Jessica Lal : A case of Indian Realism


 To many who study India, it has become a tad trite to describe this complex nation-state as one that is filled with contradictions. Attuned observers know that what India has accomplished during its fifty- plus years of independence is nothing short of astounding. As serious, if not more so of a problem, but one that has received passing attention by most scholars, is the inefficiency of the country’s judicial system. We all know about the judgement of Jessica lal’s murder case has come as a closure of something. Dozens of people witnessed the killing inspite of that all the nine high profile accused walked off like free birds. With efforts of media and her family members, people have become aware about misuse of power by politicians, bureaucrats and public outrage has build up across the country over the acquittal of all the nine accused. 

Jessica lal was a model in New Delhi, who was working as a celebrity barmaid at a crowded socialite party when she was shot dead on 29 April 1999. Dozens of witnesses pointed to Manu Sharma, the son of vinod Sharma, a wealthy congress politician in Haryana, as a murderer. In the ensuring trial, and a number of others were acquitted on 21 February 2006. Following intense media and public pressure, the prosecution appealed and the Delhi high court conducted proceedings on a fast track with daily hearings over 25 days. The lower court judgments was found guilty of having murdered Jessica lal. He was sentenced to life imprisonment on 20 December 2006.

During the summer of 1999, leading socialite bina ramani had been organizing “Thursday special” nights, at her newly opened “tamarind court” restaurant, at qutub colonnade, a refurbished haveli overlooking the qutub minar in mehrauli.

On 29 April 1999, it was the seventh and last Thursday Special of the season; also being celebrated was the foreign visit of Bina Ramani’s Canadian husband Georges Mailhot, for a period of six months. Though the restaurant was yet to receive its liquor license, drinks could be bought through discreetly marked ‘QC’ coupons, and on that night, several models and friends were serving drinks at the ‘Once Upon A Time’ bar, including Jessica Lal, Bina Ramani’s daughter Malini Ramani, friends shavan munshi, and others.

Manu Sharma along with amrinder singh gill, a general manager of coca-cola bottling unit in new Delhi, alok khanna, a colleague of amrinder, and vikas yadav, a son of  rajya sabha member, d.p.yadav  reached tamarind court at11:15 pm. As it was busy night, the drinks were soon over, at about 2 a.m. manu Sharma asked for a drink , which Jessica refused; he then tried to offer a thousand rupees, which see refused as well. Though there are many versions of what happened next, sometime soon, the inebriated and enraged manu Sharma shot at Jessica twice at point blank range ,the first bullet hitting the ceiling. The second one proved to be fatal, as it hit Jessica.

Then on 3rd August1999, delhi police filed the charge sheet in the court of metropolitan magistrate, where manu Sharma was named the main accused charged under section 302, 201, 120(b) and 212 of indian penal code and sections 27,54 and 59 of arms act. While other accused, like Vikas Yadav, Coca-Cola Company officials Alok Khanna and Amardeep Singh Gill (destroying evidence of the case and conspiracy); were all charged variously under sections 120(b), 302, 201 and 212 of the IPC (for giving shelter to the accused and destroying evidence).

The case went up for trial in August 1999. Four of the witnesses who had initially said they had seen the murder happen eventually turned hostile. Shayan munshi , a model and friend who was serving drinks beside Jessica Lall, changed his story completely; as for earlier testimony recorded with the police, he said that the writing was in Hindi, a language he was not familiar with, and it should be repudiated. Also, it appears that the cartridges used in the murder were altered. Although the gun was never recovered, these cartridges were for some reason sent for forensic evaluation, where it turned out that they had been fired from different weapons. This led to a further weakening of the prosecution’s case.

After extensive hearings with nearly a hundred witnesses, a Delhi trial court headed by Additional Sessions Judge S. L. Bhayana, acquitted 9 accused in Jessica Lall Murder case, on 21 February 2006. Those acquitted were, Manu Sharma,Vikas Yadav, Manu’s uncle Shyam Sundar Sharma, Amardeep Singh Gill and Alok Khanna, both former executives of a multinational soft drinks company, cricketer Yuvraj Singh’s father Yograj Singh, Harvinder Chopra, Vikas Gill and Raja Chopra. The judgment faulted the police for deciding on the accused first and then collecting evidence against him, instead of letting the evidence lead them to the murderer. Since the prosecution had failed to establish guilt beyond doubt, all nine accused were acquitted.

After the verdict many experts pointed fingers at the flaws in the Indian Evidence Act of 1872, especially Sections 25-29: No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Though, the clauses were initially added for the protection of the defendants from giving confession under police torture, it was later exploited by many a guilty defendants as well, as in this case, where many a witnesses withdrew their testimony, after first giving it to the police during interrogation.

After an immense uproar, hundreds of thousands e-mailed and sms–ed  their outraged on petitions forwarded by media channels and newspapers to the president and other seeking remedies for the alleged miscarriage of justice. On 25 March 2006, the Delhi High Court admitted an appeal by the police against the Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and eight others and restraining them from leaving the country. This was not a re-trial, but an appeal based on evidence already marshalled in the lower court.

On 19 April 2010, the Supreme Court of India has approved the life sentence for the guilty. The two judge bench upholding the judgement of the delhi high court stated that, “The prosecution has proved beyond reasonable doubt the presence of Manu Sharma at the site of the offence”.

As we can see inspite of  all its success, India’s democracy is at risk of becoming de-legitimized because of increasing lack of faith many Indians have in the judicial process. Yet the problem is that  in the democracy, the judiciary is constituted to serve as the counter-majoritarian protector of minority interests. Now that the courts are also seen by many as a futile forum  in which to bring about social change, it is a little wonder why those who are aware of the turmoil within the Indian legal system fear that this great democratic experiment is encountering one of its biggest crises to date.

 

RELEVANT CASES

There are many such incidents which have taken place, just like Jessica lal in our Indian legal system. One such incident is priyadarshini mattoo case. Priyadarshini matto ) was a 25 year old law student who was found raped and murdered at her house in new delhi on January 23, 1996. On October 17, 2006, the Delhi High Court found Santosh Kumar Singh guilty on both counts of rape and murder and on October 30 of the same year sentenced him to death. On October 6, 2010, the supreme court of india commuted the death sentence to life imprisonment. Santosh Kumar Singh, the son of a Police Inspector-General, had earlier been acquitted by a trial court in 1999, and the High Court decision was widely perceived in india as a landmark reversal and a measure of the force of media pressure in democratic setup. This decision went in favor because the facts were not presented correctly in the lower court. The intense media spotlight also led to an accelerated trial, unprecedented in the tangled Indian court system.

The acquittal of Santosh Singh in 1999 had led to a massive public outcry and the investigating agency CBI, under considerable pressure, challenged the judgment in the delhi high court on February 29, 2000. Public pressure mounted greatly after an acquittal verdict in the Jessica case, where a number of accused including politician’s son manu sharma were released despite the murder taking place in a high-society bar in the presence of dozens of people. The case is one of several in India that highlight the ineffectiveness of traditional criminal law system, especially when it comes to high profile perpetrators, including the manu sharma acquittals.

Another incidence which also show the mockery of our judicial system is nitish katara case. nitish katara was a 24 year old indian business executive in delhi, who was murdered in the early hours of February 17, 2002, by vikas yadav the son of influential criminal-politician d.p. yadav. Nitish had recently graduated from the Institute of Management Technology, Ghaziabad, where, he had fallen in love with his classmate, bharti yadav, sister of Vikas. The trial court held that Nitish’s murder was an honour kiling because the family did not approve their relationship. Vikas and Vishal Yadav were later found guilty by the trial Court and awarded life sentence on 30 May 2008.

Vikas and Bharti Yadav’s father, D. P. Yadav, is a noted criminal-politician, the “unrivalled don of western Uttar Pradesh”. Before entering politics, D. P. Yadav had racked up nine murder charges, and was implicated in a bootlegged liquor sale which killed 350 people in the early 1990s. Since 1989, he has served several terms as minister in the state government with mulayam singh yadav. In 2004, he became a member of the Indian Parliament under the bharatiya janata party but such was the ensuing scandal that the party threw him out within daysMost recently, he narrowly won the uttar Pradesh assembly elections,2007 from sahaswan (margin of 109 in 114,000 votes cast). Bharti’s mother, Umlesh Yadav, is also a state legislator, representing neighbouring bisauli.

The Yadav family never liked Bharti’s liaison, and Nitish had received threats several times. However, he was an idealist, and believed in “standing up to injustice”.On the night of 17 February 2002, Nitish and Bharti were attending a common friend’s wedding, where Bharti’s brother, Vikas and a cousin were present as well. From there, Nitish was taken for a drive by Bharti’s brother Vikas and Vishal Yadav, and never returned. Nitish’s fatal mistake was that he agreed to go with them, apparently thinking that Vikas really wanted to talk and sort out the differences between them; he failed to sense that the hidden motive behind the drive was solely to end Bharti’s love tangles with him. Three days later, his body was found beside the highway; he had been battered to death with a hammer, diesel poured on him, and set aflame.

The ensuing trial followed the trajectory of many cases involving money and muscle power in India. A number of respectable witnesses, including key friends of both Nitish and Bharti, repudiated their initial testimony. However, owing to intense media scrutiny, and also the strength of the evidence, a conviction ensued.

Another incidence which shows how the Indian courts have realized about the importance of women in our society and also the change which is required in our law. In bodhisatwa gautam vs subhra chakraborty (1996) the supreme court awarded an interim compensation of  Rs 1000 per month to the victim of rape until her charges of rape are decided by the trial court. Justice saqhir ahmed observed that unfortunately, a women in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at hands of the men with  whom they, under the constitution “ enjoy equal status”. The court also further held that rape is a crime against basic human rights and is also violative of the  victim’s most cherished of the  fundamental rights, normally, the right to life contained in article 21.

Another such incidence which relate how are Indian courts works through giving decisions is through shriram food and fertilizers case. there was leakage of chlorine gas from the plant resulting in death of one person and causing hardships to workers and residents of locality. This was due to the negligence of the management  maintenance and operation of the caustic chlorine plant of the company. The matter was brought before the court through PIL.

Further the court held that” legal system of a developing nation cannot afford to subject itself to a distant rule which was developed at such a distant time when science and technology was not so developed”. It also held that application of exceptions to strict liability is inapplicable. The court held that when an industry is involved into hazardous or inherently dangerous activity, then it is absolutey liable in case any accident mishap. The court basically tried to held the difference between strict liability and absolute liability and how the courts give their decisions which are beneficial to the society.

Indian realism also tells us about how the court decides validity to law. Citing the example of suneel jaitely vs state of haryana , the reservation of 25 seats for  admission to m.b.b.s. and b.d.s. course for students who were educated from classed 1st to 8th  in common rural schools was held to be violative of article14 and invalid as the classification between the rural educated and urban educated students for this purpose was wholly arbitrated and irrational having no nexus to the object sought to be achieved of providing extra facilities to  students coming from schools to enter medical college. Therefore we can see that how decision making by the court is also the form of law making.

We also come to know that Indian realism contains some characteristics found in western democracies. But it is not so much that the rulings from the Indian courts have run contrary to the interests of democracy. Rather the time it  takes to receive a verdict is so long that most social policy movements opt not to engage in the legal  process. In effect,Such disregard for the judicial system, as we will discover, puts into question what role the rule of law plays within the Indian democratic society.

In the conclusion the judiciary must be the institution for redress when there is curtailment in the operation of those political processes ordinarily to be relied upon to protect minorities. There should be substantive changes to be made in both Indian civil and Indian criminal procedure codes. As already seen, the current codes allows for endless appeals in cases being continued for decades or simply never heard. In addition india desperately needs more judges and more physical courts. Finally, a more accountable system of alternative dispute resolution could provide structural assistance for those group that wish to resolve issues in a less adversarial, perhaps even more efficient manner


About PRABAL DIXIT

B.A. LL.B ( 1st YEAR) SYMBIOSIS LAW SCHOOL, NOIDA SYMBIOSIS INTERNATIONAL UNIVERSITY,PUNE

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