February 22, 2020
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An Injudicious Slant

The law may be an ass, and an overburdened one at that. Perjury, then, is easy to get away with.

An Injudicious Slant
"Even while acquitting the accused, Additional Sessions Judge G.P. Thareja said in an open court that he knew Santosh Singh, an igp's son, had murdered Priyadarshani Mattoo but was forced to give him the benefit of the doubt as the cbi had failed miserably to do its job..."
—March 1, 2000, The Hindustan Times

AND they get away with murder. Those whose affluence and influence can doctor post-mortems, fix forensic reports, buy witnesses, sway prosecution, hire the best defence lawyers and sometimes even purchase the families of victims. "Law is a process through which the rich enforce their rights," says lawyer Kapil Sibal. "Law has always been for the rich."

More so now than ever before. As gaudier parties and swanky speeding cars mock the law, heftier bank balances rush in to cover up. And mostly succeed. "Today, all components of the justice system can be bought," says retired Mumbai High Court justice C.S. Dharamadhikari. "I find it difficult to say this but I can't deny that even justices are purchasable."

And witnesses come cheaper. They are often planted by the police, threatened or bought by the accused and tutored into tailored testimony by whoever has more clout. Key witnesses turning hostile is no surprise: witnesses who say one thing to the police, another to the media and quite something else in court. Significantly, they are not even flouting the law as they do so, as our legal system only recognises statements recorded by a magistrate or depositions before a judge. So the version given to the police soon after the crime, unsigned as it is, is inadmissible evidence. It can be used only to contradict statements made in court and not to corroborate crime.

Not that there aren't any perjury laws. Giving contrary statements under oath is a crime punishable by at least seven years' imprisonment. If an innocent man suffers capital punishment because of someone's false statement, then Indian law even provides for the death sentence of such a perjurer. But rarely are perjury cases tried and almost never are convictions made.

"It's difficult to prove perjury. The burden is totally on the complainant, both to prove the falsity of the latter statement and the substantive fact of the earlier one," says former law commission member Praveen M. Bakshi. And litigants already struggling with the nitty-gritty of their legal battles, he says, don't want to squander time on more complications. Retired justice Rajinder Sachar of the People's Union for Civil Liberties agrees: "People get away with lying in court due to the general lethargy and indifference of our judiciary. Our courts choose not to punish what's considered a grave crime in most other nations mainly as they're already overworked. So they are loath to create new cases. Moreover, convictions even in the main cases are dismal; who has the energy or time for add-on cases!" Indeed, about three crore pending cases lie in various courts of the country and the conviction rate for murder is as low as 36 per cent.

"Today, our judicial system is almost dysfunctional. The delay in justice, the lack of faith in the law's capability to pin down the culprit has victims opting for financial compromises outside the legal system. On the other hand, extreme shoddiness and corruption of our investigative agencies result in the accused using money to get out of legal strangleholds," observes Sibal. Any which way, then, money illicitly enters in the legal proceedings.

And wins just about any day in court. As a battery of defence lawyers for movie-financier Bharat Shah walk in at a minimum cost of Rs 1 lakh daily in the Mumbai courtrooms, the special public prosecutor for the same case, Rohini Salian, is paid no more than Rs 3,000-odd per hearing. In the Mumbai High Court, for instance, a public prosecutor is paid a paltry Rs 500 to fight an entire bail proceeding that could stretch up to five days. "Money aside, the best lawyers don't become public prosecutors anyway. You have to be socially committed to do this job," says Salian. And the absence of both talent and money tells. Badly argued cases by poorly paid public prosecutors become even weaker as many of them are bought over by the other side. Calcutta-based advocate Ranjit Basu corroborates this: "Officers appointed by the courts as receivers of property disputes, for instance, are commonly bribed by the more wealthy litigants. It's become something of a trend!"

But noted criminal lawyer I.U. Khan is angriest with the police. "They coerce people into making false statements, plant evidence and false witnesses, run to the media with half-baked stories, take bribes. They are a bunch of organised gangsters who have made a mess of the judicial processes in the country," he fumes.

Others too have grouses. Mumbai-based lawyer and special prosecutor Shrikant Bhatt says police "inefficiency" and "crookedness" can make a witness' position very weak in the court: "Do they have the time, patience, infrastructure or competence to record the statements in detail and also correctly?" S.M. Singh, senior prosecuting officer in the Lucknow High Court, offers an emphatic no: "Sub-inspectors and inspectors who lack legal knowledge and are in a hurry to present chargesheets ruin evidence."

R.K. Anand, one of the country's most sought-after criminal advocates, says "half-witted" police investigations conducted by untrained, low-rung cops lose cases even before trials begin. He opines: "Criminal lawyers are often left to do their own sleuthing to prove their cases. And that requires both money and manpower."

Naturally then, whoever has the shortest purse strings has to pull out of the race first. For it is almost like race. "That is where the conceptual problem lies—we have inherited an adversarial legal system from Anglo-American law with excessive emphasis on procedure. And procedure is taken to absurd lengths, with the search for truth becoming a clever game played by clever offenders," says Dr G. Mohan Gopal, director of the National Law School in Bangalore. He suggests considering reforms based on an inquisitorial legal system, "where the court has the discretion to go after the truth rather than play a mere referee".

Legal eagles have other solutions. "The courts have never made exemplary judgements on perjury, no benchmark deterrent orders have been passed. It's high time that happens," says Sibal. Anand advocates better spadework by the police and recording statements before magistrates in the presence of advocates from both sides within two days of the crime. Nothing short of a revolution in the system with decentralisation down to independent village and mohalla units, says Dharamadhikari. "With its alien language, our law is most ineffective for the poor who can't afford expensive lawyers to interpret it for them," he says.

Justice Sachar advocates social reform more than legal reform to cleanse the rot that has set in: "Public conscience has atrophied. It's all right to kill, play blood money to the victim's family and drive home in your plush cars, or sell out to the culprit, lie in court and make a beeline for the next party. The casualty is ordinary people's faith in justice."

Soma Wadhwa With Manu Joseph, B.R. Srikanth,Sutapa Mukherjee and Ashis K. Biswas
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