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Off
the Presses
Criminal
Justice in Ruins
Jessica
Lal
Source: Google /images |
The
recent acquittal of Siddarth Vashisht alias Manu Sharma
in the Jessica Lal murder case has highlighted the need
for systemic criminal justice reform more forcefully
than ever before. The controversies in this case point
to serious infirmities in the Indian criminal justice
system and a callous disregard of the law by those entrusted
to uphold it. From the prosecution to the police, judiciary
and the prisons department, India's criminal justice
system is steadily weakening due to self-serving manipulation
of rules and procedures by those who are in a position
to do so. The failure of the system to punish criminals
with connections on one hand and its alacrity in imposing
stringent punishment on ordinary people indicates serious
failings.
For
one, people are simply not afraid of lying under oath.
Punishment for the crime of giving false evidence in
court, which carries a maximum sentence of seven years
imprisonment under the Indian Penal Code, is just not
handed out. The offence itself is rarely registered
though the Code of Criminal Procedure specifically provides
that if witnesses turn hostile, the court can order
an inquiry if it feels it is expedient to do so in the
interests of justice. The system's failure to sufficiently
address perjury has engendered a callous disregard for
the sanctity of court proceedings throughout the country.
Threats and inducements are regularly employed to encourage
witnesses to lie on oath. Whenever the accused are high
profile, witnesses turn hostile with frightening regularity.
Human rights defenders have been crying hoarse for decades
now for a proper witness protection programme, which
would provide the necessary physical security to witnesses
from powerful criminals, and in extraordinary cases
even provide them with new identities. It is important
that India's law provides a special process to ensure
that those who render service to society by standing
firm to their testimony against grave threats are not
victimised.
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Abysmal
conviction rates throughout the country and a systematic failure
to convict criminals with political backing responsible for
the murders during Delhi riots in 1984, Mumbai riots in 1992
and 1993 and the Gujarat genocide in 2002 show that the prosecution
system is in shambles. Too often, public prosecutors have
been accused of being influenced by the rich and powerful.
Because the role of the public prosecutor is so important
in the delivery of justice, it is perhaps time to wholly revamp
and create an all-India service of public prosecutors. Public
prosecutors can be given specialised training and assigned
state cadres, just like the civil services. In many countries,
the position of public prosecutor is much sought after, entails
a rigorous screening process, and attracts the best and brightest
from the legal fraternity. A full-fledged cadre may better
assure the independence of prosecutors. It will also ensure
that law officers, including advocate generals will come from
within the service rather than continuing with the present
practice where after elections the government appoints assistant
advocate generals, deputy advocate generals and the state
advocate generals from amongst lawyers affiliated to the ruling
party.
| Police
reform is another facet of criminal justice reform that
has been begging attention for decades. The National Police
Commission, way back in 1979-81, acknowledged that the
investigative capability of the police was being marred
by extraneous influences. However, nothing has been done
to insulate the police from illegitimate political control.
State police chiefs are appointed and removed at the sole
discretion of chief ministers, which makes them highly
susceptible to the influence of the high and mighty. The
lack of fixed tenure and merit based appointment of police
chiefs has resulted in police forces owing their allegiance
to the prevailing political dispensation rather than the
law. The most serious consequence of patronage, which
has thoroughly infected the police rank and file, is that
criminals with political backing are hoodwinking the system
with impunity. The lack of an independent body to receive
and investigate complaints against officers who indulge
in misconduct has contributed to the many instances in
which investigating officers have purposefully carried
out shoddy investigations and indulged in poor record
keeping, precisely to make the case to fail. |
Source:
Google /images |
Things
are far from hunky-dory in the least talked about cog of the
criminal justice system - the prison. Endemic overcrowding,
coupled with the lack of proper waiting room facilities, guarantees
that ordinary prisoners facing trial barely get a glimpse
of their lawyer, leave alone requisite time to discuss the
strategy for their defence. Contrast this with reports of
five star facilities being afforded to mafia dons, gangsters,
VIPs by corrupt prison wardens. Custodial malpractices continue
in large measure because the prison visiting system is virtually
redundant. Official visitors, including judges and district
magistrates, are required to visit prisons and listen to the
grievances of prisoners and inspect their living conditions
at regular intervals. These visits do not take place as often
they should, much to the detriment of ordinary inmates. Additionally,
each prison is expected to have a Board of Non-Official Visitors
consisting of local residents to visit, report on prison conditions,
and keep an eye out for irregular occurrences. Most state
governments have been lax in constituting these boards and
in ensuring that they perform satisfactorily.
Most
significantly, as the apex institution that is responsible
for exercising oversight of the criminal justice system, the
judiciary must accept blame for the present state of affairs.
The Supreme Court has issued a number of guidelines on policing
and on the conduct of the prosecution that are observed more
in breach. The onus squarely lies on the district judiciary
to ensure that procedural requirements are meticulously observed
and the police and the prosecution do not slack or transgress
the boundaries of their power. The rampant existence of custodial
torture is as much a reflection of the police's brutality
as it is of the judiciary's apathy. Magistrates are required
to inquire from each person who appears before them whether
they have been subject to ill-treatment or arbitrarily handcuffed,
and if they have been provided access to a lawyer. However,
in practice legal requirements are scrupulously observed when
the accused are well connected and callously disregarded when
the accused happen to be from poor and marginalised sections
of society.
Source:
Google /images |
Calls
for enhanced judicial accountability have been consistently
snuffed out on the grounds that it would impede the
independence of the judiciary. As any other public agency,
the judiciary too is accountable for the conduct of
its members. Mere passing of strictures by the higher
courts against judges who have clearly digressed from
the path of duty is simply not enough. Judges must be
held to account for miscarriage of justice in their
courts, which impacts upon the lives of people. Judicial
misconduct cannot be taken lightly. A constitutionally
mandated Judicial Integrity Commission is urgently required
to prop up the falling standards in the judiciary and
look into reports of judicial impropriety, including
the widespread but highly questionable practice of wards
of judges practising law in the same court as their
parents who may find it easier to argue for bail in
front of their parents' colleagues.
The
outrage at the acquittal of Manu Sharma has brought
public confidence in the criminal justice system to
its nadir. Let's hope this is a wake-up call to the
powers that be, to take note of longstanding but frequently
ignored demands for systemic criminal justice reforms.
If the people of India do not now take action, they
may find themselves deluged by a well of criminality
and corruption that will threaten the very fabric of
society.
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Mandeep
Tiwana
Access to Justice
CHRI
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Jessica
Lal: a Midsummer Night's Death
At
2am on an April morning in 1999, Jessica Lal was waiting
tables at an exclusive New Delhi nightspot, Tamarind
Court, a playground for the city's well connected. Jessica
was a former model; the bar was run by a local socialite.
According to the police version of events, as the evening
begin to wind up, Manu Sharma, the son of a powerful
government politician walked into the bar and asked
for a drink. Jessica refused to serve him, Manu pulled
out a gun and shot Jessica, fatally wounding her. It
was a story that captured the public's imagination;
the actors included a beautiful young victim and a powerful
and well connected accused; the stage was the glitzy
and glamorous life of Delhi's rich and famous. Jessica's
death has been splashed across the front pages of newspapers
again, seven years on, following the acquittal of Manu
Sharma, and eleven others, on charges related to Jessica's
killing. The popular view is that the police botched
the investigation, which was riddled with political
influence and evidence tampering and that the judiciary
succumbed to pressure from the rich and powerful, acquitting
the accused.
From
the beginning, there were critical observations regarding
the police approach to the case. In August 1999, an
application was filed in the High Court accusing the
police of failing to conduct an adequate investigation.
The High Court looked at the investigation, and made
a number of disparaging comments about the way the case
had been handled. In particular, the Court asked why
the police had not followed leads relating to the prompt
cleaning of the bar, which potentially damaged or altered
evidence. The Assistant Commissioner of the police district
responded by promising that additional charges would
be laid - seven years on, these charges have not eventuated.
An internal police inquiry at the same time found that
key evidence had been tampered with once in police possession.
Charges
were laid by the police against a number of defendants.
The main charge of murder was made out against Manu
Sharma. Three others were charged with the destruction
of evidence and criminal conspiracy, and eight more
were charged with giving shelter to Manu Sharma. The
trial got underway in 2001, but the prosecution case
was beset by setbacks, including a number of key witnesses
turning hostile. The first was Shayan Munshi. Munshi
had been described in the First Information Report put
together by the police (a First Information Report is
the first procedural step taken to register a crime
in India) as an eye-witness; during the trial Munshi
denied this and said he had not seen Manu shooting at
Jessica. When his attention was drawn to the First Information
Report, he replied that the Report had been drafted
in Hindi, a language that he did not speak, and that
he had not understood what he was deposing to at the
time. Further police witnesses turned hostile during
the course of the trial. The Court failed to use its
powers of further investigation to probe the turnaround
by each witness, not even enquiring into Munshi's lack
of understanding of a language that is a compulsory
part of the curriculum in most Indian schools.
A
200 page verdict was delivered by the Court on 21 February
2005, acquitting each of the accused. The Court held
that the police case had three fatal flaws. The first
was that three eye witnesses had failed to identify
Manu as the man who shot Jessica. The second was that
the weapon was never recovered. The third was that forensic
evidence contradicted police hypotheses. The Court ruled
that it appeared the police had made a decision to frame
Manu, and that the evidence produced did not prove his
guilt. The public greeted the acquittal with anger and
frustration amid claims of police incompetence and political
manipulation of both the police and the judiciary. The
police have subsequently filed an application for a
review of the decision, on the basis that it was manifestly
wrong, bad in law and contrary to the evidence and facts
on record.
Daniel
Woods
Access to Justice
CHRI
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