India's System of Justice on Trial

India's System of Justice on Trial

Going by certain instances in India since Independence 65 years ago, the system of criminal jurisprudence enforced by the alien British government has it looks, in numerous cases, failed to come up to independent India's expectations to deliver justice to all. On the contrary, it has appeared impotent to punish the guilty and give justice to the aggrieved and bereaved families. In fact, it has proved to be more beneficial and helpful to those who commit crime and yet can get away with it with an honourable acquittal or with a benefit of doubt than punishing the guilty. It is proving to be atrocious on the law abiding citizens. Fear of the rod of law on the common citizens to desist them from committing crime is vital in the interest of peace and justice. And this is what is disappearing very fast at the present juncture of time.

It is a tribute to our indigenous leadership that while Lord Macaulay could give us the Indian Penal Code after putting in a few years’ labour, independent India has failed to attune this English system of law to the changing scenario in the country during the last 65 years despite having constituted a number of commissions for the purpose.

This system has given wide opportunity to the people with resources to exploit the system to their advantage to delay investigation and prosecution of matters in courts. Mr. N. D. Tiwari could delay his DNA test for two years despite court orders by appealing to this court or that on various excuses.

The trial in the murder of the then railway minister Lalit Narain Mishra could not be taken to its logical conclusion because of delaying tactics adopted by the persons concerned. Ultimately, the accused knocked at the Supreme Court door praying for quashing of the proceedings just on the ground that the trial stands vitiated by this inordinate delay of 37 years.

Powerful and influential Gopal Kanda wanted in the suicide case of Geetika Sharma could dodge the police for 12 days – and in the words of her brother “destroy” vital evidence – seeking anticipatory bail.

Further, 14 retired Supreme Court and High Court judges have recently written to the President of India to turn the 9 death penalties into life sentences alleging “miscarriage of justice”.

Further, there are reports of hundreds of persons rotting in jails without trial, numerous of them because they cannot afford to raise money or help to get bails.

These instances are just a tip of the iceberg. Let us take up just the recent cases.

There is irony and fact in the words of Geetika’s brother Ankit who following the arreest of main accused and former Haryana Minister Gopal Kanda on August 18  said, "12 days is enough to destroy evidence. Whatever power Kanda could have used to tamper with evidence he has”. Terming the drama behind Kanda’s surremder and arrest, he said it was “a planned and well thought out” one and “my only fear is that the investigations will be impartial or not. The investigation should be transparent.", he demanded. His apprehensions are not unjustified. He wants “his (Kanda’s) interrogation to be done before camera and a retired judge so that he does not change his statement."   Ankit said Geetika's Facebook account has been deactivated and alleged that Kanda was behind it. "I have informed the DCP about it. I don't know who or how it was done. Kanda is behind it," he said.

A VIP accused

Is it not strange that the Delhi police’s long hands of law fell too short before Kanda to lay its hands on this VIP accused for more than 10 days despite their having claimed to have conducted more than 60 searches in various states. If it proves Delhi police short armed to catch hold of a person like Kanda, can one expect it to instantly nab a person accused of a terror crime where it is clueless  about the persons allegedly involved in the heinous crime?

Despite the Times of India and some news channels having flashed out on the 17^th August 2012 evening that Kanda was likely to surrender, Delhi police kept just waiting for his supporters to stage a drama in front of the media to proudly claim that he came on his own “to join the investigation” as desired by the Delhi police. But facts are otherwise. He didn’t come on police ‘invitation’ but at a time of his own choosing. He was keft with no other options but to surrender after his anticipatory bail application had been rejected by the Delhi High Court.  He wanted – and succeeded -- to create a scene before the electronic media and celebrate his surrender. He succeeded; Delhi police just looked as a helpless spectator waiting to welcome him at the gate of the police station.

The impression that for Delhi police and law Kanda is no ordinary an accused who has to be interrogated but a VIP guest was proved when the Zee news channel on the 18^th evening showed how a more than 70 year old elderly woman was foecibly made by Delhi police to vacate for Kanda her seat in a hospital where he was taken for a medical check-up.

For 37 years no murder trial

How our legal system is being taken for a ride by influential people came to light on August 16 when the Supreme Court dismissed a plea by the accused in the then Railway Minister Lalit Narain Mishra murder case who was killed 37 years ago. The accused had been successful in stalling the trial in a court of law, for one reason or the other, for that long. This inordinate delay has provided the accused the excuse to plead with the court to altogether quash the proceedings as the trial stood vitiated by the inordinate delay for the last 37 years. The court fell short of condemning the weaknesses of our legal system and ordered that the case be tried expeditiously.

These are no isolated instances. This is true of every other case in which influential politicians and bigwigs of industry and business or their family members or supporters are involved.

Article 14 of the Constitution of India provides that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” 

The way the investigation and prosecution of the two cases mentioned above is proceeding does not inspire confidence that Geetika and L. N. Mishra or their families will ultimately ever get justice. If VIP politicians and those in trade and industry can be allowed the liberty to fiddle with the process of law and justice, it only makes a mockery of the constitutional provision that everybody, high or low, is equal before law. A provision of the constitution we cannot enforce in letter and spirit should altogether be removed from the statutue book instead of allowing it to be  made a laughing stock of the people and the world.

Now another instance has surfaced where, in the opinion of 14 retired judges of the Supreme Court/high courts, there had been a miscarriage of justice that motivated them to appeal to President Pranab Mukherjee to turn the capital punishment imposed on nine persons into life sentence. Led by former SC judge P B Sawant, the 14 retired judges signed up separate letters to the President pointing out that the death sentences given to these nine persons by various two-judge benches of the SC were "contrary to the binding dictum of rarest of rare" propounded in the 1980 five-judge bench verdict in Bachan Singh vs State of Punjab.  These former judges were responding to a campaign launched by human rights lawyer Yug Mohit Chaudhry.  

 "Rather they pertain to the administration of the death penalty in a conscientious, fair and just manner," the ex-judges said. "Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system. This matter goes to the very heart of our Constitution because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court."

These certainly unprecedented appeals made by former judges have highlighted many issues. First, I would address my oft-repeated argument and question to our human rights organisations, like human rights lawyer Yug Mohit Chaudhry: Do the convicts, like the 9 ones mentioned earlier, only have human rights and not those innocents who became victims of their crimes? Did human rights activists do anything to bring justice to the bereaved families and help them in any way financially or legally?

This appeal by eminent jurists and former judges strikes at the very root of our system of justice. "Executions of persons wrongly sentenced to death", they argue, "will severely undermine the credibility of the criminal justice system." It may or may not have, but their making an appeal to the President of India "will severely undermine the credibility of the criminal justice system".  What is the guarantee that "miscarriage of justice" (after their appeals had been heard by the highest court of the country) had taken place only in the 9 cases mentioned by them and not in other cases earlier? What prevents people raising a finger of "miscarriage of justice" in other cases too on the same logic advanced by the learned former judges? In that case, how will the latter be wrong in doing so?

If today14 judges can make an appeal, who will present others from presenting similar appeals in future in other cases too? Will there be any finality in our system of justice then?

I am reminded of a piece I read in The Indian Express about 40 years back. It stated that in England a judge witnessed with his eyes from the balcony of his house a person being murdered. Incidentally, the case came up to his court for trial. The judge saw that the person accused of murder was not the same whom he had seen with his own eyes. He allowed the case to proceed. The police made out a very solid case and proved that the murder had been committed by that very accysed person. The judge was in a dilemma. How should I hang an innocent for a crime he had not committed but proved by the police? For a moment he thought of transferring this case to some other court and volunteering to appear himself as a witness. But then he thought, he would be setting a bad precedent. Tomorrow, some corrupt judge may try to save a guilty person by emulating a precedent set by him. He decided not to do that. Not to establish a bad precedent, he thought, let this innocent man die.

These former judges need to look inwards. Are they not setting up a bad precedent for others to follow for some extraneous considerations? Are they not themselves acting to "undermine the credibility of the criminal justice system" which they, otherwise think, they are trying to prevent by submitting their appeal to the President?

Former President Mrs. Pratibha Patil just about a month before demitting office commuted the death sentences of a record 35 cases in one go (http://articles.timesofindia.indiatimes.com/2012-06-22/india/32367604_1_pardons-mercy-petitions-molai-ram). This raised many eye-brows. Her action was questioned. Ultimately, she had to issue a clarification that all this was done on the recommendation of the then Home Minister P. Chidamabaram.

In fact, the very power of the President under Article 72 of the Constitution to grant clemency in consideration of the mercy petition of the convicts is itself anomalous. All decisions of the President to grant or not to grant pardon to the accused are based on the recommendation of the Cabinet. This virtually amounts to the political executive sitting judgement over the judicial verdict of the highest court of the country. In other words, it appears as if the political executive is more humane, considerate and judicious than the highest court of the country in given circumstances.

It is a normal judicial practice that after a court convicts a person for a charge like murder, it announces the quantum of punishment only after hearing, once again, both the prosecution and the defence. It, therefore, follows that the accused should have placed before the court all the extenuating facts, evidence, circumstances and legal precedents to seek minimum punishment less than a death sentence. Therefore, it follows that before a court awards death sentence to an accused, it  takes into consideration all the evidence, arguments and other human considerations. Similarly, in appeal the high court and the Supreme Court must also have gone through the same procedure before upholding the death sentence.

Therefore, what are the new considerations that weigh so heavily with the political executive as to overrule the judicial verdict that it feels impelled to grant clemency to the accused from death sentence to life term of imprisonment? If the convict had not failed to put in the logic before the court which he raises with the executive, the fault lies with the convict and not with the courts.  

Just as it is imperative, as the 14 retired judges argue, not to act "contrary to the binding dictum of rarest of rare" propounded in the 1980 five-judge bench verdict in Bachan Singh vs State of Punjab", it is equally imperative for the political executive headed by the President of India too that while considering any case it should equally not go "contrary to the binding dictum of rarest of rare" in clemency cases too. Otherwise, we not only make the political executive (which does not always go by the merits of each case) to sit judgement over the judicial verdict of the highest court of the country but also make our judicial system open to the charge of "miscarriage of justice" and a laughing stock of the nation and the world.

      

ELECTION OF PRESIDENT – A Post-poll legal Battle Appears Imminent

ELECTION OF PRESIDENT

A Post-poll legal Battle Appears Imminent

By Amba Charan Vashishth

The court of the people will make its verdict public through its elected representatives in State assemblies and Parliament on July 19. But that may not be final verdict. The people's court verdict may ultimately be challenged in the courts of law. It may put a question mark on the result itself. An indication to this effect has already been given by the Bharatiya Janata Party (BJP) and Mr. P. A. Sangma, the only opponent of Congress candidate Mr. Pranab Mukherjee.

This ugly situation seems to be developing not on account of the manipulations of his only rival but by the overwhelming overconfidence generated by the numbers that seemed to be favouring the Congress nominee. His poll managers failed to be vigilant to ensure that he did not hold any office of profit the day he filed his nomination papers. Perhaps they erred into believing that the Office of Profit Act 2006 had exempted the office of the Chairman of Indian Statistical Institute (ISI), Kolkata from being so. They seem to have forgotten that exemption provided in this Act applied only to the MPs and MLAs and not to the office of President.

Mr.  P. A. Sangma had urged rejection of the nomination papers of his only rival Mr. Pranab Mukherjee on the ground that the latter continued to hold an 'office of profit' as ISI chairman.  Congress Party was quick to dismiss the contention as "factually incorrect" and claimed that Mr. Mukherjee had resigned this post on June 20 "well before filing the nomination".

Parliamentary Affairs Minister P. K. Bansal who alongwith Home Minister P. Chidambaram argued the case on behalf of Mr. Mukherjee said they told the Returning Officer that Mr. Mukherjee had resigned as ISI Chairman and the same had been forwarded to the President of the Institute. The Returning Officer accepted the argument as also Mr. Mukherjee's papers, they said.

No speaking order

The stage for the constitutional wrangling has been set by the decision of the returning officer for Presidential election V. K. Agnihotri. He did not make public copy of any speaking order issued by him. All that he told reporters was that he ”overruled the objections raised " by Mr. Sangma after "making summary inquiries, as required under the relevant provisions of the presidential and vice-presidential Election Act regarding conduct of scrutiny of nomination papers and after hearing both the parties in both the cases" on July 3,  "as they were untenable and lacked merit."

Article 58(2) of the Constitution provides that a ”person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments". Therefore, as per requirements of law Mr. Mukherjee should not have been holding "any office of profit" at the time of filing his nomination papers.

Acceptance of resignation vital

On the directions of the Election Commission, the Returning Officer has supplied a copy of his order to Mr. Sangma. Although the text has so far not been made public, but BJP has claimed that it is not a "speaking order" and it only mentions the 'fact' of Mr. Mukherjee having resigned. The mandatory requirement is not just his resignation but the fact that he did not hold "any office of profit" on the day and the time he filed his nomination papers. By mere resigning or his resignation having been forwarded to any authority does not imply that he ceases to hold his post. This he does only after his resignation had been accepted.

Merely by resigning one does not cease to hold the office. An individual who resigns as a minister, an MP or MLA does  get relieved of his office not on the time and date he resigned but from the time and date his resignation is accepted by the President or Governor, or Speaker, as the case may be. Therefore, Mr. Mukherjee's resignation does not mean that he ceased to hold his office of profit mere by the fact of his resigning.

The government or Mr. Mukherjee have so far failed to make public a notification to the effect that Mr. Mukherjee's resignation from the office (of profit) of ISI Chairman has been accepted on  a date prior to his filing of nomination papers. The President of the ISI has so far not opened his mouth. Any post-dated notification declaring an ante-dated acceptance of his resignation would only be an after-thought, bad in law and will substantiate Mr. Sangma's charge. This fact has vitiated the very atmosphere of the election process.

Signatures 'forged'?

BJP has even challenged that Mr. Mukherjee's signatures on the resignation are forged. It has released two different signatures. Reacting to the charge, Mr. Mukherjee wondered whether he would himself forge his own signatures.  But this reaction does not clear the cloud of doubt. A minister cannot have two different sets of signatures. Moreover, whenever a minister takes office, his specimen signatures are sent to various agencies. These are the signatures he has to use in all his official communications. No person can afford to have two sets of signatures using one today and the other tomorrow.

The new development has only vitiated the whole election process. It has opened floodgates of suspicion. Anybody going in for an election petition has a strong case. There are numerous instances where elections to parliament and state assemblies have been set aside or in a case of direct election, the loser having been declared the winner because of wrong acceptance or rejection of nomination papers of a candidate.                                                                               ***

Unsavoury tales of present ELECTION OF PRESIDENT

Unsavoury tales of present Election of President

Politics and morality are perhaps, at least in India, the two banks of a river which can never meet. The way the Congress did stitch support for its nominee for the post of President of India from a fragmented polity of UPA-II allies and those supporting it from outside lends credence to this feeling.

The only difference and saving grace this time has been that while Congress could road-roll its will in nominating the present incumbent in the Rashtrapati Bhawan (RB) ignoring merit and moral considerations, this time in the process of political maneuverability to stage political upmanship it could not afford to sidetrack merit.

Credit for this goes neither to the Congress nor to its supremo Mrs. Sonia Gandhi. This has rightly been claimed by Samajwadi Party supremo Mulayam Singh Yadav who has stated that his joining hands with Trinamul Congress chief and West Bengal chief minister Ms Mamta Bannerjee and announcing a panel of 3 names – Dr. APJ Abdul Kalam, Dr. Manmohan Singh and Somnath Chatterjee — hastened the process to make Congress announce the name of Mr. Pranab Mukherjee.

Not first choice

Mr. Mukherjee was not Mrs. Gandhi's first choice. His name may have been propped up by some within the party, yet she never jumped at the idea. Important party functionaries, including spokesperson Mrs. Renuka Chaudhary, while accepting him to be the best candidate, had proferred the excuse that the party could not afford to 'spare' the UPA and party's 'troubleshooter' and 'firefighter'. Though he could not open up his heart, Mr. Mukherjee seemed reconciled to catching hold of his lifetime's second best ambition to move to  RB, his first choice being the post of PM having gone beyond his reach under the present circumstances.

Mrs. Sonia Gandhi toyed with the idea of having a pliant occupant of the RB who could read her mind and act accordingly. Having failed to move to 7, Race Course Road herself, her last wish remained to see her heir apparent to occupy the nation's top job of prime minister. She is quite near realizing her dream but she knows, there are many a slip between the cup and the lip.  She is alive to the reality that but for the then President Zail Singh deeply committed to her mother-in-law, Mrs. Indira Gandhi, her husband could never have been the prime minister. It was President Zail Singh who broke the fine precedent of swearing-in the No. 2 in the cabinet following the death in office of a prime minister. Mr. Rajiv Gandhi was in Kolkata when Mrs. Indira Gandhi was assassinated. Giani Zail Singh withheld the news of Mrs. Gandhi's death till Mr. Rajiv Gandhi landed in Delhi. He immediately sworn in Mr. Rajiv. Both Mr. Rajiv and Mr. Mukherjee had travelled together in plane from Kolkata and during the journey the latter had expressed the hope that as per the tradition and precedent he would be sworn in as the acting PM.

Later, the relations between Mr. Rajiv and President Zail Singh soured to such an extent that the former started having nightmares of his dismissal and did not prorogue the Parliament after the budget session of Parliament till a new incumbent had taken over in place of Mr. Zail Singh.  

As a report in the Times of India has indicated, the promise of support by each other's internecine foes – Mr. Mulayam Singh Yadav and Ms Mayawati – to a common candidate has raised eyebrows. It is a gin animated by striking  a backroom deal. The report indicates that both had to fall in line because of the sword of Damocle of criminal cases of assets beyond known sources of income hanging over the heads of both. A promise of a go-slow or weakening of cases clinched the deal of support.  Otherwise, why is it that the dragon of these cases remains buried in silence under the debris of political maneuvers to be unearthed only in times of need and emergency?  RJD chief Lalu Prasad Yadav is similarly placed. During UP state assembly elections held just three months back the Congress and its heir apparent had been vigorously campaigning, though with little success, to end the ‘corrupt’ regime of Mayawati and a vow not to let the SP ‘goondaraj’ to usher in again. But in politics eating one’s own words is the staple food of our politicians. For them it is a matter of pride.

 

Fissures in NDA/UPA

 

Like last time, NDA ally Shiv Sena has taken a stand different from the alliance. At that time it supported incumbent President Smt. Pratibha Patil as she hailed from Maharashtra, this time too it chose to support UPA's candidate for election to the office of President.

JD(U) for consideration extraneous to the election of President took a stand different from the BJP-led NDA and decided to support Mr. Mukherjee although the NDA convener and JD(U) President Shri Sharad Yadav has stressed that the support is for Mr. Mukherjee and not for Congress and but for this, the alliance continues to be as strong as ever.

There is also media speculation that this casual friendship could be attempted to be cemented with the grant of a special economic package for Bihar. Shri Nitish Kumar had been agitating for it for the last over five years. His new found fondness for Mr. Mukherjee may ultimately, some media reports speculate, blossom into Congress bartering Shri Nitish Kumar's support with ultimate parting of ways with NDA to cozy up with the Congress-led UPA. For Congress it would be a coup de tat; it will bounce back to power with just four MLAs in a house of 243.

The candidature of Mr. Mukherjee has sowed seeds of discord not only in NDA; the UPA too does not remain unscathed. West Bengal Chief Minister, Sushri Mamta Banerjee, remains as defiant as ever and despite best efforts by Congress leadership and the presidential candidate who called her his "younger sister" has not so far been able to bring her round. But Congress has not lost hope. It is continuing with its efforts. As a last resort Congress could hold out a promise of a special economic package for West Bengal — a bait she may be unable not to swallow.

Me 'secular', you 'communal'

In politics everybody claims himself to be 'secular' and brands his opponent as 'communal'. The moment a 'communal' shifts sides, he becomes a 'secular' and vice versa. Mr. P. A. Sangma has been taken to be a 'secular' leader. But now that he has quit NCP and is contesting the election as an independent candidate supported by NDA allies BJP and Akali Dal have extended their support to him, no wonder if his opponents may now dub him as 'communal'.

Fingers have been raised about the involvement of Mr. Pranab Mukherjee, in Scorpene and other deals. Mr. Mukherjee's office rejected Team Anna's allegations as "unfair" and "self-seeking", reflecting lack of responsibility while claiming to represent high standards of ethical behaviour. 

Reiterating the need for an independent investigation into the allegations against him as a person aspiring to be the President "should be above board" the Team Anna retorted:  "A person aspiring to be the President of India should be above board. You would agree that a person facing so many serious charges would bring disrepute to the position of president if he were not absolved of all these charges before being appointed on that post. Therefore, we demand independent investigations into all these charges before you are considered for this position."

It is true that a complainant cannot assume to be the judge himself. But equally true is the fact that the accused too has no right to hand out a verdict of "not guilty" for himself. It is only through an impartial and independent inquiry that truth can come out and prevail. Suspicions will linger on till that is done. And once a person gets elected to the highest office, he earns immunity and however solid or flimsy the allegations may be, these get pushed below the carpet of this immunity.

In all fairness, a person should not enjoy immunity from prosecution for an offence which he/she committed not as a President or governor but in the performance of his duties earlier while holding some other public office. We have instances of diehard criminals getting elected as MLAs or MPs but still rubbing their heels in jails. An election should not bestow an immunity from prosecution of any individual, high or low.

The way allegations of bartering of support with favours in criminal cases pending against the likes of Mr. Mulayam Singh Yadav, Sushri Mayawati, Lalu Prasad Yadav and the like, or with the special economic packages at public expense are a blot on the name of our democracy. This derails the EC effort to make every candidate contest from from an equal pedestal.

Unfortunately, it is also for the first time that the present incumbent and the present contestant for the office of President are faced with such allegations.

Comparison

In comparison, Mr. Sangma may not have enjoyed that long an inning in politics as does Mr. Mukherjee, yet whichever public office Mr. Sangma held, including that of Speaker of Lok Sabha for a year and a half, he did leave an indelible imprint. On the contrary, Mr. Mukherjee's performance during UPA-II has not been that spectacular either as External Affairs Minister or later as Finance Minister. The country's economy and rupee witnessed a historic downslide. The prices and inflation were skyrocketing. The aam aadmi suffered the most. His election as President will, in a way, amount to putting premium on non-performance and inefficiency.