Monday, 6 April 2020

The alien law needs to be Indianised

By Amba Charan Vashishth
Updated: December 24, 2019 3:46 pm

Till the Muslim and, later, the British invaders dawned on the country the then prevailing system of law and justice was widely accepted and respected. Though unwritten, the justice the then rajas and maharajas ruling in various parts of the country dispensed not only was justice but it also appeared to be so.

The British left the country independent in 1947. Still the country continues to be slave to the criminal and civil system of jurisprudence the British bequeathed to India. The Indian Penal Code (IPC), Criminal Procedure Code (CrPC), Civil Procedure Code (CPC) and other laws were framed and imposed on the Indian people by the British alien rulers more to solidify their hold on the country and less by their desire to dispense justice.  The underlying intention to let 99 guilty to go scot free but not a single innocent should get punishment is basically not in keeping with Indian ethos.

 

Delay kills justice

In the heat of the moment in a number of cases the accused appear before police confessing their guilt to have committed murder and some other heinous crimes. Police record their statements. The accused are also made to make a statement before a magistrate where accused’s statement is voluntary and under no pressure or coercion.  But, strangely, under the law this statement cannot be sufficient ground for his conviction. The accused is given a right to deny the statement later. If it is so, why should the police and a magistrate waste their time and energy for such useless formalities?  The only solace is that prosecution can use it just to confront him with it at the time of cross examination of the accused.  In sum, a person in this country has not only the freedom and human right to commit a crime but also to deny his statement made before the police and a magistrate and the right to prove himself innocent of the crime he/she has committed  — in a way right to falsify the truth!

This situation extends a right to the accused to make a statement to the police, before a magistrate and later to deny it altogether.  In other words, it virtually means that besides a right to commit a crime, telling a lie and thereby cheat both the investigating agency and a court of law to prove himself innocent is a human right guaranteed to the accused under our constitution. Paradoxically, the law extends a right to person tell a lie.

 

Telling a lie no crime?

When a case is tried in a court of law, the prosecution and defence witnesses make statements on oath in a court of law that what they say is truth and nothing but truth. Finally, a court decides the case in favour of one of the parties. It clearly means that the court has found one of the side true and other false. Then why those who did not tell the truth are punished for making a false statement. Or does it mean that telling a lie under our system of law is not an offence and punishable.

Recall the instance of 26/11 attack on various places in Mumbai which everybody — common citizens, criminals, innocents, lawyers and judges  — saw live Ajmal Kasab committing the crime live on TV leaving about 172 people dead and over 300  injured. Thanks to the bravery of our Mumbai policemen that they nabbed him alive. Yet he was afforded the right to prove himself innocent of the crime he committed in broad day light with hundreds of thousands witnessing it live on media channels. Further, hundreds of crores were spent on his security.

A further irony amounting to hypocrisy is the conduct of our human rights organizations (HROs). They have never stood on the right side of the innocents killed and lynched brutally by hardened criminals and terrorists rendering hundreds and thousands of children rendered orphans, women widowed and depriving elders of their only bread-earners and support in the twilight of their life. HROs always champion human rights of criminals and terrorists the moment they are apprehended by police and security agencies after the latter make an easy prey of innocent lives. For HROs at the state, national and international levels, it looks, the innocent people and security men killed at the hands of criminals have no human right to lead a peaceful life. Has any human rights organization fought for the protection of the human rights of these peaceful citizens any time? A Big NO! As things stand, these organizations of the elites have no evidence of having extended any legal, social and financial aid to the bereaved families of the people slain by criminals and terrorists. And that proves the point that these elitist individuals and groups are for the safeguard of the human rights of those who trample down the human rights of the ordinary innocent law-abiding peaceful citizens.

The rape and later burning alive of a veterinary doctor in Hyderabad was hogging limelight at indignation at the police for over a week demanding ideal punishment to persons accused of this heinous crime. The family of the victim and others had been demanding the accused to be hanged at the earliest. The mood of the people all over the country overnight turned into a riot of glee and appreciation  the moment news flashed of the police having gunned down the four accused in an encounter after they tried to flee from the place of crime where the police had taken them to recreate the scene of the crime. Sweets were distributed all over the country. People jumped into dancing and demanding a similar fate to the accused involved in other such cases.

 

HROs for whom?

These HROs did practically nothing to ensure that the victims and their families get justice. Nobody knows where they were till the news of the encounter got public. The moment the news of the encounter came to light, these HROs lost no time in suspecting, as usual, that the encounter was ‘fake’. The National Human Rights Commission (NHRC) which passively glossed over the Hyderabad and Unnao crimes for over a week, woke up to instantly rush its team for spot investigation in the matter  Why? Clearly that, in the opinion of NHRC, the veterinary doctor gang-raped and subsequently burnt alive, had no human right to her life and honour which these criminals violated. The HROs have now deflected the government attention from helping the bereaved families to the violation of the human rights of the criminals.

The police and CBI have so many cases to investigate with the result that final outcome gets weakened with the passage of time. The eye-witnesses and others turn or are made to develop cold feet. At time they get won over. Had they been called to depose instantly they would have spilt  truth. As the matter lingers on, it gives the witnesses time to ponder. They start having second thoughts. The dead man/men are not going to get back to life if the accused are hanged. One is dead, why should others too lose their life? That is why the rate of convictions in criminal cases is getting low year after year.

 

Justice in olden times

In olden times, people had faith in the wisdom of their raja-maharajas to dispense justice. Those days crime was very low and the dispensation of justice instant, summary and exemplary. It received immediate appreciation of the subjects. The ruler’s judgement in consultation with wazirs (ministers) was ideal. Continuance of the dynastic rulers depended on the extent of justice they delivered. Failure to do justice to their citizens many a time led to their downfall.

When an accused goes to a pleader to engage him for his defence, he narrates, truly and faithfully, in bits and pieces the whole story of the commission of the crime. It is only after putting some counter-questions and seeking clarifications that the lawyer chalks out the defence strategy.  It is on the basis of the loopholes in the statements of the prosecution and defence witnesses as also legal arguments that a criminal gets out of the clutches of law and brags about his ‘innocence’. He thus puts the law and his accusers in the dock as the villains who had unnecessarily harassed him and harmed his reputation. This situation makes the culprit bolder to commit more crimes in future.

A law that manipulates

A case in instance where a culprit gets ‘justice’. About 50 years back, a patwari was caught red-handed accepting a bribe of Rs. 100 from a person. During the trial, his defence lawyer asked the thanedar, who had arrested him for the crime at the spot, whether he had conducted a search of the complainant’s person who claimed to have had given the hundred rupee note marked by the police. The thanedar said no; there was no need, he argued, because he recovered that very currency note from the possession of the patwari. The defence lawyer retorted, “It is here you committed a wrong and became a party to the conspiracy against my client (patwari)”. How? the court asked. “My Lord”, the lawyer explained, “The complainant knew my client. He went to my client and asked whether he had a change for Rs. one hundred? My client said ‘yes’. On this the complainant gave him a Rs. one hundred note given by the police and in return got 10 Rs. ten notes in exchange. Had the thanedar searched the person of the complainant, he would have recovered 10 Rs. ten notes. My client has been falsely implicated as per a conspiracy and thus trapped.” The court acquitted the patwari giving him the benefit of doubt.

Whom did the law favour — only the criminal and not the innocent?

 

Chor ki dahdi mein tinka

On the other hand, past feudal lords had their unique sense to dispense justice. We all are aware of oft told of story behind the logic of the story, “woh dekho chor ki daadhi mein tinka (Look, there is straw in thief’s beard). It is said, about ten suspects had been apprehended for a theft. But none was ready to confess. Kotwal made all of them stand before him. Suddenly he shouted, “Voh dekho chor ki daadhi mein tinka”. The person who had committed the theft, instantly put his hand on the beard to remove the straw. The others stood firm. The kotwal immediately put him in jail.

In another case, two women came to a raja claiming that the newly born child (son) was hers. There were no DNA tests at that time to decide the issue. The raja was put in a very piquant situation. Pondering for a while, the raja ordered that the child should be cut into two equal pieces and one piece be given to each of the women. At this one of the two women started crying loudly and said the child should be given to the other woman. “I will feel happy seeing my child growing happily in her lap”. Hearing her cries, Raja said the bewailing woman is the real mother and the child should be given to her. “A real mother would never wish her child to be cut into two pieces”, the raja declared.

 

Helps the rich, harasses the poor

According to unconfirmed reports, about 2 lakh persons are languishing in various jails in the country without trial for years together. One Machung Lalung was released after detention for more than 50 years from Assam jail waiting for his trial and that also on the intervention of a civil rights group. A whole life of an innocent was thus sacrificed at the altar of our law

There are thousands of under-trials from poor families rotting in jails for years together because they cannot afford to secure bail as they have no money with themselves or with their relatives to present personal sureties/ bonds desired by courts.

On the other hand, we have numerous cases of elite, high profile and well-connected individuals charged with heinous crimes either getting interim bails or bails immediately after their arrest. In the alternative, there are numerous cases where accused instantly complain of chest pain, heart or other serious ailments after their arrest to evade grilling by police and get themselves admitted to five-star private wards in expensive hospitals at the expense of the government or at their own. Later events make it appear as if their ailment is nothing else but their arrest. The moment they are released on bail, they are in their jovial self, as always, attending to their normal routine.

A case in instance is the  case of the Satyam Computers fame CEO Ramalinga Raju who was shifted to a hospital the day he was arrested and remained there in the posh hospital till released on bail. When released, he straight went home and not to a hospital. But his bail was later cancelled by the Supreme Court.

 

Taking law into own hands

This system of law is not promoting the cause of justice. It is hindering the process of justice – helping the criminal and tormenting the innocent. That is why every other day we come across news where people beat up – and even lynch – a person they catch hold of having committed a murder, killed pedestrians in an accident, raped a woman or even a small time thief. Such instances are a pointer to isolated cases of people, slowly and slowly, losing faith that justice will be done in the normal course and in time. That is why they prefer to dispense justice themselves and instantly.

A trial court recently has made history in completing in 17 days the trial of a person who committed rape and murder and sentencing the accused.  If one court could do it, why not others? After medical and forensic tests, a rape is established, why linger on such trials to years and decades?

It is time politicians and those involved in dispensing justice put their heads together and attune our law to the reality and needs of the present Indian situation, lest people take the law into their own hands to kill the law that kills justice.

By Amba Charan Vashishth

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