INDIA: What else does the country expect of its criminal justice process?

A statement made in court by the driver of a movie actor has again exposed the abundant opportunities for exploitation of the criminal justice process in India; defending his employer, the driver has stated it was the driver, not the actor, behind the wheel when the vehicle sped out of control, killing a person sleeping on the pavement and causing injuries to three others.

The events are as if lifted straight out of Aravind Adiga’s The White Tiger. It has been alleged that it was the actor that lost control of the vehicle on the night of 28 September 2002. Nearly 13 years hence, the trial in the case is not yet over.

The Indian social media is following the case, with comments mostly against the justice process, underlining a common sentiment in India: “the rich and powerful can get away with anything.” One cannot find fault with this public sentiment.

It is the right of an accused in a criminal trial to summon witnesses on behalf of the accused. This case is not an exception. What, however, stands out, is the time the justice process has taken to complete the trial. Despite 12 years having passed, the case is still under trial. One of the curses of the Indian justice process is scandalous delay in adjudication. Anyone, with little effort can prolong the process well beyond a decade. Such delay questions prefixing the word “justice” to the process.

It is also important to understand, beyond rhetoric, the seriousness of the statement of the driver in this case. A person would not venture into admitting guilt on behalf of another – unless it is fact – in a criminal trial in jurisdictions where the police undertake scientific crime investigation. However, something else is afoot in India.

Police in India is a deeply demoralised institution. The dejection is contagious, and it has affected the entire justice process. Police precipitates more crime than what it is able to control. The institution encourages and engages in violence rather than prevent the same. The institution is a bad example to the youth; average Indians consider police officers criminals in uniform. This image is repeatedly caricatured in media, movies, fiction, and popularly believed to be true; it is.

There are many options available for an investigating officer to prove who was at the wheel and what caused a road accident. Science and expertise in crime investigation have advanced to such levels that fingerprinting is now considered out-dated technology.

Crime “investigation” in India is nothing but the shoddy work of the police – an institution neither equipped nor expected to undertake scientific investigation. Crime investigation, and therefore the trial, is heavily dependent upon witness statements.

In jurisdictions where the police is expected and equipped to undertake modern crime investigation, witness statements are used far less in trials. Such trials have more certainty in accurately placing guilt upon the accused. Acquittal rate in such jurisdictions is far lower than in India and the possibility of miscarriage of justice is more remote.

Had crime investigation in India been an advanced science, and had Indians respected their justice process, people would think twice before attempting to negate a crime investigation by giving a defence witness testimony owning up to the crime. Besides, the popular perception concerning this case would not have been as cited above.

Now that a defence witness (the driver) has owned up to the crime, the only procedure available for the prosecution is to cross-examine the witness, which it has done. If the court believes the witness it has to acquit the accused (the actor) and proceed against the witness. For the process to be complete, the court may have to order a reinvestigation in this case, though it is not mandatory. That said, after 12 years, such an investigation would likely reveal nothing.

The statement of the defence witness owning up to the crime places the police in an awkward situation. In his statement to the court, the driver has implicated the police, claiming that the police refused to record his statement. In fact, in the entire case diary, the name of this driver witness, who has now turned vital to the case, is not mentioned.

For the Indian police, such “awkwardness” is old hat. There will not be a departmental inquiry against the investigators. Fabrication of charges is a crime under penal law. That only handful police officers have been tried for such an offence in six decades of Indian independence, in a country where falsely implicating innocent persons is the norm, strongly suggests that the officers who investigated this case are safe and will retire with full honours, drawing state pension for the rest of their lives.

The other possibility is that the court will disbelieve the witness. This will place the witness in a difficult situation; given the nature of the statement, the court can initiate proceedings against the witness for perjury, since the statement of the witness is material to the outcome of the criminal trial.

All such confusion – of witnesses changing statements or owning up to a crime, material objects relevant to the trial going missing from court custody, and even impersonation of the accused – is only too common in India.

Having unprofessional lawyers regularly appointed as prosecutors and a large number of judges not worthy of their chairs running the Judiciary has further diminished the justice quotient in the criminal trial to such levels that Indian people do not trust the process. Few expect a conviction in a criminal trial where a celebrity is in the dock in such circumstances.

Document Type : Statement
Document ID : AHRC-STM-050-2015
Countries : India,
Issues : Administration of justice, Democracy, Fabrication of charges, Inhuman & degrading treatment, Institutional reform,