Restore people’s faith in justice system
by K.N. Bhat, Sr Advocate , Supreme Court of India IN THE TRIBUNE , CHANDIGARH
Strange is the state of our laws. If a woman is molested in most parts of India the maximum punishment prescribed is two years; in Andhra Pradesh since 1991 for the same offence the punishment will be a minimum sentence of five years RI, extendable up to seven years. In Madhya Pradesh since 2004 this offence is punishable with an imprisonment up to 10 years. In Orissa after the year 1995 the offence is non-bailable —only a court and not a police officer can grant bail to an arrested accused. In the rest of India, molesting a woman is a bailable offence. That, however, was not the reason for the Chandigarh magistrate to readily grant bail to Rathore after pronouncing him guilty — in cases where sentence is short, bail is granted as a rule.
The long life of 19 years of this case had two phases — the first one started on August 15, 1990, when a written complaint was addressed to the Home Secretary of Haryana. The Chief Minister promptly ordered the Director-General of Police to investigate. The DGP on September 3 found that the allegations were true and recommended registration of the case. The successor DGP, who assumed office in March ’91, recommended departmental proceedings in addition. And then in July ’91 Mr Bhajan Lal became the Chief Minister. Rathore apparently had a gala time thereafter — Ruchika’s teen-aged brother was brazenly hounded, arrested and tortured in connection with many false theft cases. On December 28 Ruchika succumbed to the poison she consumed — may be the wolf was still hounding her. In January 1994 the Bhajan Lal government withdrew all charges against Rathore and he got promoted; may be some Presidential medals followed.
Phase II started in 1997 when, after a long wait, Ruchika’s friend Aradhana’s parents could get a copy of the August 1990 report of the DG. They moved the Punjab and Haryana High Court who directed the CBI to investigate the case. After the Supreme Court upheld that order in 1999 the CBI stepped in and filed a charge sheet in January 2000. That charge sheet did accuse Rathore of abetting suicide also. Rathore succeeded in getting that charge deleted by the High Court and also in delaying the trial till 2007. In the meanwhile Rathore retired in 2002.
Abetting suicide is a difficult charge to prove, but the CBI seems to have not noticed Section 511 of the Penal Code which makes an attempt to commit an offence also an offence with serious consequences of harsh punishment. Was not Rathore attempting to rape a minor girl? Surely, he was not probing her person to assess her fitness to play tennis. If only Aradhana was late by another minute or two in returning, he would have had his kill. The inference that Rathore is guilty of attempting to commit rape flows from the established facts. The punishment could be “one half of the imprisonment for life”
The case calls for effective remedies — immediate as well as ultimate. As an immediate remedy, the High Court in Chandigarh may be moved with a prayer for ordering enhancement of the sentence and retrial in exercise of its power of revision or even under the writ jurisdiction – also on the additional charge of attempting to commit rape. Separate proceedings may be initiated for starting false prosecution, including wrongful detention of Ruchika’s brother. And the possibility of proceeding against his pension benefits should be examined simultaneously. The public will surely help to set up a fund to meet the expenses.
Cases like Ruchika, BMW or Jessica Lall repeatedly remind us about the inadequacies of our criminal law administration. But the reaction is like the feeling of dejection one gets at a crematorium — it lasts until one comes out.
The glaring shortcoming of our system is that at the end of the trial, truth is a certain casualty — the trial does not, nor is it intended to, bring out the truth. It is concerned only with the evidence to prove that the accused is found guilty beyond reasonable doubt. In case of doubt, the accused gets acquitted even where the general public lives with a different opinion.
In an ideal criminal justice delivery system, the investigation must lead to firmly establishing the truth and consequently punish the guilty. In our system, the narrow purpose of investigation by the police is to identify the culprit and ensure his conviction. The Justice Malimath Committee, appointed by the Ministry of Home Affairs, Government of India, on reforms of the criminal justice system, submitted its report in March 2003. Among the suggestions made by the committee was to emphasise that “quest for truth shall be the foundation of the criminal justice system”, and, therefore, “it shall be the duty of every functionary of the criminal justice system and everyone associated with it in the administration of justice, to actively pursue the quest for truth.” This may be the approach for a long term solution to the ills of our criminal justice system.
The idea is borrowed from the inquisitorial system prevailing in the continent, in contrast to the adversarial system of the common law countries, including India. Under the European system, broadly-speaking, certain classes of cases are entrusted to an investigating judge and the police personnel attached to the judiciary work under him. The judge, in the course of investigation, assumes a pro-active but impartial role and collects evidence for and against the prosecution. He builds up a dossier of all the material collected, which is aimed at finding out how exactly the crime had taken place and who committed it. The matter thereafter goes for trial before another judge. The accused has an opportunity of making submissions, but questioning of witnesses is done generally by the judge. Strict rules of evidence are not applicable in the continental system — even here — say evidence can be looked into. The “inner conscience” of the judge guides the course.
One thing is clear: no country has a perfect system in place. The Malimath Committee suggested some amendments to the Criminal Procedure Code within the disciplines of the guaranteed rights under the Constitution against testimonial compulsion. Indian criminal law practitioners opposed any change in the law to dilute the burden of proof being entirely on the prosecution. In today’s practice, all that is needed of a defence lawyer is to create a doubt about the prosecution story, which is not difficult if the police cooperates.
If the Ruchika tragedy were to take place in Europe, the entire course of the case, from the inception leading to the suicide of the victim and further harassment to the members of her family, would have all formed part of the investigation and trial unhampered by technicalities and permitting just one appeal on limited grounds.
Ruchika case has at once exposed the failures of our police, the executive, the press and the judiciary. The police failed to register a right case and prosecuted false cases; the executive protected and rewarded criminals; the media, which excels in “breaking news”, was mum throughout the decade; and the judiciary dilly dallied and awarded just a token sentence where the maximum permissible did not match the gravity of the guilt. Only Aradhana and her parents stand out.
In our country, the Rathores, the Nandas and the Sharmas repeatedly assert their “faith in the judiciary” — they have good reasons for that. It is high time to make efforts to win the faith of our people in our justice system.n
The writer is Senior Advocate, Supreme Court of India.