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Second Acquittal of Salman Khan calls for Debate in Criminal Justice System

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The second acquittal of the actor Salman Khan in High Court raises many questions. The abysmal rate of criminal convictions is owing to shoddy and corrupt police work. This has been recognised time and gain by the courts. Police have either fabricated evidences or presented a weak case wilfully. This has been observed by the judges. In his erudite column, Ashok opines that unless we can ensure proper investigation and careful analysis of the evidence presented, we are going to be in a state where judgements are going to be looked upon with a sense of despair. And anyone who is in a position to influence the course of the investigations would be in a state of unfair advantage. He calls for a debate about the two criminal justice systems – Adversarial versus Inquisitorial – exclusively in Different Truths.

The actor Salman Khan has just been acquitted by the High Court in a case involving illegal killing of a protected species. His fans and kin are understandably jubilant. Salman has a massive fan following, and if the newspapers are to be relied upon, his fans plus his kin are both known to come down heavily on those, who even deign to question his bona fides of good faith.

This is the second acquittal enjoyed by the actor in recent times. The Bombay High Court had acquitted him in a case that involved reckless drunken driving, which lead to the deaths of pavement dwellers. His earlier conviction in that case brought out a whole load of supporters who bent over backwards supporting him with some bizarre and perhaps offensive logic. An obscure actor called Sameer Soni, who described himself as a family friend, vented out his spleen castigating why Salman’s exemplary charitable work had been ignored. The sad part was nobody countered him by stating that this was totally irrelevant. Moreover, I myself am somewhat cynical about celebrities who fork out about 1% of their income towards charity in a very public manner. True charity in my opinion involves comprehensive and sustained upliftment of the individual helped even when it involves curtailment of the donor’s luxuries. Salman Khan may well be involved in such activities but I must confess I had not seen any evidence being presented which which would persuade me to place him in the same league  as Mother Teresa! I was especially disappointed to see the ever so graceful Nafisa Ali come out in his support.

That of course is history unless of course the Supreme Court overturns this verdict. Perhaps in another 10 years! I believe that an appeal against the recent acquittal is also being contemplated. We can be sure that Salman’s 10 lakh per appearance lawyers would make sure that the case drags on and on.

I must declare here that I am not a Salman fan. I have not visited a cinema house since 1976 and the only movies I get to witness are those on the television and that too in snippets. Some of them have been Salman movies.I have met the man only once when he was an invitee at a reception organized for me by the Indian Consulate in Durban in 2000. And while a five minute exchange of pleasantries and casual conversation is insufficient to form an opinion, I did not particularly find him erudite or endearing.

Salman’s Conviction Fatally Reduced

On these two cases, we are all obliged to respect the higher court verdicts that the charges have not been proved by the prosecution. But one would have to be a total moron not to entertain certain major concerns about accepting the actor’s innocence.There are disturbing similarities and worrying coincidences. In one case we had a driver owning up  to the misdemeanour for the first time after more than a decade. In the other the driver who was the main witness disappeared after giving his evidence and did not appear for the cross examination leading to his entire testimony being expunged.The judges can act only on the evidence presented and if there is a flaw in this regard, chances of conviction are fatally reduced.

On a déjà vu, this is exactly what happened in the Jessica Lal case where a very arrogant son of a powerful politician was acquitted by a trial court. It was the High Court that re-examined the case and declared him guilty and this was upheld by the Supreme Court. The powerful politician hired the most expensive lawyers who tried every trick in the book to obfuscate matters.

Why do these disconcerting instances happen in our country with frightening regularity! We have to introspect and that too on an urgent basis in order to preserve our faith in the judiciary. No less than a distinguished former Attorney General, Soli Sorabjee has declared that the criminal justice system has completely broken down.

There are any number of reasons for this. The number of judges is one of them but I do not regard that as the prime reason for this malady. In my view we have to look to the people who are entrusted with collecting the evidence and presenting them before the court who are primarily responsible for this morass.

I mean of course the police! Our police force enjoys the unenviable reputation of being the most susceptible to executive pressures in any democratic country. They are revoltingly corrupt and completely oblivious to their human rights obligations.

I have already penned a column on the state of police in India. The fact remains that until such time that we can weed out criminal and bullying  hoods like Yashasvi Yadav, unashamed bribe-demanders like Sugriv Giri, and evaders of their responsibilities like Radhey Shyam Gupta, we are in for tough times. I must also mention Maxwell Pereira, the supremely arrogant senior police officer who according to Madhu Kishwar allowed police to practice extortion from the street vendors and goes about presenting Delhi Police as the best in the world! I, on the other hand, am on record that the Delhi Police has been so vitiated by a catalogue of rotten legacies that it would not be possible to public confidence even with a programme of massive reform. It would probably need to be disbanded and a new force created.

As far as the netas (politicians) are concerned the less said the better. They have reduced the police force as an instrument to extract political benefits but can the police force be absolved of its own share of blame! I have known upright police officers who have refused to submit to illegal political pressures. They have suffered but have retained public confidence.

In effect what I am stating is that our abyssmal rate of criminal convictions is primarily owing to shoddy and corrupt police work. This has been recognized time and again by the courts. I have myself known police officers who have either fabricated evidences or presented a weak case willfully and this has been observed by the judges and commented in the judgements. However they still remain in uniform with the Delhi Police.

The sad fact is that unless we can ensure proper investigation and careful analysis of the evidence presented, we are going to be in a state where judgements are going to be looked upon with a sense of despair. And anyone who is in a position to influence the course of the investigations would be in a state of unfair advantage.

What needs to be done about this! It is easy enough to ask for police reforms and I believe that is long overdue. But given the police-politician unhealthy nexus one can be sure that this is not going to happen in the near future. As long as the country has an electoral system that enables people of criminal inclinations to reach the legislative portals, we can be sure there would not be any scramble for much needed electoral reforms as well.

Reappraisal of Criminal Justice System

However, there is a very realistic solution, which for reasons unknown has not been debated. It concerns a careful reappraisal of the criminal justice system we follow.

India, like most Commonwealth countries, and the US, follows an adversarial system of criminal justice. This system requires the investigative agencies to present evidence before the presiding judge who invites the defense counsel to rebut. The judge does not participate in the investigative process but acts as a referee. In the countries where there is a jury system, the jurors are expected to deliberate and pronounce the verdict.

The advantages of the adversarial system are:

  • The judge reserves comment until all evidence from both parties are heard.
  • This makes the judge appear more neutral since judgement must be reserved until all the evidence is heard

The disadvantages of the adversarial system are:

  • The finding of evidence rests on the resources of the two parties, which may be unequal
  • Parties only provide evidence favourable to their arguments

Adversarial System: Truth vs. Proof of Charges

In effect, what I am stating is that the adversarial system is less concerned with the truth but more on whether charges are proved or not. That remains the central disadvantage on the system we have inherited from the British. And given the state of our executive and legislature, we are left with an unacceptably low conviction rate plus resource paucity with the accused does result in egregious miscarriages of justice. We have to seriously ask ourselves whether this is really in sync with our needs. It must also be remembered that we had to abandon the jury system after the Nanawati trial when it was found to be inimical to provision of justice in India. We do accord quasi jury functions to Members of Parliament in the impeachment of the judges of the higher courts. But the only occasion the Parliament was called upon to exercise it (in Justice Ramaswami case), it failed miserably! A judge found guilty be three fellow judges was insulated from impeachment because he was close to the political formation in power. Clearly re-introduction of the jury system would not serve our needs unless we have a mind-set where we can regard our commitment to the law and the Constitution above our commitment to narrow interests.

I shall revert to the days when I was training as a barrister.  I happened to interact several times with the renowned author and broadcaster Ludovic Kennedy, who was very concerned about the miscarriages of justice in the United Kingdom. He believed that it was because the adversarial system was not concerned with unravelling the truth. He wrote and lectured extensively on the issue and after several interactions convinced me that ta different   system was more just and should be tried in that country.

Is Inquisitorial System Superior?

The system in question is the inquisitorial system, which is followed in France, Switzerland and several other European countries. It was a very unorthodox position. For a person like me, whose entire legal education took place at the Lincoln’s Inn in the UK and Harvard Law School in the US, claiming that the French system of criminal justice was superior to the one in these two countries was nothing short of blasphemy. But that is my position and has been so for over 30 years. My position was vindicated again in the US when I observed the criminal trials of the Los Angeles police officers in the Rodney King beating and the O.J Simpson trial.

What exactly is the inquisitorial system.Francesco Parisi, a law scholar has written extensively on the matter . He in a lecture that I attended stated:
In a typical inquisitorial proceeding, the trial is dominated by a presiding judge, who determines the order in which evidence is taken and who evaluates the content of the gathered evidence. In those proceedings, the court determines the credibility and relative weight of each piece of evidence without being constrained by strict rules in that respect. By contrast, in a typical adversarial system, the case is organized and the facts are developed by the sole initiative of the parties. The process develops through the efforts of litigants before a passive decision maker who reaches a decision on the sole basis of the evidence and motions presented by the litigants.
The distinction between adversarial and inquisitorial systems finds its origin in twelfth century European law. Adversarial processes could only be initiated by the action of a private party (the so-called processus per accusationem), while inquisitorial proceedings could be triggered ex officio by the judicial system (the so-called processus per inquisitionem). The meaning of the distinction evolved in later medieval times to include other features generally associated with the two procedures. Most notably, the distinction came to refer to the general role of the judge in the fact-finding phase of the trial. In medieval times, the judge was generally conceived as an official truth seeker. In a well known dictum, fourteenth century jurist Bartolus from Sassoferrato argued that, with or without a proposal by a party, courts could produce and examine witnesses for the purpose of truthful discovery. Along similar lines, Baldus de Ubaldis, a jurist who wrote during the second half of the fourteenth century, argued that, because of their institutional role as cognitional judges, medieval courts were at liberty to hear those witnesses whose depositions they considered necessary.

The inquisitorial system involves accumulation of evidence by the judicial officer. After several inquisitions, this judicial officer decides whether the case should proceed for a trial which is always before a judicial officer. If not, the case is dismissed. Because the judges are involved in gathering evidence, they are not influenced by the executive pressures.

The common belief at least in the Anglophone countries is that the French system is that it is inferior as in it you are guilty until proven innocent. Even the senior lawyers in this country suffer from this misconception, which emerges because the conviction rate in France and Switzerland is almost 100%. Not appreciated is that this happens because extensive inquisitions before the case even presents itself before a trial. I agree with Kennedy and others who have expounded on the merits of the inquisitorial system.

Despite the deficiencies in our judicial system (I have written about that as well), I am one of those who reposes more trust in our judicial officers than our police.

Let us consider one case. During Radhey Shyam Gupta’s tenure, a person was locked up in Delhi for a murder first degree murder and incarcerated in the Tihar prison for several weeks. He was supposed to have confessed to the murder to the police. The only problem was that the deceased turned up alive. This most disgraceful episode in which even the judiciary was involved in sending the man to judicial custody would never have taken place in an inquisitorial system. For the record, Gupta did not resign as Police Commissioner for this lapse.

I, therefore, plead with all our legal experts to evaluate, which of the systems is better equipped to deliver justice in this country; at least in serious criminal cases. We need insulation from police excesses and incompetence and political thuggery. I invite opinions on this matter.


©Ashok Jahnvi Prasad

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