Lessons from Jessica Lal

The controversial verdict in the Jessica Lal case reveals problems in the Indian judiciary that have been ignored thus far.

THE recent acquittal of nine persons who stood trial for the 1999 murder of model Jessica Lal at a Delhi restaurant and the presence of about hundred persons is a shocker beyond words. The outpouring of anguish is natural and understandable. The media have done well in highlighting the salient issues, although I did get the slight feeling that it was overkill, which could sometimes be counterproductive. I am happy that Sonia Gandhi, the Congress president and UPA chairperson, has moved the government to demand a suitable amendment to the Criminal Procedure Code (Cr.P.C.) so that witnesses are deterred from turning hostile at the trial as they did in this case.

Only political heavyweights like Sonia Gandhi can bring about much needed legal changes in a country that has always needed a monstrous happening to shake it out of its slumber. First it was Best Bakery, and it is now Jessica Lal. While the Supreme Court helped the cause of justice in the first case, the might of public opinion seems to be helping to bring justice for the Jessica murder. It is, however, too soon to assume that those who killed the young girl will ultimately be punished. A long battle is on the cards. The influential politicians behind the accused will try every trick to get their wards off the hook.

It is with mixed feelings that I greet the Delhi Police Commissioner's decision to register a case to look into charges of fabrication and suppression of evidence in this matter. I thought the decision was unnecessary, since the issue of faulty investigation has gone to the notice of the Delhi High Court. A lot will depend on the High Court's final orders on the next course of action. Both possibilities - a retrial or fresh investigation - should reveal enough material on the quality of the first investigation, especially its shortcomings. When this happens, there will be an opportunity to look into police conduct in the form of either a departmental inquiry or a criminal investigation. Therefore, the case now registered by the Delhi Police to probe the misdeeds during the first investigation would be premature and could actually harm the fresh trial or new investigation that may take place.

On the Jessica episode, several thoughts cross my mind. Jessica received high-voltage publicity because her murder happened in the country's capital, where the media captured the outrage and the judicial fiasco in vivid detail. If her death had happened elsewhere, publicity would have been short-lived, provided it was even reported to the police. The visual media's obsession with anything that takes place in Delhi or Mumbai is sickening, to say the least. If a similar murder had taken place in Kolkata or Chennai, or in any other city, it is doubtful that it would have received such massive television coverage. Public opinion would not have crystallised itself as solidly as it has in the case of Jessica Lal.

My gut feeling is that from time to time, young girls are quietly done away with by influential sex maniacs or those who run sex rackets in this country and their crime hardly comes to the police or judicial notice. It is common knowledge that inter-State gangs that exploit women leave no trace. We have precious little knowledge of how these gangs work. This is because in our country, `intelligence' is a word that is synonymous only with snooping on political rivals of those in the ruling party. Investigating crime hardly appeals to those in law enforcement who are in the business of collecting intelligence. Unless we upgrade and formalise criminal intelligence tasks, a lot of despicable crime will go unreported, especially in the rural areas.

Why did Jessica fail in court? As usual, the whipping post is the police. The criticism against the police is often unjustified. In this particular case, however, criticism seems well merited, judging from the fact that even as the investigation was proceeding, a Joint Commissioner in the Delhi Police complained in writing of the irregularities committed by the Investigation Officer and the need for closer supervision of the case. This has come to light just recently and the alleged inaction by then Commissioner Ajai Raj Sharma has been roundly criticised.

He explained on television why the complaint was not acted upon. His defence was that if he had taken cognizance of the complaint then and there, such action would have gone in favour of the accused. If the Joint Commissioner's complaint was received after the charge-sheet had been filed in court, Sharma's stand is correct. If, however, the complaint was submitted at any point before that, the explanation for inaction is untenable.

The Sessions Judge, S.L. Bhayana, who heard the case and demolished the police version of it, has also rightly drawn flak. There are many who believe that instead of mechanically disbelieving the police, he could have been more proactive in ferreting out the truth. He gives the impression that he was guided by the fact that our criminal justice system is adversarial and not inquisitorial, and therefore he was well within his right to go strictly by the facts placed before him by the prosecution and nothing else.

The Judge possibly believed that if said facts were inconsistent and did not offer conclusive proof of the guilt of the accused, he was bound to give the benefit of the doubt to the accused. Prima facie, such a strictly judicial perception seems unexceptionable.

However, persons well versed with the Cr.P.C. would know that Section 311 invests in the Judge the prerogative to summon suo motu more material witnesses in addition to those produced by the prosecution. This can be done at any stage of the trial. The Judge has also the authority to recall and re-examine any person already examined.

Section 311 is a potent weapon in the hands of a Judge who is confronted with a number of witnesses reneging on their previous statements to the police. Public interest demanded that the trial Judge strain every nerve of the law to arrive at the truth. All reports indicate that Judge Bhayana did not appreciate the significance of the grave crime that had taken place and his own moral responsibility to arrive at the truth. Viewed in this light, the failure is not only that of the police but of the trial Judge as well.

There is a popular demand for a fresh trial. I do not think that would help, because a new trial Judge would again have to depend upon the same material placed by the prosecution before Judge Bhayana. This is not going to promote the cause of justice. I would instead opt for a fresh investigation. This can be ordered by the High Court under Section 482 of the Cr.P.C which lays down the inherent powers of the court. Only such a course of action could throw up more credible evidence on the culpability or otherwise of those already accused. It could also bring to light the role played by any other person in committing the crime.

What lessons does the Jessica Lal fiasco teach us? There is definitely a case for intensifying efforts to upgrade the quality of policing. There is at the same time a need to improve judicial performance. For instance, the Jessica trial took nearly seven years to get completed. Hardly anyone has commented on this. Will it be unreasonable to demand that this should be taken up by the Delhi High Court as a kind of case study to find out why there was such delay?

The public would like to satisfy themselves that the failure was not because of judicial lethargy, but rather because of several extraneous factors such as police indifference and wanton delaying tactics on the part of the defence. The current popular perception is that judicial accountability is an unrealisable dream. It is for the judiciary to prove this perception wrong.