Deeksh*tulu Saheb: With due respect, Sir, don’t you now see why we have a Justice System that operates in similar manner as putting the cart before the horse? There’s no rationale in either setting. Certainly, we can handle the complex but how does one deal with issues that are confusing, DELIBERATELY confusing, and deliberately confusing for all?
In this maze of disorder exists an inviting doorway that offers a way out; call it ‘bribery’, extortion, reconciliation, or compromise. If the defendant has some measure of culpability or is being overcome be exigent pressure, a compromise would morally, ethically (and legally) be the way to go. But, if not, ‘Compromise’ would remain a euphemism for succumbing to successful opportunism.
Please bear with me as I explain my stance (with a preface that might enhance the general knowledge of some readers):
I know of one individual who works as a “Professional Witness” for the local Police. He also works part-time lending his “witness skills” in civil cases (land disputes, etc.). You can say he has an honest job doing dishonest work! In the West, an unpublicized haven for opportunism, there are known to be some shrewd individuals that have been making quite a lucrative living out of Tort claims against insurance companies, food franchises, chain stores, etc. It is common knowledge that the larger conglomerates set aside a small part of their operational budget to accommodate the likelihood of frivolous law suits. Corporate policy usually favors an out-of-court compromise in preference to a full-fledged court battle – unless damages claimed are exceptionally steep, there exists a likelihood of escalation to a class action scenario, adverse publicity that needs to be decisively challenged in a public forum, etc. Aside from such contingencies that hold propensity for a ‘live or die’-type predicament, a ‘Compromise’ (referred to as an ‘out-of-court settlement’) is quite common.
In criminal proceedings also, out-of-court settlements over there are the norm. But the ‘compromise’ being worked at is NEVER between the defendant and victim in private but the defendant and the State (which is represented by the Prosecutor). This is called “Plea Bargaining”. At this point in the proceedings, no trial has yet commenced. But the defendant is offered a ‘less severe’ punishment if he accepts a verdict of “Guilt” now rather than the higher level of punishment if he decides to go to trial and be found “Guilty” beyond a reasonable doubt (or, conversely, be found “Not Guilty” and acquitted).
Prior to reaching the “Plea Bargaining”/Compromise stage of the criminal process, all essential ‘homework’ and investigation will have been done. A determination will have already been made on the sufficiency (and tenability) of evidence, witnesses, etc. and the likelihood of a successful conviction in the event the defendant was resolute to claim his right to trail. This transaction is an out-of-court affair but above board, transparent, recorded, and documented. It formalizes an agreement between the defendant and the State solemnized by the judge as his pronouncement of disposition.
But here, in Indian courts, the system is generally such that it allows for the collapse of a potentially good case by its ridiculously tolerant outlook on witnesses turning “hostile”. Calling a “Spade”, a spade, an appropriate and factual term of reference for these “Hostile Witnesses” would be Liar, Opportunist, Mercenary, Extortionist, Deceitful, Prostitute, Rascal, …. Because, chances are, everyone involved has formed a reasonably accurate opinion for such witnesses recanting their earlier testimony. (Unless, of course, the cause is an honest lapse of memory).
Deeksh*tulu Saheb: during your impressive 36 years’ of practise and the multitude of cases you came across where witnesses turned “hostile” (or were found to be deliberately falsifying testimony), just how many were actually prosecuted for perjury? Zero? In the 36 years of your practise, how many government officials (viz., Police, Prosecutors, allied witnesses in aggravation, e.g., Forensic Personnel, Laboratory staff, etc.) were found to be lying on the stand? And of these, how many were prosecuted for perjury? Zero again? But even when there is brouhaha about someone (usually a public figure) being taken to task for perjury, how many were ever convicted for it?
Doesn’t this tell you something? It tells me in no uncertain terms that even though IPC 193 provides punishment for perjury for up to 7 years, some courts seem to relate to perjury on their very own personal, liberal standards as though saying, “It’s OK to lie in my court because I also am a lier”. So what of our system of ‘checks and balances’ that purports to represent a search for truth? Does this gloomy picture mean that our judiciary, lawyers, staff, police, “the System” is corrupt? (So just leave it at that and do the best we can to bribe our way out thru’ a “compromise”?).
NOT NECESSARILY!
I believe long before the case escalates to the Trial stage and the examining of prospective witnesses that may go “hostile”, there should be in place an effective mechanism for screening cases to determine appropriateness for prosecution. Ideally this should commence at the Police Station level where a preliminary post F.I.R. investigation would influence the decision whether to pursue with criminal charges or not. But since it is widely acknowledged that our bandits in uniform resort to their very own private agenda and in-house standards to decide either on supporting, or exaggerating, or creating a criminal case, it would defeat the purpose to involve the police in decisions that require objectivity, impartiality, and truthfulness as they generally happen to be the principals directly as well as vicariously responsible for contaminating the court process.
This function which requires responsible execution can only be entrusted to persons with integrity. A good place (and in good faith!) to start would be the Public Prosecutor. As I had previously advised a young aspiring Club member to the PP position, “The Public Prosecutor’s job is a noble undertaking (but unfortunately tainted by the corrupt practices of some profiteers in that profession) that compromise the dignity of the mission. Ethical duty of a prosecutor is an extraordinary obligation that exceeds that imposed upon defense counsel. A Prosecutor is held to a higher standard than that imposed on other lawyers because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. The prosecuting officer occupies a semi-judicial position; that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, IT IS EQUALLY HIS DUTY TO PROTECT THE INNOCENT AND TO REFRAIN FROM PROSECUTING THOSE AGAINST WHOM NO SUFFICIENT OR REASONABLE PROOFS CAN BE FOUND. In the course of his duties he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be produced. Prosecutors must always keep in mind that their duty is to seek justice, not merely to convict.”
You will realize a significant percentage of trial cases where witnesses turned hostile were cases that really lacked sufficiency in admissible evidence or were, in truth, only pursued as a ‘gamble’ or due to some extraneous pressure. I believe that if we could influence an effective pre-prosecution screening system in place, it would mercifully relieve the courts of wasted time and effort, which, thus far has been accessing it’s only practical exit out of this maze: that is thru’ the (often opportunistic) compromise option. This quandary has thus far been a viable avenue for corruption and opportunism in our justice system which, by its easy stance on Perjury, is actually encouraging the practise and tainting the judicial process.
