The Confessional Statement – the flip flop . . .
The Mumbai blasts of November 2008 have highlighted the issue of validity and relevance of confessions and statements made before the police in the course of investigations. This is an age-old issue, dating back from the British times. While in most countries, statements made before the police are admissible as evidence; the British did not follow this principle in India. The police was a rough instrument, designed to take control in difficult circumstances; the results were more important than the means employed. Thus, the 'confession' had to be before a magistrate (who was expected to be educated and genteel), who was expected to take care that no brutality or torture was applied. In the past six decades, the police may have become more corrupt but not less brutal, and the magistracy less reliable but not more genteel. At any rate, it is yet another measure of the failure of the guardians of the judicial process in India that they have not visited this ticklish field to improve upon the present dismal situation.
The following could be among the possible approaches – video-taping of the statement/confession; having an 'independent' doctor certify that torture or force was not applied; in 'important' cases, having a magistrate re-record the statement soon after the original one, again on video, with the magistrate certifying absence of force or compulsion or torture, and testifying to the voluntary nature of the statement. These are some suggestions – appropriate safeguards, reasonable and practicable, using latest technology can be undertaken. Even if this entails additional efforts initially, this could result in greater evidentiary value, and contribute to the quality of investigation.
I recall that in the '60s* as a young magistrate in Ranikhet, I recorded the 'confession' of a domestic servant who had allegedly attacked his employer with a knife in the kitchen; the lady, wife of an army officer, luckily survived. The accused boy spoke Tamil as his only language; I recorded his statement in Tamil, with my own English translation. I had satisfied myself thoroughly that he was volunteering his statement without duress. Three years later, I had to return to Ranikhet for a day from another posting elsewhere, to give evidence testifying to the authenticity of the document, and to verify my signatures. After another three years, I heard with great astonishment that the boy was acquitted. I could not understand how this could have happened! Perhaps the lady had, in the goodness of her heart, 'forgiven' him; perhaps if she had died in the attack the boy might have been punished; perhaps some 'lacuna' was found in my recording of the statement – though I wasn't cross-examined by the prosecution or defence lawyer at the trial. Be that as it may, there is clearly an element of lottery in judicial proceedings.
I do not know of the existence of a simple manual, with dos and don'ts for the guidance of the police personnel and magistrates for recording statements. Evidently, this is an area of importance as lack of proper attention to this aspect in the investigation phase can damage a case critically; and open the door for defence attorneys to pick holes in the statement at the trial stage, or allow the witness to change his stand. In a lighter vein, if our politicians, caught making statements on camera later deny them on the ground that they were misquoted, why should the ones accused in criminal cases not do the same – are the two tribes too dissimilar?
Dealing with High Profile Cases – some more equal than others . . .
The Constitution and the law treat all citizens as equal. However, in reality it is not quite so. Film personalities and international cricketers command special attention from the public. The politicians indeed live in a different legal world, and strut as if they are above the law. In general, courts treat trials of the ordinary citizen as well as 'celebrities' without distinction; in a sense rightly so, since all are equal in the eyes of the law. However, in the eyes of the public, not all are equal.
In the first place, litigation is an expensive process, anywhere in the world. In India, the situation is compounded by endemic delays at all stages, along with the complications which a corrupt society engenders. Thus the richer the person, the easier it is for him to deal with the judicial process. The legal processes go on for a fairly long time and the wealthy have the stamina to stay the course and knock out his adversary by the sheer power of money. The ability to hire high-priced lawyers, influence the investigation and prosecution stages and to suborn witnesses is a well-known practice in our country. Thus, ab initio, the wealthy and the influential are de facto on a different footing during the proceedings as compared to the ordinary citizen.
In a system where conviction in a court of law is so difficult to obtain after crossing the investigative, prosecutional and trial lotteries, swift punishment to a celebrity where sufficient evidence exists, can lead to greater awareness of the majesty of the law in the eyes of the public. By the same token, the earlier a senior politician is acquitted based on the evidence, the earlier he is free from the mental tension of awaiting a finality to the proceedings to 'serve' the public. There is no doubt that speedy justice is the due of every citizen; but while this long-term goal is far off, can't we at least consider the trial of celebrities on a fast track mode so that an exemplary effect can be obtained through media attention. It is possible to argue that such differentiation would be contrary to the letter and spirit of the law—that after all Article 14 of the Constitution applies to 'equal' classes; the reality in India is that celebrities are in a of 'class' of their own.
Every two years or so, a leading actor is shown on TV, travelling from Mumbai to Jaipur by helicopter, to attend trial for violating some forest laws. In general, the trial gets adjourned on some technical plea or the other. The cinkaras that were allegedly killed by the famous actor, must be watching in disbelief from their heavenly abode, as to what new evidence or new material or new arguments can be mustered or marshalled, to reach a final conclusion. Meanwhile, the television channels lap it all up, and for a couple of days the national news consists of pictures of the actor coming to court, and is a major national event. Such cases abound; details and facts may vary. Surely it is not as if twenty years later, more new clinching evidence or arguments would surface.
Such a differentiated approach could also be helpful in dealing with certain types of crimes, which are particularly abhorrent or anti-national in nature. Cases of rape, trials of terrorists, as well as corruption cases could be classified in this category. It is surmised that such an approach could have a salutary effect on the general public in terms of people getting their 'just desserts'.
The civil services manual states that when a civil servant is charge-sheeted in a court of law, he would be placed in suspension and would await the conclusion of the trial before reinstatement, depending on the nature of punishment. It is not clear why a similar dispensation is not applied to politicians who hold positions either in the executive, or even for members of the legislature. At a time when trials take a decade or two to conclude after exhausting all procedures, it is surely unfair to the public to allow such people access to decision making positions. It is an unedifying sight to see legislators convicted of crime, whose appeals are pending, being allowed to come to the legislature to vote – surely the citizens should be spared such absurdities. No doubt, ultimately, he may be acquitted; but the presumption is that he is guilty after the first conviction. Heavens will not fall if he is not allowed to vote in Parliament till he is finally cleared of all charges. But at least we should make a start; politicians who are also public servants must step down temporarily till they are acquitted in the first instance. If convicted by the lower court, they need to resign. If finally acquitted, nothing would stop them from contesting elections again. Interpretation of the existing legal procedures so palpably in favour of the political class appears unjustified prima facie.
Punishment as Deterrent – prevention better than cure . . .
When a person commits a crime against society, the punishment meted out to him after the due process is in the nature of payment of his debt to society. In a sense, society makes him pa
y back for what he has done by incarcerating him or by levying a fine on him. Enlightened jurisprudence refers to reform of the criminal, rather than in terms of the punishment meted out to him. Be that as it may, the Indian law, at least in theory, expects that the criminals should pay for his acts against the society.
In the Indian context, the punishment could have two broad purposes – one representing society's 'revenge', and the other that the punishment may serve as a warning to other potential wrongdoers and deter them from crimes. As has been seen, the 'due process', as practised in India in general, is flabby, dilatory, and uncertain to the extent of the result almost being a lottery. In any case, the time lag between the crime and the final punishment is so long that the observer loses the thread.
The real punishment is the process itself, not so much its end result. Indeed the due process is quite even-handed, it treats the innocent and the guilty alike! Both are subjected to long protracted agony by going through the process. Thus in a sense, punishment is meted out without discrimination to both the innocent and the guilty. Indeed the very process of the FIR taken on board by an investigating agency may itself be the final punishment; the actual judicial pronouncement at the end may not be of too much burden to those who are found guilty. Thus, the commencement of a Central Bureau of Investigation (CBI) investigation could sound the death knell of the career of a civil servant – any further punishment at the end may only be a minor add-on. Besides, as we have seen, the leakages are great at all the stages of the process; only a relative few among the criminals really get punishment. I recall that about two decades back, a deputy inspector general (DIG) of police in Kanpur had told me that for major rural crimes, his estimate is that only one in about two hundred or so get convicted; the others escape for one reason or another.
Again after the guilt is proven, at the time of conviction or sentencing, the concept of the quantum being proportional to the nature and extent of the crime becomes recognised as an issue; frequently some 'compassion' is shown to the criminal. This is done probably because of the time lag between the crime and the actual punishment, which tends to diminish the ferocity of the criminal act. In sum, taking all factors into account, even the convicted criminals in a sense do not repay society adequately; at least in a sense of deterring potential criminals.
I recall spending a few years in Switzerland in the '80s; the standard public bus fare was Swiss Franc 1.20. Every now and then, the ticket checker would stop the bus and verify the ticket stub. When a passenger was caught without a ticket, the fine was a flat two hundred francs. No excuse, extenuating circumstances were entertained – the imposition of levy was automatic. Under the laws of probability, the chances of a person getting caught without ticket may be one in twenty or thirty times; the punishment is 150 times of the value of the ticket. The incentive for anyone to travel ticketless is eliminated automatically. In India we see the phenomenon of red-light jumpers, or speeding on roads or other minor traffic violations as a routine on every road. In a way, we could be designated as a nation of 'queue-jumpers' or 'eternal short-cut seekers'; the penalty on being caught would usually be about a hundred or two hundred rupees, and that too to be handed over to the 'zealous' policeman. Clearly the quantum of punishment is not adequate to function as a deterrent. If we start having a system of levying a fine of say, Rs 20,000 for each traffic violation, however minor, and revocation of licence for the second or third offence, one will see a dramatic improvement in good behaviour on the roads. This naturally presumes that there will be effective management of the system to ensure that the fines really are levied by the state, and do not just result in making the policemen richer!
In a similar vein, if the courts inflict maximum punishment in every convicted case – after due process, when the crime is proven beyond doubt – as a policy, this would be the logical course of action in Indian circumstances. Such a consistent policy, coupled with speeding up the time taken for the whole process, could act as a significant deterrent. Perhaps, this would require a clear, unambiguous expression of direction by the highest court of the land. Let us remember that the quantum of punishment for each type of criminal offence was established by Macaulay in the nineteenth century; the law and order situation is perhaps different today, to put it mildly!
Role of Law Ministry – see nothing , hear nothing , do nothing ; except when it suits the government…
The law ministry in Delhi is concerned with all the issues which have been raised in this chapter. However, it appears that they have cosily defined for themselves the narrow role of a legal adviser to the Government of India, rather than the wing of government responsible for the health of legal systems and related matters in India. The urban development ministry essentially confines itself to problems of Delhi and the National Capital Region (NCR), ignoring largely the problems of the other metros and cities all over India. Similar is the myopic approach of the law ministry, which has defined for itself a very narrow mandate. It is as if the power ministry needs only to look after issues related to availability of electricity in government offices; or that the finance ministry is concerned exclusively with the finances of government, and has nothing to do with economic issues like inflation, exchange rate, and the like, which affect the masses directly. The law ministry treats itself as the solicitor and advocate for all government matters. The only other work it deems worth doing relates to processing of higher judicial appointments, which it does with gusto, since there is room for exhibition of power play and patronage.
As we have seen in this chapter, much reform is required in this sector. The ministry ought to position itself as the prime mover and the facilitator of change. It ought to catalyse the reform process of the whole sector. It seems to have abdicated its mandate to effectively tackle issues relating to bringing technology to the legal system, endemic delays, backlog of cases, poor prosecution and a host of other problems mentioned earlier. This is a pity – common people are not even aware of the existence of this ministry; this has enabled the ministry to hide in a comfortable corner, and quietly play its tricks. It appears that the government encourages it to play the role of merely finding 'legal' ways to get out of embarrassing situations, legitimise grey-area activity by the government, and generally bail out the government in political cases, to shore up the politics on behalf of the government.
In many annual conferences, the ministry pompously talks of reform, and then forgets about it till the next conference comes around. It appears that the ministry is satisfied with the status quo in the legal field, and the glacial pace, if that, of any reforms. One feels that an important new dimension needs to be added to the approach of the ministry, wherein it lobbies for change as required, and facilitates the same. Otherwise, it plays no role in favour of the citizen of India.
Need for Reform
Even after sixty years of complete self-governance, most institutions in India have not covered themselves with glory. All anecdotal and factual information point to a regular, secular trend of decay. The judiciary in general could be cited as an example of an institution which has maintained standards. There are not many agencies in India which are as respected as the judiciary – perhaps the armed forces, some paramilitary forces and a few agencies, like the Union Public Service Commission (UPSC), could qualify. None of the above is perfect, but at least their fall in standards is much less than that of most other institutions, systems and agencies. The judiciary has many glorious achievements to its credit. It has stood up to enormous political pressure on occasion, and now and then has made the ruling establishment think and think again. The criticism spelt out or implied in this chapter should not be misconstrued. These are gaps which need to be plugged, to take the judicial process closer to perfection, as envisaged by our founding fathers.
Need for reforms of the political process or of the administration finds frequent mention in the media. But reform of the judicial system in India is rarely talked about, or discussed in an open and constructively crit
ical manner. Even the occasional discussions between the highest levels of judiciary and the government are held in a formal atmosphere, both sides using kid gloves, using carefully chosen words and generating the impression that all is well. That the judicial system needs a major overhaul is not referred to openly, nor pursued with any vigour in a sustained manner. It is almost as if the conduct and performance of the judicial sector is an internal affair of the judiciary; any changes, if deemed required, will be addressed at its own pace by the judiciary – as if the people of India have no concern with reforms in the judicial sector, nor do they have any right or say in the matter.
There is none who does not believe in the old adage, 'justice delayed is justice denied'. By this token, justice is denied in practically every matter where the law is involved. It is almost as if there is an axiom that a case can be better investigated and better adjudicated with the efflux of time, the longer the better. Dig into any court, in any part of our country, at any level, you will find cases without number languishing without progress for years on end – the litigant's or victim's interest is nobody's concern. Go to any rural area in India, and you will come across various land-related cases, civil disputes and criminal proceedings pending for decades, with citizens dangling at the end of it with little hope and much despair. Nobody in the country appears to be unduly perturbed at the crawling pace of judicial proceedings. There is no acknowledged public awareness that the delays and other malaises are systemic issues, which need to be addressed. The key beneficiaries, viz., the advocate community, the investigating agencies and the prosecution systems find the proceedings extremely lucrative. The judges seem to be amiable and in no hurry; and liberal with their adjournments (two hoots to the citizen). However, it is almost as if a passive judiciary suddenly becomes very alert when its perceived self-interest is threatened or an attempt is made, however feeble, to break the cocoon within which it hibernates. This may be an attitudinal problem of not only the judiciary but of all Indian institutions at large; reluctant to make changes to the system, to be proactive, to shake itself from lethargy, make it decision-oriented and make all interactions time bound. It is time for a major attitudinal change.
Goverment In India Page 10