Are India's Lower Courts Failing to Deliver Justice?

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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