Wednesday, March 22, 2006

sandhya jain on the judiciary

mar 23rd

just like the indian judicial system hanged sukhdev, rajguru and bhagat singh on command by the imperialists, today's judges make judgments on demand by the ruling party.

a uc banerjee-type apology for a jurist would be laughed out of court in any other country (except pakistan where he would be ordering "off with his head" or "death by stoning" at the drop of a hat).

---------- Forwarded message ----------
From: Sandhya Jain


The judicial grandstand


Sandhya Jain


Two deplorable tendencies have of late manifested themselves in the Indian legal system. The first is a nonchalance which gives the rich and powerful unfettered freedom to tamper with evidence and purchase or intimidate witnesses in criminal offences involving themselves, without even the formality of asking witnesses if they need protection, or wish to report being intimidated, or offered inducements. The second is a propensity to adjust due process in favour of kangaroo courts run by ideologically and politically motivated NGOs and their media accessories in cases where verdicts do not meet the latter's expectations. Two glaring examples concern Ms. Zahira Sheikh and the late Ms. Jessica Lal.


While the media is pleased with the punishment meted out to Zahira and is now crusading for the murdered Jessica, there is profound disquiet in society over the manner in which the courts treated a young victim of the Gujarat riots. The fact that even senior jurists have expressed reservations over the quantum of punishment meted out to her makes it worthwhile to examine if the suo moto response of the higher judiciary and statutory commissions to the media-NGO nexus serves or compromises justice.


Zahira's case has been accompanied by propaganda that the jury system is better than the system whereby a presiding judge carefully sifts the evidence on record, and after hearing the arguments of counsel on both sides, arrives at a verdict. This allows for judicial objectivity, and judges with a developed sense of justice have often corrected investigating officers to prevent derailment of justice. The jury system is prone to manipulation (of emotion, if nothing else) and was abolished after a high profile murder case involving a naval officer.


A legal system that does not protect witnesses can hardly guarantee the integrity of members of the jury, most of whom will doubtless be chosen from the ranks of the very NGOs and secular gendarmes who are canvassing for this system in the first place. In other words, the "beautiful people" of Page Three, the ones who made a mockery of the life and death of Jessica Lal, will outsource justice to themselves.


To return to Zahira, I am concerned about the apparent judicial haste and predisposition, and the disgraceful media coverage which has concealed many relevant issues and inhibited a healthy public debate. The key questions are when Zahira told her first lie; who decides which testimony is genuine, which is induced and by whom; and who decides which crime shall be punished and which offence shall be ignored?


Twenty two persons were acquitted in the Vadodara fast track court when Zahira failed to recognize them as those who set fire to the Best Bakery. The case would have gone the way of the 1984 and other riot cases had Zahira not been airlifted to Mumbai and her dramatic testimony about being "threatened" stage-managed. Obviously, the Sheikh family was contacted by interested parties after the Vadodara verdict, and some kind of mutual "understanding" arrived at before the tickets for Mumbai were purchased. Thereafter the young girl was projected as star witness in a larger struggle to demolish chief minister Narendra Modi.


The derailment of justice began when the National Human Rights Commission (NHRC) responded to media reports, but failed to do its homework properly. So, acting on an unsigned affidavit (this point needs to be emphasized) furnished by Ms. Teesta Setalvad on Zahira's behalf, the NHRC urged the Supreme Court to order retrial outside Mumbai. The apex court went along, again without scrutinizing documents, and thus established an amazing precedent on utterly faulty premises. Zahira termed it "pamphlet-baazi."


Assuming Zahira was intimidated in Vadodara, it is strange she was not given police protection in Mumbai, and was left to the mercy of her new NGO friends. Since high-profile NGOs always have a political agenda, the authorities must explain how the security of witnesses in sensitive cases can be outsourced in this manner.


Then, in her second volte face, Zahira accused Ms. Setalvad of tutoring her to recognize persons from photographs. This is a startling disclosure and the failure to investigate it unfortunate; we have a right to know what agencies provided photographs of accused persons to NGOs controlling witnesses. Zahira also accused her mentor of making millions in her name and not fulfilling promises made to her. This led the media to allege that Zahira "sold" her Mumbai testimony to a BJP legislator, and the courts seem to have gone along with this perception. Yet it is well known that many NGOs enriched themselves after the riots and failed to pass on commensurate benefits to the victims; hence there should have been an across-the-board examination of accounts of such NGOs, and recording of evidence of victims on the nature of their rehabilitation. 


But last April, when Zahira demanded that the Supreme Court Registrar-General probe her allegations against Begum Teesta, because it was not Zahira's personal conduct but the "alleged offer of inducements, the manner of inducements and the persons responsible for the inducements" that should be investigated, her objections were disregarded. Common sense says that something made Zahira accompany an unknown Ms. Setalvad to Mumbai. If it was greed for funds gathered in the name of Gujarat victims, did the money in Zahira's bank accounts fall short of her demands, and who helped open her new bank accounts? The Supreme Court Registrar General was assisted by a Joint Commissioner of Police, but failed to furnish evidence to prove his insinuation that Zahira received funds from a politically incorrect source. Thus the question of what made Zahira turn against her Mumbai hosts remains a mystery, but her revolt was crushed with a sledgehammer.

Zahira may be demoralized today, but she once demanded the right to cross-examine the NHRC chairman because she had visited the Commission with Setalvad and made an oral submission which was recorded by him and two other members. Zahira alleged that her oral testimony differed from the record NHRC placed before the Supreme Court. This is a serious charge and the nation needs to be reassured that such a sensational "hijack" of justice does not happen again. Zahira has exposed major holes the ethical roofing of statutory commissions that play to an international human rights gallery, and the Hindu-baiting media-NGO nexus. In the circumstances, her demand for a parallel probe into Ms. Setalvad's post-Gujarat assets remains pertinent.

As for poor Jessica, after seven years of connivance by police, politicians, media (which quickly reinstated the goons in whose illegal bar the shooting occurred to the Page Three celebrity platform), and a somnolent judiciary, the only surprise is that we were not told that her murder was a figment of the imagination. After the cynical manner in which the accused in the BMW murder case was allowed to fly abroad for higher studies and the case virtually dropped thereafter, there was no reason to believe that Jessica's killer and his accomplices would not get away. But the monstrous verdict broke the bonds of public apathy, and the market-savvy media ditched the hounds to hunt with the hares. It is left to the judiciary to explain why laws on evidence, material witnesses, and perjury (applicable to Zahira), were not invoked, and why the judge was elevated with such haste to the High Court.




1 comment:

virat0 said...

There is a perception that the judiciary has few remote controlled toys, installed by vampires like setlvad.