The Hindu : Is India's `best' justice good enough?

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Friday, Jul 25, 2003

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Is India's `best' justice good enough?

By Rajeev Dhavan

Indian justice came to be tested in the Best Bakery riots case... Unfortunately, it has been put in doubt.

INDIA HAS an enviable `justice' system, which caters to over a billion people and which has shown flashes of great brilliance in constitutional matters — especially the public interest law. Civil and criminal cases are ponderously slow. Despite scandals against judges, the judicial system shows more than tolerable ability to cope with its enormous and unprecedented load.

But legal systems do not always cope with specific public wrongs with uniform fairness. The Malaysian legal system is most creditworthy when it deals with commercial cases. But doubts have been cast on its ability to handle political cases and those relating to civil liberties. Thus, in 1986, Param Coomaraswamy was tried but eventually acquitted for sedition, with which he had been charged because he criticised the Agong (Sultan) for pardoning a Minister but not a poor coolie. However `sedition' became a favourite crime against those who criticised the state. In the International Commission of Jurists' report, Justice in Jeopardy (to which I was a party), serious doubts were cast on the capacity of Malaysian justice to handle `political' cases — in the light of the trial of the former Deputy Prime Minister, Anwar Ibrahim.

Today, the contempt law is used to silence even arguments made in court. Once a `justice' system acquires a reputation for ineptitude or bias, it does not go away easily. It took the American Supreme Court decades even to attempt to refute the charge that it was anti-poor, white and racist. In 1948, the West Indian cricketer, Learie Constantine, was thrown out of a hotel and awarded £ 5 in damages — not for racist treatment, but for being denied a bed by an innkeeper. Since the 1960s, immigrant Asians and West Indians have lacked confidence in the British Government's capacity to deal with them justly.

Rightly or wrongly, Indian governance is acquiring a reputation for not being able to cope with `communal' issues fairly, or protect the minorities. In the Gulshan Kumar murder case, New Delhi was unable to get Nadeem extradited because sufficient doubt was cast whether a Muslim accused would get justice in India. A similar plea is now being raised by Abu Salem, apprehended in Portugal. The indictment is not just on the potential fairness of courts but Indian governance generally. When the working of the Terrorist and Disruptive Activities (Prevention) Act was unmasked, it was found that it was mostly misused by the State Governments, which had nothing to do with terrorism but with communal targeting of Muslim minorities. Nor does India's `riot' justice sit easily on the record. Whenever riots have occurred, the minorities have been at the receiving end. We have many communal riot reports by distinguished judges — such as the Shrivastava Report of 1961 on Jabalpur, the Madon Commission report on the 1967 riots in Jalgaon, the Jaganmohan Reddy Commission report on the Ahmedabad riots of 1969, the inquires in the 1984 anti-Sikh riots and the Srikrishna Report on the Bombay riots of 1992-93.

Some reports have been ambiguous. Some like the Srikrishna Report have been forthright on the failure of governance. The Wadhwa Commission into the Graham Staines murder left too much in the air. The Liberhan Commission on the destruction of the Babri Masjid lingers on. The Nanavati Commission on the Gujarat riots of 2002 is already in controversy.

Thus, the justice-through-commissions approach on communal riots has failed miserably. Many reports have been published in the aftermath of the Gujarat riots, which portray not just physical horror but grotesque callousness by the State. The authorities looked the other way. Brutality continued. Relief camps for victims were inadequate and arbitrarily closed down. These independent reports make pitiable reading and portray the failure of Indian governance. Fear followed carnage. Indian governance looked on.

In recent years, M.F. Hussain's paintings have been destroyed by miscreants while he has been indicted for criminality. Sahmat's exhibition showing various versions of the Ramayana were banned by the then BJP Government of Delhi for seven years. Tamil Nadu enacted the anti-conversion law clearly directed against the minorities. Controversy over the Babri Masjid continues. Pressure on Muslims to yield is immense. The Government is perpetually held to ransom by communal politics.

Now, controversy revolves round whether the Deputy Prime Minister, L.K. Advani, and others in power were bystanders, guilty of incitement or party to a conspiracy to destroy the Babri Masjid. This is a serious issue. If their complicity is true, the Constitution has been defaced and defiled. The former British Prime Minister, Harold Wilson, called a racist Member of Parliament a `parliamentary leper' in 1965. India's own proven communal "masjid-breaking" MPs should be treated no better. Mr. Advani and others should have a vested interest in clearing their names instead of fighting over quibbling technical details about official sanction or the inclusion of the charge. Technicalities cannot be a political refuge. Or is Mr. Advani not interested in clearing his own name? If the charge that he conspired to raze a mosque is valid, there is a great deal to answer for. It is an issue that concerns all the States, the CBI and the courts. But most of all, the politicians concerned cannot hide behind facile attempts to prevent the truth being examined in a trial.

Indian justice came to be tested in the Best Bakery riots case. In March 2002, 14 persons were massacred in the bakery in Vadodara. The fast track trial began on May 9 and was completed on June 29, 2003. Fast track justice is efficient, but not necessarily just. Traumatised by events and fearful of their future, witnesses — some innocently young — retracted their statements. Victims' families had no protection, no succour or support. About 36 of the 70 eyewitnesses withdrew in fear. The 21 accused were let off. We do not know who the culprits were.

When the National Human Rights Commission visited Gujarat after the Godhra carnage, it suggested a CBI inquiry. But a CBI inquiry meant getting Narendra Modi and Atal Bihari Vajpayee — both of the BJP — to agree. The Union surrendered its responsibility for electoral spoils. After July-August 2002, the NHRC retreated into a less publicised silence. It has now re-surfaced. The superior courts could have ordered a CBI inquiry. Indeed, in July 2003, one was ordered into the Taj Mahal trapezium project. But the petitions asking for a CBI inquiry into the atrocities in Gujarat, and appropriate relief and rehabilitation are still pending in the Supreme Court. No doubt, the Court has been busy. But the consequence of the CBI not entering the fray seems self-evident.

What happened in the bakery case? The judge blamed the prosecution. The prosecution blamed the witnesses. The witnesses are caught in a frenzy of fear. Direct and indirect pressure — no less the witnesses' own premonitions of a living hell if they told the truth — led to the inconclusive judgment in which the Best Bakery killings became a crime committed by unknown accused. Is Indian investigative and trial justice incapable of unravelling responsibility for a ghastly massacre that took place in the public gaze? Could the judge not have used his power to call witnesses? Indian justice failed. But must it continue to do so? Surely, there is enough for the higher judiciary to intervene now. Otherwise, the failure will be complete.

Is India's `best' justice good enough? Unfortunately, it has been put in doubt. Indian governance has shown an incapacity to deal with communal issues and protect the minorities. This is a serious charge reflecting on a serious fear in the minds of the minorities who belong to the greatest independent multi-religious and multi-cultural nation in the world. As a legal issue, it features in the extradition proceedings abroad. As a democratic `rule of law' issue, it surfaces again and again.

Some years ago, Fali Nariman wrote a report on capital punishment in the United States to suggest that those on the death row in America were often poor blacks. Two decades ago, Professor Griffiths said the English judiciary suffered from class bias. The report of Malaysia in 2000 doubted its legal system's capacity to deal with political cases. Once a reputation attaches to a system of governance, it clings on to infect the system's working like a cancer. Indians are a secular people. It ill becomes Indian governance to acquire a reputation that its `best' justice cannot inspire confidence in the minorities who feel that they are under siege. The siege took a concrete shape after the destruction of the Babri Masjid. Indian governance and justice need to be redeemed. We make laws for the comfort of foreign investors; but are we slipping in devising a system for our own people?

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