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Democracy and the courts

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Democracy and the courts

What can we do to introduce reforms in India’s judicial system to avoid prosecution of innocents? What is the role of media?

Last week in the United States, President Donald Trump threatened to release a memo written by the Republicans that accused the FBI of abusing its powers. It blames the FBI and the judiciary of using a Democratic party-funded report to obtain a warrant that gave permission to spy on an aide to Trump. The Democrats immediately raised an alarm, asking the President not to use the memo as a mere pretext to fire the special counsel investigating an alleged Russian involvement in President Trump’s campaign in the US election. In response, President Trump, of course, denied any such linkage.

Anywhere in the world, a large part of democracy’s commitment to justice is meted out by the state through the judiciary and the country’s premier investigative agencies. But is the supremacy of investigative agencies, in cases of dispute with elected members in Government, incompatible with the democratic system of governance? Further, if the judiciary or its premier investigative agencies are not effective, then democracy’s commitment is perceived as a mere abstraction, leading to a dangerous deficit of public trust in governance.

It is, therefore, that for a democracy to function well, the necessity is two-fold — one, it is important for a democracy to have an independent and effective judicial system; two, the judiciary must command public trust.

While in the US, the question is about the President questioning the FBI’s credibility to secure his political power, in India, the issue often revolves around individual rights squashed between the troubled dance between the judiciary and democracy. This dance is up on stage for show every now and then, whereas some other times, it merely stamps over individual rights silently. The situations in the US and India are entirely different, yet both raise questions regarding the state of the judiciary and investigative agencies in the largest and one of the oldest democracies respectively.

The 2G spectrum case was an alleged scam dating back to 2008, involving politicians and Government officials under the Congress-led UPA coalition Government in India, and one that was taken up by the political party in the Opposition. In fact, corruption allegations in 2G spectrum allotment, coal mine allocation, and hosting the Commonwealth Games by the UPA Government were important factors that led to its massive defeat in the 2014 Lok Sabha Elections.

But to the amazement of us all, the CBI court on December 21, 2017, declared no evidence to prosecute the accused and acquitted all. The scam tracked by the media for nine years and one that featured repetitively in Prime Minister Narendra Modi’s election campaign, we learnt, was not a scam after all. If the accused in this case are indeed not guilty, then we can only wonder at the harassment as well as repetitional and financial damage caused by our judiciary, investigative agencies, and the media, to these individuals.

A few months ago, around the time that I gave birth to our first child, the courts pronounced their judgement on the Aarushi Talwar and Hemraj double murder case. Lest we forget, in 2008, when 14-year-old Aarushi Talwar and her family’s 45-year-old live-in domestic worker were found murdered in Noida, the police had failed to secure the crime scene, leading to a botched-up investigation. Later, the police considered Aarushi’s parents — Dr Rajesh Talwar and Nupur Talwar — as the prime suspects. As a mother-to-be, I cringed at the very thought of a parent murdering their child. 

Indeed, the Talwars’ family and friends said that the police were framing the couple to cover up their own inefficient investigation. The case was then transferred to the CBI, which suspected the Talwars’ assistant and two domestic servants. But the CBI was again accused of using dubious methods to extract a confession from them, and yet all three men were released because the CBI failed to find any solid evidence against them.

In 2009, a new team at the CBI recommended closing the case due to lack of evidence, named Rajesh Talwar as the sole suspect based on circumstantial evidence, but refused to charge him as there was still no hard evidence. The parents opposed the closure as well as the CBI’s suspicion on Rajesh. Subsequently, a special CBI court rejected the CBI’s claim that there was not enough evidence, and ordered proceedings against the Talwars. In November 2013, the couple was convicted and sentenced to life imprisonment. But the Talwars challenged the decision in the Allahabad High Court, which finally acquitted them four years later on October 12, 2017.

There can be no words suitable enough to describe the harrowing experience that the Talwars must have gone through. An erroneous investigation by the CBI and injustice meted out by the courts had turned them into murderers of their own child, in the public eye.

When erroneous verdicts as in the Aarushi Talwar murder case are passed by the courts or when individuals were tried for the 2G case for years on the basis of public perceptions, then we wonder how many innocents in India have been prosecuted with no basis? How many such cases do not hit the headlines?

Two months after our child was born, which was the soonest that I could be up on my feet, I organised a public discussion around this issue. With the help of some corporate funding, I organised an evening of music, art, and conversation in Delhi that made us reflect on the state of justice in our country. Music activist Tritha Sinha sang about social injustice and compared the Indian democracy to a fish market. Olivia Fraser Dalrymple’s art on canvas depicted purity of speech and mind, and was the backdrop on stage to a power-packed panel of the foremost intellectuals, and leading lawyers in India — Karuna Nundy, Tanveer Mir Ahmed, Akhil Sibal — discussed if we can trust the premier investigative bodies of our country to reveal the truth. Tanveer was the defence counsel in the Aarushi Talwar and Hemraj double murder case and spoke about how the media had entered the crime scene and had blown up the entire case. In a democracy, is perception at times greater than reality? What is the role of media in ensuring justice to individuals? The conversation drew upon lessons learnt in the 2G case — that an alleged scam might not be a scam after all. 

A public conversation is not enough. Writing about the issue in a national newspaper is hardly sufficient either. Because a few such cases of erroneous judgement surface above many more that condemn individuals who have done no wrong. What can we do to introduce reforms in India’s judicial system to avoid such prosecution of innocents?

Miniya is the author of Indian Instincts: Essays on Freedom and Equality in India, Penguin Random House (2018), and the CEO of Sustain Labs Paris, the world’s first sustainability incubator. Email: miniya@labsparis.com  




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