Truth, confessions and videotape

In our justice system due process is becoming the punishment

Posted online: Thursday, February 17, 2005
PRATAP BHANU MEHTA

Anara Gupta, beauty queen. S.A.R. Geelani, academic. Shankaracharya, spiritual leader. Vicky Thakur, suspected kidnapper. Jammu, Delhi, Chennai, Patna. Four lives, four professions, four cities, four tales in our justice system. The crimes they were accused of range from murder to things that should not even be a crime. Are they guilty or innocent? Whether or not they are has become irrelevant. Their legal status became a sideshow in a macabre drama, orchestrated by the police. If science exonerated Anara, as it apparently did in the first lab tests, we should not worry. There can always be another lab test. Confessions may not be judicially admissible. But the police can extract them from a Geelani or a Shankaracharya.

The Shankracharya may or may not be guilty. But police conduct in the case is certainly not above board: press leaks are legion and the strategy now seems to have moved away from concentrating on the original evidence to drowning the benighted pontiff in a fog of moral turpitude. Even those who are criticising the police are being taken in for questioning. Then there is the extraordinary case of Geelani, the man who has twice defied death. Everything about the latest attack on him remains murky. Many, including Geelani himself, suspect a police hand in the matter. Those who are predisposed against him feign a naivete and ask what possible motive the police could have to kill him at this point? Those who are convinced of his innocence cannot contemplate any other possibility. Well, we can always have the CBI find the truth. Which CBI? The very same one that turns cases on and off under political guidance? Anara’s case appears to have been nothing more than a venial police vendetta. And then there is the fate of Vicky Thakur, suspected of kidnapping Kisalaya. In all probability guilty. But like many, he will never have his day in court. Another suspect killed, like in those encounter killings where it is easier to bring death than justice.

Perhaps the courts will help us sort out the issues. But then we can always appeal any decision. The extent of bias in courts of law is a debatable matter. But isn’t acceptance of court decisions itself becoming a function of our politics? We are angry with the courts when politicians are let off the hook, when alleged perpetrators of riots are exonerated on technicalities. Some applaud the court when it exonerates Geelani, others think it has gone soft on terrorism. The very idea of guilt or innocence, or of truth or falsehood, that lies beyond politics and prejudice and has become suspect. We don’t believe it, because we don’t believe that our public institutions will deliver these determinations impartially. Courts and Confessions, Videos and Investigations, Facts and Depositions, Commissions and Evidence are opportunities for obfuscation rather than sources of clarity.

This crisis of credibility has created a vacuum: motives can be freely uncovered, loopholes can be found in any theory and facts can be created. Just recall Tehelka investigations and their aftermath. The loop of truth, lies and videotape got so circuitous that we stopped caring. In this melange of postmodernism, what matters is what you can get away with. Information is an instrument in a propaganda war, not a means to truth.

Even judicial commissions can now apparently produce rival versions of the truth, leaving the citizens more bewildered. The bewilderment produces two sentiments, both dangerous for democracy. In some it produces a sense of entitlement to whatever you want to believe. When in doubt might as well go with your predispositions. Since no institution has the credibility to refute them, you might as well consider yourself entitled to them. Ironically, the police can now itself become a victim of this disposition. We are now free to pronounce the police guilty or innocent before the facts are in! Others are reconciled to uncertainty. Who really knows? We throw up our hands. This is itself a dangerous symptom in a demoracy, because it lets prejudices go unchecked, facts remain unverified. A corrosive skepticism is not a healthy prelude to uncovering the truth, it simply lets the prejudiced get away with their feigned certainties. It signals the death of outrage.

But most of all, what the four cases named above produce is an overpowering sense of vulnerability. You need not have any empathy with the accused to wonder: should you happen to be accused at some point, what will be your fate? Who will draw the line between guilt and innocence? Between fabrication and reality? Will it be trial by public opinion, with the police orchestrating what evidence gets out and what does not? But even more urgently: when will the investigation shade over into persecution? When will the objective be determination of the truth? Or will the objective be to break the accused? Or will it be harassment? What is a CBI investigation really about? Innocent or Guilty, the police will have the power to scar your life. They may not always do it, but they often have. Now they will get away with it, not because they use force, but because we are too uncertain to care or to believe.

There is a myth that lawlessness has increased because rates of conviction in India are low. This is a myth because it assumes that punishment has something to do with conviction. We are moving to a justice system, where in subtle and not so subtle forms, punishment can be meted out to you even when you have not been convicted. Arundhati Roy’s political judgement may not always be spot on, but her insight into the justice system deserves to be immortalised. In India, we do not get punishment after due process. Due process is the punishment. After all, aren’t there more than seven million arrests a year, a thousand undertrials in prison who have already been there more than five years? And what about the scourge of custodial deaths, a phenomenon every civilised police force has managed to abolish. Perhaps Pappu Yadav is an apt symbol of the inversion of values that corrosive skepticism allows: the jail as a secure rest house, freedom as fraught with danger, as Geelani has found out. At whose discretion we get justice, who knows.