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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Legal Article

‘The Court of Last Resort’

It has been felt for quite some time that injustice is being done to a large number of people who have been languishing in jail either as undertrials whose cases have not been heard for several years, or who have unjustly remained incarcerated, either because:

(1) The police have fabricated evidence against them, or

(2) For want of proper legal assistance, or

(3) Who have had to spend many years in jail and ultimately found innocent by the court.

Many of such persons in jail belong to minorities who have been accused only on suspicion and on pre-conceived notions that all persons of that community are terrorists. Whenever a bomb blast or such other terrorist event occurs, the police often is unable to trace out the real culprit, and yet it has to show that it has solved the crime. Consequently very often the police rushes to implicate and charge a large number of youths of that minority community on mere suspicion, whose bail application is very often rejected and consequently they have to spend several years in jail. In such matters either the police often fabricates evidence against them to justify their acts and secure conviction, or the cases result in acquittal of innocent accused persons after they have spent several years in jail. A classic case is that of a young boy Aamir who was 17 years of age when arrested, and who spent 14 years in jail after which he was found innocent.

In the 6 th April, 2013 issue of Tehelka there is an excellent article by Shoma Chaudhry entitled , 'The Fight for Muslims is fundamental for the survival of Democracy'. In this article she has stated that over the past few years journalists have documented hundreds of stories of innocent Muslims languishing in jail after being brutally tortured on flimsy or false charges. Each case hides hair raising stories about prejudice, incompetence and deliberate mala fide , and also mentions stories of pain, destroyed lives and hollowed futures.

Shoma writes that innocent Muslims have been jailed with impunity in India over the past decade because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be arrested, and their names aired in the media as 'Masterminds'. Their guilt was assumed, it did not need to be proved.

Since 2001 a terrible maxim had seeped into the Indian mainstream: All Muslims may not be terrorists, but all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the illusion of security and "action taken". Those who raised hard questions were scorned as 'anti-national'.

In my interview with Karan Thapar on 'Devil's Advocate' I said that within hours of a terrorist attack in India many media channels start showing that an email or SMS has been received from 'Indian Mujahideen' or 'Jaish-e-Muhammad' or 'Harkat-ul-Jihad', or some other organization having a Muslim name, claiming responsibility. Now an email or SMS can be sent by any mischievous person. But by showing this on TV screens, and the next day in print, subtle message is sent that all Muslims are terrorists, and thus the entire community is demonized.

All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses to rent even when acquitted, their families are ostracized, and sisters find themselves unmarriageable because their brothers have been branded as terrorists.

Unless this cycle of hate is now reversed we are heading for terrible times, for injustice breeds hatred and violence.

Criminal investigation is a science, but unfortunately in our country the police usually is not trained in scientific investigation nor does it have the equipment for the same. If we read the stories of Sherlock Holmes, we see how Holmes investigates a crime by promptly going on the spot and studying the fingerprints, blood stains, soil, ashes, handwriting etc. before coming to a scientific conclusion. In recent times it has been shown on Discovery Channel, etc., how the American police investigates a crime. The police reaches the spot and collects the traces of the material there including blood stains, fingerprints, ashes, fibres, etc. The fingerprints are fed into a computer which is connected to a national computer network, which can often lead to the discovery of the criminal. The blood stains, etc., are taken to a laboratory where they are tested for DNA, etc., Even a few microscopic fibres can lead to the discovery of the culprit by testing them in a laboratory and thus finding out his identity.

All this is usually absent in our police set up and yet the police has to show that it has solved the crime, otherwise the investigating officer fears suspension for incompetence. Consequently he either implicates people on suspicion or resorts to the time honoured method of torture or third degree methods to obtain a confession.

All this is leading to injustice on a large scale. We are not blaming the courts for this because they are handicapped due to the enormous burden of litigation for which cases linger on for years and years. Also, unfortunately now-a-days the real eye witnesses are afraid to give evidence out of fear of threats or harassment, and hence the police often fabricates evidence.

The result of all this is that in our country gross injustice is often done, particularly to minorities, and the time has now come when this great wrong must be set right. Our country is a country of great diversity and therefore no community must be made to feel that it is being selectively victimised.

This being the situation it has been decided by a group of people headed by Justice Markandey Katju, former Judge, Supreme Court of India, and the eminent lawyer Mr. Majeed Menon, the film producer and social activist Mr. Mahesh Bhatt, Mr. Asif Azmi and other like-minded people to setup an organisation called 'The Court of Last Resort'.

The concept of this idea has come from an organisation founded way back in 1948 by the eminent American criminal lawyer Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book 'The Court of Last Resort' , Erle Stanley Gardner mentions about the organisation which he set up consisting mainly of lawyers, who took up cases of persons whom they thought were wrongly accused or unjustly convicted. The organisation which we are starting in India will bear the same name ' The Court of Last Resort' and have its headquarters in New Delhi, with Justice Katju as its patron and will have State units in all States of India. Such state units will be authorised to appoint district units.

'The Court of Last Resort' will have the following objects:

(1) To ask the concerned authorities in various states about details of prisoners languishing in jails, particularly those who have been in jail for long periods, including both undertrials and convicts. The R.T.I. Act can be used in this connection.

(2) To examine the cases of persons, whether of our own accord, or on the representation of someone, and find out whether there has been injustice in their case, either by the delay in holding the trial, or by a wrong conviction, and do the needful in this connection, including applying for bail.

(3) To apply for pardon, respite, suspension or reduction of sentence to the President or Governor as the case may be.

(4) To create awareness in the public about this gross injustice which is being done to a large number of people.

(5) To educate the police about this state of affairs and change its mentality.

(6) To approach the other concerned authorities with the aim of rectifying this injustice to a large section of people.

(7) To do such other acts as may be necessary for this purpose.

The organisation appeals to the like-minded people among the public, particularly to lawyers, retired judges, academicians, students, social activists, professionals, media persons , etc., to help and get associated with this enterprise.

The formal inauguration of this body will be done through a press conference in the near future.

It is made clear that this is being done for no personal benefit to any of us but purely because of our sincere desire that justice should be done to everybody, and no section of the society is made to feel that it is being discriminated against.

-------------------------------
*   The Author practices law and can be reached at anilmalhotra1960@gmail.com. He has books “Indians, NRIs and Law” (2011), “India, NRIs and the Law” (2009) and “Acting for Non-Resident Indian Clients” (2005) to his credit.
 
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