Freedom from fear and injustice—what Indians are waiting for

A Supreme Court bench headed by Justice P.N. Bhagwati was shocked in the late 1970s to find that a young boy in Bihar, accused of stealing cabbages from a farmer, had spent 15 years in prison and was still incarcerated. He had nobody to move for bail or plead his case in court. The maximum punishment prescribed for the punishment was, if memory serves this writer, six months.

I am aware of this case because it was the Free Legal Aid Committee, Jamshedpur—with which I was briefly associated—that had approached the apex court.

Those were the days when Justice Bhagwati was pioneering, indeed encouraging, public interest litigation (PIL). Not everyone could afford to appeal against injustice and reach out to the Supreme Court. Therefore, any ‘friend of society’ could write to the court and apprise it of gross miscarriages of justice. Even a postcard sent to the court would get addressed.

In this particular case, the apex court ordered the states to compile a list of under-trial prisoners who had already served the maximum punishment in jail. When the list was produced, after a brief hearing the court ordered their release.

Nobody knows if all of them in all the states were indeed released. But we do know that even after all these years, there would be thousands of such undertrials still languishing in prison. Even more importantly, all these years later, there is no way of finding out the number of such prisoners. The states do not, as a matter of routine, compile the list; and if they do, the lists are not reflected in the media, presumably because the NCRB (National Crimes Record Bureau) annual reports do not have them.

With the Union government now pushing for reforms in the criminal justice system, this is the right time to ask if Indian citizens are as vulnerable and helpless in getting justice as they were in the 1970s.

To my mind at least, the answer is resoundingly in the negative.

If anything, us citizens are all suspects in the eyes of the government and law-enforcing agencies. Ask the couple from West Bengal who spent three weeks in prison after Bengaluru Police picked them up on suspicion of being Bangladeshis. They were lucky because many other Indians from West Bengal who had gone down South in search of work were rounded up from various states like cattle and released at the international border. This couple at least were able to receive help and prove that they were indeed Indians.

In the late 1990s, the Lucknow Central Jail had released a number of prisoners who had undergone imprisonment for 15 years and more. All of them were accused of murder and there was little sympathy for them. But now that they had served the maximum punishment and possibly because of their ‘good behaviour’, they were being sent off. The prison superintendent thoughtfully organised a bhajan sandhya (hymnal evening) and invited bhajan singer Anup Jalota to sing for them. Local newspapers were requested to cover the event.

A Times of India reporter, Mohit Dubey, went to cover the event and managed to speak to eight or nine of the convicts who were being freed the next morning. Do you regret committing the crime, he asked them. Dubey returned from the assignment shaken, when all of them bar one denied having committed the crime for which they were convicted and had paid for with some of the best, most productive years of their lives. Many of them had wept at their loss. Some said they had been framed. Some were victims of property and family feuds. Some were singled out due to rivalries in the village. A few could not follow the court proceedings and were too intimidated and confused to reply to questions put to them in court. The news reporter was disturbed enough to seek permission to write up the story the next day instead.

Has the situation improved? Those who follow media reports know the answer.

In the last century, it was rare for police in one state to arrest people from other states. If they were looking for someone, they would share details with the police of the relevant state and ask them to round up the suspect. But ask Jignesh Mevani, the Gujarat Congress MLA, how he felt when Assam Police flew to Gujarat and arrested him over a frivolous case. Worse, in Assam, a woman constable was made to file a complaint alleging that Mevani had molested her in the vehicle, which had several of her own policemen colleagues present. Or indeed, ask Siddique Kappan, the journalist from Kerala, detained by UP police and charged with terrorist activities.

There is no dearth of cases in which the terror accused have been acquitted for want of evidence by the courts—only after spending harrowing decades in detention. Hundreds of Kashmiris continue to languish in prisons in Uttar Pradesh on charges that one suspects can never be proven in court.

When Union home minister Amit Shah, therefore, claims that the government has taken a revolutionary step forward to free the criminal justice system from the colonial yoke, the question that he needs to address is this: Have the Indian citizens been empowered?

Will the reforms guarantee that Pune Police will not travel to Ranchi in Jharkhand, out of the blue, and arrest someone like the late Father Stan Swamy? While the three new bills introduced in Parliament to replace the Indian Penal Code, the Code of Criminal Procedure (popularly the CrPC) and the Indian Evidence Act claim to have placed great reliance on ‘forensic science’ to produce evidence, it is an irony that the government has maintained a stony silence in response to American and Canadian forensic labs maintaining that the police planted digital evidence in the computers of several accused in the Bhima–Koregaon case.

In this digital age, what are the safeguards for citizens against such digital manipulation? While the police can employ hackers and computer wizards for such plants, what protection do we citizens have?

Indeed, the age-old practices of the police securing confessions from suspects by torture and intimidation and producing these as evidence is hardly rare. There was a time not too long ago that if police stations were raided, they would yield a large number of illegal weapons, which were shown as ‘recoveries’ from time to time to frame suspects. Nor was the role of ‘professional police witnesses’ a state secret. Can the home minister say with some conviction that the government has already cleaned its own house and put a stop to these ‘colonial-era practices'?

Finally, the citizen today has no relief against wrongful confinement, custodial death or exaggerated and fake charges. Umar Khalid has spent the last three years in jail for a 'public speech' that he gave and the ‘evidence’ that he attended a 'meeting' before the Delhi riots. Will the criminal justice system of any other country, even Pakistan or Israel, allow the state to get away with this? Can the state be sued for wrongful confinement and the citizen expect compensation?

Simplifying the criminal justice system for the prosecution and the state is small consolation to citizens at the receiving end of a ruthless police and state. The system has no recompense to offer for the summary ‘bulldozer justice’ that can demolish houses, shops, shanties, lives and livelihoods without due process.

What is needed is for citizens, lawyers and activists to discuss how the criminal justice system can be truly made more effective and humane—how injustice can be minimised and how powers invested in the state and the police are to be bound up in restraint, accountability and transparency.