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Yesterday was World Torture Day. While there is no need to explain the prevalence of torture in our country, I’d like to use this opportunity to show the attitude of the Courts towards this grave violation. This I’d do by critiquing the case of Masooda Parveen v. Union of India, the judgment which was announced in May this year.
The deceased and husband of the petitioner, Ghulam Mohi-uddin Regoo was one day taken by 17 Jat Regiment soldiers an brutally tortured. The reason that the wife and most witnesses gave was because he had refuse to pay an extortion fee to the soldiers. The petitioner alleged that her husband was tortured to death by the army and later his body was returned in pieces to her. The explanation given by the Army was that he was leading them to a hideout which was blown up the moment he reached there with the soldiers. Surprisingly no soldier was injured by the blast and the only fatality was Ghulam’s death. Ghulam’s wife, Masooda filed a petition before the Court demanding compensation and a job on “compassionate grounds.”
The Army said that Ghulam was a militant so no ordinary law would apply to them in this regard. They went on further to say that since Ghulam was a militant, Masooda would have to suffer for her husband’s wrongdoing. The Army’s rationale was readily accepted by the Supreme Court which stated that since there is ‘no evidence to say that he was not a militant, so he is presumed one’. It indirectly stated that if the Army identifies a person as a militant he is one until proved otherwise. There was no evidence produced by the Army to support this notion and nothing on record about Ghulam’s mode of death. From what I understand, in a petition for habeas corpus, it is upon the state to show that death was incidental and it is all the more onerous on the state to show so. It further stated,
“We are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action.”
So the Court has violated the ruling in Naga People’s Movement v. Union of India, and given an upper hand to the Army to indulge in such nefarious activities. These are troubled times for the judiciary. An organ that is supposed to be a guardian of human rights and injustices disappoints us by relying on irrational convictions. The support of the Army by the judiciary is unprecedented as is evident in this case. The judicial sanction of torture in the name of national security is a pandora’s box in its true sense. Absolute power corrupts, its usage without any checks is the cornerstone of evil. This time Ghulam was picked up and killed, tomorrow its going to be someone else. The matter could have also been simply resolved by given compensation on compassionate grounds and not accepting guilt as asked for by Masooda. But the Army argued otherwise and now a bad precedent has been set. So we should now be prepared for more people to be branded as terrorists by the Army.
This case did not get the publicity that a situation like Jessica Lal got. It is a reflection of what we Indians think of such instances. ‘We don’t care is someone is blown up into pieces. We would like a rapist to get a death sentence. Kashmiris are likely to be terrorists so they deserve it.”
Such notions are bad publicity. Human rights concerns are non existent in a majority of Indians. For them, torture is good if a person is caught. But what if the person might not be a terrorist? I used to admire Dershowitz a lot. Lately he stated something to the effect that torture is good if it produced desired results (don’t know for sure). I am losing faith in the system. There is injustice everywhere. Right from my college to international issues. To what extent can one stand all this is the question? Do I just sit and watch or is there something I can do?
I realised that the only aspect of patriotism comes out in me when I wish “jai hind” to the security guards in my college. That’s only because they are ex-servicemen and I might require their help sometime in the near future. But apart from that, patriotism has died in me and you know what, I’m proud of it. I go to China and look at an economic marvel and here I am in a land reminiscent of poverty and corruption. Things couldn’t have been worse in this Country. This is as bad if not worse than the ‘Curse of Bambino’ which was apparently spread for the failure of the Red Sox to win a series between 1918- 2004. I make the comparison because we Indians are people of excuses. We need an excuse for failure and will never work upon it to make it a success.
Bombay witnessed another series of heavy rains today. The people of that City again started cursing the administration for the lack of any measures taken on their part. This is not new and happens every year and dies down once the rains are over. My brother missed an exam today because of the rain. There are surely thousands more who were affected in such adverse ways due to the rains. I can imagine that BMC Commissioner sitting in his chair in his office near Victoria terminus (the clean Bombay) and drinking hot tea while the rest of Bombay suffers. The excuse, “We are just too over populated to do anything. It is impossible to take any action with so many people around”. This is where I go back to China mentioned earlier and would like to credit them for the marvel they made out of Shanghai.
Poverty and red-tapism seem to have become buzzwords attached to the Indian administration and the people have ‘resolved’ not to do anything about it. I don’t want to be a part of such a Country. JFK saying “Ask not what your Country can do for you, but what you can do for your Country” is a sham. I think he was shot because of that. The Government exists for the people and only when it considers for their welfare must the people protect it. The essence of patriotism is in fighting for what you love. I’m trying too hard to love my Country, don’t think I can be a patriot anymore. Fed up of it.
It turns out to be pretty amusing when one notices the lackadaisical attitude that the judiciary is taking towards the Sunil Nanda case. For those who are not aware, the accused Sunil Nanda (happens to be the son of Admiral BL Nanda) is charged with rash driving leading to the death of 4 people in 1999. In a new twist in the case, one of the witnesses, Sunil Kulkarni was involved in a sting operation the tapes of which showed the lawyers for both sides bribing the witness to change his testimony. RK Anand is the counsel for the accused who’s now in the limelight with this incident.
Most of the people I know who have worked with RK Anand are convinced that he would easily get away with the act. If this were to be believed then it doesn’t come as a surprise that the Supreme Court Bar Association (SCBA) has allowed him to practice in the Supreme Court. The same however is not in the Delhi High Court. He is temporarily barred from practicing and the case is proceeding before the vacation bench by Justice Muralidhar. But then, what can the Court do? Can it withdraw his license to practice? I don’t think the Court can or will do that. So ultimately a lawyer would get away with a heinous act for the very fact that he is a big guy and has is contacts to get him off the hook.
How then can one ensure that the judicial process in this country comes clean in delivering justice? Lawyers and judges don’t need some sort of protection but must be made accountable for their actions that violate due process. In fact I read the other day that some lawyers feel this would become a very strong case for the admissibility of illegal evidence in Court. The present position on the law is that such evidence is admissible where as after the Katz case it is inadmissible in the USA. You never know, sometimes to hide an illegality people fight to amend a law to their advantage.
While the case is still in progress, I just hope the Court considers justice and due process in giving its decision. The lawyers may go free today, but the verdict sure would give a free hand for the ambitious to practice such acts tomorrow.
This just in.
Former Customs Collector AN Thapa, one of the accused in the 1993 Bombay Blasts has challenged the Constitutional validity of the Terrorists and Anti- Disruptive practices Act (TADA). This comes in at a time when the Special tribunal is deciding on the sentencing of the accused in the case. Apparently the petition is based on an opinion by Justice Markandey Katju about how TADA is unconstitutional and obsolete in today’s system.
Would keep you all updated.
In the meantime, readers may read my earlier posts on terrorism and the validity of anti- terrorist laws in the country. link here
My criminal law professor made the following statements in class today;
1) 90% of the acquittals in the country happen because of the lack of evidence even though the people have committed the crime.
2) People in the parliament bomb blast and bombay blasts are being acquitted because of the lack of evidence.
3) Jessica lal and Priay darshini Mattoo resulted in disasters at first because of the lack of evidence.
All this happened, as can be observed in the evidence class. I am in a legal institution, one of the best I must say, and am taught to believe that the law is a failure. Such teaching comes from irrelevant facts. Its not just my teacher, but distinguished law people in the Country like Madhav Menon who make such statements and the parliamentarians sitting at the centre blindly trust them and make the law.
For example: The 142 law commission report says that Convicts are acquitted because the law is not strong. This baseless statement was then used as a justification for bringing in plea bargaining in the Country. Madhav Menon states that the conviction rate in the Country for lesser crimes is as low as 40 % where as the NCRB report states it to be 73.2% in Delhi alone. The Parliament says that Convicts are roaming about freely in the Country.
If you observe the examples above, you will see the usage of the word convict by these law makers. Well, you are a convict only is you have been held guilty by a court and not when you allegedly commit a crime. Such usage has made the common man loose faith in a system that is merely applying procedure. We jump to joy to see a man being convicted but the same is not seen if an alleged convict who is innocent is acquitted. Even though Bhagwati and Krishna Iyer made statements like “its more important not to convict an innocent man than to let a criminal go free”, we don’t seem to follow them anymore. I sometimes feel bad for Manu Sharma. Perhaps he was really innocent and got convicted because of the role of the media and the pressure of the public.
So then there needs to be a way in which crime is reported in the Country. Be it the newspaper or teaching the law. Information must be precise and not a bundle of ridiculous statements that most people would readily believe. As I write this, I feel bad for most of my class who would now be thinking that the criminal system is ‘crap’ and most Convicts roam free.