It is a reminder that neither our investigators nor prosecutors are independent agents

By KTS Tulsi

KTS Tulsi

The ATR is an attempt to legitimise vioence. The government cannot be unaware that criminal action invariably begins on mere suspicion

Liberty and democracy become unholy when their hands are dyed with innocent blood, said Mohandas Karamchand Gandhi, in his book, Non Violence In Peace And War in 1946

The government in its Action Taken Report (ATR) has sought to undervalue the report of a seasoned criminal law expert and a former judge of the Supreme Court, who chose his expressions so carefully so as to mention that certain leaders were very probably involved, while against others there was credible evidence and were responsible. The basis of the ATR, for not taking action against the leader who is ‘very probably’ involved, being an indication that the commission itself was not absolutely sure of his involvement, is a dubious argument for saving one of their own tribe. The ATR is, in fact an attempt to legitimise violence against certain persons, for the government cannot be unaware that criminal action invariably begins from a mere suspicion and even at the stage of filing of a chargesheet, it is nothing more than a strong suspicion.

It is indeed a sad commentary on our Criminal Justice System — even after 21 years of the carnage, we are still dribbling with words, for setting the criminal justice machinery into motion. If this is not proof of the failure of criminal justice, what is? The very basis of criminal justice system is to provide hope to the victims that the guilty would be punished. If the State were to continue to twiddle its thumbs even after nine reports of various Commissions and Inquiries, where is the hope for justice?
It is indeed a tragic reminder that neither our investigating agencies nor the prosecutors are independent agents in search of truth and justice. A State, which indulges in a cover-up of mass-murders, loses its legitimacy to govern. The government will do well to remember that nothing rankles more in a human heart than a brooding sense of injustice. Sickness, we can put up with, but injustice makes people want to pull things down. What stands between civilised governance and anarchy is the fond hope of justice. Let us hope that the government will not snuff out that hope, for what is at stake is liberty and democracy.

I am not unmindful of the fact that convictions, in cases of riots, are far too difficult. I am also not unmindful of the fact that the standards of the Indian Judicial System are exacting, and the quality of investigation is too poor to stand their scrutiny. But what we are confronted with, in connection with the 1984 riots, is not the failure of the criminal justice machinery but the roadblocks put in its way, even for initiating investigation and trial.

In India conviction rate for ipc offences is amongst the lowest in the world. If we take the number of persons arrested and the percentage of those who are convicted it was only about 6.4 percent in 2000, and according to the recent report of Judicial and Crime Statistics on the Internet the conviction rate could have slipped to as low as 1 percent. As if the low rate of conviction was not sufficient to demoralise the honest, the report of Justice Nanavati has been rejected to embolden the unscrupulous. A direct consequence of the low rate of conviction is that a number of persons acquitted of horrendous crimes are returning to the legislatures flaunting acquittals. In the UP legislature, 205 mlas out of 403 have been through the process of law reserved for criminals. The latest election in Maharashtra in October 2004 found as many as 91 candidates facing criminal charges being put up by Shiv Sena, 45 by bjp, 31 by ncp and 30 by Congress.

Another consequence of low rate of conviction is the sudden spurt in economic offences. Illegitimate trade worth Rs 90,000 crore is carried out in pirated films, music, automobile parts and branded goods. The size of the total counterfeit industry is estimated to be Rs 46,600 crore. Corruption has galloped and is believed to have entered all fields, the virus having spread from top to bottom. Education, health, judiciary, police all seem to reek of corruption.

Instead of making an endeavour to stem the rot and strengthen the criminal justice system the government has shaken people’s confidence by introducing a new low in the history of criminal justice where even “credible material of very probable” nature is not deemed sufficient for setting the criminal law in motion.

The rule of law has become a casualty in thousands of these cases. Even the clichéd phrase, “let the law take its own course”, is losing its efficacy and conviction. I am hoping that Parliament will be able to persuade this government into changing its stance and accepting the Justice Nanavati report in toto.