JUSTICE OBSOLETE LAWS NEED OVERHAUL

V. N. Khare

After the Gujarat riot cases, especially the Best Bakery case in which I ordered a re-trial as the victim Zaheera Sheikh changed her statements and witnesses turned hostile, the Jessica Lal murder case has thrown up a challenge for the country's criminal justice system. Our criminal jurisprudence requires drastic changes. The Indian Penal Code (IPC), Criminal Procedure Code (Cr.P.C) and the lndian Evidence Act are over 150 years old. Law, like society, is not static; new contexts demand new solutions.

The rapid advances we have witnessed in technology and communication, for instance, are indeed revolutions of sorts. The law cannot be mute spectator, limping to catch with these large transformations. Today, criminals are in power from the taluka to the national levels. In such a situation, it becomes extremely difficult to procure evidence and produce witnesses before the court. Even witnesses collected and produced before the court are vulnerable. They are easily preyed upon by the powerful accused who may use money or fear.

The very first change I would suggest is that the prosecution should be an autonomous agency away from the control of the government like, say, the Election Commission (EC). Since the prosecution is under the state at present, it follows the lines directed by the state. I have seen it in Gujarat riot cases; the prosecution and the accused were hand-in-glove. The time has come for the prosecution to be made by an independent and autonomous agency.

Two, the present system of investigation by the police must change. We know the police is vulnerable. I have seen cases of the police distorting evidence. In the present set-up, under the Cr.P.C to be precise, it is the duty of the police to collect evidence and produce the same before the court. If the police officer is aligned with the accused, it becomes difficult to secure a conviction in a court of law. Hence, the investigation should be conducted by an independent agency. Alternatively, the independent autonomous body to be set up along the lines of the EC can perform the twin jobs of investigation and prosecution.

Three, the statement under Section 161 of the Cr.P.C to be given to the police should be recorded before a judicial magistrate so that the examination in chief of a witness need not be done again and the cross-examination by the accused can begin straightaway. As the statement recorded by the police is not admissible in evidence, it is again recorded in the examination in chief of the witness before a magistrate. There is every likelihood of the witness, who could have been influenced in the interregnum, changing his statement before the magistrate. Once the statement under section 161 is recorded before the judicial magistrate, the court's time will not be wasted by having to undergo the examination in chief again before the cross-examination begins. Further, both the recording of the statement under Section 161 and the cross-examination must be done through video conferencing. This will ensure video evidence of a witness who will not be able to change the statement later. Then, the psychological pressure on a witness constrained to stand in the witness box in court and record his statement would be done away with.

Four, like in the developed countries, say in the US, in at least some sensitive cases, witnesses should be provided protection. This is particularly desirable in India because of long pending trials in the courts. Under protection, the witness will not be fearful. It will be difficult to lure him or her by money and other allurements.

Five, the victim must be given the right to appeal. At present, the right of appeal resides only with the state, which is the prosecution. A victim can only go for a revision of the order of the trial court where the victim or the family members cannot argue on facts and law but only on jurisdiction. Both on the counts of law and fact, the victim too should be given this right. Finally, the victim or family members should have the right to have a say along with the prosecution in the trial court itself.

I would suggest these remedial measures towards the ultimate goal of revamping the entire gamut of criminal jurisprudence and criminal justice administration in our country. If these changes are implemented, a beginning would have been made, there will be some hope for the future.

Consider a small statistic. In 1967, the conviction rate was 80 percent. In 2005, the same conviction rate dipped to 22 percent, and most successful cases concerned petty crimes. Obviously these petty offences are committed by the poor who are not in a position to engage an expensive lawyer. The big fish, on the other hand, can tear their way out of the net of law.

Lord Macaulay drafted the IPC in 1835 sitting in Tamil Nadu's summer vacation resort, the famed Nilgiri Hills. It is now 2006. One hundred and seventy one years have passed by and the IPC, Cr.PC etc. remain virtually the same. The time has come to drastically change penal laws, the criminal justice administration system and criminal jurisprudence itself given the vast social changes in these 171 years.

Today, we live in the E-Age. We are in the middle of an electronic revolution. Psychological, emotional and sociological approaches to crime have changed. The law must catch up and keep pace with the changing times. Till then, disturbing occurrences such as the acquittal of the accused in the Jessica Lal murder case will keep repeating themselves.

The writer is a former Chief Justice of India

(Courtesy: Indian Express 23.2.2006)

A MAN from Chicago won $ 100,000 in a weekend's gambling in Las Vegas, flew home, arriving at 3 a.m., made a deep hole in his backyard and buried the money there. Next morning he went out and found the hole empty, the money disappeared. Footsteps led from the hole to the house next door, where a deaf-mute lived.

Enraged, the man rushed to the house of a professor, who was qualified in the sign language of the deaf-mute and knew the man next door. He dragged the professor to the neighbour's, held a gun against the head of the deaf-mute, then said to the professor: "you tell this guy that if he does not return my $ 100,000, I am shooting him."

The professor conveyed the message to his friend, and the friend replied in sign language: "Tell him not to shoot me, I have hidden the money under the cherry tree". The professor turned to the man with the gun and said, "He's not going to tell you. He said he'd rather die".

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April-June 2006