Recently Mr Donald J Trump appeared
as the Accused (Opposite Party) in a contempt trial. Some of his supporters who
stormed the Capitol building after he lost the popular as well as the electoral
vote, have started serving their sentences. The accused police officer Thomas
Lane in the infamous ‘Black Lives Matter’ trial had been convicted and started
serving his sentence. Whereas, we really do not know when the cases lodged
against the protesters in the Citizenship Amendment Act will conclude. In our
neighbourhood, Imran Khan has already been convicted for violating the Official
Secrets Act. Most likely he will face another conviction in the Toshakhana cases.
In India, many of the opposition leaders today are facing serious financial
fraud prosecutions. But, none of those who are in the camp of ruling dispensations
are bothered too much about the pendency of criminal cases against them,
because they have been moving at (satisfactorily) a snail's pace. The recent conviction
of Rahul Gandhi and imposition of the maximum sentence of 2 years for an
offence of political defamation is incomprehensible for the endangered liberalists
in our magnificent Bharat aka India, which still mercifully remains a Union of
States!!!
Most of the discussions on Criminal Jurisprudence
revolve around the decisions of the Higher Judiciary (High Courts and Supreme Court).
Undoubtedly, these institutions are important, because we are a Common Law country
implementing the rule of Stare Decisis and the Doctrine of Precedents.
But much more of criminal justice is dispensed at the level of Trial Judiciary.
The skillset and work culture of the Justice Administration personnel around
the country is not uniform. In India, we don’t have a Dual Judiciary (Federal
and State Courts). With the increasing tribunalisation, the Union of India has its
own justice delivery institutions on important union enactments. Hence, it is
necessary for us to examine where we are in facilitating the evolution of a better
criminal justice administration process.
Recently, the Madras High Court has upheld
the Judgement of the Trial Court in the notorious Vachathi gang rape cases. The
incident took place in June 1992. The Trial Court pronounced its judgement in 2011.
The convicts, in this case, include a Deputy Collector, Range Forest Officer, police
and revenue department personnel. The victims are from a marginalized tribal
group. Notwithstanding the Trial Court Convictions,
some of the appellants have received official promotions. Hopefully, all of
them have now surrendered. Surely, one can expect them to file Special Leave Petitions
in the Supreme Court. Possibly some of them may get bail. Thus, our system took
roughly, about 3 decades for the conclusion of the Trial and the First Appeal. God
knows if the Criminal Appeals will be heard in the lifetime of the accused. Out
of the total 269 accused, some have retired, 54 of them have died. Victims,
witnesses, offenders and even their immediate heirs would have died and many of
them may not even know that Justice has been delivered to them. Their legal
heirs will be compensated and will go around the society as Generals of War in
Social Empowerment.
In my earlier blog ‘Sathankulam Tyranny’.
I had mentioned that had the Criminal Trial Lawyers at the local court,
complained on the first day of wrongful custody to the local Superintendent of
police by email, the detention of the deceased for the second day would have been
avoided. Had the detention in this case been reduced at least by 1 day, the deceased
wouldn’t have received the beatings on the second day, (which probably could
have saved his life). Had the Remanding Magistrate (who from his residence ordered
the judicial custody beyond office hours) exercised due care and diligence, the
deceased Detenue would have gotten proper treatment in the local government
hospital. Had this happened, his life would not have been lost. Furthermore, each
jail is supposed to have a hospital headed by a doctor but is usually poorly
staffed. Even that professional had been found wanting in his duty by under-reporting
the nature of injuries that the father and son suffered. Now, 3 years have gone
by. All the evidence needed to prove the trial including one eye witness, a
woman police head constable in the station could not be tampered with so easily.
Even then CBI could not ensure an expeditious trial. One of the accused has
already died of COVID-19 and it's quite possible some other accused will also
avail the benefit of their biological limitations.
Contemporaneous to the Sathankulam
incident, another person from a marginalized society became a victim of interrogation
at the hands of Tamil Nadu Forest Department Personnel, he also lost his life. This
investigation is being done by a corps of detectives from Tamil Nadu; their
credentials are as good as the CBI. This Trial also has not seen its logical conclusion.
I will concede that the government institutions and systems of administration in
the state of Tamil Nadu are at par with the other progressive states of India. Even
there, we see often acts of miscarriage of justice due to deficient human resources
at the Trial Judiciary level. Recently the Judgement of Justice Anand Venkatesh
to exercise suo moto revisional powers against the acquittal/discharge of
sitting cabinet ministers of the ruling government resulted in a furious debate
as to why the Judge is exercising the Jurisdiction which was not availed in the
past. In my opinion, the question should be why the judges did not exercise
this jurisdiction all along even though many situations in the past demanded the
exercise of the existing supervisory jurisdiction of higher judicial forums.
Recently, the Madras High Court and Karnataka
High Court have set aside the election of two of the Members of their own parliaments.
They have filed their appeal and it is pending in the Supreme Court, even
though the notification for the next elections is expected very soon. The former
finance minister could ensure that his disqualification petition became infructuous.
After it becomes infructuous, it is easier to get a dismissal on merits. In the
State of Tamil Nadu, where there is a better level of awareness and a stronger commitment
to Social Justice, the victims of crime, particularly when they hail from
marginalized and lower classes of the society do not get adequate justice. Even
if Justice ultimately appears to have been done, the victim really gets nothing.
Often their legal heirs get the compensation-which now includes a compassionate
appointment in government services. Even
though, a prominent Dalit political party is part of the ruling DMK coalition
in Tamil Nadu, the offenders who polluted the water supply with human faeces
are yet to be identified. In North Tamil Nadu, a temple managed by an MBC
community had to be put under the lock and seal of HR & CE department
because the temple administrators did not allow the entry of Dalits into the
temple. But one must also place on record that the state of Tamil Nadu had
facilitated the appointment of people from non-Brahminical classes and women for
the performance of priestly and spiritual functions around the State. This is
just the beginning but, to quote Rober Frost “miles to go before we sleep
and many more miles to go before we can peacefully sleep” (emphasis by the
author).
I realize that even in India, politicians
like Lalu Prasad Yadav, Bangaru Laxman, Chautala, and Amarmani Tripati, served
their sentences. The serving of sentences has not driven them into political oblivion
notwithstanding their personal disqualification. In Indian bureaucracy, there
is a saying, “Tell me who is the person, and then I will tell you the applicable
rules”. Unfortunately, this applies to Criminal Trials. If the state desires
delayed conduct of prosecutions, essentially to benefit the accused and use the
delay to protect the accused from facing the consequences of their unlawful
act, the Judiciary should not be a silent spectator. The prosecuting agencies (be
it the Union or State) arrest the accused
after initiation of the complaint and keep them in Jail for a long time; the
possibility is higher if you are from a minority or oppressed community. Sometimes,
they serve the entire period of sentence in case of a possible conviction. Hence
on legal advice, they plead guilty so that they can avail the benefits of the first
offender under the Probation of Offenders Act. In other cases, the influential
convicts avail themselves of liberal parole benefits and over a period of time
manage to secure remissions facilitating the premature release of convict prisoners,
for example, the Bilkis Bano Case convicts. It is said that the United States
of America has more prisons and per capita prison inmates in relation to the
population. This is not to suggest that the people in the USA have more
criminal propensity. This occurs because all the laws are diligently enforced. The
guilty, however influential they are, cannot prolong the trial beyond a period as
the state machinery ensures the conclusion of prosecution within a reasonable
time. I believe that we should implement policing reforms as mandated by the Supreme
Court. The investigating agencies should be freed from the shackles of other
aspects of policing and subservience to the home department. Until that is done,
the sorry state of affairs will continue. Smart and well-connected criminals
will not only postpone the inevitable but also escape from facing the full consequences
of nefarious acts even if the inevitable convictions happen.
The legal provisions should ensure
that the more qualified amongst us, representing all walks of life should become
Trial Judges. They must be better trained as well.
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