Indira Gandhi's killers were quickly put to death. What about those murderers who have taken thousands of lives?
Labelling these flares of sectarian fury as "riots" is itself an act of denial, since these should be looked at as massacres supported by government or political parties. The 1984 riots were not conventional communal riots. There was no fighting. It was a government-sponsored attack on innocent people who were just sitting at home. Thousands were murdered in broad daylight.
The Nanavati report and the ATR have exposed serious issues about how we deal with state-sponsored crimes. In crimes where local administrations, police and politicians are involved, it is pointless to look for clear-cut judicial outcomes, especially for cases whose trials have run cold. Police refuse to register complaints, files go missing, witnesses are tough to find or turn hostile in court. Any retrial of 1984 will, doubtlessly, find people like Jagdish Tytler and Sajjan Kumar innocent once again.
For, the process of redressal has too many hurdles blocking out the underprivileged and traumatised, and only the very fortunate can hope to walk the path to justice. The illusion of justice that we live with is more dangerous than the absence of it. Through decades of practice, we have learnt to kill justice by striking at its roots, by dismembering and burying the body of evidence. And wracked by hunger, illiteracy, lack of health care and basic necessities, or smothered by our own middle class crises and ambitions, dwarfed by the futility of fighting a system that showcases corruption as an art form, we are only too willing to forget and move on.
So, too bad that your parents were slaughtered by the neighbours. Tough if your daughter was raped by the killers. You are about to be killed too, you say? How curious! What, you have attracted a mob to my doorstep? Out - this minute! I have problems of my own.
We move on.
Pressed as we all are for time. Excepting those who have been left with broken bodies and a shattered world. They have all the time in the world to wait for justice.
Nipun N. Mudaliar
Name : Nipun N. Mudaliar
Class : First Year L.L.B. Roll No. : 315 Div. : E
College : Campus Law Centre, Delhi University
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