- No involvement of victim and his family in court proceedings, except when summoned as witnesses
- Accused can hire lawyer(s) of choice. The victim has to go along with the public prosecutor engaged by the state.
- No accountability of public prosecutor. He/she gets time-bound promotions not linked to performance.
- The victim or his family cannot file an appeal against an unfair verdict. That is the state’s prerogative. The victim’s side can only file a revision petition on grounds of procedural oversight.
- Rights of the accused, including right to silence, is detailed in law. It is, however, silent about the victim’s rights.
- The accused has the right to know the evidence framed by the prosecution. The victim has no access to information from the defence side.
- Delay in judgement gives the accused greater opportunity to win over witnesses
- If the accused is influential, he can tamper with evidence, compromise investigators, even judges
***
"There is a place in our courts for the judge, the accused, the lawyers and witnesses. But there is no seat for the victim though his plight remains central to the case."
—Former solicitor general K.T.S. Tulsi
A case of incest is being heard in a lower court in Delhi. The accused is the father of a minor girl. As soon as a psychologist is called to testify, the defence team gheraos him. The public prosecutor stands helpless. The defence fires intimidating questions. The witness complains to the judge, requesting him to ask the dozen-odd lawyers to back off. The judge is surprised that somebody has actually complained. He isn’t used to this occurrence. Later, the psychologist, Dr Rajat Mitra, who runs an NGO, told Outlook: "Even basic dignity is missing in court proceedings."
This case, like thousands of others in various courts across the country, reflects how the criminal justice system is heavily loaded against the victim. That it favours the accused all the more if he or she is rich and powerful is by now a cliche. A sitting high court judge put it rather bluntly: "More than just being helpful to the accused, the system really works for the rich accused." Add to that a less than transparent police and you have a situation where the guilty in what are apparently open-and-shut cases walk away scot-free.
A spate of recent judgements have, however, made this shambolic state of affairs a talking point—all the accused walking free in the Jessica Lall case, the poor collection of evidence in Outlook cartoonist Irfan’s murder case, miscarriage of justice in the Priyadarshini Mattoo case...the list goes on. All examples of a deep-rooted malaise in our criminal justice system.
These cases quoted are all high-profile ones where the system failed to deliver justice. The fate of thousands of ordinary citizens who are trapped in litigation for years can well be imagined. For them, miscarriage of justice is a routine thing. The conviction rate in Indian courts is down to a shocking one per cent. This means that the accused get away in 99 per cent cases. Says lawyer Kamini Jaiswal: "It is the accused who has everything to lose. His liberty is at stake. So, if he is from an influential section of society, he and his family will be willing to go to any lengths to buy his freedom."
The victim, as Sabrina Lall pointed out in her interview to Outlook, is not even at liberty to engage a lawyer of his choice. While the accused is often represented by a very competent lawyer, or even a battery of high-profile legal eagles, the victim has to be content with the public prosecutor engaged by the state, who invariably is no match for the defence. Jaiswal explains that even if the victim has the resources to engage a lawyer, he cannot go beyond assisting the public prosecutor and that too if the latter agrees. "This is a big drawback. If the complainant can engage a lawyer, he should be permitted to argue in court," she says.
So what happens when you file a police complaint in a criminal case? It forms the basis of an FIR that the police registers. Once this happens, it’s left to the investigating officers to collect evidence and record statements of witnesses and to the public prosecutors to present the case in courts. With few incentives to perform professionally, it is unlikely, in most instances, that they will really care either about the higher canons of justice or any sense of what is right and wrong.
The five accused of abducting and murdering Outlook cartoonist Irfan Hussein were acquitted since the prosecution failed to establish the link between them and the crime. Irfan was believed to have been abducted by a gang of auto-lifters in March 1999, and then killed by them. His car was traced to Kashmir, five suspects were arrested. Prima facie, a simple case. But the police first failed to produce any material evidence and then were unable to patch together a coherent chain of events through circumstantial evidence. Then one crucial witness turned hostile, further muddying the trail. Once the case was thrown out, the prosecution actually said it was not fit for appeal. The only recourse left for Irfan’s family is to file a revision petition pointing out procedural lapses in the case. And this may take the case in yet another spiral the end of which nobody can guess.
Justice V.S. Malimath, in his 2003 report on Reforms in the Criminal Justice System, puts his finger on the problem: As the burden of proof lay heavily on the prosecution, it was absolutely crucial that they be represented by an able and competent lawyer. The system also confers other rights on the accused, like the right to silence, which comes in the way of delivering justice. As Justice Malimath’s report says, "The system is heavily loaded in favour of the accused and is insensitive to the victim’s plight and rights."
Few people outside the system know that the victim cannot participate in the court proceedings, unless summoned as a witness. He or she has no place in court, literally. Says former solicitor general K.T.S. Tulsi: "The judge sits on the podium and presides, with an earmarked place for the accused, the lawyers, the witness and the public. There should definitely be a prominent place for the victim inside the courtroom. We appear to have forgotten that the legal system exists only to give him justice."
A glaring example of what is wrong with the system is the ongoing trial in the Uphaar Cinema fire case in Delhi in which 59 people died on June 13, 1997. Neelam Krishnamurthy—who lost both her teenaged children in the fire—said that she had been threatened inside the courtroom, manhandled and even asked to leave the court as there was no place for her there. Nine years down the line, she has lost all hope: "I can only hope for ‘natural’ justice. Four of the 16 accused have already died of natural causes. By the time the trial is over, which could even take 25-30 years, many of us would have probably died. Important documents have disappeared from the court files. There has been tampering of evidence and witnesses have been threatened but there is nothing we can do." Despite a high court order in April 2002 to the trial court to finish the case by December 2002, the end is nowhere in sight.
Sitting judges are also despondent with the way the system works. A high court judge told Outlook: "I sometimes feel the criminal justice system does not exist to give justice anymore but has been reduced to give employment to advocates, sub-standard public prosecutors and judges." He stresses the need for judges to play a more active and vigilant role during trial proceedings. "If a judge sees that the defence lawyer is harassing a witness, he must step in to rein him in and protect the witness. He must also come forward to help an inexperienced prosecutor to cross-examine properly. Most judges just sit back and treat their work like just another job," he says.
The reason for this, according to him, is that proactive judges were seen as troublesome and incurred the wrath of lawyers and senior colleagues. And, sometimes, even the political overlords. According to Tulsi, complete independence of judiciary is counter-productive since judges should also be made accountable to the system. "If the prime minister is answerable, why not the judges? If electing them would make them answerable, then let them be elected," he says.
While judges of the lower courts are monitored by the high court, there is hardly any accountability for judges of the high courts and the Supreme Court. They can only be impeached by Parliament. Notes Jaiswal: "The judges think that there is nothing between them and God." But she also makes a case for improving the working conditions of judges, especially of the lower courts. There is also a need to get good quality lawyers enlisted as public prosecutors. "At present public prosecutors are like government servants, getting time-bound promotions, not linked to their performance," she says. In this situation, it is not such a shock perhaps that a prosecutor can easily be lured into botching up the case by the accused.
Tactics employed by corrupt prosecutors are obvious. Tulsi details them: "Crucial questions are deliberately not asked. Important witness are kept out. Key documents are not shown to the court. And all that the victim can do is to let the law take its course, as it were". As important as an effective prosecution are police investigations. Many legal experts believe there should be a separation of investigative and law-and-order responsibilities. And then, the prosecution should work in close coordination with the investigative agency.
At the heart of any trial is the role of the witness. Recent cases have shown that they are vulnerable to threats, inducements and the sheer fatigue involved in surviving long-drawn-out cases. But there is nothing that the system offers by way of support to the witness. They are not even treated with dignity. Retired Supreme Court judge Justice K.T. Thomas has recommended certain changes in the system to protect witnesses and to make their statements more effective. "Every witness should be immediately produced before a magistrate and his statement recorded under section 164 of the Criminal Procedure Code (CrPC), and it should be included as evidence. Moreover, the confession made before a police official should be made admissible in court and it should be left to the judge to decide if he wants to consider it, or regard it as being extracted under coercion." He also notes that many of the procedures were laborious and should be done away with. He has also suggested introduction of technology such as video conferencing to cross-examine witnesses.
It is not as if the Indian criminal justice system is incapable of delivering. Take the case of police constable Sunil More, accused of raping a girl at the Chowpatty police chowki, Mumbai. The case was decided in less than a year, primarily because of pressure from the public and the media. But the 186 other rape cases last year in Mumbai are nowhere close to a judgement. It is being argued that the police made this an exemplary case, devoting more time and effort than in other cases, with police commissioner A.N. Roy personally keeping track of its progress. Unfortunately, very rarely does a case get this kind of priority.
