Sunday, April 28, 2013

The court of last resort

The court of last resort - The Hindu

Today's Paper» OPINION
April 9, 2013
Markandey Katju

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 who 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 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 ofTehelkahas 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, theDiscoverychannel 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 bookThe 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)

It will help rectify the injustice meted out

to people languishing in jails due to a delay in trial or wrong conviction