Many controversial issues fundamental to criminal justice remain unsolved. In a recent book, a leading British lawyer offers interesting insights into the system in the modern context.
DHANANJOY CHATTERJEE of West Bengal who raped and killed a 14-year-old Kolkata girl in 1990 and had been sentenced to death in 1991 is very much in the news. His second mercy petition to the President of India was rejected a few days ago. (His first one had suffered the same fate in 1994.) This does not come as a surprise. When news of this petition became public for the first time recently, there was a strident demand from many that Dhananjoy did not deserve any sympathy whatsoever, given the gravity of his crime. I believe, therefore, the President's decision will be widely welcomed.
One cannot at the same time ignore a small group of artists and literary personalities who have been critical of the rejection and say that this is a setback to the movement against capital punishment. Theirs may be a feeble voice. It is still one that makes a valid point: Should the Hammurabi Code of "an eye for an eye, and a tooth for a tooth" continue to influence our penal law? As I write this, there are reports that Dhananjoy will again take the matter to the Supreme Court in what is perhaps a last bid to save himself. When he does so, the group that is vocal about doing away with the death penalty could again become active. The outcome of all this should be interesting because this is an issue that has been debated for ages without any conclusion. The Dhananjoy episode should also remind us that there are many similar controversial issues fundamental to criminal justice that remain unresolved, and it is this lack of consensus that has possibly affected the system's response to the overall requirements of crime and punishment. I want to devote this column to this live subject.
A few days ago I stumbled on an interesting book published recently in the United Kingdom that deals with the whole gamut of significant criminal justice issues germane to all countries that seek to uphold the rule of law. Just Law: The changing face of justice and why it matters to us all (Chatto and Windus 2004) is an amazingly lucid and candid analysis of the strengths and weaknesses of the system in its modern context. Written with verve by a leading British lawyer and a Life Peer, Baroness Helena Kennedy, Q.C., who is also Chair of the British Council and Member of the Bar Association's International Task Force on Terrorism, the book makes many provocative statements that could kindle our thought processes. Eve was framed: Women and British Justice (Vintage Books. 1993) is another work of the Baroness that had received acclaim not long ago. Taken together, the two books shed light on the contentious areas that agitate both victims and offenders equally.
IN simplest of terms, the chief objective of the criminal justice system is to punish the perpetrator of a crime and offer restitution to the victim. This process has to be necessarily governed by rules and regulations if there has to be no miscarriage of justice. It is also agreed that when an innocent suspect is punished wrongly for a crime that he did not commit, or a proven offender is let off the hook on flimsy grounds, there is certainly a miscarriage of justice. The English jurisprudence however places a greater emphasis on the need to protect the innocent who may have been mistakenly arraigned in court. In this process, it is just possible, as we know, many guilty persons could go scot-free. Hailed as the "nation's most favourite Portia", Baroness Kennedy cites many cases from the U.K. of persons incarcerated for several years and released later following the unearthing of a piece of evidence discovered after the trial or one that was already available but had been ignored during the trial.
Two such instances from the U.K. could shock generations to come. Stefan Kiszco, a mentally-deranged person, had confessed to the sexual murder of an 11-year-old girl in 1975 and was jailed for 16 years. After a long battle by his counsel, he was released from prison in 1992 on the basis of a vital piece of evidence suppressed earlier by the police and was belatedly brought to judicial notice. What overturned the conviction was that the swabs taken from the victim showed active sperms, whereas Stefan had a zero sperm count! Unfortunately, Stefan died within a year of his release. Nothing could be more pathetic than this.
In another case, a hapless woman from Cheshire, Judith Ward was convicted in 1974 for aiding the Irish Republican Army's (IRA) terrorism. She spent 17 years in prison for crimes she did not commit. Actually, because of her mental disability, which was not disclosed in her defence, she had made "fanciful claims" of involvement in some IRA bombings investigated by the police. This was her undoing. She was released in May 1992, once her illness was diagnosed. Incidentally, the Ward case was one of several others - the Guildford Four and Birmingham Six amongst them - of the early 1990s in which there had been such abominable harassment of innocent individuals. When Kennedy argues with great conviction that no upsurge of crime or a terrorist wave should persuade us to tinker with the traditional principles of evidence, it is very difficult to disagree with her. Of course, there are several caveats to this empathy with her, to which I shall come later.
Kennedy catalogues several moves in the U.K. and elsewhere which she believes are knee-jerk reactions to the modern crime scene. A strong votary of human rights, she is appalled by them. Leading her list is the internment without trial of non-citizens suspected of terrorist acts. Several countries have resorted to this tactic for political reasons or under pressure from an apprehensive public. The sharp differences between a bureaucracy that is held accountable for unabated terrorist violence and those who tout the civil liberties cause remain as stark as ever. It is easy to go overboard here, impelled purely by emotions. Civilised and mature opinion leaders and legislators would, however, opt for a balance between firm action against those who unleash terror and a genuine respect for individual rights to freedom and the due processes of law. The tragedy of our times is that anyone even mildly advocating this kind of sobriety is hooted down as a dreamy theorist who is best ignored. The debate on Prevention of Terrorism Act (POTA) in our country is relevant here.
Kennedy is equally distressed at other developments such as retrial of the acquitted, jettisoning of the safeguards available all along to the accused (such as placing before the court facts of previous conviction and shifting the burden of proving innocence to the accused), imposing limitations on a suspect's right to silence and the elimination of judicial review in asylum cases. Kennedy comes out as no opponent of reforms. She refuses to be labelled as an obscurantist. This makes her stance credible. Her plea is that any agenda for reform and modernisation should begin with identifying the non-negotiables and coming to an agreement over them. Her fear is that without such a first step what we will be left with could be a crude tinkering of the timeworn processes by political masters for dubious ends. ("Law matters. And if it is not too important to be left to lawyers, it is certainly too important to be left to politicians, whose desire for short-term gains makes them cavalier with long-term interest.")
Does deterrence pay? This is a hackneyed question that is raised generally in debates over the quantum of penalties, and especially whenever a case like that of Dhananjoy is brought to the fore. Several studies have decisively proved that no sentence is sufficiently forbidding for a determined criminal scouting for opportunities. Nevertheless, the clamour for enhancing penalties becomes stronger by the day. The politician grabs every chance to join the chorus so that he is not seen as weak on crime. Alongside this, one has to contend with the concern of a public that is often fed with misinformation.
Kennedy cites the British Crime Survey 2003 that had definitely established a drop in crime. Contrary to what was warranted by this trend, there has been a hype in the public's demand in the country for tougher law enforcement and stiffer penalties. All this has led to the various government exercises that aim at shortening judicial processes so that quicker convictions of accused persons were obtained. Kennedy sees a real danger here to civil liberties. Her note of caution is difficult for us to spurn, especially when she argues rationally thus: " The safeguards for accused are there for good reason. Each generation must learn why the system is balanced the way it is." This may not be music to the ears of those who honestly believe that the existing procedures of law are heavily weighted in favour of the accused. Ultimately `balance' or the `Golden Mean' is the prescription that should guide us in all our endeavours to alter the manner in which criminal justice agencies now function.
BARONESS KENNEDY is at her devastating best when she talks of the gender bias in the system. While it is difficult to endorse all that she says, she deserves a hearing. There are two strong sentiments on the subject. The first of these is emphatic about police callousness while investigating rapes and other crimes against women. The poor conviction rate in courts is often cited in support of this charge. There is abundant truth in this stand, although there are a few mitigating circumstances such as a lack of cooperation from unwilling witnesses, including the complainant. Several rulings, holding that an uncorroborated but credible testimony of a woman victim is enough to support a conviction, do not seem to have helped.
The buck does not stop with the police. Those in the courtroom - what Kennedy looks upon as a male bastion until recently - especially the defence counsel, are equally insensitive. The kind of questions posed to a victim during cross-examination could be most painful. While a counsel may not be faulted because he is paid to defend the accused by whatever means he chooses, Kennedy's ire is more against some judges who are permissive beyond belief. An in camera trial is no remedy. It is universal experience that a number of women deliberately abstain from reporting violence on them partly because of the fear of exposing themselves to tendentious and extremely damaging questioning by the accused's counsel. It is no doubt possible to curtail such questioning by law. But then, the judge has still enormous discretion that may not always be applied in favour of the victim. Kennedy is disappointed that the House of Lords has chosen to make inroads into the restrictions that had been codified earlier to protect victims against indecent questions. Her specific reference is to a ruling that when an accused takes the position that he believed the complainant had given her consent, the latter may be questioned about her sexual past, if such past explains why he thought she was consenting. This seems involuted logic and an excess in favour of an accused who is being hauled up for one of the most heinous of crimes.
Kennedy's view is that such rulings contribute to a further dilution of the "optimism that legal reform would relegate injustice to the past." I detect a note of contradiction when at the same time she pleads elsewhere for affording every opportunity to the accused to defend himself. There is a need for great caution because of a few instances of false complaints. We face a dilemma here. We have to match the general belief that no woman would want to make a false allegation with a widely felt need to build safeguards in the system to protect wrongly prosecuted persons.
There is the second sentiment in favour of women in jail who, more than their male counterparts, are often considered victims of circumstances. While strong research into the background of incarcerated women is called for, it is true that many women prisoners had themselves been victims at home or their workplace. Such victimisation may not have directly led to their imprisonment. Nevertheless there is possibly a need to make an allowance for this factor while imposing a sentence. Another phenomenon is that many women prisoners have dependent children who need to be looked after when their mothers serve out their term. Kennedy makes a valid observation here. A judge passing a sentence on mothers will have to study the impact of the separation on the children. This is unexceptionable. I can only recall the compassion shown to one of the accused sentenced in the Rajiv Gandhi assassination case. This is indeed criminal justice with a human touch!
I found Baroness Kennedy eminently readable. Her perspectives of the problems that haunt those who come into contact with processes of justice are progressive and educative. We need many more such treatises if only to inform public debate that very often lacks focus and clarity from an absence of accurate data.