“Whatever views one holds about the penal law, no one will question its importance to society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to fear on individuals.
Its promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire legal field is more at stake for the community or for the individual” ——- Herbert Wechsler
The basic reason to bring penal codes in any state was just to terrify the persons within its territory in case of its breach. But now a days some events like the latest attack on an accused of adultery in Chandannagore Court, West Bengal and on Rajesh Talwar in Ghaziabad Court, Uttar Pradesh ; both in the court premises, put a question before us that “is the present Indian system compatible enough to secure justice for everyone?”
For a layman, justice means the mental satisfaction by way of deterrence of the accused in a very few time. They found law as their muscles which will give them the protection against all wrongs. But increasing rate of instances where a person is taking law in own hand being fed up with the present justice delivery system questioning “Rule of Law” prevailing in India. The definition of Law is that “Law is the command of sovereign” (The Command theory by Austin) which implies that only the collective effort is permissible to punish one and there is no exception in it.
I’ll like to discuss about the reason behind such impatience.
Some of the basic principles of Indian Criminal Laws are : 1. ‘presumption of innocence and right to silence of the accused’, 2. ‘burden of proof on the Prosecution’ and 3. ‘right to get fair trial’, 4. It is better to let nine guilty men free than to convict one innocent man.
India as a large democracy in the world having most voluminous Constitution whereby in it’s preamble it provides that every person should get proper redressal of law irrespective of anything. This is the main reason of chasing behind the wild goose – “justice”.
Art. 14 of Indian Constitution declares right to equality before law and equal protection of law for every citizen of India. This bears a dual meaning in both positive and negative senses. In one hand it gives right to the victim to get justice and on the other hand it gives the accused the right to get fair trial. Now in this tussle one party has to compromise with justice. It may sounds like very harsh but undoubtedly it is the only holy truth in most of the cases in India.
The main problem as per my opinion is laid down with our system and the statute – Indian Evidence Act also. It puts the burden of proof upon the aggrieved party. As I mentioned before, the accused has right to be silent and unless he himself put onus on his shoulder. This become the main escape route for in most of the cases. As per Sec. 60 of the Indian Evidence Act, oral evidence should be direct. The accused always try to terrify the witnesses as well as convince him; sometimes with a lump sum of money. The best example is the famous Jessica murder case whereby power and “paisa” almost stopped the rolling stone of law.
In my small practice life what I have gathered from the general criminal practice is that always try to drag a criminal matter for as long as you can. It has two fold utilization. First the engaged Advocate will get more money and one the other hand the witnesses started to be less interested which will push them to forget the minute details of the case. After a long run mockery (which sometimes take a decade) when the trial starts either the witnesses don’t come or they can’t give satisfactory answer to those cross questions including those pinching leading questions put by the Advocate on behalf of the accused.
Police plays a very important role throughout the case. Firstly they demand bribe for taking FIR. The harassment of the complainant starts here. Persons who could not give them “adequate” money, has to lodge a complainant u/s 156(3) Cr.P.C. before respective A.C.J.M. If the magistrate is satisfied with the complainant, take cognizance u/s 200 Cr.P.C. and forward it to the concerned police station. After receiving that complainant, police again demand money for arresting the accused and thereafter in the name of the investigation they start annoying the victim and/or their family members in every possible ways. If the accused is ready to give a handsome amount of money, police can do anything including submission of prayer for closing the case which is technically known as FRT report. In most of the cases police does not take any statement u/s 161Cr.P.C. from the victim or witnesses. They just ask for some name from the victim and their family members and then put a statement in their name. Of course they try hard to put some resemblance with the fact but these statements lack the real statement of them. Result? In cross question, the witnesses compelled to admit that what is recorded as their statement is not true. If a proactive witness tries to say that yes, it’s his statement containing part and parcel of his words, soon the clever lawyer shows the loopholes.
The present judiciary system is also liable for delayed justice. Magistrates and Judges are so overburdened that they fix “next date” in a very remote date which may extend up to 1 or 2 years. I myself heard in the Supreme Court from the mouth of Hon’ble Justice Markandeya Katju that once he asked a magistrate from Ghaziabad court that how many cases are pending in his court? His answer was almost 10 times than what should be. In India population is so much that despite being a very few proportion as litigants, in July, 2009 the pending number of cases were 3.56 crore. Undoubtedly the number is increasing day by day. The malpractice of taking adjournment (in the name of right to get fair trial ) against a very lame excuse is also there. One of the most funniest example is “due to insufficiency of material from the client….”. God knows whether the “material” is monetary or documentary.
Now come to those abovementioned principles. Though I mentioned 4 separate principles, but all are very much connecting with each other. In India a person is presumed to be innocent unless beyond all reasonable doubt his guilty is proved. Though there are some exceptions of this rule, but in most of the cases the burden is on the shoulder of the accused. In Sec. 101of Indian Evidence Act this principle is laid down as “he who alleges must prove his case beyond all reasonable doubt”. Undoubtedly it is not an easy job, especially when there is no direct evidence. Proving a case upon circumstantial evidence is almost next to impossible case for a public prosecutor. He has to handle a lot of case and inspite of that he get only a fixed remuneration from the Government. Sometimes Public Prosecutors compromise with the accused also.
It is also a very common fact for those honest public prosecutors, that despite of a lot of hard try, prosecution fails to prove his case beyond all doubts. Hostile witnesses put the last pin into the coffin. As a result the case become not proved or disproved and thus the court become compelled to release the accused. I heard somewhere that in a case the court said that “we are sure that the accused is guilty but due to insufficiency of proof I am releasing this accused”.
Conclusion : We can’t wipe out the corruption in prosecution but we can control it. We are becoming mute witnesses of a lot of scams and corruptions and other wrongs. Its time to wake up and switch on our good conscience against it.
We can’t deny that the justice delivery system is breaking down due to weightage of the pending cases. In a country like India, where about 300 million people are living below poverty line [source – http://www.wakeupcall.org/administration_in_india/poverty_line.php ], it is necessary for law to reach at doorstep inspite of the affected people to approach before the big iron made door of law. New concept of mediation, gramin nyayalaya etc. is a very good approach in this regard but it is not so wide spread and popular till now. We have to keep in mind what Martin Luther King (Jr.) told in 1963, “injustice anywhere is a threat to justice everywhere”.
I know it very well that “Everything has been said already, but as no one listens, we must always begin again.” (Andre Gide a French thinker and writer). Till its success I have nothing to do except hope for the best, hope for the right for justice.
P.S. – Just heard that three new High Courts in the north-eastern states of Tripura, Manipur and Meghalaya may soon be set up as present Law Minister Dr. Veerappa Moily has submitted in a memorandum to the union cabinet in a move that would require amendment of the North-Eastern Areas (Reorganisation) Act 1971. One step closer to the goal of justice?