In our land, crime does pay

Our media is always full of negetivity about our society, about our sinking morals, our fast disappearing ethics, and yet I would always have an inkling of hope in my heart that perhaps we are still changing for the better.

I am sure none of us are naive enough to believe that crime is punished in this country. For most of the time, it goes unpunished. We have to still shake the medieval mindset of blaming the victim until proven innocent, when it should be other way round. The Jessica Lall verdict has really shaken me. All those plots I used to see in movies, of rich and powerful people getting away with murder, actually happened in front of me. The absolute incompetence and connivance of the Delhi Police takes my contempt for them to a whole new level. I've cursed the entire lot enough, and I am really glad there are some sections of the media who see this episode the same way as i do, a chilling reminder of how backward our society still remains.

More importantly, I think our judicial system is in shambles. Our forefathers had created a great system in which the judiciary was one of the pillars of a strong democracy. As our polity rotted away, it built for itself a system which it could manipulate, and I believe an undermined judiciary is a part of that agenda.

Former chief justice of India, Shri. VN Khare has an entire article in the Indian Express where he posts his views on what reforms are needed to strengthen the judiciary. An epic reform took place last week, and i will post about that too, although i will admit I do not understand much of the implications of it all :) I think that is more for my sister to know, being in the law business.

But first, an editorial from the Indian Express on the absolutely unjust verdict. It talks of a very important point that makes our judiciary so weak; its inability to protect the witness from manipulation and threats.

So, crime does pay?

If the pointblank shooting down of Jessica Lall at a fashionable watering hole in New Delhi in April of 1999 stunned the nation, the exoneration of all the accused in the case seven years later by a Delhi sessions court was hardly less so.

If the crime was evidence of depraved social behaviour, the verdict was evidence that India’s criminal justice system suffered from serious structural inadequacies. If a high-profile case in the heart of the capital can be allowed to collapse in this manner, there can be no hope of justice being rendered to ordinary people living in far-flung corners. The public incredulity that greeted this verdict should not just be a momentary spark of outrage. It should translate into a sustained, serious campaign to reform our criminal justice system.

The police did not even take the elementary precaution of protecting valuable evidence. A joint commissioner, who was at the scene of murder, had to be relieved of his post for failing to register that the bar was unlicensed. As for key witnesses, they chose to turn hostile. What caused these people to retract the initial statements they had made to the police will perhaps never be known and here we confront one of the great anomalies in our criminal justice system. The witness, despite being central to the delivery of justice, emerges as the weakest link in the system, vulnerable to both intimidation and inducement.

We need to ensure that not just the witness, but the evidence of the witness, is protected. This demands putting in place a functioning witness protection regime, and may also require that the recording of police statements in cases that invite life imprisonment/capital punishment be made before a magistrate, so that they are invested with a degree of individual responsibility. A process that ends up punishing, not the perpetrators of the crime but the victims, cannot be dignified by being termed as “just”. After a tragedy, we have the shame to deal with.

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Here is an article by former CJI VN Khare. It shocked me to learn our IPC, just like our police laws, are more than a 100 years old! Oh may our worthless, slothful lawmakers suffer for this.

Justice after Jessica Lall

After the Gujarat riot cases, especially the Best Bakery case in which I ordered a re-trial as the victim Zaheera Sheikh changed her statements and witnesses turned hostile, the Jessica Lall murder case has thrown up a challenge for the country’s criminal justice system. Our criminal jurisprudence requires drastic changes. The Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and the Indian Evidence Act are over 150 years old. Law, like society, is not static: new contexts demand new solutions.

Today, criminals are in power from the taluka to the national levels. In such a situation, it becomes extremely difficult to procure evidence and produce witnesses before the court. Even witnesses collected and produced before the court are vulnerable. They are easily preyed upon by the powerful accused who may use money or fear.

The very first change I would suggest is that the prosecution should be an autonomous agency away from the control of the government like, say, the Election Commission (EC). The time has come for the prosecution to be made an independent and autonomous agency.

Two, the present system of investigation by the police must change. We know the police is vulnerable. I have seen cases of the police distorting evidence. In the present set-up, under the CrPC, to be precise, it is the duty of the police to collect evidence and produce the same before the court. If the police officer is aligned with the accused, it becomes difficult to secure a conviction in a court of law. Hence, the investigation should be conducted by an independent agency.

Three, the statement under section 161 of the CrPC to be given to the police should be recorded before a judicial magistrate so that the ‘examination in chief’ of a witness need not be done again and the cross-examination by the accused can begin straightaway. There is every likelihood of the witness, who could have been influenced in the interregnum, changing his statement before the magistrate. Once the statement under Section 161 is recorded before the judicial magistrate, the court’s time will not be wasted by having to undergo the examination in chief again before the cross-examination begins.

Four, like in the developed countries, say in the US, in at least some sensitive cases, witnesses should be provided protection. This is particularly desirable in India because of long pending trials in the courts. Under protection, the witness will not be fearful. It will be difficult to lure him or her by money and other allurements.

Five, the victim must be given the right to appeal. At present, the right of appeal resides only with the state, which is the prosecution. A victim can only go for a revision of the order of the trial court where the victim or the family members cannot argue on facts and law but only on jurisdiction. Both on the counts of law and fact, the victim too should be given this right.

Consider a small statistic. In 1967, the conviction rate was 80 per cent. In 2005, the same conviction rate dipped to 22 per cent, and most successful cases concerned petty crimes. Obviously these petty offences are committed by the poor who are not in a position to engage an expensive lawyer. The big fish, on the other hand, can tear their way out of the net of law.

Lord Macaulay drafted the IPC in 1835 sitting in Tamil Nadu’s summer vacation resort, the famed Nilgiri Hills. It is now 2006. One hundred and seventy-one years have passed by and the IPC, CrPC etc. remain virtually the same.