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Updated: April 9, 2013 04:32 IST

The court of last resort

Markandey Katju
Comment (26)   ·   print   ·   T  T  

It will help rectify the injustice meted out to people languishing in jails due to a delay in trial or wrong conviction

After I sent appeals to the President of India and the Governor of Maharashtra for pardon to certain individuals, I received many messages saying injustice is being done to thousands of other persons too. They have been languishing in jails as either undertrials whose cases have not been heard for several years, or have unjustly remained incarcerated because:

(1) The police have fabricated evidence against them, or

(2) For want of proper legal assistance, or

(3) They have had to spend many years in jail before being found innocent by the court.

This is a violation of Article 21 of the Constitution which guarantees the right of life and liberty to all citizens. Those who are suffering in jail are usually the poor who do not have the financial resources to help themselves. Many in this category belong to the minority communities. They have been accused only on suspicion and on pre-conceived notions that all persons of that community are terrorists.

Rush to implicate

Whenever a bomb blast or such other terrorist act occurs, the police are often unable to trace the real culprit and yet have to show that they have solved the crime. Consequently, very often, the police rush to implicate and charge a large number of youths of that minority community on mere suspicion. Their bail applications are very often rejected. As a result, they have to spend several years in jail.

In such matters, either the police often fabricate evidence against them to justify their acts and secure conviction, or the cases result in the acquittal of innocent accused persons after they have spent several years in jail. A glaring case is that of young Aamir who was 17 when he was arrested, and who spent 14 years in jail after which he was found innocent. Who will restore those 14 years of his life?

The April 6, 2013 issue of Tehelka has an excellent article by Shoma Chaudhry entitled, “The Fight for Muslims is fundamental for the survival of democracy,” in which she says that over the past few years, Tehelka journalists have documented hundreds of stories of innocent Muslims languishing in jail after being brutally tortured on flimsy or false charges.

Ms Chaudhry writes that innocent Muslims have been jailed with impunity in India over the past decade because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be arrested, and their names aired in the media as “masterminds.” Their guilt was assumed, it did not need to be proved.

Since 2001, a terrible maxim had seeped into the Indian mainstream: all Muslims may not be terrorists, but all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the illusion of security and “action taken”. Those who raised hard questions were scorned as “anti-national.”

In a seminar on “Reporting Terrorism,” held on April 7 in Hyderabad, I said that within hours of a terrorist attack in India, many television news channels start showing that an email or SMS has been received from the ‘Indian Mujahideen,’ the ‘Jaish-e-Muhammad,’ the ‘Harkat-ul-Jihad’ or some other organisation having a Muslim name claiming responsibility for the attack. An email or SMS can be sent by any mischievous person. But by showing this on TV screens, and the next day in print, a subtle message is sent that all Muslims are terrorists and thus the entire community is demonised.

All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses on rent even when acquitted. Their families are ostracised, and their sisters cannot get married because their brothers have been branded terrorists. Unless this cycle of hate is reversed we will be heading for terrible times, for injustice breeds hatred and violence.

Criminal investigation is a science but, unfortunately, in our country the police are not usually trained in scientific investigation; nor do they have the equipment for the same. Sherlock Holmes investigates a crime by promptly going to the spot and studying the fingerprints, blood stains, soil, ashes, handwriting, etc., before coming to a scientific conclusion. Recently, the Discovery channel showed how the American police investigate a crime. The police reach the spot and collect traces of the material there, including blood stains, fingerprints, ashes, fibres, hair, etc. The fingerprints are fed into a computer which is connected to a national computer network, which can often lead to the discovery of the criminal. The blood stains, hair, etc., are taken to a laboratory where they are tested for DNA, etc. Even a few microscopic fibres can lead to the discovery of the culprit by testing them in a laboratory and thus finding out the criminal’s identity.

Pressure on police

Such a method is absent in our police set-up. Yet the police have to show that they have solved the crime. The investigating officer fears suspension for incompetence. So he either implicates people on suspicion or resorts to the time-honoured method of torture or third degree methods to obtain a confession.

All this is leading to injustice on a large scale. We are not blaming the courts because they are handicapped due to the enormous burden of litigation for which cases linger on for years. Also, unfortunately, nowadays the real eyewitnesses are afraid to give evidence out of fear of threats or harassment, and hence the police end up fabricating evidence.

The result is that gross injustice is often done, particularly to tens of thousands of persons languishing in jails; the time has now come for this great wrong to be set right.

It has been decided by a group of people, including this writer, who is a former judge of the Supreme Court, Fali Nariman and Majeed Memon, who are both lawyers, Mahesh Bhatt, film producer, social activist Asif Azmi and other like-minded people to set up an organisation called ‘The Court of Last Resort’.

The concept of this idea has come from an organisation founded way back in 1948 by the eminent American criminal lawyer, Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book The Court of Last Resort, Gardner mentions the organisation he set up consisting mainly of lawyers, who took up cases of persons whom they thought were wrongly accused or unjustly convicted (see You tube).

The organisation which we are starting in India will bear the same name and have its headquarters in New Delhi, with the writer as its patron. It will have units in all the States of India. The bulk of the work will have to be done by the State units.

‘The Court of Last Resort’ will have the following objects:

(1) To ask the authorities concerned in various States about details of prisoners, particularly those who have been in jail for long periods, including undertrials and convicts. The RTI Act can be used in this connection;

(2) To examine cases, whether of our own accord, or on the representation of someone, and find out whether injustice has been done to the person involved, either by a delay in holding the trial or by a wrong conviction, and do the needful in this connection, including applying for bail;

(3) To apply for pardon, respite, suspension or reduction of sentence to the President or Governor as the case may be;

(4) To create awareness in the public about this gross injustice that is being done to a large number of people;

(5) To educate the police about this state of affairs and change their mentality;

(6) To approach the other authorities concerned with the aim of rectifying this injustice to a large section of people;

(7) To do such other acts as may be necessary for this purpose;

The organisation appeals to the like-minded people among the public, particularly lawyers, retired judges, academicians, students, social activists, professionals, media persons, and others to help and associate with this enterprise.

The formal inauguration of this body will take place on April 15 through a press conference.

It is made clear that this is being done for no personal benefit to any of us but purely out of our sincere desire that justice should be done to everybody and that no section of society is made to feel that it is being discriminated against. The Court of Last Resort will not limit its work to helping the minorities; it will help persons of all communities and denominations, particularly the poor and the downtrodden.

(Justice Markandey Katju is chairperson of the Press Council of India)

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The "Court of Last Resort " is theoretically sound but it seems to be, in practice, a treasure trove at the end of a rainbow.It is conceived to be a national network but how can a national network be effective and efficient without adequate funds for consistent working ? As a national level human organization what mechanism is there to ensure consensus at various stages of its functioning ? It may neither be a parallel government or parallel judiciary.The laudable concept of " Court of Last Resort " should be voluntarily accepted by Bar Councils in different states and put into practice.Perhaps it is now the sole responsibility of bar councils all over India to deliberate the issue and face justice Katju with their considered views in this regard before it is too late.

from:  G.Rajaram.
Posted on: Apr 11, 2013 at 08:10 IST

Article is quite good. However I didnt yet understand that in every
problem minority/muslim suffer. Although I agree that they are
suffering, still other communities are also suffering at par specially
in urban area where caste/minority dont matter much. But still, every
politician, journalist, media want to score a point by claiming
difficulties faced by minorities and different cast. We are today
discussing about Governance reform, Financial reform, but by taking
contrarian view at this moment, India urgently need Social reform,to
be specific Caste system reform. Political, social n personal point of
view must change from grass route if India truly want to be most
powerful economy because power of our unity is greatest power rather
than military power which large countries possess. and Thanks for nice
article.

from:  Ganesh Sawant
Posted on: Apr 11, 2013 at 01:09 IST

The population of muslims in India is around 15% but their percentage in
jail is more than 30 ,most of them being falsely charged by police to
hide their own failure in solving the crimes.It is really heartening
that peoples like Katju sir and others have taken the steps through "The
court of Last resort" to help those who have been falsely implicated in
different cases across the country and are languishing in jail for years
without any reason.

from:  shakeel
Posted on: Apr 9, 2013 at 17:16 IST

The court of last resort is our institutions, Parliament, judiciary and
Executive. If at all there is shortcomings, we have to invent
appropriate reforms. We can not run another parallel court of last
resort.

from:  Haja Nazumuddeen
Posted on: Apr 9, 2013 at 16:36 IST

Indeed it is a step in the right direction and the vast knowledge and experience of an ex-judge can be utilised in curing the menace of society.A large section of youth turn to violent crimes as they don't see any hope at the other end of the tunnel and hopefully this court will show them HOPE.But a lot more can be done,i.e,
1)Students who study law and especially those who go on to specialise or do post graduate in law shud be made compulsory to take up cases of these individuals like the doctors have to do voluntary service.
2)Jail wardens shud file a report on evry individual in their custody if that particular individual has already done or exceeded the maximum sentence that cud have been awarded to him in respect of crime dat he has been chargd for.Failing so the Jailor shud be made liable.
3)Media also needs to a play a positive role as it is one of the major foundations of a democracy.Cases shud be highlighted and kept in the news and should not be treated as just another case.

from:  Ankur
Posted on: Apr 9, 2013 at 15:53 IST

In short, what Justice Katju mostly proposes to do must have been done by the Govt by now. Hope the awareness brings into focus the issues of 'Police Reforms' as well as the issue of 'Judicial Reforms' and the severe lack of the requisite number of courts leading to inhuman conditions for lakhs of undertrials who may possibly be innocent.

from:  Yashwanth P
Posted on: Apr 9, 2013 at 15:35 IST

This is a noble idea.The humilition and mental torture that the victim and his family undergoes virtual ruins and destroys their lives.In case,if it is found that the victims are falsely implicated ,apart from taking action the policemen involved in framing bogus charges,adequate compensation must be given to the victim and a public apology must be tendered by the Government so that the victims resume his normal life with dignity.Take the case of Mr NambiNarayanan,Ex ISRO sceintist,who was falsely implicated in ISRO spy case,who is now suffering in silence without any relief(His case was highlighted in TheHindu recently.In Hyderabad Blast site,it was found that many CCTV cameras were not working.Till date, no action has been taken against officials who are supposed to maintain them in working condition.Tax payers money has been wasted.If only these cameras were in working condition,the culprits would not have dared to commit crime and many lives could have been saved.

from:  ramesh
Posted on: Apr 9, 2013 at 14:57 IST

I applaud Markandey Katju for this much needed initiative of helping people who are unjustly
jailed and linger in the callous prison system. Hope all fair minded people will help in giving
concrete shape to this call for fairness, justice and respect for human rights for all of India's
citizens. Initiatives like these make a tremendous difference in the life of a nation over time.
God speed to Mr. Markandey and his associates on moving forward with this idea.

from:  Hoshiar Singh
Posted on: Apr 9, 2013 at 14:33 IST

Many a times innocent muslims were wrongly misjudged and arrested for
no wrongdoing. One such fine example was the disbursement of
compensation to those who got acquitted in the 2007 Mecca Masjid bomb
blast case at Hyderabad. These men were wrongly implicated and were
allegedly tortured in police custody before being found innocent by
courts. Despite the SC judgement upon tagging terror on innocents
[refer The Hindu dated 27th Sep 2012 "Don't give terror tag to
innocent minority people: Supreme Court"], yet the police has not
changed its way of probing. I echo with the author and welcome this
organisation. Organisation like this imbibed with RTI power will for
sure reach to the poor, needy & innocents; who were wrongly accused or
unjustly convicted.

from:  Yusuf Hayath
Posted on: Apr 9, 2013 at 13:41 IST

Mr. Katju,nice initiative but i am curious to know how would your team finance all of this.

from:  Rohit Garg
Posted on: Apr 9, 2013 at 13:35 IST

A very good initiative. This organization will go a long way by looking into pending cases of innocent people who are in jail for long period. But when courts are not to be blamed due to enormous burden of litigations and cumbersome process, how can we ensure justice to these innocent people who should be acquitted by courts?

If this organization is going to apply for pardon, respite, suspension or reduction of sentence to the President or Governor a committee will be laid for legal advice. Even this committee will take time give their opinion hence delaying justice.

These are certain areas where katju should look into. All in all a sincere effort being made.

from:  madhav
Posted on: Apr 9, 2013 at 12:32 IST

A very good initiative and should be appreciated by all irrespective of
community and thanks to author for bringing this topic as justice delayed is
justice denied. Justice is delayed mainly for people who can't afford
spending money to prove their innocence, that is poor people, for all these
people court of last resort can serve as a great platform. I once again thank
the author.

from:  Hari krishna
Posted on: Apr 9, 2013 at 11:41 IST

Justice Katju, sometimes you are confused, at some points of time you speak the truth, anyways this initiative is welcomed.

from:  sai
Posted on: Apr 9, 2013 at 11:32 IST

The Court Of Last Resort seems to be a novel and indeed noble idea.But the issue of prime editorial space for an NGO in the making, can rightly be perceived as blatant misuse of power.Had it been somebody else who mooted the concept it would have found banal mention, of which I seem pretty sure.

from:  Navaneet
Posted on: Apr 9, 2013 at 10:47 IST

A sincere effort from Mr.Katju and team. Please don't limit this program
only towards minority communities. Let every Indians get justice who are
languishing in jails due to delay in trail or a wrong conviction.

from:  Vineeth
Posted on: Apr 9, 2013 at 10:34 IST

Why not allow the khap panchayats and local village level panchayats
to do this job. Katju is vehement in opposing khaps, but wants to
bypass established judiciary by usurping all powers for himself.

He is communal and anti hindu; hope his real colour and intentions
are understood by the intelligent public.

from:  Sampath
Posted on: Apr 9, 2013 at 10:31 IST

It is a nice initiative, but the doubts that come to my mind is that
how will they ensure the incarcerated person is innocent.
Isn't they working with a predetermined perception in this case.
Second, Mr. Katju has stated that the courts are handicapped due to
the enormous burden of litigation for which cases linger on for years.
How will they be able to bring the incarcerated person to justice in
time in such a scenario. Also they have mentioned no time limit for
the case to come to conclusion. Thus this will also not ensure speedy
judgement. But still it is a nice initiative to work for a good cause.

from:  Akshay Dhadda
Posted on: Apr 9, 2013 at 10:28 IST

The idea seems truly remarkable and the objects of the institution genuinely seem to address very important area of innocent people languishing in jail for want of resource, trail or police apathy. Really look forward to this press conference and further details on working of the institution.

from:  Vikram Bhadauria
Posted on: Apr 9, 2013 at 10:11 IST

'The Court of Last Resort' is a well step forward to help hopeless
innocent peoples. those were jailed on wrong bases. so, every citizen
should come forward to help this body to achieve its genuine cause,
which our constitution also reflects that every Constitution which
guarantees the right of life & liberty to all citizens.

from:  krishan kumar
Posted on: Apr 9, 2013 at 09:23 IST

Justice, whether it is for rich or poor, whether it is for hindu or muslim; is piller of
peace and prosperity. One part of the problem is being addressed by setting up this
initiative, the one can only be addressed by making people accountable. Making
them aware that one day they will be asked by their creator, about what kind of
world did they leave behind, for their next generation.

from:  Imtiyaj
Posted on: Apr 9, 2013 at 08:23 IST

The court of last resort must be,the institution which a nation like India,needs at most priority.There are "N" number of cases,which have been manufactured by the minds who doesn't think rationally and sane.The paradigm shown,must be intended to achieve,desired results.

from:  Atul Pandey
Posted on: Apr 9, 2013 at 08:07 IST

It is a good idea to help under trials/innocent persons implicated on
false evidence but while taking up such cases the Court of Last Resort
must be careful that it should not end up discouraging police effort in
tackling crimes/terrorism. The cases must be selected carefully and
state units would need to be very cautious because it would also bring
under its ambit many cases of persons related to left extremists
organisations in Chhattisgarh, Jharkhand, Bihar and Orissa within its
ambit. The body must not get involved in politics while doing this
pious work. At the same time it would be in need of huge fund to set up
units all across the states so that poor and needy people could reach.

from:  Abhishek Kumar
Posted on: Apr 9, 2013 at 07:51 IST

"The court of last resort"a great peace of idea,no matter from where
it sprang up,would definitely change the face of India and
particularly for the minority. This system would nurture livelihood
not only of the innocent people ,languishing in jail under false
charge, but also there near and dear once.
In addition to the mentioned
point the crux for "The court of last resort" is to make educate and
train the Police force and change their vision too. Besides this if
writer talk about American style of investigation then government
should raise the bar for expenditure and send our troop to U.S through
consensus with U.S government.

from:  Prasannajeet Mohanty
Posted on: Apr 9, 2013 at 07:34 IST

Mr Katju, Sir, It is not members of "that minority community" alone that are "accused only on suspicion and on pre-conceived notions". Anybody who is not liked by the ruling dispensation is also a soft target for the police. "That minority community", at least has spokesmen like you who raise a hue and cry. The members of non-minority community have no such defenders. Please don't contribute further to the communal divide in the country by your extremely biased activities. Those of the majority (or, rather, the non-minority community, also have rights, especially human rights. Thank you, Sir.

from:  vorpal
Posted on: Apr 9, 2013 at 07:28 IST

Is this a calculated distraction, just before serious debates start about
who should be entrusted with people's trust to run the country?

from:  D Mahapatra
Posted on: Apr 9, 2013 at 04:47 IST

At first I thought that I would get some insight from the article about delayed justice and that too from a an ex-supreme court judge,but unfortunately what I found was another example of minority appeasement(secularism).

Justice must be for all,not only for minorities.But here Mr. Katju has too much emphasized on Muslims only.

I don't understand how democracy will survive only by protecting Muslims.

from:  puspak
Posted on: Apr 9, 2013 at 02:39 IST
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