Tuesday, May 13, 2008

Jessica Lal Murder Case and the Rule of Law

In arguably one of the most talked about cases, Manu Sharma was convicted by the Delhi High Court of murdering Jessica Lal. While I am familiar with the main storyline that favors the prosecution’s view of the case, I have not seen or heard enough of the alternative views of the case to know whether there are any problems with this (none of the judgments appear to be available online). Nor has there been any coverage whatsoever of the reasons Justice Bhayana gave for acquittal and how his approach differed from that of the High Court. All the newspapers have only put out the remarks made by the High Court against Judge Bhayana and how it saw a number of errors in his judgment.

NDTV was the worst offender in this regard. The fact that it had marshaled evidence purportedly in support of the idea that the Sharma family had purchased witness testimony for huge amounts led it to launch a nationwide campaign in favor of his conviction. Even if this is understandable under the circumstances, it went further and began to blame Judge Bhayana and cast this case as an acid test of the worthiness of the ‘entire system’. The recurring theme was that if Manu Sharma was not convicted, ‘people will lose faith in the system’. There was no other way that justice could be done – he had to go to jail and the appellate judges were duty bound to ensure this would happen. The Delhi High Court, in response to this outcry and the SMS campaign that went along with it, took up the matter sua sponte even before the police decided upon an appeal and ended up setting aside the trial court opinion and convicting him. It was said in the press at the time that High Court preferred to go by the original written testimony given to the prosecution rather than what was said in the witness stand during the trial. This way, it avoided much of the confusion and came straight to the conclusion of Sharma’s guilt. The divergence between this earlier testimony and what was later said on the stand by many witnesses also formed the basis for the notices issued to the witnesses for perjury.

The few things I have seen do suggest that Bhayana’s approach was the right one and the High Court’s own improvisation is of dubious basis in law. For example, the Hindu editorial at the time said (correctly) that the Court laid much store in the evidence of Bina Ramani but in fact, her statement was less than categorical on the stand – her use of qualifications such as ‘I think’, ‘looks like’, etc. were hardly the clear and categorical answers that are expected of witnesses in criminal trials. More importantly, preferring to adopt written testimony given to the prosecution over what was said in the stand is very troublesome as a precedent if indeed this was what was done. When a disparity arises between the two, prosecutors insist the witness was bought over and the defense usually contests that by arguing that police coercion made the witness give false testimony which he is now retracting under oath. Anyone who knows the system can testify to the fact that both practices are widely prevalent. Who then is to be believed? It has long been believed that the only way to know that is not to go by what was whispered to the prosecutor’s ear before the trial but what is said in the witness stand, before the judge and the whole world, under oath – a place and time which also allows the other side to question the person and tease out potential contradictions. This practice has existed for centuries and for a judge to reverse it simply to ensure conviction in a particular case is not only unacceptable but will spell the end of legal protection to witnesses in future cases. No longer will they be immune from the coercive machinations of public defenders determined to make up a case, real or imagined, against any individual.

In this case, the media is convinced of the former though Judge Bhayana’s ruling was said to conclude the police case was cooked up to some extent. The much maligned TADA law had a provision that allowed the victim’s testimony to police to be introduced at trial – this dangerous provision caused a huge uproar in 1995 when the law came up for renewal. Opposition parties barring the BJP and many MPs within the Congress (led by C.K.Jaffer Sharief) attacked the idea saying that this predisposed victims to torture and other forms of abuse. The media in large part agreed with this accusation and asked that TADA be allowed to lapse – the fact that this evidence may have helped convict more people did not bother them at that time. Thirteen years later, the very same media (for the most part at least) now concludes in this case that police pressure is not a problem but Sharma’s political power and money are. And it is being repeatedly hammered home that conviction rates have dramatically dropped and Sharma needs to be held to account if only to prove that the judicial system is not a sitting duck. Have the rules suddenly changed? Is conviction rate now such an overriding concern that justice to an individual no longer matters?

Lastly, a few words about the ‘system working for the people’. The ‘system’ includes many parts – cops, prosecution and judiciary who are integral to it not to mention the defense lawyers and witnesses who come from society. When a ‘system’ fails, it could be owing to the misconduct of any of these. But not all of these problems can or should be fixed by the judiciary. If the prosecution goofs up, the media seems to expect the judiciary to make up for this by lowering the necessary standard of evidence. If the witness lies, the judge is now expected to convict without that witness’ testimony even if it is central to the case. If the forensic report does not support the prosecution theory, judges nowadays feel free to convict solely on the circumstantial evidence from a sole witness without any corroboration whatsoever. These are all fundamental travesties of the rule of law. The sad part is that the judiciary is being egged on to commit these acts by an ignorant media in its single minded and vicious quest for accountability at all costs.

It has been alleged that the rule of law has no meaning if Manu Sharma got off in this case. Someone who says that has not the slightest understanding of that phrase. What really is the rule of law? It is all about process, not outcome. The question to ask to determine whether rule of law exists is not whether so and so is convicted or not but whether the expected procedures were followed and the laws applied properly with respect to these to arrive at the outcome. In this case, what ought to matter is whether the necessary evidence in the proper form exists or not and whether in accordance with the laws as applied in all such cases, this particular individual too is guilty or not. That and that alone is what needs ought to count. The fact that NDTV and others crowed that ‘people’s power’ through a campaign they orchestrated made a difference to the outcome is a testament to judicial failure, not success. It indicates that the laws and procedures were subverted to achieve an end that would not have come about otherwise. Justice through rule of law is meant to offer defendants a measure of protection from the vagaries of popular sentiment. It is meant to provide justice by subjecting them to the power of wise men trained in its ways applying methods of reason rather than the unpredictable, often cruel, lopsided and transient passions of the mob (or the media as in this case). When judges begin to respond to ‘public furor’ to alter their practices and case outcomes, it indicates that this shield no longer serves this fundamental purpose. Such a judiciary whose opinions swing capriciously to the tune of ephemeral fancies - ‘public interest’ as popular sentiment is euphemistically known these days - spells the end of the rule of law. To push the state towards this dangerous end simply to have one man convicted is too high a cost to pay. Sadly, though the Hindu, TOI and other newspapers understand this reality, they were unwilling to state it flatly and stand up for the long term interest of the country in the face of popular outrage. This is not, as the Hindu put it then, a ‘capacity for self-correction’ but for self-destruction.

The new proposal to allow magistrates to record evidence before hand to prevent witnesses being influenced is welcome. I do not know whether it will end this practice of witnesses being bribed but it seems to be a reasonably good idea and may well help in curbing it to some extent. What the Delhi High Court is said to have done in this case is however clearly wrong and too outrageous to comprehend. The Supreme Court would do much good to reverse this ruling and set the record straight. Unfortunately, with a judiciary all too easily given to populist impulses, we are more than likely to see the conviction confirmed. This, like many others, will turn out to be one more landmark along the path of of irreversible decline for the one institution hailed as the country's last great hope.

8 comments:

Anonymous said...

Looks like a scholarly, legal article.

But, makes one wonder about the relevance to the "mission statement" of this blog:

This blog is an attempt to expose its (Chindu's) Chinese and communist loyalties. I am just another Hindu Fundamentalist demanding that "The Hindu" stick to journalistic principles.

Pilid said...

Anon,
This was a more general critique of media coverage of this case and the unfortunate consequences of its one-sidedness. It includes the Hindu but is by no means limited to it. This is one of those cases where its coverage has been better than TV channels though it does not go far enough. As in several previous posts, this blog does give credit to the paper where it is due.

Dirt Digger said...

Pilid,
You raise a lot of points for any follower of the judicial process to think about. One of the key statements you made which has lead to some controversy is,
If the forensic report does not support the prosecution theory, judges nowadays feel free to convict solely on the circumstantial evidence from a sole witness without any corroboration whatsoever.
I feel this is generic and it would be helpful if you could state statistics to corroborate the statement.
Also the key part you missed out is the Tehelka sting operation to gather information which helped the prosecution convict the criminal.
This case reminds me in large part of another famous case, the murder of Navarasu by John David. You should check that case out and if possible have a second post as a follow up.
Keep up the investigative spirit.

Dirt Digger said...

Anon,
You are right that this blog focuses on journalistic principles which are missing in the Chindu. However what Pilid is doing is a detailed analysis of the types of issues the media likes to sensationalize and the flaws in the judicial system which are overlooked while the judgment is being delivered.
These posts are very important in the larger sense for us to analyze the agenda of the media while handling such important criminal issues.
Thanks for your thoughts.

Dirt Digger said...

Pilid,
I found the article published in the Chindu about the John David case
here
Hope this helps. Its a very tragic case where the criminal got away.

Pilid said...

Judicial statistics for such things are hard to come by but there have been several cases and reports that I have seen and read to support the points I made. Here are a few that I found with a quick search.

In criminal cases, the standard of evidence necessary for conviction must be 'beyond reasonable doubt', not the 'preponderance of evidence' which is the usually the standard in civil cases. In the absence of forensic evidence or forensic evidence to the contrary, the defendant is expected to get the benefit of doubt. Yet, the Supreme Court has ruled that in a case of rape, the doctor's testimony is unnecessary if other circumstantial evidence exists (Rediff news report here). And in this other case of rape and murder, following conviction based solely on circumstantial evidence, the death penalty was also awarded. Reading the judgment, it is not easy to know what really happened and who is telling the truth - particularly in villages where there is group rivalry, group loyalty often trumps the need to be truthful under oath. In such cases, reliance on local witnesses solely without other evidence must be viewed with a degree of skepticism. When witnesses testifying to the contrary are declared hostile and their testimony struck off the record, there is a good chance that the outcome is prejudiced. Also read this article on how defendant protections have been systematically diluted by the SC in recent times (the magazine of course has its bias but you can look beyond that at the facts).

Pilid said...

DD,

On Tehelka-style sting operations, Noorani wrote an article in HT a while ago defending the right. Sardesai penned this piece that has a different take arguing that the real problem was the editorial selection of content. The case Bartnicki v. Vopper from 2001 that Noorani mentions discusses both sides of the issue of publicly broadcasting illegally acquired private material.

Dirt Digger said...

The article you forwarded has some unintentional comedy. Check this passage,
In rarest of rare cases when collective conscience of the community was so shocked that it would expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence could be awarded.
While this statement was not quoted it probably is from the Bench, it questions whether the Bench decides to implement the law or decides to give take into account the feelings of the community?
The real scary part is when you have corrupt politicians, biased media, inefficient policemen and overloaded courts are given the responsibility to handle such important issues like say terrorism with instruments like TADA and POTA.