Lynch mob catharsis is no justice

Published: Wed, 06/01/2011 - 09:18

In the last few months, some seriously rich and powerful people have been sent to Tihar Jail on charges of corruption, forgery and defrauding the government. Let's not forget that these are allegations whose veracity has to be proved through painstaking investigations with formidable evidence as well as a trial in a court of law. At the time of writing, about a dozen odd well-connected individuals involved in what is infamously called the Rs 1,79,000 crore 2G scam are cooling their heels in Delhi's Tihar Jail. A dozen more, including Congress MP and disgraced Commonwealth Games boss, Suresh Kalmadi, are also in Tihar to lend meaning to the Supreme Court's campaign against the corrupt - rich and powerful individuals who hitherto had the reputation of escaping the long arms of the law. 

The apex court's pro-activism against the corrupt who have allegedly shortchanged or looted the exchequer has drawn obvious applause from the corruption-weary Indian middle classes. Although the losses in the 2G spectrum sale were highlighted in a Comptroller and Auditor General (CAG) report and subsequently explained away as "presumptive" by the new Union telecom minister and even Prime Minister Manmohan Singh, the Supreme Court displayed great alacrity in overseeing the investigations into this scandal. It directed the Central Bureau of Investigation (CBI), Enforcement Directorate and Income Tax Department to dig deeper into the 2G sale and how it benefited a clutch of businessmen, politicians and bureaucrats. 

As the apex court began to crack the whip, CBI was compelled to arrest the telecom minister A Raja, his close aide RK Chandolia and former telecom secretary Siddharth Behuria. All of them were sent to Tihar on CBI's submission that they could not be allowed to roam free as they could tamper with evidence or influence witnesses. 

Daughter of DMK heavyweight Karunanidhi (till recently Tamil Nadu CM and key UPA ally), Kanimozhi, and businessmen like Shahid Balwa, Vinod Goenka and Sanjay Chandra were also sent to jail on the same ground that the charges against them were serious. The judges of the lower court were using a provision of the IPC whereby they can authorise detention upto 90 days, if a person has committed a crime in which the punishment is 10 years or more. 

The arrests of fat cats may satisfy the collective lust of the middle class seeking public lynching, but it also raises fundamental questions about the law of arrests and the concern it represents for those who want to humanise India's criminal justice system. Those, who worry about the large number of pre-trial prisoners that animate the country's jails. Most of them are abjectly powerless, poor, completely outside the ambit of legal access or social justice. Many of them are Dalits, adivasis and minorities, who suffer grave injustice or are routinely falsely charged.
Earlier, money and political power were seen as the passwords for getting out of a legal mess, but recent judicial activism has complicated matters. Police Commission reports show that there is little hope for an ordinary person if his/her name appears in an FIR. He could be arrested and thereby faced with humiliation, and loss of self-dignity and social status. The Police Commission of 2000 showed that 42 per cent of the expenditure in jail was on those prisoners who should not have been there in the first place. Almost 60 per cent of the arrests were unjustified. 

Our legal system is based on colonial laws. It can take a leaf from the changes that have been brought in the British legal system, where a convict has to be charged within hours, unlike here, where the chargesheet signifying the end of police investigations has to be filed within three months. Indeed, the 'accused' can stay behind bars for years before s/he is actually convicted. 

The truth is, many undertrials in India end up spending much more tragic time in jail than what the punishment of their crime really merits (witness the Godhra conviction). Only in totalitarian, autocratic and poor countries does one see this growing bulge of pre-trial detainees. 

In modern societies, the accused get bail and a quick trial as a right. Take the case of IMF chief Dominique Strauss Kahn, who is facing rape charges. He got bail in three days and his trial is going to begin soon. The Supreme Court has initiated the process of a quick trial in 2G, but the government and the judiciary need to take a hard look at reforming the arrest laws and protecting ordinary people from the wrath of a colonial police force.

Editor of Delhi's Hardnews magazine and author of Bad Money Bad Politics- the untold story of Hawala scandal.

Read more stories by Sanjay Kapoor

This story is from print issue of HardNews