A disconnect between constitutional rights and legal practice exists in India, as it does in the United States.

On July 5, American mother Casey Anthony was found not guilty on charges of first-degree murder in the death of her two-year-old daughter. That brought to an end the most sensationalised trial in the U.S. this year, and ignited a disturbing vigilantism in the hearts of America. Across the nation, threats were made upon Ms Anthony's life and those of the jurors, who sided with facts over national opinion. Called “the social media trial of the century” by Time, the case highlighted a fundamental undervaluing of inalienable rights as found in both India and the U.S. today.

“They didn't prove the cause of death,” said Juror No. 3, Jennifer Ford, in an interview with the Washington Post. “If you don't know what the crime was, you can't punish someone for that crime.”

Yet, the jury roster had to be sealed to protect jurors from the violent threats made against them. This was a controversial move in a country where the media have traditionally had full access to such information.

“What do you do when you have an atmosphere where you have people who want to ‘fillet people open,'” asked Belvin Perry, Chief Judge of the U.S.' Ninth Circuit.

The beauty of the American legal system is the presumption of innocence, which leaves the burden of proof on the prosecution and the vast government resources working against a defendant. This tradition has been greatly undermined by the sensationalism of the 24-hour news cycle. Talking heads all but declare an individual guilty or innocent before a trial even opens, as they did in this case. There is no “impartial jury,” as is guaranteed by the Sixth Amendment of the U.S. Constitution; everyone has an opinion before hearing the facts.

It is unclear what role Ms Anthony played in the death of her daughter. However, the prosecution, with the collective resources of the state, was unable to prove beyond reasonable doubt that she was guilty of murder. Even when that standard is met, the verdict is not always accurate. To be sure of that fact, one need only to look at the 272 post-conviction DNA exonerations in the U.S. claimed by the Innocence Project since the first DNA exoneration happened in 1989.

No mere observer can know the full story in cases such as these, and it was for that reason that the U.S. Constitution provides that no one should “be deprived of life, liberty, or property, without due process of law,” which has come to be understood as proving guilt beyond a reasonable doubt. The legal system acknowledges the absence of such knowledge. Public opinion does not.

This disconnect between the ideas put forth in the Constitution and the practice of law or popular understanding therein is not unique to the U.S.

The jury system has not been used in India since the K.M. Nanavati v. State of Maharashtra case of 1959. Like the Anthony trial, this case involved the acquittal of an individual who was popularly suspected of murder. (In fact, the question was not whether Nanavati had shot the deceased, but whether he had intended his gun to fire.)

Reasonable doubt was also central in this case, though Indian law differs from American law in that the burden of proof rests on the defendant. In the Nanavati case, it was the Sessions Judge, not the masses, who considered the decision to be perverse, and the case was referred to the High Court.

Arguing that the jury had been influenced by the media and public support for Nanavati and that civilian juries are open to being misled, the Indian government abolished jury trials following that case.

Judicial corruption

Yet, almost 50 years later, Transparency International's “Global Corruption Report 2007” found that 77 per cent of respondents believed that the Indian judiciary is corrupt.

Despite the logic that was put forth in the decision to do away with jury trials, the rule of law and constitutional mandates have not been better protected by legal professionals than they have been by the Indian public.

Under the Indian Constitution, equality before law is a fundamental right. Yet, according to the Transparency International report, “bribes seem to be solicited as the price of getting things done.” A culture of corruption in which those with the means can and do routinely buy “justice” is fundamentally one in which there is no equality before the law. Worse, it is those charged with upholding the law who most benefit from this corruption; according to the report, 90 per cent of these bribes go directly into the pockets of lawyers and other court officials. In January 2002, Chief Justice S.P. Bharucha said that 20 per cent of the higher judiciary might be corrupt. Yet, to this day, no case of judicial corruption has ever been put on trial in India.

These officials are not only ethically corrupt and undermining the fundamental right of equality before the law, but they are violating their fundamental duty to abide by the Constitution, as was established in 1977.

However, the Indian Constitution is not just violated de facto by legal practice, but also de jure, via the faith-based system of law that has persisted from pre-colonial times.

Though India was established as a “sovereign socialist secular democratic republic,” it relies on Article 26 of the Constitution — which guarantees the freedom to manage religious affairs for every recognised religious denomination or sect — to govern domestic policy. Though the Directive Provision of Article 44 asked Indian legislators to establish a uniform civil code throughout India, religious communities continue to be governed by their own personal laws over 60 years after the adoption of the Constitution.

The fundamental right of freedom from discrimination on grounds of race or caste cannot exist as long as people of different faiths abide by different legal codes.

Both the U.S. and India face a crisis of conscience. Either their constitutions must cease to be treated as empty rhetoric, or they must simply cease to be.

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