In several countries in the west, the investigating and prosecuting agencies are different, and the latter can shoot down cases where there is not enough corroborative evidence. Here in India the prosecution counsels are supposed to vet the charge-sheets, but they rarely apply their mind and prefer to go with the police in most cases. The sorry story doesn’t end there. In terror-related cases, lower courts too play along, convicting all the accused.
Generally speaking there seems to be an unholy nexus between the presiding officers of the lower courts and senior police officials. “Sir you must impose stringent punishment..…Your verdict should prove a salutary deterrent,” the magistrates or sessions judges would be told – the implication being don’t worry too much about things like evidence “in the interests of the nation.”
Remember the notorious off-with-their-heads judgement in the Rajiv case, sentencing all 26 to death at the TADA court. Coming to think of it, the Supreme Court could bring itself to solemnly proclaim in the Afzal Guru case, “The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting normal life of the people of India is something which cannot be described in words. The incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender.”
And thus the very essence of criminal jurisprudence, innocent till proved otherwise, is blithely ignored.
Yet again thought the Human Rights Commission in Karnataka might have recommended some token compensation to the three let off in the Malleswaram case, those wronged are rarely compensated adequately.
In the Arvinder Singh Bagga vs State of U.P, 1994, the SC categorically declared that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs.
“Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave.
5. This clearly brings out not only highhandedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh, S.S.I. assaulted Nidhi on her leg with Danda and poked it in her stomach. Where was the need to threaten her? As rightly pointed out in the report that torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to make her submit to the demands of the police. A further reading of the report shows:
(ii) illegal arrest;
(iii) without personal knowledge or credible information that the arrested persons were involved in a congnizable offence; and
(iv) illegality of verbal order of arrest not contemplated under Section 55 Cr. P.C.
This again is a blatant abuse of law.”
The Delhi High Court too has clarified when one can seek compensation. “When a criminal case is registered against somebody, the Court cannot jump to conclusion, merely on the basis of FIR, whether the case was a false case or a truthful case and whether the petitioner has been malafidely arrested or has been rightly arrested. FIR is merely a first information given to the police so as to bring machinery of criminal law in motion. FIR is not considered as an encyclopedia of facts. It is only after challan is filed, the Court can form an opinion, at the time of framing of charge, whether a case was made out against the accused worth trial or not. If the evidence collected by the prosecution does not disclose commission of any offence, by the accused even prima facie, the Court has to discharge the accused. The accused at that stage can lay a claim that the case was got registered against him malafidely and police also acted malafidely. Even after charge is framed, on conclusion of trial if a Court finds that no case was made out against the accused and he was falsely implicated, the Court is bound to acquit the accused and that will be the second stage whether accused gets a right to claim that he was falsely implicated.”
The compensatory jurisprudence introduced by the Supreme Court of India by invoking powers under Article 32 gained tremendous importance in recent times due to the increase of the incidents of State lawlessness, police lawlessness, custodial violence, violence in jails, unlawful detentions and other violations. This innovation made by the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to render speedy justice to victims of the infringement of right to life and personal liberty, it has been claimed.
But then how many have the energy, the wherewithal left to sue the authorities for wrongful detention. They are relieved to be free, thank their stars, the gods, whatever and try to pick up the threads.
Unfortunately though whenever a Muslim suffers at the hands of the authorities, whether perversely harassed or otherwise, it is the fundamentalist outfits that stand to gain. They play upon the victimhood mindset of the community and gain fresh recruits. This is of course not a moral argument against unlawful detention, but we are just pointing to the danger potential in such instances.
The police have not always been unfair and cruel. Like in July 2013 when a Mohammed Tazim was arrested in Melapalayam and subsequently a huge cache of explosives was recovered. In that particular instance the owner of the house from where the recovery was effected, a woman, was not made an accused as the police realized she was not party to any conspiracy and she had no knowledge of the explosives stored.
Even in the saffron terror cases like the Malegaon blasts, Mecca Masjid bombing (Hyderabad), Samjhauta Express bombings and the Ajmer sharif dargah blast, one is no wiser after so many years.
At the same it must also be conceded that while the police are blamed for unresolved cases, very few realize that many have been cracked too successfully. And in many other instances an alert police has saved the people from dastardly crimes.
A determined police force could bust the jehadi network in Tamil Nadu after the 1998 Coimbatore blasts, but such elements have not been completely eliminated. They cannot be when conducive circumstances prevail in many parts of the world. Historical conjunctures cannot be wished away after all.
The murder of Auditor Ramesh in Salem attracted nationwide attention, and the Jayalaltihaa regime seemed to make it look as if it would leave no stone unturned till the guilty are brought to book. But the police are still groping in the dark in regard to several such cases.
Those privy to investigations say that once someone is used in the perpetration of a crime, the jehadi bosses don’t go back to the same persons when planning the next kill. New modules are set up. Besides they rarely take to cell phones or e-mails as they are regularly monitored. Word of mouth is the name of the game, and it is very difficult to crack when everyone suspected stonewalls, and then indiscriminate arrest and torture happen. The vicious cycle goes on unimpeded. That is sad and tragic, but only enlightened authorities can break the cycle. What with someone like Modi as the PM to talk of enlightenment or considerateness on the part of the various governmental agencies could only sound as a sick joke.
But Modis and Amit Shahs alone can be blamed for the current depressing scenario. If 12 years later the Godhra train burning still remains a mystery as does the question who was responsible, the higher judiciary too should share the blame. Now that Modi has become the PM, one can expect a silent burial of the cases relating to 2002 events.
Even otherwise every High Court or Supreme Court judge nearing retirement seems to be racking their brains on how to land some sinecure and so go all out to please the rulers of the day.
Witness the alacrity with which the Supreme Court gives in to almost every plea of Jayalalaithaa in the wealth case, now dragging for over 17 years, or the priority given to IPL issues and Srinivasan’s future as the boss of the BCCI when thousands of other cases pile up before it every day.
And when someone like K.G.Balakrishnan, facing a slew of corruption charges, is heading the National Human Rights Commission, how can one expect the agency to show any concern for the underprivileged groaning under misuse of power?
Thus Narendra Modi as the Prime Minister, with Amit Shah as his hachet man, a jingoistic and irresponsible media, topped by an indifferent or pliant judiciary, is there any hope? Readers can decide for themselves.