Why Manu Sharma Got Away With It
[UPDATE TO THIS POST FROM DECEMBER 2006: The prior ruling has been overturned, and Manu Sharma has now been found guilty. Most of my views on the problems in the Indian legal system remain -- this new ruling has happened in large part because of the popular outcry against the earlier not-guilty verdict.]
* * *
Contrary to what Somini Sengupta argues in today's New York Times, Manu Sharma's acquittal in the Jessica Lal murder case is not only about India's class hierarchy. In fact the rate of conviction in criminal cases in the Indian legal system is incredibly low across the board. If Manu Sharma had been a taxi driver, he still could have gotten off. (Yes, it would have been less likely, but it happens every day.)
There are severe flaws in the Indian Evidence Act of 1872. See especially Sections 25-29:
In short, the laws governing when confessions are valid are full of loopholes that were, in the Jessica Lal murder case, exploited by the defense. As I understand it, these protections of the defendant were introduced to reduce the prevalence of confessions produced by torture. But what the rule has done instead is make the standard of "relevance" too high. Even with a direct confession of guilt, the defendant can find a way to have it later thrown out through one or another loophole.
There are similar problems with the rules for Witnesses in the Indian Evidence Act -- so it's quite common to have witnesses withdraw their testimony, especially after money is deposited in a bank account somewhere for them. (There should be a word for such funds: testimoney.)
The entire Act is still the central text in Indian criminal law. It's been modified some over the years, but the footnotes on Helplinelaw don't have any modifications dated after 1951.
My sense is, it's time to throw out large sections of the code, and rebuild it along more modern lines. Maybe now that the politicians and the justice system are feeling the heat, there might be the willpower to seriously get this process rolling (though unfortunately all that is likely to happen is the formation of yet another committee).
Incidentally, the Indian Evidence Act is largely responsible for the mess of the Best Bakery Case (it's too easy for witnesses to change their testimony). Admittedly, the involvement of extremely unethical witnesses (Zaheera Sheikh) didn't help matters. It also explains why torture by police (see Maximum City) has become so routine and expected: the police know that suspects in custody aren't likely to be convicted, so they impose some of their own rough justice.
* * *
Another incidentally: unfortunately, I share most of a name ("Amardeep Singh Gill") with one of the witnesses who changed his testimony. Mr. Gill was also charged with tampering with and destroying evidence, and was acquitted alongside Manu Sharma. Feels a bit weird...
* * *
Contrary to what Somini Sengupta argues in today's New York Times, Manu Sharma's acquittal in the Jessica Lal murder case is not only about India's class hierarchy. In fact the rate of conviction in criminal cases in the Indian legal system is incredibly low across the board. If Manu Sharma had been a taxi driver, he still could have gotten off. (Yes, it would have been less likely, but it happens every day.)
There are severe flaws in the Indian Evidence Act of 1872. See especially Sections 25-29:
25. Confession to police officer not to be proved
No confession made to a police officer shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him
No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much of information received from accused may be proved:
Provided that when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether if amounts to a confessions or not, as relates distinctly to the fact thereby discovered, may be proved.
29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.
If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining, it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. (link)
In short, the laws governing when confessions are valid are full of loopholes that were, in the Jessica Lal murder case, exploited by the defense. As I understand it, these protections of the defendant were introduced to reduce the prevalence of confessions produced by torture. But what the rule has done instead is make the standard of "relevance" too high. Even with a direct confession of guilt, the defendant can find a way to have it later thrown out through one or another loophole.
There are similar problems with the rules for Witnesses in the Indian Evidence Act -- so it's quite common to have witnesses withdraw their testimony, especially after money is deposited in a bank account somewhere for them. (There should be a word for such funds: testimoney.)
The entire Act is still the central text in Indian criminal law. It's been modified some over the years, but the footnotes on Helplinelaw don't have any modifications dated after 1951.
My sense is, it's time to throw out large sections of the code, and rebuild it along more modern lines. Maybe now that the politicians and the justice system are feeling the heat, there might be the willpower to seriously get this process rolling (though unfortunately all that is likely to happen is the formation of yet another committee).
Incidentally, the Indian Evidence Act is largely responsible for the mess of the Best Bakery Case (it's too easy for witnesses to change their testimony). Admittedly, the involvement of extremely unethical witnesses (Zaheera Sheikh) didn't help matters. It also explains why torture by police (see Maximum City) has become so routine and expected: the police know that suspects in custody aren't likely to be convicted, so they impose some of their own rough justice.
* * *
Another incidentally: unfortunately, I share most of a name ("Amardeep Singh Gill") with one of the witnesses who changed his testimony. Mr. Gill was also charged with tampering with and destroying evidence, and was acquitted alongside Manu Sharma. Feels a bit weird...
6 Comments:
Excellent post, Amardeep. This is better than any article I have read in any of the Indian newspapers.
True, in recent times it has become more evident that culprits in India can get away with little or minimal effort. Although there is enough in the begining, hardly does it sustain. Remember the case of Manjunath which caught the media and public attention for several months and then finally we do not hear anything..
We should rewrite our laws...hopefully we will be able to convict the worst criminals if not all..
Excellent analysis, Amardeep. Must have taken a lot of research. This should be sent to every media outlet in India as an example of journalistic standards.
Sanjay
That was a nice one Amardeep. But acts such as POTA, TADA etc which had provisions for judicial acceptance of statements made before were police officers were objected Human Rights activists.
Damned if you do, and damned if you don't
The problem isn't with the acts as much as with those who are implementing them. The actual solution would be to free police from the political grip and give it an independent constitutional status like the Election Commission.
Delhi High Court hurriedly jailed Manu Sharma: Just for Media glare ?
Justice for Jessica lall was not only struggle of media or Sabrina lall as it is now projected. It was the people of India means us who has try to give our voices against "justice delayed, justice denied' in this case.
When this case had reached Delhi high court in April 2006 the ray of hopes raised in our eyes that Indian judiciary will use this opportunities to make a system for ordinary Indian who are facing "justice delayed, justice denied' in every sphere of their lives.
But all to Indian high judiciary, it has played in hands of Indian media glare and tried to decide case so hurriedly even ignoring basics of natural justice and lost that chance to evolve a system which would not only take care that "Justice delayed, justice denied" but will also keep "Justice hurried, Justice buried" in its mind.
When now even Saddam’s judicial trial is in question on natural justice grounds in a country with no human rights track records. Than In our nation which we consider as progressive democracy, this type of justice delivery is above common minds.
Now ordinary Indian feels cheated by media and Sabrina lall because he/she was told by these (Indian media and Sabrina) that fight for Jessica was for ordinary Indian.
All those who lit candles in India gate was ignored when Sabrina lall and Indian media celebrated their victory with opening of champagne bottles and making V sign.
Now all of us who fought for Jessica lall have high hope on Indian Supreme court to take it as opportunity and do some thing for common people of India which was lost by Delhi high Court under media Glare.
Delhi High Court hurriedly jailed Manu Sharma: Just for Media glare ?
Justice for Jessica lall was not only struggle of media or Sabrina lall as it is now projected. It was the people of India means us who has try to give our voices against "justice delayed, justice denied' in this case.
When this case had reached Delhi high court in April 2006 the ray of hopes raised in our eyes that Indian judiciary will use this opportunities to make a system for ordinary Indian who are facing "justice delayed, justice denied' in every sphere of their lives.
But all to Indian high judiciary, it has played in hands of Indian media glare and tried to decide case so hurriedly even ignoring basics of natural justice and lost that chance to evolve a system which would not only take care that "Justice delayed, justice denied" but will also keep "Justice hurried, Justice buried" in its mind.
When now even Saddam’s judicial trial is in question on natural justice grounds in a country with no human rights track records. Than In our nation which we consider as progressive democracy, this type of justice delivery is above common minds.
Now ordinary Indian feels cheated by media and Sabrina lall because he/she was told by these (Indian media and Sabrina) that fight for Jessica was for ordinary Indian.
All those who lit candles in India gate was ignored when Sabrina lall and Indian media celebrated their victory with opening of champagne bottles and making V sign.
Now all of us who fought for Jessica lall have high hope on Indian Supreme court to take it as opportunity and do some thing for common people of India which was lost by Delhi high Court under media Glare.
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