Wednesday, November 09, 2011

Evasive Justice, Invasive Risks

Lingering court cases and the blow-hot blow-cold style of CBI inquiries has disappointed the people and wasted tons of nation’s money ever since Bofors, Fodder, Hawala et al without leading to convictions for only one reason – all the accused in these cases were powerful people. In cases like crimes of 1984 anti-Sikh riots, Bhopal gas tragedy or even the likes of BMW hit-and-run case, the pain of the victims is only heightened manifold when children rendered orphans by the crime grow up watching the criminals responsible for the crime not only roaming free from harm under the protection of the establishment. Decades lost in wait for justice is not merely delay – it is crime repeating itself over and over.

While the war against political and bureaucratic corruption rages, not enough has been talked about corruption in the judiciary, especially the higher judiciary even by the civil society groups, which are spearheading the tirade against corruption. In democracy it is the Judiciary that enjoys special constitutional powers and privileges as one of the three organs of State. Judiciary is the ultimate repository of trust and faith of the people who look towards it as their saviour against all kinds of exploitation and injustice. Sadly, there are many in the robes of ‘Justice’ who, succumbing to temptation or duress, have given questionable judgements and, thereby, robbed the Judiciary and their Lordships of the aura and honour they once exuded. It is very unfortunate that some of the Chief Justices of the honourable Supreme Court have also been exposed as men of smaller virtues to give in to temptations. Recently, we saw how two senior judges – one Chief Justice of Sikkim High Court, the other a senior judge of Calcutta High Court – arraigned for impeachment on charges of corruption and misdemeanour, manoeuvred their way out of the impending punishment. The question now arises: is resignation an escape or punishment for their misdeeds?

What is most astonishing is the increasing contradiction within the judiciary which often manifests in the quality of judgements. Judgements of lower courts are turned upside down without showing much of the basis for converting conviction to acquittal or vice versa as has been seen in some of the cases where the accused came from influential backgrounds like Manu Sharma, Vikas Yadav, Haryana Police ex-DG SPS Rathore, IG (Prisons) RK Sharma, Sanjiv Nanda and so on. Variance in the quantum of the award is understandable in any two judgements where the appellate court may alter the award either way. However, verdicts that turn death or life sentence to outright acquittal or vice versa need explanation to justify the absolute contrast. It is also expedient to determine as to which of the two judgements is aiding crime and preventing justice from its natural course. Punitive and corrective actions against the erring judges need to be incorporated in the system through appropriate judicial reforms to inspire prudence and reign in recklessness in the field of justice.

When ‘Equality’ is ‘Inequality’

The current inflationary market trends have hit our judicial system too. Cost wise, justice has become unaffordable for majority of the people. A host of questions about systemic inadequacies in our judicature have acquired urgency to set things right through comprehensive judicial reforms. The principle of ‘Equality before Law’ itself makes it ‘unequal’ for the poor who has no option but to accept his victimisation itself as fait accompli. Features like high counsel fees, prolonged trials, multiplicity of appellate stages – all favour the rich and resourceful but perpetuate the victimisation of the poor. The scene for the rich, however, is not as gloomy, for he can afford to pay and choose his time and verdict – at least in some cosy courts with judges more affable.

In judicial dispensation, the phenomena of time and finance, delay and cost, have a striking variable – the loss of the poor becomes the gain of the rich. Poorer the victim, faster he needs the justice because his suffering becomes more acute with each passing day. Delay frustrates his witnesses impedes the normal course of life. Also, everyone knows how even the eyewitnesses retracted their depositions against the accused who later proved to be too mighty. Threats and rewards that can be packaged by the rich to scare away prosecution witnesses and win over evidence in defence has become a routine in the courts.

The more a court case drags, the more relief its delay brings to the rich and powerful while the poor exhausts his life’s resources in his pursuit for the mirage of justice. So simple and yet how strange that the epithet ‘justice delayed is justice denied’ is not always so in all cases. A sample of lingering court cases suggests that ‘justice delayed’ is an advantage to the rich and powerful but a cruel denial to the poor and hapless. Even if justice accrues to the poor at the lower court, the fruit of justice tantalisingly eludes the beneficiary as the case continues through tortuous appellate stages to be one among millions of cases pending for years and decades.

Flawed Onus of Evidence

Who has the courage to depose against killers who chase and they prey in broad daylight in a busy market teeming with humanity? Who deserves ‘benefit of doubt’ genuinely – the accused or the victim or the nation? ‘Benefit of doubt to the accused’ helps only the mighty because giving evidence against Netas and criminals requires special courage and assured protection which is missing in our context as is clear from the high rate of killings of whistle blowers and RTI activists in the recent past. Signal from the crime lobby is clear: ‘It’s highly perilous to question high-end wrongs’.

The principle of treating the accused ‘innocent until proved guilty’ in cases where the accused is a powerful person also weighs heavily against the victim of crime. Firstly, echoing the colonial era the victim of the crime is not even a party in the criminal case, which is left to the police to steer. Secondly, even the eye-witnesses get scared once they realise that the accused on the other side is an influential VIP. In rare cases if at all some witnesses do come forward in the initial stages, they also retract and turn hostile in due course, thanks to the influence from the opposing side.

Therefore, in cases involving high profile accused, due weightage must be given to circumstantial evidence. In high profile cases where circumstantial evidence indicates complicity of the accused, it is expedient to reverse the above mentioned principle and hold the mighty accused ‘guilty until proved innocent’ placing upon him the onus of proving himself ‘innocent’. In addition, there must be effective safeguards to protect witnesses from every kind of coercion, temptation or blackmail from the opposing party.

Unfair Compensation Awards

Courts grant relief to aggrieved parties to compensate their loss and mitigate and suffering on the one hand and to penalise the offender on the other. To be effective, such awards should serve two purposes in effect – compensation for the aggrieved and retribution for the offender. However, whereas the compensatory effect is always clear and pointed irrespective of where it comes from, the punitive effect loses its pointedness and effect when the amount of compensation is paid by the Government departments and agencies because being paid out of public funds such a penalty pinches nobody’s pocket.

To illustrate the malady, consider the compensation award in the case of Delhi’s Uphaar Cinema tragedy. The Delhi High Court held Municipal Corporation of Delhi (MCD), Delhi Vidyut Board (DVB) and the licensing authority ‘guilty of negligence’ and, awarding a Rs 25 crore compensation, directed that 45 per cent of this award would be borne equally by MCD, DVB and the licensing authorities, the rest 55 per cent being borne by the Cinema owners. Now, no doubt that the aggrieved parties would be the genuine beneficiaries of such compensation (amount somewhat reduced later by the Supreme Court this year), penalising corporations and institutions serves neither corrective nor punitive purpose because officials ‘guilty of negligence’ remain unaffected even as the penal amount is paid out of the public money held by the departments concerned.

When the court indicts a government, corporation or institution holding it ‘guilty of negligence’, it implies there are specific human functionaries upon whom the blame and accountability must stick. Therefore, it will be a more effective reformative measure if a substantial part of the compensation is deducted from the salary and service benefits of such erring officials and functionaries. Otherwise, the compensation amounts so ordered are an unnecessary burden on the public exchequer.

Prolonged Detentions

Delay in conviction turns criminals into heroes. Keeping those who are awarded death sentence and kept waiting even after disposal of their review petitions at the Supreme Court waiting for long periods have been at times exploited by social activists, communal manipulators and politicians to promote their own vested interests as has been recently seen in the case of Rajiv Gandhi’s killers and the guilty man of attack on India’s Parliament, Afzal Guru. Official callousness and inefficiency become useful tools for the criminals to escape from their deserved fate – their Nemeses. Political and communal lobbyists whip up public passions and, casting aside all national security concerns, they demand leniency for the most dangerous convicts who have exhausted all their legal rights and options from the lowest to the highest levels.

Prolonged detention of high value under-trials or those sentenced to death carries other risks as well like the risk of jail-break, escape and chances of criminals blackmailing the government through more serious terror actions like the infamous Kandahar episode. It is most depressing to visualise another plane hijack with some high value VVIPs on board the aircraft taken this time to Waziristan and Haqqanis mediating between the Indian Government and the hijackers demanding safe deliverance of Afzal Guru and Kassab in exchange for the hostages. Today it might be easy to dismiss such conjectures but if and when such probability becomes real, it might put the Government in a quandary because any decision will have serious ramifications ranging from questions marks on national security and existence of the government itself. There are good reasons, therefore, for faster disposal of court cases, quicker Presidential decisions on clemency petitions, and prompt compliance of the final verdict especially the capital punishment.

Endless wait for justice, unaffordable costs and questionable judgements are seriously undermining the prestige and credibility of Judiciary. After the final verdict, the government inaction mars whatever is left of public faith in the legal and administrative processes. There is a crying need to revamp these processes and impose accountability at all levels so that efficiency is put on smooth rails. At a time when the raging political and bureaucratic corruption is threatening our national security, unchecked rise in judicial corruption can be catastrophic.