Chaff And Grain: Dilemmas Of The Criminal Justice System

Newspaper readers and TV audiences comprise a very large section of We The People Of India. Criminal cases are keenly followed by people from all walks of life and media is full of them. People getting arrested on allegations of murder, rape, terrorism, social media abuse, hurting religious feelings, money-laundering and myriad other crimes; grant and denial of bail by the courts; and false implication of innocents by the police form a significant chunk of news in the media. In other words, the criminal justice system evokes tremendous interest amongst the people across the country. I would put the criminal justice system next to Bollywood, cricket, and politics in terms of interest amongst people. Being a criminal defense counsel, I am always being prodded to give my take on the Indian criminal justice system even while travelling by fellow passengers, at wedding parties, and other informal gatherings. Even today, people ask me “Who killed Arushi Talwar?” In short, the criminal justice system evokes immense interest amongst people from all walks of life and this was one of the triggers for me to write Chaff and Grain: Guilt, Innocence and the Dilemmas of Justice. 

Having completed three decades as a criminal defense counsel and defended thousands on accused men, I have developed my perspectives on the criminal justice system and this book is the result of my views, thoughts and critique of the various aspects of the criminal justice system in India. My experience has enabled me to develop deep insights into the problems that confront the criminal justice system. Also, I have always written on issues not written about earlier. Since I did not find a publication that deals with the burning issues that plague the Indian criminal justice system, I chose to write this one.

I have written this book not only for the legal community and legislators but mainly for the readers at large and hence followed the journalistic style for easy comprehension of complex issues. 

In sum and substance, this book is about the functioning and malfunctioning of the Indian Criminal Justice System.

A criminal case is initiated with a criminal complaint to the police. I have addressed the malady of false criminal cases that enter the criminal justice system and how they cause irreparable injury to the accused. These people are harassed by the police, arrested, denied bail, and must face endless criminal trials. The impunity with which such false cases sail through the criminal justice system is quite alarming. In these false cases, who is the victim and who is the criminal?

The most rampant and gross abuse of power by the police, is the power of arrest upon registration of a First Information Report (FIR). Apart from other causes underlying this abuse of power, the colonial hangover of the police and the courts in the country before whom the accused is produced upon arrest, have been highlighted by me and a case for imperative reforms is made out in this area.

I have then coined the expression ‘Malvestigation’ to highlight shoddy, dishonest, and incompetent investigation by the police. I have picked up four important cases: Aarushi Talwar, Jessica Lal, Priyadarshini Mattoo and the fake stamp scam, in the context of misdirected and manipulated investigation by the police. Time and again, people have and still ask me as to who killed Aarushi Talwar. I have answered this question based on my legal understanding of the case. I have endeavored to reconstruct the crime scene from the evidentiary perspective and as a lawyer. Fair and scientific investigation is the backbone of the criminal justice system without which it’s a criminal injustice system!

‘Jail, Not Bail or Bail, Not Jail’ is a complex area of our criminal justice system which I have endeavored to demystify. If the courts apply the principle of ‘bail, not jail’, or in other words, ‘bail is the rule and jail an exception’ strictly, many terrorists and those accused of heinous crimes would roam the streets or flee the justice system or even threaten witnesses. On the other hand, if it is applied conservatively and undertrials are denied bail for heinous offences, then irreparable damage may be caused by keeping them in jail, especially in cases where they are eventually proven innocent in the trial. Can the criminal justice system justify keeping an innocent man in jail till he is proven guilty in a trial? Here lies the dilemma which I have addressed in the book.

It has time and again been highlighted by the Supreme Court that every witness in a criminal trial speaks lies, in other words, perjury is rampant in our criminal justice system. Falsities, exaggerations, and embellishments are the DNA of witnesses. If the American principle of rejecting testimonies of witnesses due to falsity on a significant aspect of the case was to apply in India, every criminal trial would end in an acquittal. Hence, by judicial innovation, the principle of ‘chaff and grain’ has evolved as per which the judge is required to separate the falsehood and truth from statements of witnesses and then decide the fate of the accused. While this principle is born out of necessity in India, it runs the risk of punishing the innocents. Here lies another dilemma in our criminal justice system, which I have highlighted and addressed in the book.

Do we the people of India need the offence of ‘Sedition’? If so, how should ‘Sedition’ be defined? What are the safeguards required to prevent or minimise the abuse of this law by the police? Governments are grappling with the malady of ‘social media abuse’ and are unable to define it. I have defined the offences of ‘Sedition’ and ‘Social Media Abuse’ and laid out the requisite checks against misuse of these offences by the police, for legislators and policy makers to consider. 

I was appalled to see the celebrations across the country after four men accused of gangraping and murdering a veterinarian in Hyderabad were shot dead by a team of policemen. It has been found prima facie to be a case of fake encounter by a committee headed by a former judge of the apex court. The criminal justice system should never be bypassed. Even Kasab, accused in the Mumbai Taj Hotel mass killings case, was given a fair trial and so were the accused men in the Nirbhaya rape-murder case. What if one or more of the four men in the Hyderabad rape-murder were innocent? After all, the poor bus conductor accused of killing a small child Pradyuman Thakur at Ryan International School at Gurugram and put behind bars for several months was found innocent. Would it not have been a travesty of justice if the bus conductor had been lynched by the public or killed by the police without a fair investigation followed by a criminal trial?