INDIA: The national dishonour is judicial hypocrisy

INDIA: The national dishonour is judicial hypocrisy

Some in India would consider the country's honour preserved, and finally respected, once the marines from Italy return to stand trial in India. The marines' return is an issue, in which the Supreme Court of India sailed through unchartered waters, at the risk of a complete breakdown of bilateral relationships between India and Italy. The steps taken by the Supreme Court are unheard of in customary international law. But, there are even more unchartered legal territories in the case.

For the government to concede to Italy the quantum of punishment for the crime, before the marines are tried is unacceptable in law. It is for the court to decide. Furthermore it is intolerable in law, for the accused to pay "blood money" to the victims, against the charge of a non-compoundable offense.

Many in India have opined that the Government of Italy paying money to the victims' family and offering their children to be educated free in Italy is a goodwill gesture. There is however, substance in the argument, that, to say the least, such offers are interference with the course of justice and an insult upon the conscience of a nation.

The marines are privileged that their case will be tried in a special court, with their fundamental rights protected, including their right to have the trial completed within a reasonable period, a luxury millions of Indians are denied by their government. The average period for a litigation to culminate in India is 10 to 15 years. Detention centres in India are so overcrowded with under-trial detainees that the police do not have adequate infrastructure to produce each detainee in court, every 14 days, i.e. the maximum period prescribed in the Criminal Procedure Code, 1973, for pre-trial remand. Remand extensions being one of the most sought after opportunities by under-trial detainees, so they may catch glimpses of their relatives on these days, police and prison officers extort money from the detainees, for allowing detainees the privilege of travelling to the court on these designated days.

Under-trials, who cannot afford to meet this extortion, remain in the pre-trial detention centres and the courts illegally extend their remand in their absence. In many states, the remand extensions are written by police officers in the court itself, and judges, often magistrates, extend the remands by merely signing these orders without seeing the accused.

Illegal? Yes. But, every lawyer who attends trial courts in India knows that this occurs in routine. For these ‘rights’ unabashedly denied each and every day, none in India has ever expressed concern. The Supreme Court is yet to utter a word about this since its constitution, though every judge in the apex court knows this is occurring in India on a daily basis. The esteemed judges would much rather spend their time lamenting about a ‘lack of resources.’

Anomalies like this are omnipresent in India's jurisprudential landscape, between theory and practice. For instance, the practice of torture is widespread and consistent in India. In 1981, the Supreme Court said "...othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights" Kishore Singh (petitioner) against State of Rajastan (respondents) [AIR 1981 SC 625]. Torture is a crime committed by the state against its subject. So far, no government has been criminally held liable by the court, though the Court has repeated its observations over the years.

The D.K. Basu (petitioner) against State of West Bengal (respondent), [1997 (1) SCC 416] was a watershed decision concerning custodial violence. In the judgment, the Apex Court categorically spelled out the procedures to be followed by the police at the time of arrest, detention, and questioning of a person.

Civil society organisations, since then, have brought hundreds of cases before the Indian courts illustrating violation of the so-called 'D.K. Basu guidelines'. The Asian Human Rights Commission (AHRC), for example, has brought at least 432 cases before the Indian courts of custodial violence during the past eight years. In not a single case, have the country's courts felt the same vigour and sense of honour, which they have now found in the case of the Italian marines, to pull up state governments for torturing its own citizens and make them answerable for contempt.

Neither have the courts India bothered, ever, about the number of 'influential' criminals, walking free all over the country, even though charges have been framed, but trials adjourned without end. At the last count, India has more than half of its elected representatives accused of the most serious criminal charges. Absence of conviction is the technical ground that has allowed suspected criminals to continue contesting elections under the Representation of the People Act, 1951.

The exercise of constitutional writ must not be selective. It is unfortunate, however, that the hurt that the Court has felt, for the right reasons, to intervene in the Italians' case, is missing in cases that affect millions upon millions of Indians.

ends

© Scoop Media