Soutik Biswas - A bad seven days for Indian justice
It's been a bleak seven days for justice in India.
In three separate cases, high profile and influential
individuals - a Bollywood star, a powerful politician, and a former business
baron - were allowed to walk free by appeals court despite being found guilty
by lower courts. The actor was found guilty of running a vehicle over people
sleeping on the street, the politician of amassing unaccounted wealth and the
former business baron of corporate fraud. The wheels of justice grind slowly in India - more than 30
million cases are pending in its courts and more than a quarter of them have
been unresolved for at least five years. Snail justice ends up benefitting the
rich as witnesses can be intimidated and bought and political pressure and
money power can be used to influence and subdue prosecutors and sometimes
judges.
It took 13 years for a court in Mumbai to convict actor
Salman Khan of culpable homicide and sentence him to five years in prison despite
prosecution witnesses turning hostile. But it took two days for an appeals
court to suspend
the sentence and grant him bail. It helped that Khan had access to some
of the best and most expensive lawyers. India has over a million registered
lawyers, but a large number of them graduate with dubious degrees from
indifferent law schools, are poorly educated and, according to lawyer-turned-journalist
Kian Ganz, "effectively
operate as fixers... hawking for work outside small claims courts or as
notaries".
After 18 years, a court last September found former Tamil
Nadu chief minister Jayaram
Jayalalitha guilty of amassing unaccounted-for-wealth and sentenced her to four
years. Some seven months later, on Monday, an appeals court
cleared her of corruption charges, saying that the trial court had "exaggerated" her
wealth.
The case was moved from Tamil Nadu to neighbouring Karnataka
to ensure a fair trial, but that doesn't appear to have helped matters. As
Supreme Court lawyer Karuna Nundy pointed out, the high court in Karnataka
examined the same evidence and said in its 919-page
ruling "repeatedly that the acquittal
was a failure of the prosecution".
It took six years for a court in April to declare B Ramalinga Raju,
former head of Satyam Computers, guilty of criminal conspiracy and
cheating and sentenced him to seven years in jail. A month later, on Monday,
the appeals court accepted a defence plea that he had spent 35 months in jail,
a "substantial part" of his term, and granted him bail after
suspending his sentence.
To be sure, the three rulings really do not mark any sea
change and have just happened to come around the same time. It is also true
that India's higher courts routinely revoke orders of lower trial courts. For
years politicians have evaded corruption charges and the rich and famous have
escaped criminal liability through "high-priced lawyering".
At the same time, many believe, the recent rulings are -
again - an indictment of India's ailing and unfair justice system which is
heavily loaded against the poor, and shabby investigation by the police. Thousands of undertrials languish in Indian prisons for lesser
offences unable to afford bail. Judges are also often blamed for being
anti-poor. After the Supreme Court granted bail to Jayalalitha last year,
Supreme Court lawyer Rajeev Dhavan wrote
tellingly about bail discrimination: "Bail for as many is good,
but applying it differentially is not. We do not have clear principles to guide
bail decisions - especially in post-conviction cases, where judges look at the
crime and behave totally with subjective arbitrariness against the poor."
The recent rulings reminded me of a highly acclaimed recent indie
film called Court - possibly the best Indian film of the year so
far - which astutely skewers the country's discriminatory and outdated justice
system. A part-time teacher and social activist is hauled to a court on trumped
up charges of instigating a sewage worker to kill himself after listening to
one of the activist's incendiary songs. The case grinds on in drab courtrooms
with no end in sight, and effectively destroys the activist.
Of course, as Nick Robinson, a fellow at the Harvard Law
School's Program on the Legal Profession and at Delhi's Centre for Policy
Research, tells me, there are often good judges trying to do the right thing.
"But politics and money is so embedded in the system that it clearly tilts
the deck in favour of the powerful," he says. "I also think some
judges worry that if they are seen as overly-punitive on those with power, then
there might be a backlash against them impacting their careers or the authority
of the judiciary."
India needs more judges, more and better educated lawyers
and a thorough repair of what academics Devesh Kapur and Milan Vaishnav call
the "dilapidated and clogged" plumbing of its courts. Otherwise, as
they warn, the judicial process itself will remain the punishment, an enduring
shame for the world's biggest democracy.
http://www.bbc.co.uk/news/world-asia-india-32716847
