Thursday, April 11, 2013

The court of last resort

Markandey Katju

The Hindu, 9 April 2013. 

It will help rectify the injustice meted out to people languishing in jails due to a delay in trial or wrong conviction

After I sent appeals to the President of India and the Governor of Maharashtra for pardon to certain individuals, I received many messages saying injustice is being done to thousands of other persons too. They have been languishing in jails as either undertrials whose cases have not been heard for several years, or have unjustly remained incarcerated because:
(1) The police have fabricated evidence against them, or
(2) For want of proper legal assistance, or
(3) They have had to spend many years in jail before being found innocent by the court.
This is a violation of Article 21 of the Constitution which guarantees the right of life and liberty to all citizens. Those who are suffering in jail are usually the poor who do not have the financial resources to help themselves. Many in this category belong to the minority communities. They have been accused only on suspicion and on pre-conceived notions that all persons of that community are terrorists.
Rush to implicate
Whenever a bomb blast or such other terrorist act occurs, the police are often unable to trace the real culprit and yet have to show that they have solved the crime. Consequently, very often, the police rush to implicate and charge a large number of youths of that minority community on mere suspicion. Their bail applications are very often rejected. As a result, they have to spend several years in jail.
In such matters, either the police often fabricate evidence against them to justify their acts and secure conviction, or the cases result in the acquittal of innocent accused persons after they have spent several years in jail. A glaring case is that of young Aamir who was 17 when he was arrested, and who spent 14 years in jail after which he was found innocent. Who will restore those 14 years of his life?
The April 6, 2013 issue of Tehelka has an excellent article by Shoma Chaudhry entitled, “The Fight for Muslims is fundamental for the survival of democracy,” in which she says that over the past few years, Tehelka journalists have documented hundreds of stories of innocent Muslims languishing in jail after being brutally tortured on flimsy or false charges.
Ms Chaudhry writes that innocent Muslims have been jailed with impunity in India over the past decade because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be arrested, and their names aired in the media as “masterminds.” Their guilt was assumed, it did not need to be proved.
Since 2001, a terrible maxim had seeped into the Indian mainstream: all Muslims may not be terrorists, but all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the illusion of security and “action taken”. Those who raised hard questions were scorned as “anti-national.”
In a seminar on “Reporting Terrorism,” held on April 7 in Hyderabad, I said that within hours of a terrorist attack in India, many television news channels start showing that an email or SMS has been received from the ‘Indian Mujahideen,’ the ‘Jaish-e-Muhammad,’ the ‘Harkat-ul-Jihad’ or some other organisation having a Muslim name claiming responsibility for the attack. An email or SMS can be sent by any mischievous person. But by showing this on TV screens, and the next day in print, a subtle message is sent that all Muslims are terrorists and thus the entire community is demonised.
All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses on rent even when acquitted. Their families are ostracised, and their sisters cannot get married because their brothers have been branded terrorists. Unless this cycle of hate is reversed we will be heading for terrible times, for injustice breeds hatred and violence.
Criminal investigation is a science but, unfortunately, in our country the police are not usually trained in scientific investigation; nor do they have the equipment for the same. Sherlock Holmes investigates a crime by promptly going to the spot and studying the fingerprints, blood stains, soil, ashes, handwriting, etc., before coming to a scientific conclusion. Recently, the Discovery channel showed how the American police investigate a crime. The police reach the spot and collect traces of the material there, including blood stains, fingerprints, ashes, fibres, hair, etc. The fingerprints are fed into a computer which is connected to a national computer network, which can often lead to the discovery of the criminal. The blood stains, hair, etc., are taken to a laboratory where they are tested for DNA, etc. Even a few microscopic fibres can lead to the discovery of the culprit by testing them in a laboratory and thus finding out the criminal’s identity.
Pressure on police
Such a method is absent in our police set-up. Yet the police have to show that they have solved the crime. The investigating officer fears suspension for incompetence. So he either implicates people on suspicion or resorts to the time-honoured method of torture or third degree methods to obtain a confession.
All this is leading to injustice on a large scale. We are not blaming the courts because they are handicapped due to the enormous burden of litigation for which cases linger on for years. Also, unfortunately, nowadays the real eyewitnesses are afraid to give evidence out of fear of threats or harassment, and hence the police end up fabricating evidence.
The result is that gross injustice is often done, particularly to tens of thousands of persons languishing in jails; the time has now come for this great wrong to be set right.
It has been decided by a group of people, including this writer, who is a former judge of the Supreme Court, Fali Nariman and Majeed Memon, who are both lawyers, Mahesh Bhatt, film producer, social activist Asif Azmi and other like-minded people to set up an organisation called ‘The Court of Last Resort’.
The concept of this idea has come from an organisation founded way back in 1948 by the eminent American criminal lawyer, Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book The Court of Last Resort, Gardner mentions the organisation he set up consisting mainly of lawyers, who took up cases of persons whom they thought were wrongly accused or unjustly convicted (see You tube).
The organisation which we are starting in India will bear the same name and have its headquarters in New Delhi, with the writer as its patron. It will have units in all the States of India. The bulk of the work will have to be done by the State units.
‘The Court of Last Resort’ will have the following objects:
(1) To ask the authorities concerned in various States about details of prisoners, particularly those who have been in jail for long periods, including undertrials and convicts. The RTI Act can be used in this connection;
(2) To examine cases, whether of our own accord, or on the representation of someone, and find out whether injustice has been done to the person involved, either by a delay in holding the trial or by a wrong conviction, and do the needful in this connection, including applying for bail;
(3) To apply for pardon, respite, suspension or reduction of sentence to the President or Governor as the case may be;
(4) To create awareness in the public about this gross injustice that is being done to a large number of people;
(5) To educate the police about this state of affairs and change their mentality;
(6) To approach the other authorities concerned with the aim of rectifying this injustice to a large section of people;
(7) To do such other acts as may be necessary for this purpose;
The organisation appeals to the like-minded people among the public, particularly lawyers, retired judges, academicians, students, social activists, professionals, media persons, and others to help and associate with this enterprise.
The formal inauguration of this body will take place on April 15 through a press conference.
It is made clear that this is being done for no personal benefit to any of us but purely out of our sincere desire that justice should be done to everybody and that no section of society is made to feel that it is being discriminated against. The Court of Last Resort will not limit its work to helping the minorities; it will help persons of all communities and denominations, particularly the poor and the downtrodden.
(Justice Markandey Katju is chairperson of the Press Council of India)

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