Opinion
Are India's Lower Courts
Failing to Deliver Justice?
by
Amulya Ganguli
For all of
Narendra Modi's and the Bharatiya Janata Party's (BJP) efforts to shift
the focus of attention from the Gujarat riots to the state's
development, the outbreak of 2002 continues to return to the headlines
to haunt the chief minister and his party.
The latest embarrassment for them is the Supreme Court's decision to
order a fresh probe into a dozen major cases of massacres. If the
investigators confirm the widespread suspicion that the pro-BJP elements
who participated in the riots are being shielded in Gujarat or that the
accused in the Godhra rain burning case, which set off the disturbances,
are not getting a fair trial, then the apex court may transfer all these
cases to another state.
As is known, two cases of arson, rape and murder - the Best Bakery and
the Bilkis Bano cases - were moved to Maharashtra, where judgments were
delivered indicting the culprits, most of them sympathizers of the
Hindutva brotherhood who had earlier escaped justice in Gujarat. If more
such cases are shifted out of Gujarat, it will be a resounding slap in
the face of the Modi government, for it will show that the
administration was continuing to protect the anti-social elements -
"religious fanatics", as the Supreme Court has said - because of their
connections with the ruling party.
But that is not all. These developments carry a warning signal about the
growing vulnerability of the legal and judicial system to local
conditions. For instance, while the complicity of the Modi government
with the rioters had been suspected right from the start, what this new
practice of the Supreme Court - intervening to initiate an investigation
and then move the cases out of a state, if necessary - underlines is not
only political and administrative lapses but also the failure of the
state's judiciary.
Evidently, if the lower courts and the high court had ensured that the
police acted with greater diligence in nabbing the culprits, then the
matter of virtual dereliction of duty by a compliant bureaucracy would
not have gone up to the Supreme Court. Yet, as the Best Bakery and the
Bilkis Bano cases revealed, there were any number of instances of cases
of murder and rape being closed by the police in Gujarat because of the
alleged lack of evidence and because witnesses were being intimidated by
the rioters to refrain from speaking their minds.
Not surprisingly, the Supreme Court had several unpleasant things to say
about the judiciary in Gujarat in the aftermath of the riots. For
instance, on one occasion, it said, "when the investigating agency helps
the accused, the witnesses are threatened to depose falsely and the
prosecutor acts in a manner as if he was defending the accused, and the
court was acting merely as an onlooker and there is no fair trial at
all, justice becomes the victim".
Under such circumstances, "it would have been proper for the high court
to accept the prayer for additional evidence and/or a retrial". Since
this wasn't done, the Supreme Court noted an absence in Gujarat of a
"judicious approach and objective consideration, as is expected of a
court".
It isn't only in Gujarat that the inadequacies of the local judicial
system are being exposed. The Supreme Court has also had to intervene in
the case of the death of Prof H.S. Sabharwal during a violent
demonstration by the Akhil Bharatiya Vidyarthi Parishad (ABVP), the
BJP's student wing, in Ujjain, Madhya Pradesh, which is another BJP-ruled
state. This case, too, has had to be transferred to another state for
the sake of justice.
It will be wrong to give the impression that the BJP-ruled states are
the only offenders. The apex court has noted the complaint of one of the
witnesses in a case of murder involving Tamil Nadu Chief Minister M.
Karunanidhi's eldest son, M.K. Azhagiri, that a fair trial is not
possible in Madurai where the latter has a "base".
Again, one can see the failure of the judicial system at the state level
to ensure justice. If the Supreme Court has to intervene in all such
cases where local politicians influence the course of a trial, then the
question of survival of Indian democracy may be in doubt.
After all, the prevalence of the rule of law is a basic criterion of the
democratic system. Once misgivings begin to arise over the ability of
the courts to ensure that the course of law is not diverted in favor of
the rich and the powerful, then the existing system will be seen to be
in a crisis. The reason why the Supreme Court is held in high esteem is
that it is recognized as virtually the only institution that is above
reproach. But this perception itself is an indictment of the other
"pillars" of the system - the executive, the legislature and,
unfortunately, some of the local courts.
(Amulya Ganguli is a writer on current affairs. He can be reached at
aganguli@mail.com)
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