Courting Injustice The Terrible Truth about our Courts


In a recent television program broadcast in April 2006, Ram Jethmalani, seasoned criminal lawyer and former Minister of Law was one of the guests invited on the program who were asked to comment on witness protection in the context of the Jessica Lal murder case. Human rights lawyers such as Colin Gonsalves and several other legal experts had already suggested in separate interviews that the failure of the prosecution to bring the criminals to book in the Jessica Lal case could be attributed to the absence in India of a strong witness protection program.  So, when the anchor turned to Jethmalani for his expert comments on this very obvious lacuna in the Indian legal system he was almost being rhetorical or begging the question.

'Rubbish!' said Jethmalani in his inimitable way as if he was pronouncing final judgment on the matter. 'That is not the problem at all. There was no need for witness protection in this case. The whole problem is of delay!'

The bespectacled anchor was very visibly startled by this response. Viewers of the program might have spotted a wondering expression momentarily surface: was the old man finally turning senile? Quickly recovering composure, he blinked twice, and turned to the other guests on the show with a suave, 'Mr. Jethmalani is obviously taking a very broad view of the matter'

There have been endless debates over what really went wrong in the Jessica case, and while Mr. Gonsalves is not wrong that India urgently needs a witness protection program, at the same time, in the views of this writer, to take a medical parallel, these are the accurate but essentially limited views of a junior doctor. Mr. Jethmalani on the other hand was pronouncing his succinct and astonishing verdict not due to a growing senility accentuated by his advancing years but owing to a clear insight developed by years of experience. He could diagnose the treatment with the same confidence that would accompany the verdict of a senior most physician in the medical fraternity. There was not a shred of doubt in his mind when he said it. The whole problem was of delay.

The anchor was rattled and so quite often relatives of a sick person might be startled when they find a senor physician suggesting a cure that appears to be completely off centre or 'a very broad view of the situation'. The point however is that people like Mr. Jethmalani in this instance can see what others cannot see. They have three D view that is missing with the rest of us. The whole machinery of the judicial apparatus lies bare before their eyes just like the patient's body in the physician's case and he is not guessing or second-guessing anyone but knows precisely what is wrong. It is not a 'broad view of the situation' but a 'clear insight into the problem'.

Despite the clarity of insight, Mr. Jethmalani could not properly explain what he exactly meant. He may be forgiven for this for how does a surgeon go about giving a lay audience a crash course about the functioning of different body parts. How does he reduce his vision developed over the decades to a few sound bites which is all that is available in the limited space provided in a television program with several guests, each one with his own two bits? After all a person may be a great scientist but it is not necessary that he will be a great professor or teacher. And the law is such a complicated animal that we are all like blind men alternately feeling the elephant's tail, then his snout, then his feet'

The whole problem, according to Mr. Jethmalani, is one of delay. It may not be the whole problem but it certainly is the central and most important problem. There is no doubt about it. Mr. Jethamalani is certainly not unique in his view that we need to recruit hundreds if not thousands of new judges in order to tackle the menace of delay for successive Law Commissions have spoken of this most urgent need.
When a sickness grips a healthy body gradually other lesser sicknesses also begin to develop and afflict the body. When a physician examines such an ailing and sickly physique quite often the problem before him is to decide the major or chief ailment but while he will concentrate or target his treatment appropriately he will also take judicious note of lesser afflictions for they too have now developed the potential of becoming deadly. There are also other parts of the body that seem perfectly healthy from the outside but there is a hidden sickness gnawing away at their roots.

And so when we have apex courts directing illegal constructions to be demolished there are many amongst us who feel that our Courts are doing an excellent job, and deserve to be applauded! One hears comments on how was it not for the Courts'.

And it is not illegal constructions or illegally run businesses alone but polluting industries, careless hospitals, and all kinds of scams that our superior Courts uncover from time to time. We have also watched fast track courts convict rapists in a matter of weeks. All this is however a mere chimera or illusion of good health and experts such as Mr. Jethmalani know the true story.

More than a decade ago as a young lawyer who practiced law, taught at University and wrote on legal subjects for national newspapers I penned a short treatise on what ailed our legal system and the central problem identified then too was that of delay and the first and most basic intervention recommended was also the large scale recruitment of judges. With the help of a group active on AIDS related issues I had several hundred copies of the small book published and sent off complimentary copies to different newspapers and magazines in the country. The aim was high and desperate: that of sparking a national debate on urgently needed reform in our Courts. That book published on cheapest quality newsprint was called- Courting Injustice: The Terrible Truth about our Courts.

Most journalists and editors dismissed the material as junk mail, with the single honorable exception of Mr. Khushwant Singh who incidentally spent several years practicing law at the Courts in Lahore before turning his hand to journalism. I was pleasantly surprised to return home one day to find a postcard from Mr. Singh acknowledging the free copy sent to him. (I have to say that this was the solitary acknowledgement received from any of the thirty odd editors of national and regional dailies I had mailed complimentary copies to.)

Mr. Khushwant Singh was not only kind enough to acknowledge receipt of the copy sent to him but he also promised to read it as soon as he had undergone some surgery for his eyes. He explained that although the book appeared interesting he would unfortunately not be able to review it since 'it was not available in book stores'. I was gratified by his courtesy but saddened and disappointed by his decision not to review the book despite it being for perfectly understandable reasons. As soon as I turned the postcard though I espied a postscript in which he wrote that he had read a few pages and would review it.
I wondered what he would write but did not have to wait long for only a single weekend went by and then on the following weekend, delivering more than he had promised, he opened his column of 'With Malice Towards One And All' with an extraordinarily introspective review of the book speaking of his own struggles as a young lawyer practicing at the Courts in Lahore. Under a header of 'Sorry State of Law and Justice' he explained how terrible his own experiences as a young lawyer had been at the Bar and how also after reading my book he realized that in post independent India things had gone from bad to worse.

Mr. Singh's popular column is translated in many languages and syndicated in dozens of newspapers and magazines. I understand from reliable sources that it is republished by many magazines and newspapers that do not even bother to pay him a royalty or seek his permission. He is okay with that- which befits a journalist and writer of his stature. While ending that particular column he mentioned that copies of 'Courting Injustice' were available from ABVA (Aids Bhedbhav Virodhi Andolan).

I had borne the expenses of publication out of pocket but chary of having the book appear like a self published vanity project had used ABVA's name and address with their permission. The next time I went to meet this group of social activists I found a huge packet waiting for me. It was full of hundreds of letters and postcards addressed to me from all over the country. There were even a dozen or so letters from Sri Lanka, Nepal and Bangladesh! Some letters sought to congratulate me on my effort while others wished to receive a copy of the book. Still others spoke of their own travails before the Indian justice system. When I returned to my office in the District Courts in the days following the review my Munshi or Court Clerk would often tell me of how so and so Justice of the Supreme Court or High Court had called and requested a copy of 'Courting Injustice'. On the down side though, a publisher who had published my 'Making Your Own Will' (which had done six re-prints) called to congratulate me but confessed that despite Mr. Singh's excellent review he still didn't think he could publish it. There just wasn't a market for a book like that, he claimed. Anyhow, despite the reluctance of publishers, I had had my five minutes of glory and drawn some attention to the crisis in the Indian legal system. Sadly though, much like the hue and cry that accompanies an occasional disclosure of routine corruption in the courts, after a couple of weeks of attention to the problems in our Court system, the discussion eventually died down and was forgotten in a few weeks. Business resumed as usual in the Indian Courts.

Since that review was published by Mr. Singh more than ten years ago my life has taken a turn in many ways. Over the last several years I have worked for the United Nations in various countries including Kosovo, Somalia and Liberia helping post conflict societies come to terms with their judicial problems. I have had published ten books on a variety of subjects: colonialism, legal literacy, environmental issues, dowry death, transsexuals and so on and forth. Yet I have often wondered during my sojourns in Africa and Eastern Europe as an Expert for the United Nations trying to help in the restoration of rule of law in post-conflict settings whether the book that most deserved to be published in India in a widely circulated paperback form was not the very first serious book I had attempted ' 'Courting Injustice: The Terrible Truth About Our Courts'.

To come back to the question: Who Killed Jessica Lal?

Was it the system? Were Jessica Lal's killers not brought to justice because the system failed her? If so, which element of that flawed system? Was it corruption? But surely even if there was bribe taking and giving on a massive scale with the media spotlight on the case even corruption would not have been enough to get the killers off the hook. After all this was practically a public killing in front of scores of witnesses many of them powerful and influential members of society who would and could not fear to speak the truth. Corruption alone could not have succeeded.

Were there then any other equally (or more) rotten elements of our system that helped the killers get away? Was it the witnesses that turned hostile? Can we blame witnesses who hesitate to give evidence out of fear of retaliation? Was false evidence given on behalf of the accused persons? In the celebrated case of Paniwala, it came to light that a Daryaganj water vendor turned millionaire had allegedly deposed falsely in three thousand cases upon the insistence of officials from the Daryaganj Police Station in New Delhi. This shocking and tragic disclosure of whole scale perjury being committed by witnesses at the behest of the police was discussed in some detail in the judgment delivered by Justice VR Krishna Iyer, Former Chief Justice of the Supreme Court.

So is it then the Police who killed Jessica Lal? If so, who would investigate the police? Surely smooth talking lawyers (such as Mr. Jethmalani himself) may have played a role in getting the criminals who killed Jessica Lal off the hook. Are they then not the real killers of Jessica Lal?

Did forged and fabricated documents play any significant role in the acquittal of the accused persons in the Jessica Lal murder trial?

What about our learned Judges? In Agatha Christie's fiction the most unlikely suspect always turns out to be the killer (and an experienced reader quite often just tries to figure out the most unlikely character who could have possibly murdered the victim). Could it then be the learned Trial Court Judge, paralyzed by an overwhelming caseload, who was the real killer?

And now finally it seems we are closer to Mr. Jethmalani's viewpoint borne out of decades of experience in criminal trials that it was 'Delay' that most terrible virus which has afflicted our system which was ultimately responsible for letting Jessica's killers play with the law and 'get away with it'. Date after date after date. The fading memory of witnesses. The terrible torture of coming to the Courts to testify again and again sometimes after a lapse of years after the original occurrence. The death of witnesses or their transfer or move to another city or country. Mr. Jethmalani knows from experience how easy it is to punch holes in witness testimony when they are summoned to testify several years after the crime. And how easy it is to find contradictions between their original statement to the police and what they subsequently depose before the Court. Even the originator of the phrase 'Justice Denied is Justice Delayed' could not have comprehended what this would mean in the Indian context where cases are filed by one generation and verdicts received by the next.

The Jessica Lal case is a symbol of other injustices that recur with greater and greater frequency. Important reforms need to be made to reduce delay and huge investments are needed in order to recruit hundreds of new judges and support staff. There is a saying that 'the more things change the more they remain the same' which fits the current situation like a glove. Recent visits to the Courts in Delhi and discussions with erstwhile colleagues from the legal fraternity have confirmed that in this past decade minor tinkering apart everything is still pretty much the same!

It was delay, as Mr. Jethmalani indicated, that was the ultimate 'killer' in Jessica Lal's case and also in thousands of other cases on which the media has not focused. It is a mass murderer let loose and unless something is done urgently there will be other Jessica Lal's who will fall victim and whose trials will represent a miscarriage of justice. Such cases may however not be reported as widely in the media.  


More by :  Rajesh Talwar

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